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A REPORT BY THE TASK GROUP SET UP TO REVIEW THE LICENSING PROVISIONS CONTAINED IN THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
2. SECTIONS 10 to 23 TAXIS AND PRIVATE HIRE CARS
This part of the Act provides licensing authorities with an optional power to license taxi and private hire cars (phcs) and their drivers. It also contains provisions in relation to the inspection and testing of vehicles, application and licence fees, signs prohibited on phcs, taxi fares and appeals, taxi stances and offences.
The Office of Fair Trading (OFT) published a Report on the Regulation of Licensed Taxis and Private Hire Vehicle Services in the UK in November 2003 and the Scottish Executive's response to that Report was published in March 2004. The Task Group, in reviewing this part of the Act, took account of these documents in reaching its conclusions and making its recommendations. A link to the OFT Report; a summary of its main recommendations; and Scottish Ministers' response are contained at Annex 3 for information.
2.1 The Task Group was clear that there was a continuing requirement for the retention of the licensing regime covering taxis and phcs. In reaching this conclusion, we acknowledged that licensing authorities, other enforcement agencies and the trade were all supportive of the continuance of the licensing regime in the interests of public order and safety and the prevention of crime. However we were conscious of the fact that of all the licensing activities contained in the 1982 Act, this was the one that had over the years attracted the most criticism, particularly from the trade who had been pressing for a review for some time. In view of this, and given the number of people involved in the trade, it was not surprising that this was the activity which attracted most responses from our consultation.
Conclusion
The Task Group concluded that for the preservation of public order and safety and the prevention of crime there is a requirement for the continuance of a licensing regime for taxis and phcs and that it should remain an optional activity, albeit that all licensing authorities currently license them in any event.
TWO-TIER SYSTEM OF LICENSING
2.2 Having determined that the licensing regime should remain, we felt that it was incumbent on us to consider whether there was justification for the continuation of the two-tier system, i.e. differentiating between taxis and phcs. The grounds for this were two-fold. Firstly, we were aware that COSLA and the taxi trade had been pressing for the introduction of a series of prescriptive measures relating to phcs, e.g. numerical controls, topographical testing, etc. and we took the view that, if introduced, these would further undermine the operational distinction between taxis and phcs. This was of concern to the Task Group, particularly as there was anecdotal evidence that the travelling public is largely unaware of the differences between the two modes of transport. Secondly, many stakeholders, including groups representing people with disabilities, are of the view that the taxi provisions in the Disability Discrimination Act 1995 (DDA) should be extended to private hire cars. Any such move would further erode the differential between the two modes of transport.
2.3 The Task Group felt that the arguments for and against single tier were finely balanced. Alert to the fact that single tier would greatly assist the enforcement of the provisions but, conversely, could have a significant economic impact on the trade generally, we decided to expose the case for and against to the consultation process. We sought comments, and justifications, from those responding. The key points appeared to be:-
ARGUMENTS IN FAVOUR OF RETENTION OF TWO-TIER SYSTEM
- Trade/ passenger preference.
- Passenger expectations - by virtue of the fact that taxis are available for immediate hire, taxi drivers must have a good knowledge of the local area, unlike the phc driver reflected in the fact that the 1982 Act makes provisions for topographical testing for taxi drivers, albeit at the discretion of the licensing authority. It could therefore be argued that the 1982 Act provisions in this regard provide for a higher standard of service from the taxi trade, albeit the cost of the journey may be higher.
- Passenger choice - the spirit of the taxi vehicle specification provisions in the DDA is that people with disabilities, including those in wheelchairs, will be able to get into and out of, and travel in, licensed taxis in safety and reasonable comfort. The favoured taxi vehicle by many licensing authorities is at present the saloon car, and while Scottish Ministers have indicated that a mix of vehicles will remain an integral part of the taxi system in Scotland, it may be that there will be a reduction in the number of saloon vehicles which operate as taxis. If this is the case, then retention of the phc system will offer additional passenger vehicle choice so long as the provisions of the DDA are not extended to phcs as well.
- Economic impact on the trade generally.
- Retention of fares differential for the two modes of transport.
ARGUMENTS FOR SINGLE-TIER
- Minimal operational distinction between taxis and private hire cars - the introduction of any further initiatives e.g. numerical controls on private hire cars; topographical tests; extension of DDA to phcs; etc would further erode the differential in level of service provided by the two modes of transport.
- Travelling public, in the main, are unaware of distinction between taxis and private hire cars - this confusion facilitates illegal plying for hire.
- Simplify enforcement of provisions.
- Improved access for people with disabilities - Currently the provisions in the DDA 1995 only extend to taxis.
EVALUATION OF RESPONSES AND THE TASK GROUP'S CONCLUSIONS AND RECOMMENDATIONS.
2.4 Retention of the current two-tier system was the option favoured by the majority of respondents to the consultation. Those supporting the status quo cited the justifications set out in our consultation paper and the Disabled Persons Transport Advisory Committee (DPTAC) pressed for its retention on the basis that many ambulant disabled people find saloon type vehicles more accessible. Justifications in support of single tier included the scope it would give local authorities to control the total number of licensed vehicles operating in the area; would remove the problem of illegal plying for hire; and would lead to more stringent standards being in place for all vehicles.
2.5 While most respondents favoured the retention of the current two-tier system, the Task Group was minded of the fact that there is a great deal of confusion amongst the general public on the differences between taxis and private hire cars and that single tier would offer commonality of enforcement minimising the scope for vehicles to illegally ply for hire. Having acknowledged in the consultation paper that the case was finely balanced and taking account of the fact that the majority of respondents favoured the status quo, we concluded that a move to single tier could not be justified at this time. However, having made this decision we decided that it was incumbent on us to flag up that while there was little appetite for change at this time, Scottish Ministers should look at this issue again at some future point, and it would be sensible to do so as part of any review of numerical controls on taxis - paragraph 2.9 refers.
