Civic Government (Scotland) Act 1982 s1

Report Licensing Panel 13 March 2013

SCOTTISH GOVERNMENT CONSULTATION TAXI AND PRIVATE HIRE CAR LICENSING – PROPOSALS FOR CHANGE

1. Purpose of Report 1.1 The Scottish Government has produced a consultation document on their proposals for change in relation to Taxi and Private Hire Licensing.

1.2 Dumfries and Galloway Council is the local Licensing Authority for activities licensed under the Civic Government (Scotland) Act 1982, including Taxi and Private Hire Vehicles, Taxi Drivers and Private Hire Drivers and Booking Offices.

1.3 The Members of the Licensing Panel are well aware of the issues involved with Civic Government Licensing and are therefore well placed to assist in forming a response to the Consultation Paper.

1.4 The report therefore sets out the main points in relation to background and the proposals contained within the Consultation Paper. The Appendix sets out the questions posed together with an officer response to assist discussion.

1.5 Responses should be submitted to the Scottish Government by 15 March 2013.

2. Recommendation Members are asked to agree a response for submission to the Scottish Government on their consultation “Taxi and Private Hire Licensing – Proposals for Change”.

3. Background 3.1. Dumfries and Galloway Council is the local Licensing Authority for a range of activities regulated by the Civic Government (Scotland) Act 1982 as amended.

3.2. These licensed activities include Taxi and Private Hire Licensing.

3.2.1 Each vehicle must be licensed either through a Taxi Operator’s Licence or a Private Hire Licence.

3.2.2. The difference between these two types of licence is that whereas the holder of each may undertake journeys which have been prebooked with the customer, only the holder of a Taxi Operator’s Licence may allow the vehicle to be used as a Taxi; a Taxi can be hailed in the street and can be plied for trade at the Council’s Taxi Stances.

3.2.2.1 The Licensing Authority has the power to divide its area into zones and to restrict the number of Taxis within that zone. There is no power currently to limit the number of Private Hire Vehicles. Taxi numbers within the Dumfries Zone are limited to 70 vehicles. There is no restriction in taxi numbers in the remainder of Dumfries and Galloway.

3.2.3 The licensed vehicle may only be driven by the holder of a current licence granted by the local licensing authority. Report Licensing Panel 13 March 2013

3.2.3.1 The holder of a Taxi Driver’s Licence may drive either a Taxi or a Private Hire Vehicle.

3.2.3.2 The holder of a Private Hire Driver’s licence may only drive a licensed Private Hire Vehicle.

3.2.4 The licensing of Booking Offices was introduced on 16 November 2009. The definition of the licensed activity is widely drawn:-

“the use of premises for the carrying on of a business which consists to any extent of the taking of bookings by any means of communication from members of the public for the hire of a relevant vehicle” (relevant vehicle is itself defined as “a licensed taxi or private hire vehicle”).

3.2.4.1 The licensing of booking offices presently only relates where the number of vehicles used for bookings is 4 or more.

4. Discussion/Main Proposals for Change 4.1. The Scottish Government’s Consultation Paper “Taxi and Private Car Hire Licensing – Proposals for Change” seeks to address perceived concerns relating to:-

 Administration and enforcement of the licensing system  Criminality within the trade,

with a view to providing “a taxi and private hire car licensing regime that is efficient and responsive to local needs and which can address legitimate concerns about the involvement of organised crime.”

4.2 Although the paper presents proposals an assurance is given that “our views are not fixed and we are committed to an open and productive discussion on these proposals”.

4.3 In addition areas are identified upon which the Scottish Government would seek information before offering any proposals.

4.4 Twelve proposals are put forward:-

1. Allow local authorities the option to restrict the number of private hire cars. 2. Allow local authorities to require training of private hire drivers, for example in knowledge of the area. 3. Convene a Working Group to provide updated, improved guidance on overprovision studies to support local authorities in conducting timely, cost- effective overprovision studies. 4. Ensure vehicles and drivers used on contract are included with the licensing regime. 5. Convene a Working Group to consider the creation of updated Licensing Conditions for taxi and private hire car drivers, vehicles and booking offices. 6. Remove the exclusion within the Booking Office Order of business with [fewer] than 4 cars and those with a non-physical “office” ie cover businesses run by mobile technology. 2 Report Licensing Panel 13 March 2013

