Morris, R (on the application of) v Newport City Council [2009] EWHC 3051 (Admin)

[2009] EWHC 3051 (Admin)

Case No CO/6218/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Cardiff Civil Justice Centre, 2 Park St, Cardiff, CF10 1ET

Date 27/11/2009

Before

THE HONOURABLE MR JUSTICE BEATSON

Between

THE QUEENClaimant

NEWPORT CITY COUNCILDefendant

MR P. SAINI QC AND MR H. MUSSA (instructed by Neumans LLP) for Claimant

MS R. STOCKLEY (instructed by Newport City Council) for Defendant

Hearing Hearing dates: 20 November 2009

Judgment

[1]In March 2009 the defendant, Newport City Council, decided to introduce age limits on vehicles licensed as hackney carriages and private hire vehicles in Newport on a phased basis from 1 October 2009. The decision was published on 18 March. It was taken by Councillor David Fouweather, the Cabinet Member for Environmental and Community Safety, to whom the defendant’s cabinet delegated the prescription of general policy in relation to taxi licensing. On 18 June the claimant, Mr Morris, a hackney carriage driver and chairman of the Newport Hackney Drivers’ Association (the NHDA) launched these judicial review proceedings challenging the decision. On 7 October 2009 at a renewed application for permission Silber J granted permission, directed expedition, and gave the claimant permission to amend his claim to allege a breach of the National Assembly for Wales’s Model Code of Conduct and the defendant’s Members’ Code of Conduct and the common law rules concerning bias by reason of non-disclosure by Councillor Fouweather that his brother Wayne is a licensed hackney carriage driver and a half brother is a licensed private hire driver in Newport.

[2]The other grounds for challenging the decision concern the consultation process and, in particular non-compliance with the requirements formulated in a number of cases, R v Barnett LBC, ex parte B

[1994] ELR 357

at 370; R v North East Devon Health Authority, ex parte Coughlan

[2001] QB 213

at [108] and R (Eisai Limited) v National Institute for Health and Clinical Excellence [2008] 11 CCL Rep 385 at [24] – [27]. These are;(a) consultation must be at a time when proposals are still at a formative stage,

(b) sufficient reasons must be given for any proposal to enable intelligent consideration and response,

(d) the product of consultation must be conscientiously taken into account in finalising any proposals. Mr Saini submitted that the first two and the last of these requirements were not met in this case. He also submitted that the decision schedule containing the decision gave inadequate reasons and was not based on evidence, and that it was made for an improper purpose, took account of irrelevant considerations, and failed to take account of relevant considerations. The grounds and Mr Saini’s skeleton argument also relied on breach of Article 1 of Protocol 1 of the European Convention. While not formally abandoning this ground, Mr Saini did not advance it in his oral submissions. He was right not to do so. If the decision was otherwise lawful, it did not fall outwith the wide margin of appreciation afforded to national authorities under this provision of the Convention.

[3]The evidence before me consisted of two statements by Mr Morris, respectively dated 16 June and 10 November 2009, and statements, both dated 21 October, by Councillor Fouweather and Mrs Ashton, a Principal Environmental Health Officer at the defendant council and responsible for its licensing section.

The statutory framework

[4]Section 37 of the Town Police Clauses Act 1847 empowers councils to license hackney carriages to ply for trade. By section 47(1) of the Local Government (Miscellaneous Provisions) Act 1976:

“A district council may attach to the grant of a licence of a hackney carriage under the act of 1847 such conditions as the district council may consider reasonably necessary.”

[5]Section 57 of the 1976 Act empowers councils to require evidence from applicants and section 68 gives councils a broad power to test the safety of vehicles.

[6]The interests and potential interests of local government councillors in respect of matters on which they are involved and will make decisions are governed by statute, statutory instrument, and codes of conduct. Section 50(2) of the Local Government Act 2000 empowers the National Assembly for Wales to issue a Model Code as to the conduct to be expected of members of local authorities in Wales. Relevant authorities are required to prescribe a code of conduct (sections 51(1) and (2)) which must (section 51(4)) incorporate any mandatory provisions of the model code. The National Assembly for Wales has prescribed a Model Code of Conduct. The current version is in Schedule 1 to the Local Authorities (Model Code of Conduct) (Wales) Order 2008 SI 2008 W788. The defendant has adopted the Model Code verbatim in its own Members’ Code of Conduct which is part of its constitution. Paragraphs 10-11 and 12-14 of the defendant’s code concern the disclosure of personal interests and prejudicial interests and the procedural consequences that follow. I set the material parts of these provisions out at [47] – [48] when dealing with this part of the challenge.