Recommendation
The Task Group concluded that the current two-tier licensing system for taxis and private hire cars should be retained. However we recommend that the merits of single tier licensing should be re-examined as part of any future review of numerical controls on taxis (see following recommendation).
SECTION 10 - NUMERICAL CONTROLS ON TAXIS
2.6 The Task Group were aware that there was a lobby of support for licensing authorities to be able to limit the number of private hire car licences which it issues in line with the current provisions for taxis. We were ambivalent on this but noted that there was a body of opinion in favour of deregulating the taxi trade, a view held by some for example who could not enter the trade as a result of a restriction in numbers being in place. There was also a view that market forces should determine the number of taxis or private hire cars operating in an area. While there is an argument that deregulation would perhaps result in more healthy fare competition to the benefit of the travelling public, we are also aware that this could be at the expense of the quality of vehicle and service provided.
2.7 The Task Group noted that the recent Office of Fair Trading (OFT) report recommended that the discretionary power available to licensing authorities to restrict the number of taxis operating in its area, if there is no significant demand for taxis which is unmet, should be removed. This was on the grounds that waiting times for the public would be reduced and public safety would be improved as the increase in vehicles would reduce the demand for illegal, unlicensed taxis. It also noted the terms of Scottish Ministers' response to the OFT which rejected this recommendation, questioning the research used to support it and taking the view that a number of other factors, e.g. lack of other late night transport, unwillingness of drivers to work unsociable hours etc, contributed to the lack of taxis and that removing numerical limits would not address these problems.
2.8 We accept that there are arguments for and against the removal of numerical limits on taxis. However based on the information available to us and recognising that in Scotland the viability of the trade, and consequently the availability of taxis to the public, in certain areas could be adversely affected by their removal, we were not convinced that the case for change had been made. In coming to this conclusion the Task Group found no evidence to suggest that licensing authorities were abusing this discretionary power to control taxis numbers given that around only half of licensing authorities currently restrict numbers. Given the diverse range in the make-up of licensing authorities in Scotland, and the demand for taxis therein, we believe that individual authorities are best placed to determine whether imposing a numerical limit was in the best interests of their area. However, in view of some concerns expressed over the frequency and methodology for the surveys used to determine what the appropriate limit should be, we are pleased to note that, in responding to the OFT Report, Scottish Ministers indicated that they would be setting up a Focus Group to consider the issues which licensing authorities should be taking into account in this regard with a view to issuing guidance to address such concerns. We hope that this will be taken forward quickly.
2.9 While the Task Group is content for licensing authorities to continue to be allowed the option of restricting the number of taxis in an area for the time being, it believes that the matter should be re-examined again once the vehicle specification provisions of the DDA are introduced and have been in place for a reasonable period. The provisions will clearly have an impact on the trade and on licensing authorities' ability to determine the type of vehicles that can operate in their area, as well as the travelling public. The Task Group believes it would therefore be prudent to review the appropriateness of licensing authorities' discretionary powers to limit the numbers of taxis after the DDA provisions have been in place for 2 years.
Recommendation
The Task Group recommend that licensing authorities should continue to have a discretionary power to restrict the number of taxis operating in its area if there is no significant demand which is unmet. However, in view of the concerns expressed during our own review about the frequency and methodology used in these surveys, we would encourage Ministers to follow through quickly on their response to the OFT by setting up the proposed Focus Group so that the resultant guidance can be issued without undue delay. We also recommend that the ability of licensing authorities to restrict numbers of taxi licences should be re-examined two years after the proposed vehicle specification requirements resulting from the DDA are introduced. As previously recommended this review should also include further consideration of the merits of single tier given that powers to limit the number of taxis do not apply to phcs.
RETURN OF PLATES - SECTION 10(6) OF THE 1982 ACT
2.10 Although some licensing authorities encounter difficulties with the non-return of licence plates, the Task Group were disinclined to support, as a means of encouraging compliance, a reduction in the period of 28 days for the return of the plate or an increase in the penalty provision of 500. However, while the non-return of plates is a relatively minor problem for licensing authorities, we floated the idea in our consultation paper that the matter could be addressed by licensing authorities inserting an expiry date on the plate. There was widespread support for this. One of the advantages of this approach being that it is self- compliant in that non-compliance will be immediately obvious from the plate to the paying passenger and enforcement officers.
Recommendation
In order to address the problem of non-compliance with the requirement to return plates, the Task Group recommend that licensing authorities use their existing powers under Schedule 1 to insert an expiry date when issuing plates.
SECTION 10(6) AND PARAGRAPH 8(3) OF SCHEDULE 1 - TRANSFER OF LICENCE
2.11 The Task Group were alert to the fact that the taxi trade is critical of the legislative provisions that prevent the transfer of licence plates, particularly following the death of a licence holder. Our initial view, as covered in the consultation paper, was that the provisions in the Act preventing the transfer of licences continue to be justified (to prevent the trade benefiting from the artificial value of plates) and that there was sufficient flexibility in the legislation to consider any application from a spouse/partner in the event of the death or permanent incapacity of the licence holder. However, in light of the response to the consultation, which showed strong support for the trade to be offered unconditional continuity of business in such circumstances, we reconsidered our original conclusion and on balance, came to the view that complete transferability of the licence should be provided on the death or permanent incapacity of the licence holder, subject to the new holder meeting the requirements of the "fit and proper person" check.