7. Refocus the role of the police within the 1982 Act by mirroring the duty in the (alcohol) Licensing (Scotland) Act 2005 for police to respond within a given timeframe with specified information to the licensing authority. 8. Introduce licensing objectives to the Civic Government Licensing regime. 9. Produce guidance on the licence application process [which would] form part of the improved Best Practice Guidance for Licensing Authorities. 10.Require the applicant for the licence, whether operator, driver or booking office, to prove they are ‘fit and proper’ [persons to hold the licence for which application has been made]. 11.Support the developments of a licensing policy network. 12.Explore options to enhance enforcement, including potentially a statutory basis for licensing enforcement officer.

4.4.1 These proposals are supported by 29 questions. These questions form the Appendix to the report. Officers’ responses are included to assist with the discussion. Question 30 relates to any further information or views on Taxi and Private Hire Licensing issues which are not covered in the Consultation Paper.

4.5 Members may wish to be reminded that in December 2004 the Scottish Government (then termed “the Scottish Executive”) issued “A Report by The Task Group Set Up to Review the Licensing Provisions Contained in the Civic Government (Scotland) Act 1982”.

4.5.1 This report set down a list of recommended amendments including amendment to the Taxi and Private Hire provisions.

4.5.2 Certain of these recommendation have been implemented:-

 An applicant for a Taxi or Private Hire Driver’s Licence must now have held a full driving licence for the period of 12 months immediately preceding the date of application. This requirement previously was only for any period of 12 months.  A maximum fare review for taxis must now be completed, and not merely commenced, within each period of a maximum of 18 months.  The period to advise operators of the maximum fare review has been increased from 5 days to 7 days from the date the structure was fixed.  Trade organisations as well as operators are entitled to appeal against the terms of the reviewed maximum fare structure for Taxis.

4.5.3 However, certain of the recommendations of the Task Group have not been implemented including:-

 Consideration be given to a statutory process for transferring plates whether on death or incapacity of licenceholder or on sale of the business.  A minimum age for Taxi and Private Hire Drivers – the Task Group suggested 21 years of age.  Mandatory training for drivers on vehicle knowledge.

3 Report Licensing Panel 13 March 2013

 Medicals for drivers. The Task Group suggested a mandatory medical at the stage of first application, every 5 years between 45-65 and annual medical from 65 years of age.

4.5.4 Members may wish to consider these as potential issues to raise.

4.5.5 One issue which is unclear is the use of a motorcycle as a Private Hire Car. Although the word “car” is used within the legislation a “hire car” means a motor vehicle with a driver which is, with a view to profit, available for hire by the public for personal conveyance (Section 23). It seems infeasible that motorcycles require to be licensed in England and Wales (indeed the Department of Transport has recently issued Guidance to Licensing Authorities on “Licensing Motorcycles as Private Hire Vehicles”) but exempt from licensing in Scotland.

5 Governance Assurance 5.1 This report is based on existing legislation and the Scottish Government Consultation Paper.

5.2 The report is seeking a Members’ response to a Scottish Government consultation (“Taxis and Private Hire Car Licensing – Proposals for Change”). It was therefore not considered necessary to consult prior to submission of this report.

6. Impact Assessment As this report does not propose a change in policy, the formal adoption of a plan, policy or strategy it is not considered necessary to complete an impact assessment.

Author(s)

NAME DESIGNATION CONTACT DETAILS

Willie Taylor Service Manager 01387 245913 Ext 63363

Approved by

NAME DESIGNATION SIGNATURE

Alex Haswell Director Chief Executive Service

Appendix - Questionnaire

Appendix

Questions asked within Scottish Government’s Consultation Paper “Taxi and Private Hire Licensing – Proposals for Change”

1. Should local authorities have the power to restrict numbers of private hire cars?

Comments There must be a clear justifiable reason to restrict numbers. In the case of taxis this may be to avoid a situation where it becomes impossible for licensed taxi operators to provide a proper service due to an excessive number of licences. However, it cannot be ignored that the Law Commission last year produced and consulted upon “Reforming the Law of Taxi and Private Hire Services (Consultation Paper No 203)”. Although concerning a separate jurisdiction, many of the issues must bear comparison although apparently ignored by the present consultation. One of the distinctions suggested by the Law Commission was that a taxi fare was close to a monopoly situation. If the passenger wishes immediate service the first taxi will be taken. Private hire allows choice of level of charge and quality of vehicle as private hires are prebooked. The vehicle should not be using the road/street infrastructure unless involved with a prebooking. What is to be achieved by restricting numbers of private hire? If it is to reduce the opportunity for private hire vehicles to be used (illegally) for taxi services (hailing in the street/access through taxi stances) this in an enforcement issue under existing legislation.