The background to the decision

[7]Mrs Ashton’s evidence is that the defendant had been considering the introduction of an age limit for licensed vehicles for a number of years because the age range of licensed vehicles in Newport had been increasing and the older vehicles tended to require more maintenance to keep them roadworthy: statement paragraph 4. The matter was, however, first considered by the defendant’s Licensing Committee on 29 July 2008: see paragraph 6 of Mrs Ashton’s statement.

[8]At that meeting a report by Mrs Ashton, also dated 29 July, dealt with a number of matters relating to the safety and appearance of licensed vehicles and recommended a policy of age restrictions. The summary of the report states: “… primarily to protect the safety of the public, it is proposed that the Licensing Committee consider the introduction of age restrictions on licensed, private hire and hackney carriage vehicles” and also proposed that appropriate door stickers be required to readily distinguish licensed vehicles from other vehicles.

[9]The summary of the report proposed that “subject to consultation with the trade, and a further detailed report to licensing committee” the policy set out in the report be recommended to the Cabinet Member for Environment and Community Safety. The recommended age limits were that as from 1 January 2009 any application for the first licensing of a hackney carriage vehicle be made within 5 years of its initial registration with the DVLA, and that as from 1 January 2010 no vehicle older than 12 years from the date of first registration with the DVLA should be licensed as a hackney carriage. The corresponding periods for private hire vehicles were 3 and 10 years.

[10]The report contains a section headed “Age Restriction of Licensed Vehicles”. Its material parts state:

“9. It is evident in Newport that the age range of licensed vehicles… is steadily increasing due to either the licensing of vehicles for longer periods, or licensees purchasing cheaper, older vehicles. When licensed, these vehicles are only tested every 6 months, but are more and more likely to require very frequent maintenance to keep them constantly road worthy and safe, and also the exterior and interior of the vehicles may deteriorate to the point of, in some cases, appearing very dilapidated and not of the standard expected by passengers. 10. It also is apparent that in many cases, licensees are purchasing used vehicles which already are many years old when presented for licensing, and with little or no evidence of the vehicles’ history or maintenance records. 11. Currently, of the 566 licensed vehicles in Newport, in excess of 33% are in excess of 10 years old and over 54% are over 8 years old, being first registered in the 1990s (or in one case in 1989). In view of the extremely high usage and mileage that these licensed vehicles drive in Newport and, as these vehicles are currently only tested at 6 monthly intervals, their ability to remain consistently mechanically sound, safe, and of an acceptable standard of appearance and comfort must be in doubt. 12. It is evident from enforcement which takes place by licensing officers outside normal working hours, that a number of hackney carriages and private hire vehicles are often suspended in accordance with the Local Government and Miscellaneous Provisions Act 1976. These vehicles are suspended when a fault(s) is identified thus making them unroadworthy until such time as the problem is rectified. Experience shows that some of these vehicles that are suspended may have only just undergone their 6 monthly tests. 13. In addition, of great concern environmentally, it is evident that the greater the age and usage of a vehicle, the greater the risk of excessively high emissions to atmosphere from the exhaust. Although an old engine can perhaps be tuned to enable it to pass the MOT emissions test at any one point in time, unless the engine receives high maintenance and is then very frequently tuned, it is likely that excess emissions will occur within a short time after the vehicle test…”

[11]Paragraph 14 states that the majority of councils in the UK have imposed various age limits on the licensing of hackney carriages and private hire vehicles. It sets out the age conditions imposed by six councils in South Wales. With the exception of Swansea and Bridgend, all contain age limits. None of the limits for hackney carriages are greater than 10 years.

