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Gerald Gouriet QC: Cross Border Hiring and the ‘Right to Roam’

We get Gouriet QC’s take on the much talked about cross-border activity and learn more about the “Right to Roam”. 

Summary: cross border hiring & localism “Cross border hiring” is a portmanteau expression covering a miscellany of different activities, some of which are lawfully undertaken, others unlawfully. There is no case law to the general effect that cross border hiring of PHV drivers is per se lawful; and PHV licences may be conditioned so as to prevent cross border hiring from undermining local licensing control. The ‘Right to Roam’ The licensing requirements of PHV drivers and their vehicles, and the exemptions therefrom, are different from those made of PHV operators. The so-called ‘right to roam’ (insofar as it is a right) applies to PHV drivers and vehicles – not operators. PHV drivers and vehicles Outside Greater London the owner of a vehicle may not use it as a private hire vehicle in a controlled district unless the vehicle is licensed under section 48 LGMPA 1976: section 46(1)(a). Nor may the vehicle be driven otherwise than by someone licensed under section 51: section 46(1)(b). It is also an offence for the owner of a vehicle to employ as a driver someone who is not so licensed: 46(1)(c). No offence under sections 46(1)(a), (b) or (c) is committed in respect of the use of a vehicle in controlled district A if a driver’s licence and a vehicle licence issued in controlled district B are in force: section 75(2). All three licences, however, (operator’s, driver’s and vehicle), must be issued by the same authority: Dittah v Birmingham City Council [1993] RTR 356. The so-called “right to roam” of PHV drivers and vehicles derives from section 75(2). The right is not unqualified: PHV drivers and vehicles may not ply for hire, and may only fulfil a booking accepted by an operator licensed by the same authority as licensed them: Dittah. PHV operators Section 80(1) LGMPA 1976 provides: “operate” means in the course of business to make provision for the invitation or acceptance of bookings for a private hire vehicle. An operator may only make provision for the invitation or acceptance of PHV bookings in the controlled district in which he is licensed: LGMPA section 46(1)(d), applying section 80, subsections (1) & (2). Section 75 of the LGMPA 1976 does not provide an exemption for operators (from section 46(1)(d)), equivalent to that which it provides for drivers and vehicles (from sections 46(1)(a), (b) & (c)). Thus, whilst drivers and vehicles may lawfully undertake journeys “which ultimately have no connection with the area in which they are licensed” (per Latham LJ in Shanks v North Tyneside BC [2001] LLR 706), lawful provision for the invitation or acceptance of bookings is anchored to the controlled district in which the operator is licensed. Unlawful provision for invitation of bookings by PHV drivers Whether or not provision has been made in breach of section 46(1)(d) is a question of fact. The following guidance emerges from the cases – 

“It is simply a question of asking, in common sense terms, whether there has been provision made in the controlled district for invitation or acceptance of bookings”: Kingston Upon Hull City Council v Wilson (1995) WL 1082181, per Buxton J.

“There could well be provision for invitation of bookings in one place and for acceptance in another”: East Staffordshire BC v Rendell (1995) WL 1084118, per Simon Brown LJ.

“As the authorities clearly show, the main question is not where the act of accepting any particular booking or bookings take place, but where the provision is made”: idem

“The determining factor is not whether any individual booking was accepted, let alone where it was accepted, but whether the person accused has in the area in question made provision for the invitation or acceptance of bookings in general”: Windsor and Maidenhead v Khan [1994] RTR 87, per McCullough J.

If a PHV operator makes arrangements for drivers in his fleet to go to remote areas (i.e. other than the area of the authority that licensed the operator/drivers/vehicles) it may well be that, on the facts of a particular case, he is unlawfully making provision for the invitation of PHV bookings. If he has organised dedicated parking areas and pick up points for his drivers, and the means to let the public know they are waiting there and available for hire, it may be difficult to conclude otherwise. Erosion of localism: revocation or refusal to renew licence Section 62(1) of the Local Government (Miscellaneous Provisions) Act 1976 give a licensing authority power to refuse to renew (or revoke) an operator’s licence on the grounds that 

he has committed an offence under the 1976 Act (or an immigration offence);

is otherwise not fit and proper to hold the licence;

there is a material change of circumstances: or

or any other reasonable cause.

Even in circumstances that are otherwise lawful, a PHV operator who knowingly sends drivers in his fleet to work in remote areas exclusively or predominantly, is vulnerable to having his licence revoked or refused renewal under section 62(1)(d) of the 1976 Act, on the ground that he undermines local licensing control. The threat to public safety (let alone the affront to local control) in the use of drivers who ‘shop’ to be licensed by authorities that demand only the lowest standards, so that they can work in an area where standards are higher but licences more difficult to obtain, is ample demonstration of “reasonable cause”. At least one PHV operator has been known to steer potential drivers to licensing authorities with minimal licensing criteria and low licensing fees. Erosion of localism: licence conditions The Courts have said that “the hallmark of the licensing regulatory regime is localism”[1], and that “that the authorities responsible for granting licences should have the authority to exercise full control” over “all vehicles and drivers being operated … within its area.” [2] In The Queen on the application of Delta Merseyside Limited and Uber Britannia Limited v Knowsley BC [2018] EWHC 757, Kerr said – “I refrain from expressing any view on the point, but I am fortified in my conclusion in this case by the consideration that, in principle, a condition on a licence could be imposed which, if otherwise lawful, would require a fit and proper person who is a licence holder to abide by whatever restrictions are contained within a condition that are considered reasonably necessary to meet any perceived erosion of localism in the governance of PHV licensing.” Conclusions

Although correction of the abuses of what may lawfully be done by way of cross border hiring may, as has frequently been said, require national legislative change, it is only necessary to enforce existing law to address some of the widespread concerns about unlawful cross border operations and the erosion of localism by minicab firms and their drivers. 

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