Guidance

Taxi byelaws: guidance and the byelaw making process

Updated 17 November 2023

Introduction

The purpose of this guidance note is to assist local licensing authorities in England who are considering making taxi byelaws under section 68 of the Town Police Clauses Act 1847.

Byelaws or conditions of licence?

As a first step, licensing authorities will want to consider whether their regulatory objectives - in terms of exerting controls over taxi owners and drivers - can best be achieved by attaching conditions to licences or by making byelaws. Conditions can be attached to taxi vehicle licences by virtue of section 47 of the Local Government (Miscellaneous Provisions) Act 1976.

It appears to have been accepted amongst licensing authorities that the judgment in the case of Wathan v Neath and Port Talbot CBC [2002 EWHC 1634] established a principle that there was no power available in law to attach conditions to a taxi driver’s licence.

The department’s view is that the decision in Wathan is being misinterpreted; and that the power to grant a licence to a taxi driver under section 46 of the Town Police Clauses Act 1847 implies a power to attach conditions to that licence.

Hewison v Skegness Urban District Council [1963 1 QB 584] held that whether or not an authority could impose conditions to a licence depended on what the statutory power to grant the licence said or implied. In deciding whether conditions can be imposed on a taxi driver’s licence, certain considerations must be taken into account, including (i) whether or not the statutory regime contains preconditions for the grant of a licence - an absence of statutory criteria makes it easier to imply a power to impose conditions; and (ii) enforcement. There is a mechanism to enforce any breach of a condition under section 50 of the 1847 Act and section 61 of the 1976 Act.

These considerations have informed our view that the power to grant a licence to a taxi driver under section 46 of the 1847 Act implies a power to attach conditions to that licence.

By contrast, in the case of Wathan v Neath and Port Talbot CBC, the court was asked if section 57 of the Local Government (Miscellaneous Provisions) Act 1976 empowers authorities to attach conditions to a taxi driver’s licence. The court held that it did not, because section 57 concerns licence applications and whether conditions should be attached to a licence. We accept the conclusion of the court in relation to the question put to it; section 57 does not, as the judgement makes clear, confer a power to impose conditions. However, this was, in our view, because section 57 impliedly assumes that there was already such a power, presumably deriving from section 46 of the 1847 Act.

We recognise that there are arguments against this view, and it will be a matter for each licensing authority, in conjunction with its own legal advisers, to determine whether it is proper to attach conditions to a licence. Ultimately, of course, whether section 46 provides such a power will be a matter for the courts to decide.

While, in the department’s opinion, there is no need - at least on legal grounds – for licensing authorities to abandon their conditions of licence and re-enact the relevant obligations or prohibitions in byelaws, some licensing authorities might decide that taxi byelaws suit their purposes better than conditions of licence (e.g. the varying approaches to penalties for offences or consequences for breaches might be a relevant consideration).

Considerations when making taxi byelaws

Extent of vires

Having considered the matter carefully, we take the view that the byelaw-making power in the 1847 act should be considered in the context of authorities’ wider responsibilities in relation to taxi licensing i.e. that the purpose of the power is to enable licensing authorities to regulate taxi drivers and proprietors in such a way as to ensure that they are fit and proper persons and in order to ensure the safety of the travelling public.

In reaching this conclusion, it is relevant to note that the 1847 Act refers to the conduct of both drivers and proprietors “plying … in their several employments”, suggesting that plying is not restricted just to drivers seeking hirings, but is a way of defining the running of a taxi business. Moreover, section 68 also refers to regulating things such as the maintenance of the taxi. We therefore take the view that section 68 allows byelaws to cover all areas associated with the business of running taxis in which the licensing authority has a genuine and legitimate interest.

Model byelaws

The department has produced a set of model byelaws as a basis for licensing authorities.

This model is available to download from the GOV.UK landing page for this guidance note.

The model byelaws cover the range of standard controls which most authorities would want to impose, and we would expect authorities to base their byelaws on the model.

Deviations from the model

Where an authority wishes to introduce a byelaw, which deviates from the model, we shall expect licensing authorities to take a rigorous approach in drafting to ensure that the tests of legal validity are met. These are set out in Kruse v Johnson [1898 2 QB 91] as comprising 4 elements essential to validity:

• byelaws must be within the powers of the local authority which makes them
• byelaws must not be repugnant to the general law
• byelaws must be certain and positive in their terms
• byelaws must be reasonable

If an authority identifies a policy objective which it wishes to reflect in byelaws, the onus will be on the authority to draft a suitable byelaw to put to the department for provisional approval.

The onus will also be on the authority to satisfy itself as to the validity of any proposed byelaw which it submits to the department for approval. We would expect authorities to have sought their own legal advice and to provide an explanation as to why they consider that any proposed byelaw is valid.

We would stress that confirmation by the Secretary of State does not endow the byelaws with legal validity - only the courts can determine whether a byelaw is valid. To this extent, it is crucial that any draft byelaws are seen and approved by the council’s legal advisers. Any request for provisional approval of byelaws which deviate from the model should be accompanied by an explanation of the policy objective, a justification of their validity and confirmation that the byelaws have been approved by legal advisers.

Secretary of State’s role

Section 236(7) of the Local Government Act 1972 gives the Secretary of State power to confirm or refuse byelaws which are submitted to them. Confirmation depends on validity. In confirming a byelaw, the Secretary of State is not purporting to give legal effect to something which would not otherwise be lawful.

The principal element of the approval and confirmation process will involve consideration of the policy issues, mainly whether the objective is reasonable and the byelaw appropriate to achieve it. We shall reach a view at the provisional approval stage and we shall also continue to consider any objections put to the Secretary of State when the byelaws have been advertised.

Prior to seeking provisional approval for new byelaws

Consider the model set of byelaws - available for download from the GOV.UK landing page for this guidance note.

Identify any policy objectives which you wish to include which are not incorporated in the model.

Consider with legal advisers whether the policy objectives could be incorporated in the byelaws.

Draft appropriate byelaws with accompanying justification of policy objective and statement regarding their legal validity.

Submitting to the department for provisional approval

Submit the proposed draft byelaws for provisional approval. It is preferable to submit a full set of byelaws so that all the provisions can be considered together rather than by seeking provisional approval in a piecemeal manner. The byelaws should be sent to the department - either using [email protected] or at:

The Department for Transport

Local Passenger Transport Division

Great Minster House,

33 Horseferry Road

London

SW1P 4DR

Identify in the covering letter those byelaws which deviate from the model.

Set out in the covering letter the policy objective to be achieved in respect of each byelaw which deviates from the model (including why the model is not suitable in the case of a minor deviation).

Confirm in the covering letter that the byelaws have been approved by the council’s legal advisers and that they are satisfied that each proposed byelaw is valid in legal terms.

You will receive an acknowledgement from the department on receipt of draft byelaws. However, please bear in mind that if we have a substantial number of requests for approval and confirmation, there might well be a delay in processing requests.

Submitting to the department for confirmation

Having followed the making, sealing and advertising procedure in section 236 of the Local Government Act 1972, please submit the byelaws to the Department for Transport for confirmation.

We shall require 2 sealed copies of the byelaws for confirmation - one for our retention and one which will be returned to the council.

Please submit evidence that the statutory procedure in respect of advertising the byelaws has been followed (a copy of the page(s) of the relevant local papers is sufficient for this purpose).

Coming into operation

The department will agree a coming into operation date with the local authority. The standard period is 4 weeks from confirmation, but this can be adapted if the local authority has specific reasons. We would, however, expect sufficient time between confirmation and coming into operation as to enable the byelaws to be printed and distributed to proprietors and drivers.