UK: Consultation - Taxis, Horses and Carts

Last Updated: 19 July 2006
Article by Nicholas Dobson

'I had that Mr. Justice Wilkie in the back of my cab!' Well, not exactly, but the Watford Hackney Drivers Association (through Shujait Ahmed Sardar who also brought proceedings on his own behalf) were certainly before Wilkie J on 30 June 2006 when they successfully challenged decisions of Watford Borough Council to delimit with immediate effect licences for hackney cabs in the Council's area (see Sardar and others v Watford Borough Council [2006] EWHC 1590). Delimiting refers to removing the quantity restriction upon the number of hackney carriage licences granted by the Council.

Under section 37 of the Town Police Clauses Act 1847 and section 16 of the Transport Act 1985 the Council has power to limit by number the hackney carriage licences issued. However, this is only if it is satisfied that there is no significant unmet demand for such services. The Claimants sought an order prohibiting the Council from issuing new hackney carriage licenses until the completion of full and adequate consultation and an order quashing the decisions complained of and remitting the matter to the Council's licensing committee for reconsideration in the light of full and adequate consultation.

Wilkie J noted that (per the decision of the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213) whether or not it is a legal requirement in any particular case, if consultation is in fact carried out, this must be done properly. There are four elements to this:

  1. Consultation must be undertaken at a time when proposals are still at a formative stage.
  2. The consultation must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and intelligent response
  3. Adequate time must be given for this purpose
  4. The product of consultation must be conscientiously taken into account when the ultimate decision is taken.

The relevant Council committee decided (amongst other things) on 5 September 2005 that officers prepare a detailed report 'to agree the manner under which delimitation will take effect'. Between this date and 20th October 2005 (when the matter next came before the relevant Committee) a consultation process had been conducted. This followed advice from the Council's monitoring officer that before any change of policy in this area '. . . full and effective consultation must take place with all 'those likely to be affected'. Such consultation was advised to include: '. . . existing licensees and those with a legitimate expectation of having been granted a licence'.

The Court noted that the consultation in fact included:

'. . .a letter to all existing hackney carriage vehicle drivers on 9th September; a press release; a public advertisement and an entry on the Council's website inviting comments from the public. It involved the retention of consultants to conduct focus group meetings, to write to around 20 other stakeholders, to conduct 400 public attitude surveys; and to conduct separate focus groups held on 27 and 28 September with representatives from 7 identified stakeholders, (invitations having been issued to 4 others who did not attend).'

However, ultimately the Court found that the Council had in effect taken the decision before consulting. Wilkie J considered that the Council on 5 September 2005 took a decision to delimit and by virtue of that decision this ceased to be a policy 'which was at the formative stage'. He noted that the description 'formative stage' may describe a number of situations including:

  • A council may only have reached the stage of identifying a number of options when it decides to consult.
  • However, in other circumstances it may have formed a provisional view as to the course to be adopted or may be 'minded' to take a particular course subject to the outcome of consultations.

In both of the above, the Council is consulting in advance of the decision in question being made. Whilst the Court considered that it was no doubt right that if the Council has a preferred option or has formed a provisional view that those being consulted should be informed of this so as better to focus their responses, the existence of a provisional view or preferred option does not prevent a consultation exercise being conducted in good faith. However, this is provided that 'the policy is still formative in the sense that no final decision has yet been made'.

But Wilkie J considered that:

'. . . it is a difference in kind for it to have made a decision in principle to adopt a policy and, thereafter, to be concerned only with the timing of its implementation and other matters of detail. Whilst a consultation on the timing and manner of implementation may be a proper one on these issues it cannot, in my judgment, be said that such a consultation, insofar as it touches upon the question of principle, is conducted at a point at which policy on that issue is at a formative stage.'

In the circumstances, given that on the 'crucial issue of principle the sequence has been - decision first, consultation later' the Court came to the view that:

'. . . the failure on the part of the defendant to consult prior to taking a decision in principle on the issue of delimitation was fatal to their ability to take, on 20 October, a decision to delimit the number of hackney carriage licences with immediate effect.'

However, it would have been open to the Council to decide to delimit if the Council had acknowledged what had gone wrong on 5 September, decided to proceed on the basis that delimitation was one of the options being considered (albeit a preferred one) and consulted on that basis.

This decision shows the care needed in respect of any consultation exercise and underlines the importance of fairness in public authority decision making. The Court in this case considered it important that the decision-making process where consultation is required must be 'both substantively fair and have the appearance of fairness'. In the circumstances putting the decision cart before the consultation horse stalled the Council's decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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