Recommendation
The Task Group recommend that the legislation be amended to provide for the complete transferability of the licence plate in the event of the death or permanent incapacity of the licence holder, subject to the proposed new licence holder meeting the requirements of the "fit and proper person" check and that licensing authorities should establish a fast track system to consider such requests. We further recommend that this approach be adopted for all the business activities licensed under the 1982 Act.
2.12 In light of this conclusion, the Task Group considered it incumbent to consider the merits of allowing the transfer of taxi and phc vehicle licences under any circumstances, subject to the proposed new holder meeting the requirements of the "fit and proper person" check. We noted that this already occurs, for example, in the case of liquor-licensed premises. We acknowledged, however, that in the case of taxis, local authorities have the ability to restrict the number of vehicle licences and this can result in the licence plate having a "scarcity" value from which the holder can benefit. We appreciated that, by not allowing the transfer of licences, theoretically the plate should not have an artificial 'scarcity' value.
2.13 However, the Task Group recognised that, in practice, a number of taxi firms are now licensed as companies, which allows retention of the business in the event of bereavement and also enables the business to be sold as a 'going concern' if the owner took the decision to sell, simply by varying the licence to denote the new owner as a director of the company. We also considered that there would be some benefits in openly allowing the transfer of such licences. For example, many of the problems associated with the taxi trade stem from the fact that the person that holds the licence may not necessarily have any involvement in the actual running of the business, and retains the licence with a view to renting it out for financial gain. Opening up transfers would make retention in such a manner a less attractive option and will perhaps encourage such holders to sell any licence to the persons actually operating the business. This would be to the benefit of licensing authorities in that it will enable them to identify those involved in the trade and assist them in carrying out their enforcement duties.
2.14 The Task Group, while agreed that there should be complete transferability of licence in the event of the death or permanent incapacity of the licence holder, were unable to reach a final conclusion with regard to allowing complete transferability of licence under all circumstances, subject to the proposed new licence holder meeting the requirements of a 'fit and proper person' check. We noted that there may be some advantages in allowing complete transferability of licences, but that to do so might also exacerbate the situation whereby taxi licence plates can acquire an artificial 'scarcity' value, and that it was never the intention of the 1982 Act that licences should have any intrinsic financial value. On balance, we concluded that the Scottish Executive should give further consideration to whether there should be a system for allowing complete transferability of licences, taking into account our observations above. We further recommend that, in considering whether it would be appropriate to allow complete transferability of taxi and phc licences, consideration ought to be given to whether such an approach might also be appropriate for other business activities covered by the 1982 Act.
Recommendation
The Task Group concluded that the arguments for allowing the complete transferability of licence plates under any circumstances, subject to the proposed new applicant meeting the requirements of a "fit and proper person" check, are finely balanced and we recommend that the Scottish Executive should investigate further the merits of introducing such arrangements, both for taxi and phc vehicle licences, and for other business activities covered by the 1982 Act.
SECTION 11 - INSPECTION AND TESTING OF VEHICLES
2.15 The Task Group recognised that standards and procedures for testing of vehicles vary greatly throughout the country and some regard licensing authorities as having a monopoly on testing. There is a groundswell of opinion that uniformity of practice should be introduced and that this could be addressed by introducing a standard taxi/phc MOT test available from any approved testing station. While we did not dispute the rationale for removing any perceived monopoly from licensing authorities, we took the view that a higher standard of testing would be required for taxis and phcs than the standard MOT for private cars. Notwithstanding the fact that MOT and testing stations are reserved matters, and therefore outwith the competence of the Scottish Parliament, we were nonetheless supportive of the general principle in this regard and covered it in our consultation.
2.16 There was a mixed response from respondents with some opposing it on the grounds of a probable diminution of standards. We had considerable sympathy with this concern but felt that it could easily be addressed by an MOT specific test being introduced for taxis and phcs which would be of a higher standard than the normal vehicle tests given the nature of the business. The test would have to cover fixtures and fittings. While we acknowledge that this is a reserved matter, we feel there are justifiable grounds for Scottish Ministers suggesting to their Department for Transport counterparts that consideration be given to a new MOT test specific to taxis and phcs and that this could be made available through any approved MOT testing station. In the shorter term, the Task Group note that in its response to the OFT report the Executive intends to promote and disseminate best practice in applying quality and safety regulations to assist licensing authorities in their role of regulating taxis and phcs and considers that this issue should be addressed therein.
Recommendation
The Task Group recommend that a new MOT test should be introduced for taxis and phcs and that this be available from any approved MOT testing station. Given the nature of the business the MOT test should apply from the outset and cover fixtures and fittings. The Task Group are conscious of the fact that this matter is reserved to the Westminster Parliament but recommends that Scottish Ministers write to their Department for Transport counterparts suggesting that consideration should be given to its introduction. In the meantime, the issue of standards for vehicles should be incorporated in the proposed best practice advice to be issued to licensing authorities following the OFT report.
2.17 We considered whether it would be appropriate to levy a financial penalty on any operator who fails to present a vehicle for testing. We noted that some licensing authorities were encountering difficulties with this issue but felt that, on balance, other penalties available to licensing authorities, such as an immediate suspension of licence, would be more appropriate in those instances where non-attendance was not considered to be genuine.
Conclusion
The Task Group concluded that the introduction of a financial penalty for failing to present a vehicle for testing was not justified given the existing penalties that are available.
2.18 In our consideration of this section we noted that there was anecdotal evidence that enforcement officers were, on occasions, being over vigilant in putting vehicles "off the road" pending further inspection for minor non-mechanical defects, such as dirty interiors, dents etc. We sought views in our consultation as to whether it would be more appropriate to only allow a licensing authority to take such steps when the vehicle presents a risk to public safety. This resulted in a mixed response with many licensing authorities being of the view that this should remain at their discretion. However, on closer examination of the provisions, the Task Group noted that the vehicle can only be prevented from operating if the authorised officer "is not satisfied as to the safety of the taxi or private hire car for the carriage of passengers or as to the fitness or accuracy of the taximeter". Licensing authorities will therefore wish to note the circumstances when such powers can be applied.
