Irving, R (on the application of) v Secretary of State for Transport [2008] EWHC 1200 (Admin)

Case No CO/2818/2007[2008] EWHC 1200 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 9th May 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SAUNDERS
Between
THE QUEEN ON THE APPLICATION OF IRVINGClaimantv
Between
THE SECRETARY OF STATE FOR TRANSPORTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Nesbitt (instructed by Ford & Warren) appeared for ClaimantMiss F Banks (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SAUNDERS: This is an appeal by way of case stated against a decision of District Judge Bennett sitting in the Huddersfield Magistrates' Court on 6th December 2006, when he dismissed the appellant's appeal against the refusal of the respondent to grant him a Group 2 driving licence.[2]It is agreed that the central question which is determinative of this appeal is not, through no fault of the District Judge, one of those posed for the opinion of this court. It is also agreed that it is that central question which I have to decide. Counsel have helpfully drafted the question that I must answer which is: whether the United Kingdom legislation should be interpreted pursuant to community law so as to preclude the issue of a Group 2 driving licence to the appellant.[3]A Group 2 driving licence permits the holder to drive large goods vehicles and large passenger carrying vehicles. The statutory framework is provided by the Road Traffic Act 1988 and regulations made there-under. Section 97 requires the Secretary of State to grant the licence subject to the provisions of section 97 and section 92. In this case it is agreed that, but for the provisions of section 92, the respondent was bound to grant the licence to the appellant.[4]Section 92(3) provides that:
"If it appears from the applicant's declaration, or if on enquiry the Secretary of State is satisfied from other information, that the applicant is suffering from a relevant disability, the Secretary of State must, subject to the following provisions of this section, refuse to grant the licence."
Section 92(2) provides that "relevant disability" means:
"(a) any prescribed disability, and (b) any other disability likely to cause the driving of a vehicle by him to be a danger to the public."
Section 101 which is the definition section defines "prescribed" as meaning "prescribed by regulation". That is the statutory framework in national domestic law.[5]European Community law has also prescribed standards for the grant of Group 2 licences. The material part of European Community law, so far as this case is concerned, is contained in Annex III, paragraph 6.3 to Directive 91/439/EEC which provides:
"Driving licences shall not be issued to or renewed for applications or drivers without a normal binocular field of vision."
[6]The respondent refused the appellant's application for a licence on 14th June 2005. The reason given by the respondent was that:
"It is a requirement of the second European Community Directive on Driver Licensing, to which the United Kingdom is a signatory, that vocational drivers should have a normal binocular field of vision. You currently do not have a normal binocular vision."
[7]Although it is not necessary to set out many facts in this judgment; where they are referred to they are taken from the stated case.[8]The District

Judge found as follows in relation to the appellant's sight defect:

"The appellant has steroid induced glaucoma. Binocular vision field assessment shows that his left eye is entirely normal. There is however extensive field loss in the right eye. The test used for binocular field vision is known as the Estermans test. The most recent of these tests showed three contiguous missed test points on the right side. The closest one of these missed points is 50 degrees inferior and 30 degrees from the central fixation point."
It is common ground that steroid induced glaucoma is not a disability prescribed by the Regulations.[9]At the hearing of the appeal in front of the District Judge it was contended by the respondent that the appellant was suffering from a relevant disability because the effect of the field loss in the right eye "was likely to cause the driving of a vehicle by him to be a danger to the public". The District Judge heard evidence on both sides. He found that the driving of a vehicle by the appellant was not likely to cause danger to the public. That was because the area where there was lost vision would not affect his ability to see when driving. On that basis, using the actual meaning of the domestic legislation, the Secretary of State had to issue the licence.[10]The District Judge also made findings in relation to the European Directive. He found as a fact, using the ordinary meaning of the Directive, that the appellant did not have "normal binocular field of vision".[11]The Road Traffic Act 1988 pre-dates the European Directive. Had this case been decided before the Directive, the appellant would have been entitled to the licence. How, if at all, has the Directive altered the position?[12]It is common ground that since the issue of the Directive the DVLA have considered applications within its terms as have the medical panel which advises it. Their website and explanatory material make it clear that for a Group 2 licence a person is required to have a normal binocular field of vision.[13]The District Judge concluded that the terms of the Directive were binding on him and dismissed the appeal. The appellant feels a very considerable grievance about that decision. It is important for him to hold such a licence in order to maintain his livelihood. Despite all the resources at their disposal, the respondent has failed to satisfy a court that the appellant is any less safe by reason of his medical condition than anybody else to drive a Class 2 vehicle. Nevertheless, he is to be deprived of his livelihood because of the terms of a Directive which arguably goes beyond what is necessary to ensure road safety. Even counsel representing the respondent has expressed his sympathy for the appellant, although I am not sure that made the appellant feel much better.[14]The arguments on behalf of the respondent are as follows:(1) As a Member State, the United Kingdom is bound by the Treaty establishing the European Community.(2) By Article 10 of the Treaty (and I will only read the material parts) "Member States are bound to take all appropriate measures . . . to ensure fulfilment of the obligations arising out of this Treaty . . . ".(3) By paragraph 3 of Article 249: "A Directive shall be binding, as to the result to be achieved, on every Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."(4) The Directive does not have a direct effect on the appellant but affects him indirectly by the implementation of the Directive by the State.(5) Whether or not the Member State introduces new legislation or amends old legislation, the courts are obliged to interpret national law so as to achieve the purpose of the Directive. Clearly it is easier to interpret new law designed to incorporate the Directive in that way, but the obligation extends to legislation which pre-dates the Directive as well.(6) The requirement to read down or read up existing legislation is a wide one, and it is perfectly possible to read the Road Traffic Act 1988 in such a way as to be consistent with that Directive.(7) The District Judge was therefore obliged to interpret the 1988 Act in such a way that required him to refuse the appellant a licence because he did not have a normal binocular field of vision.[15]The arguments on behalf of the appellant were:(1) Adopting, as one must, a purposive interpretation of the Directive, there is no conflict between the terms of the Directive and the ordinary meaning of the wording of the 1988 Act.(2) The purpose of the Directive is to promote standards of road safety within Member States of the Community.(3) It is only necessary for the purposes of road safety to refuse licences to those who represent a danger.(4) This view is supported by the observations of the European Union working group which suggests that a requirement for normal binocular vision cannot be correlated with danger.(5) The proper reading of "normal binocular vision" in the Directive should be "binocular vision not entailing abnormal danger". In other words, the Directive is entirely consistent with the Road Traffic Act 1988.(6) Even if that was not the original meaning of the Directive, as it is a living instrument, the meaning has now changed to reflect the view of the working group.(7) To adopt the literal meaning of the Directive would be disproportionate in that it would prevent people from driving Class 2 vehicles who are safe to drive them, such as the appellant.(8) Alternatively, but very much secondarily, if the meanings of the Directive and the Road Traffic Act 1988 are different then it is not possible to read the Road Traffic Act 1988 in accordance with the 'normal' meaning of the Directive.[16]The District Judge found as a fact that the claimant did not have normal binocular vision. He made that finding because, as a result of steroid induced glaucoma the appellant has extensive field loss in his right eye. No-one can complain about that finding using the ordinary meaning of the words.[17]The appellant argues for a different interpretation of "normal binocular vision". On his case it means "binocular vision not entailing abnormal danger". The appellant justifies that by saying it is the proper purposive interpretation of the Directive and that it is the purposive interpretation that I must adopt.[18]In my judgment, it is clear from the recitals to the Directive that the purposes are:(1) To lay down the minimum requirements for the issue of a driving licence on road safety grounds, and(2) In order to facilitate the movement of persons between Member States to provide a community model national driving licence mutually recognised by the Member States without any obligation to exchange licences.[19]To achieve harmonisation it is necessary to redefine the minimum standards of physical and mental fitness for driving vehicles of different classes.[20]As is pointed out by the respondent, the Directive itself comes about as a result of consultation between Member States. There is a power for a Member State to derogate from the provisions in Article 7.3, but this can only happen with the agreement of the Commission and only where derogation is "compatible with the development of medical science and with the principles laid down in that Annex".[21]In accordance with the purposes of the Directive, I have no reason to suppose that "normal binocular vision" was intended to have anything but its ordinary meaning. The fact that in an individual case a court has decided that a particular individual is safe to drive even though he does not have normal binocular vision does not mean that it has to bear a different meaning.[22]We do not know what the evidence was which led the Commission to adopt the wording of the Directive, nor the arguments put forward by Member States. The fact that a consequence of following this Directive is that the appellant is not permitted to drive Class 2 vehicles when he would be safe to do so does not justify reading the Directive in any way but its natural way. As Lord Bingham said in R (on the application of Animal Defenders) v Secretary of State for Culture [2008] 2 WLR 781 at page 795D:
" . . . [Legislation] cannot be framed so as to address particular cases. It must lay down general rules . . . A general rule means a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial."
Because this is a Directive applying to all Member States it is, as the appellant accepts, an inevitable consequence of his argument that if I interpret this Directive in the way he suggests, it follows that that is the correct interpretation for all Member States.[23]In my judgment, implying a purposive interpretation to this Directive, it bears its ordinary natural meaning and the District Judge was correct in deciding that the appellant did not meet that standard. I do not accept the appellant's submission that the report of the Eyesight Working Group dated May 2005 entitled "New standards for the visual functions of drivers" should cause me to interpret the Directive in the way he suggests.[24]The report comprises "the advice of the Eyesight Working Group to the European Driving Licence Committee for a possible revision of the standards on vision for driving". It says there is a "need for wide revision of the standards (for testing the visual functions of drivers) in order to resolve some apparent inconsistencies and to make sure that the standards, where possible, are based on scientific evidence". It concludes by setting out the current guidelines and proposed changes. It also identifies the need for further research before new guidance can be drawn up. These are proposals for change. They will no doubt be the basis for negotiation between the Commission and Member States. I do not accept that merely by making recommendations the working party can change the meaning of a Directive.[25]The appellant also points out that to read the Directive in accordance with English law does less violence to the language than to read the Road Traffic Act 1988 in accordance with the Directive. That may or may not be so, but there is a legal obligation to interpret domestic legislation in accordance with European law. There is no obligation to read European legislation in accordance with domestic law.[26]I turn therefore to the respondent's argument. He argues that while on the natural meaning of the Road Traffic Act 1988 the appellant is entitled to a licence, the court has to interpret the Road Traffic Act 1988 in the light of the Directive so that he is not given a licence.[27]It is agreed that the Directive does not have a direct effect on the appellant. It is also accepted by the respondent that the Directive cannot be made effective by an administrative act alone. It therefore relies on the duty of interpretation placed on the court.[28]Member States have to implement Directives by virtue of Articles 10 and 249 of the Treaty. Article 10 requires that:
"Member States should take all appropriate measures . . . to ensure fulfilment of the obligation arising out of this Treaty."
Article 249 provides:
"A Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."
[29]In this case, the easiest method to giving effect to the Directive would have been to amend the Road Traffic Act 1988 or the Regulations. This has the considerable advantage of clarity and certainty. If that had happened, there would have been no need for the Magistrates' Court to hear an expensive and protracted argument, involving experts on both sides, as to whether the appellant would constitute a danger if he drove Class 2 vehicles. The fact that the respondent joined in that argument only added to the confusion when, if his case is correct, he was simply entitled to say that the court was bound to refuse the licence by interpreting the Road Traffic Act 1988 in accordance with the Directive. This was, of course, in essence, the argument accepted by the District Judge.[30]The court has an obligation to read its domestic legislation in the light of Directives so far as possible. The most authoritative statement of that principle is found in the judgment of the European Court of Justice in Marleasing SA v La Commercial Internacional de Alimentation SA [1990] 1 ECR 4135. In paragraph 8 of the judgment, the court, having specified the requirements of Article 5, said:
"The fulfilment of the obligation is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the Directive. The national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty."
[31]The next question is what "is possible"? In Pfeiffer [2004] ECR 1-8835 the court, having set out the principle in Marleasing, said:
"The principle of interpretation in conformity with community law thus requires the referring court to do whatever lies within its jurisdiction, having regard to the whole bodies of rules of national law."
[32]The House of Lords has, in a series of cases, decided what the whole body of rules of national law are. This is an area where the law has developed and, although it was helpful to be taken through the earlier cases, it is only necessary for me in this judgment to consider the most recent cases. In Ghaidan v Godin Mendoza [2004] 2 AC 557 which was a case concerning the extent of the interpretative power provided by section 3 of the Human Rights Act, Lord Steyn equated that duty as the same as the obligation to construe domestic legislation in accordance with European Directives. The application of section 3 to domestic statutes has involved reading words into a statute; giving a statute a meaning which is contrary to the natural and normal meaning of the words used. Lord Steyn did say that there was a Rubicon which courts may not cross when interpreting domestic legislation. He preferred not to try to formulate precise rules but said, "like the proverbial elephant such a case ought generally to be easily identifiable" (paragraph 50).[33]Lord Nicholls in his speech did attempt to identify the limit. At paragraph 33 he said:
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation . . . Words implied must go with the grain of the legislation."
[34]A number of the earlier cases make it clear that it is easier to interpret domestic legislation in accordance with the Directive when the purpose of the legislation is to incorporate the Directive into domestic law. The Road Traffic Act 1988 pre-dated the Directive but the obligation to interpret in accordance with the Directive, if possible, still applies.[35]The appellant argues that the interpretation proposed by the respondent is not possible. I disagree. In my judgment, to interpret the Act in accordance with the Directive does not give it a meaning inconsistent with a fundamental feature of the legislation. The aim of both, at least in part, is to promote road safety. The difference is in the rigour of the standard to be applied, but the aim is the same.[36]An interpretation consistent with the Directive can be achieved by reading words into the statute or the Regulations, or by interpreting section 92(2)(b) so that if the driver of a vehicle fails to satisfy the standards required by the Directive then he suffers from a disability likely to cause the driving of a vehicle by him to be a danger to the public. The interpretation of section 92(2)(b) suggested makes it unnecessary to add words and is therefore the interpretative solution which I prefer, having considered representations made on behalf of the Secretary of State in relation to it.[37]I am therefore driven to the conclusion that the District Judge's decision was right, even though my reasons may be somewhat different. I have reached that conclusion with regret because it means that, on the finding of the District Judge, the appellant will not get a licence for a reason unconnected with safety. That will impact on his ability to earn a living. It is a result on the individual facts of the case that no-one would want. Therefore, my answer to the question drafted by counsel is: yes.[38]MISS BANKS: My Lord, we make no application for costs.[39]MR JUSTICE SAUNDERS: If I may say so, that seems to be a very proper decision in all the circumstances. I am sure the appellant is grateful.[40]MR NESBITT: Thank you, my Lord.

MR JUSTICE SAUNDERS: Thank you both very much.

Cited in 1 later judgment