[12]Paragraph 17 of the report is the first paragraph setting out the age limit proposals. It states:

“Primarily to protect the safety of the travelling public, the protection of the environment and for the improvement of the appearance and comfort of licensed vehicles in Newport, it is considered necessary for the council to consider the introduction of age limits on both hackney carriage and private hire vehicles. Such policy conditions would also help to enhance and improve the quality of licensed vehicles in the city, especially in view of the forthcoming Ryder Cup and the worldwide profile and media coverage that the city of Newport will receive.”

[13]The conclusion section states in paragraph 32:

“Initial meetings which have taken place between council officers and representatives of the trade, have indicated that there is broad agreement in principle for the introduction of vehicle age limits. Consultation with the trade will now be needed on the details of this issue… and the results of the consultation reported back to the Licensing Committee for their consideration prior to any final recommendations to council.”

[14]During the hearing, in response to a question by me, Ms Stockley, stated that this was a reference to regular meetings prior to that date which were held at the request of the trade. One of the things discussed at those meetings was an age limit. The meetings were attended by the chair and vice-chair of the Hackney Drivers’ Association and one other member of the Association, who was Wayne Fouweather at one of the meetings.

[15]The minutes of the meeting of 29 July record that, “subject to consultation with the trade and a further detailed report to licensing committee”, the policy be recommended to the Cabinet Member for Environment and Community Safety. The minutes substantially repeat the contents of the report to the committee. They state inter alia that: “Age limits… should be considered in order to protect the safety of the travelling public, protect the environment and to improve the appearance and comfort of licensed vehicles in Newport, particularly in view of the forthcoming Ryder Cup and the worldwide profile and media coverage that the city of Newport will receive”.

[16]The committee’s recommendations were reported to Councillor Fouweather in a report dated 17 September 2008. That report repeated verbatim the reasons for the introduction of the policy stated in the July report for the licensing committee, including the environmental concerns about emissions from older vehicles and reference to the Ryder Cup. The report, however, proposed different periods for hackney carriages and private hire vehicles and a longer implementation period. For hackney carriages the application for first licensing was to be within 3 years of initial registration with the DVLA (the Licensing Committee had recommended 5 years) and the overall age limit was to be 10 years (the Licensing Committee had recommended 12 years). The implementation period for new vehicles was to be 1 August 2009 and for existing vehicles 1 August 2010.

[17]There is no indication in the text of the report that the proposal it is reporting differs from the July recommendations by the licensing committee, although paragraph 19 states that the dates chosen would give existing licensees a reasonable period of time to plan for any changes needed as a result of the introduction of the age limits. The Cabinet Member’s decision schedule is also dated 17 September. The decision on age limits was “to approve, subject to consultation with the trade, the proposals contained within the report”.

[18]Of the changes from the licensing committee’s recommendation, Councillor Fouweather states (paragraph 10 of his witness statement) that he felt that the age limits should be reduced but the timescale for implementation should be extended having regard to the advice set out in the report and the comments of the monitoring officer. The monitoring officer had advised that prior to any decision extensive consultation should be undertaken and relevant representations taken into account. This does not appear to relate to the age limit itself but only to the need for consultation, reasonableness and proportionality and thus the timescale for implementation. There were similar changes made to the licensing committee’s recommendations for private hire vehicles.

[19]On 23 September there was a meeting between members of the Licensing Committee and members of the taxi trade in Newport including the claimant. The meeting did not discuss the proposed age limits because of concern that only one private hire operator had been invited to the meeting.

[20]On 10 October 2008 the Council wrote to relevant parties inviting written comments on the proposed policy of age restriction that had been approved by the Cabinet Member. The letter stated that:

“Primarily to protect the safety of the travelling public, the protection of the environment and for the improvement of the appearance and comfort of licensed vehicles in Newport, it is considered necessary for the council to consider the introduction of age limits of both hackney carriages and private hire vehicles. Such policy conditions would also help to enhance and improve the quality of licensed vehicles in the city, especially in view of the forthcoming Ryder Cup and worldwide profile and media coverage that the city of Newport will receive.”

Comments were invited by 31 October 2008. The period of consultation was subsequently extended to 31 December 2008.