Conclusion
The Task Group concluded no change to the existing provisions was required given that, in terms of the condition of the vehicle, it is only when this presents a risk to the safety of the passengers that a licensing authority can take action under the provisions.
2.19 Section 11(2) applies the appeal provisions of paragraph 11 of Schedule 1 to licences which remain suspended after 28 days. We considered whether there was a need to provide an appeal provision for licences suspended for a period of less than 28 days. The effect of section 11(2), as detailed above, is that suspensions will in the main be for mechanical defects which puts the safety of passengers at risk, many of which will likely be of a minor nature and thus corrected within a very short timescale. The cost implications of having a vehicle off the road acts as an incentive to have minor mechanical defects rectified quickly and in most cases before an appeal hearing could be set up. Consequently we felt that an appeal hearing would serve no useful purpose and this was supported by the vast majority of respondents to the consultation. In reaching this decision, we took the view that it was not unreasonable to expect that any disagreements between the owner of the vehicle and the officer who issued the suspension be resolved amicably and fairly by the parties involved without the need for an appeal hearing to be arranged. We also noted, in this regard, that the existing appeal provisions fully meet the requirements of the ECHR.
Conclusion
The Task Group concluded that there is no need to provide appeal provisions where the period of suspension is less than 28 days.
2.20 The Task Group considered whether it would be appropriate for enforcement officers of a licensing authority to be empowered to inspect and test any licensed vehicle operating in their area, irrespective of where it was licensed. However, we concluded that this would be inoperable at present given the different standards and licensing conditions that apply in the different areas. (The existing power of the Police to stop any vehicles was however noted in this regard.) The introduction of a standard MOT test for taxis and phcs ( see paragraph 2.13) would facilitate such action though and thus the position should be reviewed in light of any decision to introduce such testing.
Conclusion
The Task Group concluded that the power of enforcement officers of a licensing authority to inspect and test vehicles should continue to be restricted to those operating in and licensed by their licensing authority but that the position should be reviewed in the event that a standard MOT test for taxis and phcs is introduced.
SECTION 12 - FEES FOR TAXIS AND PRIVATE HIRE CARS
2.21 In reviewing the adequacy of the provisions for fees charged, the Task Group were conscious of the fact that the intention was to ensure that they were ring-fenced from the fees for other licensing activities contained in the Act, with the revenue collected meeting the administrational and operational costs of the taxi and private hire car regime. We concluded that this approach was the right one, in part due to the higher costs associated with this licensing regime, and that, as such, it would be unreasonable to provide for cross subsidies from the fees of the other licensing activities. Notwithstanding this approach, we were alert to the fact that while the trade accepts the principle that licensing should be self-financing, it feels that the current provisions provide licensing authorities an unreasonable degree of flexibility, e.g. there have been suggestions that inflated licence fees have been used to subsidise other expenditure incurred by licensing authorities. As such, the trade are of the view that detailed accounts should be maintained and be available for public inspection.
2.22 The Task Group have a degree of sympathy with the trade in that the wording of section 12, which requires that the licensing authority "shall seek to ensure that the total amount of such fees is sufficient to meet the expenses incurred by them in carrying out their functions……", could arguably be interpreted as allowing licensing authorities to charge fees that are more than enough to meet their expenses. There is however an expectation that licensing authorities will budget prudently, with an underspend one year being reflected in the fees set for future years. The Task Group therefore considered whether the existing provisions provided licensing authorities with too much latitude in the setting of fees.
2.23 In seeking views as to whether the provisions at section 12 could be improved we received a mixed response with polarised views from the trade and licensing authorities as to the need for any changes. Although the arguments were finely balanced, we are of the view that the existing provisions need to be clarified to ensure that a licensing authority cannot profit from the fees it charges its licence holders whether it be taxi and phc licence holders or the other activities covered by the 1982 Act. However we do not consider that specific reference needs to be made in the provisions requiring a licensing authority to make available specific accounts for public inspection. This is on the basis that guidance issued by Audit Scotland already addresses this issue.
Recommendation
The Task Group concluded that the existing provisions whereby the licence fees for taxis and phcs are ring fenced from the remaining licensing activities of the 1982 Act remain relevant and appropriate. We recommend, however, that for the avoidance of any doubt Section 12, paragraph 15 of Schedule 1 and paragraph 18 of Schedule 2 of the 1982 Act should all be amended to ensure that licensing authorities cannot profit, over any reasonable period of time, from the fees charged to licence holders.
2.24 Chapter 13.6 recommends that a review of the licence fees charged by licensing authorities under the provisions of Schedule 1 paragraph 15 (all activities except taxis and phc and sex shops which are provided for separately at section 12 and Schedule 2, paragraph 18 respectively) be undertaken by SOLAR with a view to guidance being issued in an attempt to reduce the variance in the level of fees charged. For the avoidance of any doubt, we are of the view that this review should extend to all licensing activities in the 1982 Act, including taxis and phcs.
Recommendation
The Task Group recommend that the review of licence fees charged referred to at 13.6 should extend to taxis and phcs.
2.25 As a result of the consultation process it was drawn to our attention that Section 12 explicitly prohibits the cost of taxi stances being recovered from licensing fees. It was suggested that such costs should be met by the trade and that this could be achieved by deleting the words "other than section 19" from Section 12 of the Act. The Task Group determined that this was inappropriate on the grounds that this was more a public safety and traffic issue and as such it would be unreasonable to expect such costs to be levied on the trade.