2. What issues would arise from allowing local authorities to restrict numbers of private hire cars and how could these be resolved? For example, would consideration need to be given to setting percentages for certain vehicle types?

Comments The advantage of private hire is that the likelihood of a grant is high. It is then for the operator and customer to negotiate the charge if the vehicle is suitable. It is in the operator’s best interest to ensure that the vehicle is suitable for a range of customers. How would a limit be set? If fewer than existing what criteria would be used to decide who would lose their operator’s licence? Would this be fair or, indeed, legal as an existing licence would likely be considered as a possession protected under the Human Rights Act and European Convention.

3. Training:

(a) Is it necessary to specifically allow local authorities to require training of private hire drivers? What evidence is there of local authorities already doing this with their current powers? Yes (b) What might that training include? Should this be specified in legislation?

Comments Training for both taxi and private hire drivers should include customer care with special reference to welcoming and accommodating, Diversity, dealing with aggressive/intoxicated customers (dispute resolution), vehicle knowledge and safety and local knowledge of area.

4. What alternative options are there – legislative or non-legislative – that could improve the process of justifying a restriction on numbers of vehicles (taxis and/or private hire cars)?

Comments Local authorities can boast of a workforce with a wide range of skills, knowledge and expertise. Focus should be on creating a work through process for assessment of demand which can be undertaken inhouse using that skills base.

5. Inclusion of contract work in licensing:

a) How would the inclusion of contract work within licensing affect:

i) Those tendering and awarding contracts? ii) Licensing authorities? iii) Those providing driving services which are currently unlicensed? iv) Passengers using a contracted service?

b) How could issues be resolved?

Comments The exemption relating to contract work is very much a hidden/unassessed area of unlicensed activity. Prior to consideration of whether to withdraw this exemption there must be a detailed assessment of the activity, how it is presumably being carried out and the workload for licensing authorities, testing garages and Police if the proposal were to be implemented. As public and road safety are at the heart of the legislation perhaps consideration should also be given to withdrawing the other exemption : A vehicle used in connection with a wedding or funeral.

6. Are there any issues that need to be considered with reference to operations not run for profit? (Such as voluntary transport arrangements that are run basically as charitable activity, which will continue to be excluded from licensing.)

Comments

No comment

7. Updating licensing conditions:

(a) Would the use of a combination of mandatory and recommended conditions achieve an appropriate balance between national consistency and local context?

(b) Do different levels of licence (driver, vehicle, booking office) require a different combination of mandatory and recommended conditions?

(c) What issues of national concern could be included in a set of mandatory conditions?

(d) Who should be involved in this work? (Please also indicate if you would be willing to be involved).

Comments (a)This may well be the case. It is understood that Scottish Ministers already have power to create mandatory national conditions which can be imposed automatically on licenceholders. If new recommended local conditions are framed the local licensing authority would either have to impose these gradually, over the 3 year cycle, or vary individually every licence within the strict procedure set down in paragraph 10 of Schedule 1 – including notice and opportunity to be heard. Perhaps if the licensing authority has consulted on proposed new conditions the legislation should be amended to allow an automatic procedure to vary licences accordingly.

(b) This is something to be studied by any working group set up under proposal 5.

(c) Cognisance must be taken of the Rochdale abuse cases to investigate how far conditions could be used to avoid repetition. This issue also merits inclusion in Guidance to Licensing Authorities as the criminal element presently highlighted relates to serious organised crime and not the abominable activities that took place for some time at Rochdale.

(d) The Trade/Statutory Agencies/Licensing Authorities/Local Authorities (a range of relevant responsibilities) SOLAR and COSLA.

8. Is the extension of the Booking Office Order a proportionate response to concerns at some companies circumventing this layer of licensing?