Conclusion
The Task Group concluded that, as at present, the cost of taxi stances should not be recovered via the application and licence fees charged by licensing authorities.
SECTION 13 -TAXI AND PRIVATE HIRE CAR DRIVING LICENCES
2.26 The COSLA Report proposes that section 13(3) of the 1982 Act should be amended to require applicants for drivers licences to have held a driving licence for a period of not less than 24 months (as opposed to the current 12) prior to the date of application. However, we favour a slightly different approach encompassing a more regulatory regime for the handling of licence applications as a means of enhancing public confidence in the trade. These mirror, to a great extent, the Public Service Vehicle procedure. We consulted on our proposals and most gained widespread support. The rationale for each of our recommendations is covered below.
2.27 We took the view that as currently worded, section 13(3) allows a licence to be granted providing the person had held a driving licence for any continuous period of 12 months prior to an application for a taxi or phc drivers' licence being submitted. We considered that it would be more appropriate for the requirement to be that the applicant must have held a driver's licence for the 12-month period immediately prior to the application for a taxi or phc driver's licence being made.
Recommendation
The Task Group recommend that Section 13(3) be amended to reflect the fact that "any continuous period of twelve months" means the twelve month period immediately prior to the application for a licence.
2.28 Given the nature of the business, the Task Group felt it was important that people had a degree of maturity and preferably driving experience before embarking on a career as a taxi or private hire car driver. While we considered imposing a "minimum driving experience criteria" as a condition of application, or alternatively a minimum age threshold of 25, we found in favour of an age limit of 21 as it reflects that in place for public service drivers.
Recommendation
The Task Group recommend that a minimum age requirement of 21 for all new drivers of taxis and private hire cars should be introduced.
2.29 The absence of regular medical checks for taxi and private hire car drivers was a matter of great concern for the Task Group and as such we are recommending, in line with public service drivers, a mandatory initial medical for all new applicants; a mandatory medical check every 5 years for those 45 and over but under 65; and an annual medical check for those 65 and over, the cost of which should be met by the licensing authority, recoverable through the licence fees as provided for at Section 12 of the 1982 Act. In recommending that the costs should be met by the licensing authority we are alert to the fact that this contrasts with the recommendation in the COSLA Report which considers that express provision should be made for the cost of medical checks to be paid by the applicant. We rejected this on two counts. Firstly, it would not be consistent with the Scottish Executive's policy that licensing authorities meet the costs of medicals associated with the taxi and phc regulations on the carrying of assistance dogs resulting from the DDA 1995. Secondly, licensing authorities have more scope regarding the level of fees charged for such medicals and to achieve consistency in the standard of the medical check itself. In any event such costs are ultimately recovered through the fees charged to the trade for applications and licences via the provisions contained at section 12.
Recommendation
The Task Group recommend the introduction of a mandatory initial medical for all new applicants; mandatory medical check every 5 years for those 45 and over but under 65; and annual medical check for those 65 and over, the cost of which should be met by the licensing authority, recoverable through the licence fees as provided for at Section 12 of the 1982 Act.
2.30 Licensing authorities currently have discretion to require taxi drivers to undergo topographical (knowledge of the area) testing. However, we initially concluded that in a further effort to enhance public confidence in the trade this should become mandatory and be extended to phc drivers also. The consultation sought views on the merits of doing so, albeit recognising that these would further erode the differentiation between the two modes of transport. In going out to consultation on this, the Task Group were also alert to the arguments put forward in the past for topographical testing applying to taxis only. The basis for this being that they were picking fares up in the street, rather than the pre-booked service provided for by private hire cars, and that as such a knowledge of the area was more relevant for taxi drivers to ensure that the quickest route was taken in an effort to minimise the fare cost for the passenger. The inference being that the driver of the private hire car had the time to review his route before the journey commenced. However, the emergence of booking offices whereby the travelling public can merely walk into the office to pick up a private hire car undermines this argument.
2.31 Notwithstanding any dilution between taxis and private hire cars, we recommend that the current discretionary powers which licensing authorities have to require topographical testing for taxis should be extended to private hire cars. In other words, if a licensing authority requires a taxi driver to undertake a topographical test then the test should apply to private hire car drivers also. The rationale for this being that both taxis and private hire car drivers provide a service to the public and if individual licensing authorities feel that a topographical test will enhance that service then it should apply equally to both modes of transport.
Recommendation
The Task Group recommend that licensing authorities' discretionary powers should be extended to allow for topographical tests for private hire car drivers as well as taxi drivers.
2.32 Additionally, we sought views on the introduction of vehicle knowledge tests for the drivers of taxis and phcs. While views were mixed we believe that there is justification, on public safety grounds, for a mandatory vehicle knowledge test to be introduced for both taxi and phc drivers in line with the national policy for driving licences.
Recommendation
The Task Group recommend that legislation is introduced to require all drivers of taxi and phc vehicles to pass a vehicle knowledge test before a licence is granted or renewed.
SECTION 14 - SIGNS ON VEHICLES OTHER THAN TAXIS
2.33 As covered earlier in this Chapter, it is clear that the majority of the travelling public appear to be unable to differentiate between a taxi and a private hire car, particularly given the fact that in some local authority areas both taxis and private hire cars are saloon vehicles. Roof signage exacerbates the problem. In considering the existing provisions the Task Group acknowledged that, while the type of signs prohibited on private hire cars to prevent them giving the appearance of a taxi was extensive, there are difficulties over interpretation and enforcement of the provisions. However, in recognising such problems we concluded that it would be difficult to prescribe more precisely what should be prohibited in or on a private hire car, whilst being sure to have covered every possibility. One proposal that we considered was to prohibit the display of any roof sign on private hire cars on the grounds that such signs give the public the impression that the vehicle is a taxi. However, arguably, this is already covered by the existing provisions and ultimately we did not reach any initial conclusions as to what, if any, improvements could be made to the legislation and therefore sought views during our consultation. There was a fairly mixed response on this, but with the majority of respondents seemingly content that the current legislation is adequate, we concluded that no change to the legislation is required.