Comments No. This may be disproportionate, impacting mainly on bona fide owner/ drivers by increasing expense and record keeping.

9. What specific measures would assist the enforcement of a licensing regime that covers businesses using mobile/smart phone technology?

Comments Powers to inspect/seize/search: information sharing across Scotland on changes in technology being used by organised crime and best means of detection/enforcement.

10. Role of police:

a) How might the role of the police within the 1982 Act be refocussed?

b) What would be an appropriate timeframe for police to respond to a request for information?

c) How well defined should the information be that they should submit?

Comments (a) The question must be asked – what is wrong with the provisions relating to objections? The Scottish Government had recently increased the period for objections from 21 to 28 days. There is also a provision which allows the Licensing Authority to consider late objections if satisfied with the reason for lateness.

(b) The Licensing (Scotland) Act 2005 is a distorted mirror to use. The present system under the 1982 Act has worked for many years and has recently been improved in implementation of a recommendation of the Task Group which reported in 2004.

(c) The setting up of one Police Force should afford the opportunity following consultation to have a standard approach – openly expressed (intimated to licensing authorities, the trade and the Law Society) – on what information may be brought up and why and what will not be brought up and why.

11. Licensing objectives:

a) Is the introduction of statutory licensing objectives a useful tool for local authorities?

b) Who should be involved in the creation of the licensing objectives?

Comments (a)No. The grounds for refusal and case law are a sufficient credo of the purposes of licensing.

(b) as (a)

12. Should one set of licensing objectives apply to all Civic Government regimes or be specific to taxi and private hire car licensing?

Comments (a)No. As 11

13. Guidance on licence application process:

a) Is guidance an appropriate response to this issue?

b) Are there other elements this specific guidance should cover?

c) Should a power be introduced to the 1982 Act (similar to the Licensing (Scotland) Act 2005) to make regulations on hearings procedures?

Comments (a)Clear, well drafted guidance should always be welcomed. The Guidance need not be followed if there is a good reason.

(b) Fair hearing procedure, respective roles of Members as decision makers, Clerk, Legal Advisor, Applicants and Agents, Objectors/Representors – Customer Care : Criteria for adjournments : Quasi Judicial nature of certain activities/activities where Quasi Judicial approach is necessary.

(c) Reference to 2005 Act is not helpful as nearly 5 years have nearly elapsed without regulations.

14. Do you agree improved Best Practice Guidance is required?

Comments Yes. Capacity and capabilities of resources are required at all stages of preparation and development to ensure the value of the documents: Compare the present S142 Guidance under the Licensing (Scotland) Act 2005 with the “equivalent” under the Licensing Act 2003 in England and Wales.

15. Requiring applicant for any level of licence (driver, vehicle, booking office) to prove they are ‘fit and proper’:

(a) What would be the effects on the system of requiring applicants to prove they are ‘fit and proper’?

(b) What would be a suitable set of requirements for applicants to meet?

(c) Who would be responsible for setting these?

Comments (a)The DVLA driving licence should show that the applicant has the necessary driving skills and any medical report should indicate that the applicant is fit to hold a taxi or private hire driver’s licence. The main other element is whether the applicant is of good character. The ability to fill in forms need not be a criterion for assessing whether it would be safe to grant a licence.

(b) Suggested criteria:-  Health – both mental and physical  Work record – respected and trusted  References

(c) Working group set up proposals 3 and 5.

16. Develop licensing policy network:

(a) Who should be part of this network?

(b) Could this network be used to share information on licence refusals, suspensions and revocations?

(c) What format could a policy network take? E.g. physical meetings, shared web space?

Comments (a)Although Police and Licensing Authorities may seek similar outcomes they have different roles to play. Note must be taken of the fact that Police will often be objecting to applications. There must never be a perception of a close or closed relationship.

(b) This could be a worthwhile purpose especially in relation to itinerant metal dealers in the current trends for metal theft as a licenceholder can operate anywhere in Scotland. There is therefore the opportunity to shop from area to area. However it should be seen as better informing Licensing Authorities and not detracting from a Licencing Authority’s responsibility to determine an application on its merits on the material before Members.

(c) Shared website/round robin emails could be used to get information out there immediately whereas physical meetings (perhaps through video conferencing?) can offer the chance for detailed discussion on experience/trends and setting objectives and priorities.