Conclusion
The Task Group concluded that the current legislation on what is prohibited from being displayed on or in a private hire car is adequate and, as such, recommends the status quo (but see following recommendation).
2.34 The Task Group are of the view, and was supported in this during our consultation process, that, in enforcement terms, any failure to comply with signs prohibited on private hire cars should be dealt with as a suspension of licence, as opposed to being a specific criminal offence as currently provided for in the Act. The rationale for this being that it would provide local authorities with the scope to deal with the matter immediately which is likely to be a more effective deterrent than prosecution.
Recommendation
The Task Group recommend that the provisions of section 14 be repealed and replaced with a similar mandatory condition of licence to enable a licensing authority to deal with any breach by way of a suspension of licence as opposed to through the courts, albeit this option would still be available under the general offence provisions contained at section 7(2).
SECTION 15 - OPERATION OF TAXIS OUTSIDE LICENSING AREA
2.35 The COSLA Report proposed that section 15(1) of the 1982 Act should be deleted on the basis that it has not been utilised. The Task Group, while receptive to the deletion of any provisions which are no longer required, noted that there was evidence indicating that section 15(1) is being utilised by licensing authorities. We considered that section 15 is a useful tool for licensing authorities and is of potential benefit to the travelling public as it can serve to regulate fares to specified areas e.g. airports, neighbouring town centres etc.
Conclusion
The Task Group concluded that the existing provisions were a useful tool for licensing authorities and as such should remain.
SECTION 17 -TAXI FARES
2.36 We found that it was fairly common practice for the administrative charges levied by radio circuits in negotiated contracts and charges for using credit cards to be levied in addition to the fare displayed on the taximeter. Our initial view was that the legislation was clear on this in that section 21(5) states that any person who demands fares or other charges in excess of scales established is guilty of an offence. Consequently, the Task Group took the view that such practice was not permitted and these charges would have to be absorbed as part of the fare if not approved by the licensing authority and programmed into the taximeter. As such, we were minded to recommend that the matter be addressed in guidance and consulted on this basis.
2.37 While the majority of respondents agreed that guidance would be useful, the Task Group noted the point made by one radio circuit company that, in their situation, the administrative charge is not levied on the customer, rather it forms part of the contract they have with the parent company. Consequently the administrative charge is levied on the company at the time of invoicing for bookings undertaken. The Task Group considered that this was a bona fide charge which did not breach the spirit of sections 17(1) or 21(5) of the 1982 Act. We took the view however that additional charges levied on individual customers for using credit/debit cards to pay for their fares was not acceptable unless these were approved by the licensing authority as part of the fare tariff. If the licensing authority did not do so, such charges would need to be absorbed as part of the fare. The Task Group however recognised that given the various changes that had evolved over the years in the methods of charging taxi fares and associated costs, and the uncertainty that prevails, that section 17(1) should be further reviewed, in consultation with licensing authorities and the trade, with a view to ensuring that the provisions are appropriate to modern day needs.
Recommendation
The Task Group recommend that for the avoidance of doubt, and given the changes that have taken place in the way taxi bookings are made and paid for, the Scottish Executive, in consultation with licensing authorities and the trade, further reviews the provisions at section 17(1) with a view to ensuring that they are appropriate to modern day needs.
2.38 The wording of Section 17(2) is such that there is some dubiety over the timescale in which licensing authorities have to review their taxi fare scales and this has resulted in a steady flow of complaints from the trade. In order to address this issue we concluded the wording of section 17(2) required to be amended in order to make it clear that the review must be completed, rather than started, within the 18-month period. As part of our consideration of this matter we were aware that it had been proposed that the period should be reduced from 18 to 12 months. However, this was discounted on the grounds that it would be administratively burdensome. Similarly a proposal that the Traffic Commissioner should be charged with setting the scales for those licensing authorities that do not complete the review within the specified period was also rejected. We took this view on the grounds that there are existing statutory provisions to deal with this, e.g. anyone who considers that a licensing authority has failed to comply with statute can raise the matter with its Monitoring Officer who is required to report the matter to the full council if it is agreed that a breach has occurred. If unhappy with the outcome the matter can, if necessary, be taken up with the Public Services Ombudsman.
Recommendation
The Task Group recommend that Section 17(2) of the 1982 Act should be amended in order to make it clear that the fare scales review should be completed and not merely commenced within the 18-month period.
2.39 Under the provisions of section 17(5) a licensing authority is required to notify interested parties of a review of taxis fares, or of the revised fares subsequently determined, within 5 days after the decision has been taken. The Task Group considered this was unnecessarily tight, particularly if over a weekend or public holiday and believes that a maximum 7-day period would be more appropriate. This proposal received near unanimous support from responses to the consultation.
Recommendation
The Task Group recommend that the 5-day period for notifying interested parties of a fare review or of the revised fares should be extended from 5 to 7 days.
SECTION 18 - APPEALS IN RESPECT OF TAXI FARES
2.40 We concluded that the whole of Section 18 needs to be reviewed, as the wording has in places been criticised and as such has proved problematic for enforcers, the Traffic Commissioner and the Trade. (Lord McCluskey was also critical of the wording of Section 18 in his judgement in the case of City of Glasgow District Council v Traffic Commissioner). Specifically, we noted that there was a need to clarify the fact that when more than one tariff is in operation i.e. in zones or in licensing areas as a whole, it is only the tariff which is under appeal to the Traffic Commissioner which is suspended pending appeal.
Recommendation
Given the on-going operational difficulties which enforcers have with section 18, the Task Group recommend that its wording is reviewed with a view to being amended and, that in doing so, account is taken of the criticisms made in the various court proceedings.
2.41 It also came to our attention that the Traffic Commissioner had previously proposed that Section 18(1) should be amended to provide for "representative bodies" as well as individuals submitting appeals in connection with taxi fare scales that have been fixed by a licensing authority. We felt there was merit in the proposal but had slight concerns that such a change may be to the detriment of the individual in terms of the weighting given to comments received from representative bodies. As such, we decided that we should seek views on this proposal during the consultation process and we found that there was broad support for it.
Recommendation
The Task Group recommend that Section 18(1) should be amended to provide for "representative bodies" as well as individuals to be able to submit appeals in connection with taxi fare scales which have been fixed by a licensing authority.
2.42 As part of our consideration of this section we considered but ultimately discounted a number of options for change before we went out to consultation on our emerging findings. For the sake of completeness our consideration and conclusions on these, all of which were exposed during the consultation process, are detailed in the following paragraphs.
2.43 We considered extending the appeal provisions to phcs fitted with meters but discounted it on the basis that it would further erode the differential between taxis and private hire cars (the Task Group having concluded that there were no grounds to recommend that it should be mandatory for phcs, like taxis, to be fitted with taximeters given that phcs were providing a different type of service from that of a taxi).
2.44 Consideration was also given to amending Section 18(1) to provide for the Traffic Commissioner to introduce additional scale tariffs where he deemed it appropriate. However, we concluded that this would extend the power of the Traffic Commissioner inappropriately and that such decisions were best left to licensing authorities to determine.
2.45 We also concluded that a proposal received which would empower the Traffic Commissioner, on the request of an appellant, to give effect to a fare scale set under section 18(1) pending the determination of an appeal, was unreasonable and as such should not be pursued.
2.46 The Task Group were disinclined to support a proposal which had come to their attention which would, in effect, prevent a licensing authority from recouping the costs of an appeal heard by the Traffic Commissioner, which it subsequently lost, from the various fees charged to the trade under Section 12 of the 1982 Act. While sympathetic to the views put forward, we concluded that given that the costs would need to be met by the licensing authority it would be wholly wrong for the expense to be funded by the local taxpayer. The Section 12 provision ringfences the cost of the administration of the taxi and phc licensing regime by the licensing authority and all such costs should rightly be met from application and licence fees.
2.47 A proposal to empower the Traffic Commissioner to make an award of expenses commensurate with the outcome of an appeal was similarly rejected. We took the view that such a proposal would exceed, inappropriately, the powers of the Traffic Commissioner and favoured the status quo as the most equitable system for those parties involved in an appeal. The effect of the proposal, if implemented, would be that the trade or individual who submitted an appeal would be liable for the licensing authorities' costs if they lost the appeal and, given the costs involved, this could act as a disincentive to appeal in the first instance.
SECTION 19 - TAXI STANCES
2.48 In reviewing the terms of Section 19, we determined that licensing authorities should retain the flexibility of determining whether, and the extent to which, taxi stances are required in their areas. Nothing arose from the consultation process to change our view on this.
Conclusion
The Task Group concluded that no legislative change is required to the provisions relating to taxi stances.
SECTION 20 - REGULATIONS RELATING TO TAXIS AND PRIVATE HIRE CARS AND THEIR DRIVERS
2.49 The Task Group were aware that the high mileage of taxis and phcs had prompted some licensing authorities to impose age limits on such vehicles in the interests of public safety. Additionally, other licensing authorities had opted to do so with the objective of improving vehicle quality and thereby enhancing the image of the Trade. Conversely, other licensing authorities opted not to impose age limits on such vehicles on the grounds that the overriding factor was that the vehicle should be properly maintained and fit for intended use and that the age of the vehicle was not a determining factor. The Task Group recognised the merits of both sides of the argument but in conclusion considered that there were insufficient grounds for prohibiting such a condition rather, that such a decision should properly be made at the local level. In drawing this conclusion, we noted that any licence holders who opposed any such a condition of licence imposed by their licensing authority had the right of appeal to a Sheriff if they considered the condition to be unreasonable.
Conclusion
The Task Group concluded that individual licensing authorities should continue to determine whether the placing of age restrictions on taxis and phcs as a condition of licence was appropriate for their area.
SECTION 21 - OFFENCE PROVISIONS
2.50 The Task Group were aware of the concerns of the trade in relation to the non-payment of fares and the difficulties in mounting a successful prosecution. While recognising that non-payment of a fare is already provided for by the common law offence of fraud - obtaining goods or services by deception without any intention of paying - difficulties often arise due to the need to obtain corroborative evidence. Consequently it is often not possible for action to be taken against alleged offenders. Although strictly outwith our remit, we considered whether there would be merit in reducing the merit of proof for non-payment of fares. In doing so we recognised that corroboration was important in Scots Law and that wherever possible it should be retained. However, given the strength of feeling within the trade that such problems need to be addressed, we concluded that we should note their concerns in our report in order that these can be taken into consideration when the offence provisions are next reviewed with a view to determining whether the non-payment of fares should be based on the evidence of a single witness.
Recommendation
While strictly outwith our remit, the Task Group feel it is incumbent on them to draw to the attention of Scottish Ministers the concerns of the trade over the difficulties in dealing with non-payment of fares. In so doing, we recommend that at the next review of criminal offence provisions consideration is given to the merits of allowing any prosecution for the non-payment of fares to be based on the evidence of a single witness.