17. Taking into account the proposals on the Booking Office Order, updated conditions and contract work and proposals on the licence application process, do you think that these will assist in tackling the presence of organised crime in the industry?

Comments Not known

18. Is there sufficient access for disabled people to taxi and private hire car services? What would make it easier for everyone to access taxis or private hire cars?

Comments A specification or specifications have to be set at a UK level. Local 11 Report Licensing Panel 13 March 2013

Authorities are pressured to introduce accessibility policies, aware that they are unlikely to satisfy the disabled community or be welcomed by the Trade. In addition, a local policy may become redundant in the light of a change of expert opinion or indeed the provision of a National Standard.

19. What measures or support could be implemented that would increase the availability of wheelchair accessible taxi and private hire vehicles, particularly outside of Scotland’s cities?

Comments Financial support to the Trade : greater awareness of trade opportunities and benefits of accommodating customers who use wheelchairs : lower road tax, insurance and licence fees.

20. As well as the specific requirements in relation to taxis and private hire vehicles in sections 160 to 173, the Equality Act 2010 places a general duty on public bodies such as local authorities to advance the equality of opportunity of disabled people. Do you believe that this has had an effect on the provision of wheelchair accessible taxi and private hire vehicles?

Comments WAVs benefit only a small proportion of the disabled community. For many disabled customers WAVs may be uncomfortable or difficult/risky to access.

21. Are there any other issues related to taxi and private hire car licensing for people who share other protected characteristics under the Equality Act 2010 (age, race, religion or belief, sex, sexual orientation, gender reassignment, pregnancy or maternity)?

Comments This is a question of customer care for operators and their drivers. It should be discussed in mandatory training but seen as an opportunity to improve their service rather than as a burden, inconvenience or mere statutory responsibility which might attract reluctant compliance.

22. Statutory Licensing Enforcement Officer:

a) How would a statutory requirement for local authority enforcement officers work in the context of Civic Government licensing?

b) What would be the potential pitfalls?

Comments (a) Licensing Standards Officers are one of the few success stories arising from the introduction of the new alcohol licensing system. One reason for this is that their appointment is mandatory, they have specified roles and responsibilities, they must undertake accredited training and they have support within their local authorities and through their own network.

(b) Funding: Consistency of approach : Difficulties of perceivable coverage

over a rural area.

23. Are there other solutions to creating increased enforcement/compliance capacity e.g. taxi marshals at night. Who should provide/pay for these?

Comments Increased communication between Licensing Authorities, Trade Representations, Police and Community Groups.

24. Do you know of licensing authorities that currently licence special events vehicles under the 1982 Act?

Comments Yes. Dumfries and Galloway Council licenses special event vehicles complying with the definition of a hire vehicle.

25. What prevents those authorities who don’t licence special events vehicles from doing so?

Comments Many special event vehicles cannot be licensed as private hire due to the number of seats. Many limos are American with left hand drive and passenger doors opening onto the roadway rather than the pavement.

26. Does this issue require a national response and why?

Comments As 27

27. What form should a national response take?

Comments It is noted that the Task Group which reported in 2004 recommended that “The Executive Issues Guidance to Licensing Authorities encouraging them to adapt their Existing Licensing Scheme to Regulate [limos, converted fire engines and ambulances etc] which fall within the definition of Private Hire Car”.

28. What effect, if any, would the proposal to bring contract work within the taxi and private hire car licensing regime have on the operation of special event vehicles?

Comments Not Known

29. How would the weddings exemption within the 1982 Act affect any attempt to specifically licence special events vehicles?

Comments The question may be asked – should this exemption continue?

30. Do you have any other information or comments related to taxi and private hire car licensing not covered in the consultation document?

Comments It is noted that the Task Group which reported in 2004 made certain recommendations which have not been implemented but still merit consideration:-  Transferability of operators plates (especially where numbers are limited).  Minimum age for drivers.  Increased requirements for medical examination for drivers depending on age. Consideration must be given to the use of motorcycles – do they come within the definition of Hire Car ? There would be need for Guidance : it is noted that the Department for Transport has recently issued a Guidance Note “Licensing Motor Cycles as Private Hire Vehicles”. Consideration may also be given to licensing non motorised vehicles such as rickshaws and horses and carts.