SECTION 22 - SAVINGS FOR CERTAIN VEHICLES
2.51 We specifically sought feedback during the consultation process on whether there is still a need for the exemption provisions covered at Section 22 and, as a result, concluded that the status quo should remain.
Conclusion
After considering the various responses to our consultation, the Task Group concluded that the exempt vehicle provisions remain appropriate.
SECTION 23 - INTERPRETATION OF SECTIONS 10-22
2.52 The amendment to the definition of "public service vehicle" in the Public Passenger Vehicles Act 1981 has led to some confusion in relation to the definitions of "taxi" and "private hire car" in the 1982 Act. It also highlighted, in the Task Group's view, the uneasy relationship between the two Acts. The two licensing regimes are very different and administered by different bodies - taxis and private hire cars by licensing authorities and public service vehicles by the Traffic Commissioner. While this in itself is not problematic, it has led to some confusion in respect of the category of vehicles covered by the respective licensing regimes. In commenting on this, we are conscious that the provisions contained in the 1981 Act are reserved to the Westminster Parliament under the devolution settlement and as such do not fall within the remit of the Task Group.
2.53 In considering the adequacy of the taxi and phc provisions it has been drawn to our attention that a number of vehicles and services remain unregulated, perhaps being regarded as falling between the different licensing regimes due to the nature of their business. Examples of these include chauffeur driven businesses, vehicles used for airport transfers, stretch limousines and "novelty" vehicles such as de-commissioned fire engines and ambulances, all of which are available for hire to the public. Licensing authorities can, if they consider such vehicles fall within the definition of phc, bring such vehicles within the taxi and phc regime under the discretion available to them to determine the size, type and design of such vehicles that can operate in their area. There is evidence to suggest that a few licensing authorities are, in the absence of any other regulatory controls, bringing at least some of these vehicles within the licensing regime. However, the Task Group recognise that due to the generally fairly prescriptive nature of the type, size and design of vehicles permitted by many licensing authorities, some of these vehicles and drivers continue to fall outwith any regulatory control. In view of this the Task Group sought feedback during the consultation process on any problems being experienced with what we called "unregulated vehicles". Specifically, and notwithstanding the exemption provisions provided at section 22, we also sought feedback on whether licensing authorities regard chauffeur driven vehicles as falling outwith the definition of phc and, if so, why.
2.54 It was clear from the responses the Task Group received to the consultation that, while respondents were content with the definitions of taxis and phcs contained in the 1982 Act, there was concern about the increasing numbers of "unregulated vehicles", such as those detailed above, that were operating outwith any licensing system. The clear view of both respondents and the Task Group is that, in the interests of public safety, these vehicles need to be regulated. The Task Group recognises that, given the flexibility permitted by the definitions of taxi and private hire car contained in the 1982 Act, it would be permissible for licensing authorities to use their discretionary powers to license such vehicles under the existing regime. At the same time, however, we were conscious that the Act was not designed to license such vehicles and it could be problematic for a licensing authority to determine whether some of the "unregulated vehicles" were suitable and safe to operate as phcs.
2.55 Consequently, we were not totally convinced that it would be appropriate to bring those "unregulated" vehicles within the existing licensing regime, albeit that they fall within the definition of phc contained in the 1982 Act. However, in the absence of any alternative mechanism to control such vehicles, and given that some licensing authorities have already brought such vehicles within the parameters of the existing licensing system, we believe that the Executive should issue guidance to encourage all licensing authorities to use their discretionary powers to adapt their existing licensing regimes and conditions to do so. To assist licensing authorities in this regard, the Task Group consider that it would be helpful if a local authority professional organisation, such as SOLAR, was given the task of drawing up model conditions for the various non-standard vehicles for which a licence would be required. Thereafter, we recommend that Scottish Ministers review the situation two years after the guidance and model conditions have been issued, to determine whether the public safety concerns over "unregulated vehicles" have been sufficiently addressed.
Recommendation
The Task Group concluded that the provisions contained at section 23 of the Act, including the definitions of "taxi" and "private hire car", remain appropriate. However, in view of the concerns expressed about "unregulated vehicles", e.g. limousines, converted fire engines and ambulances, etc, and in the absence of any other mechanism to license such vehicles and their drivers, we recommend that the Executive issues guidance to licensing authorities encouraging them to adapt their existing licensing scheme to regulate those vehicles which fall within the definition of phc. In doing so, it follows that the drivers of such vehicles should also be covered by the licensing regime. To assist licensing authorities in doing so, we further recommend that SOLAR be asked to draw up model conditions for the various non-standard vehicles that fall within the definition of "private hire car" and that these be incorporated within the guidance. Finally, that Scottish Ministers review the position two years after the guidance and model conditions has been issued with a view to determining whether the concerns over "unregulated vehicles" have been adequately addressed.
DEFINITION OF PUBLIC PLACE AS IT RELATES TO TAXIS AND PRIVATE HIRE CARS
2.56 Some concerns have been expressed that the definition of public place at section 133 of the Act is not appropriate in relation to taxis and private hire cars and that a separate definition should be drawn up for this purpose. Particular attention was drawn to the problems that can be encountered at shopping centres, supermarkets etc and the doubts that exist on the rights of the owners and lease holders to be prescriptive about who operates within their boundaries and conversely the rights of taxis drivers to ply for hire within these areas. While some respondents favoured a generic definition for public places for all legislation the Task Group concluded that this would not be feasible.
Recommendation
In view of the difficulties encountered by the trade with the general definition of "public place" the Task Group recommend that a separate definition for taxis and phcs is introduced and that this be drawn up in consultation with licensing authorities and the trade.
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