[21]The discussion between members of the Council and representatives of the hackney carriage and private hire trades that had been adjourned on 23 September took place on 21 November. Members of the Licensing Committee and Councillor Fouweather were present. The minutes of this meeting record that the Hackney Drivers’ Association was opposed to an age limit on vehicles due to the “credit crunch”. Its representatives stated that vehicles were tested twice a year and could also be called in for random tests, and that, even where a vehicle was over ten years, the owner could have maintained it to an exceptional standard whereas some younger vehicles were not maintained to an acceptable standard and may not be in such good condition. Drivers suggested that more stringent testing should be undertaken and that vehicles not meeting the standard should be taken off the road. The minutes record that the Environmental Health Manager, Mrs Ashton, requested the Associations to provide clear proposals/criteria for age limits, or conditions for vehicles in writing as part of the consultation process. At that meeting representatives of the Council also stated that no age limit policy would be implemented without taking into consideration the representations of the Hackney Drivers’ Association: see paragraph 6.4 of the defendant’s summary grounds and paragraphs 33ff. of Mr Morris’s first statement.

[22]On 22 December 2008 the Hackney Drivers’ Association wrote to the Council. The letter stated:

“No age limit should be imposed on purpose built hackney taxis. These vehicles are built for taxi purposes and as long as these vehicles are kept in reasonable [sic] good condition then there should be no reason for an age limit…”

[23]The letter also commented on vehicle standards and upkeeping and asked the Council to authorise a variety of plating stations so that plating was quicker, more efficient and more controlled.

[24]On 23 February 2009 representatives of the trade, including the Hackney Drivers’ Association were invited to attend a meeting of the Licensing Committee on 27 February at which a report in response to the consultation process was to be considered. The letter made it clear that the meeting was not a consultation meeting with the taxi trade and that representatives of the trade attending would not be allowed to take part in the discussion. The responses to the consultation were reported to that meeting by means of a report also dated 27 February. Section 2 of the report, dealing with age restrictions, is in identical terms to paragraphs 9-16 of the report dated 29 July 2008 to the Licensing Committee save that the numbers of licensed vehicles and the percentages in excess of 10 years and 8 years have been updated.

[25]Section 5 deals with consultation responses. Paragraph 5.2 states:

“The main issues raised in response to the proposed age limits for hackney carriages were that the upper age for purpose built vehicles should be higher than that for converted vehicles as they are designed and constructed to do higher mileages, the current MOT is sufficient to determine if the vehicle is fit for use and also that the cost implications of the age limit is inappropriate in the current financial climate. It is accepted that purposes [sic] built hackney carriages are designed to do higher mileages and that this should be reflected in the policy. However, it is not considered that the MOT is a sufficient standard for the council to be satisfied that older vehicles are fit for continued use as hackney carriages, as inspections by council officers have shown that within several weeks of passing a vehicle test, some vehicles are no longer fit for use and the vehicle licenses are therefore suspended pending remedial works.”

[26]Section 6 of the report deals with amendments to the proposed policy in the light of consultation responses. One of the changes was that the position of purpose built wheelchair accessible vehicles was distinguished from that of converted wheelchair accessible vehicles. For the former, the report proposed that the application for first licensing must be made within 5 years of the date of initial registration with DVLA and that the age limit be 12 years from first registration. For converted vehicles the proposed dates are 3 and 10 years from first registration with DVLA. It is stated that the proposed policy is not to apply to Prestige Vehicles. A bullet point précis of the consultation responses about the proposals for hackney carriages and private hire vehicles is set out in two appendices. The précis dealing with the responses about hackney carriages does not include the Hackney Drivers’ Association’s objection to age limits or the points made and recorded in the minutes of the meeting of 21 November. In particular there is no reference to the 6 monthly plating tests or to the suggestion that more stringent testing of vehicles should be undertaken. Appendix B dealing with the hackney carriage age policy only records a response stating “MOT is sufficient to determine that a vehicle is fit for use as a hackney carriage”. Paragraph 5.2 similarly only refers to the 12 monthly MOT test.

[27]The minutes of the meeting record that the Licensing Committee recommended this policy to Councillor Fouweather, as the relevant Cabinet Member. The minutes record that the age limit recommended for converted vehicles was extended to 3 years and 3 months to enable the trade to purchase fleet vehicles.

The Decision

[28]The committee’s recommendations were reported to the Cabinet Member in a report dated 18 March 2009. The section of this report under the heading “Age Restriction of Licensed Vehicles” is substantially the same as the sections in the previous reports, albeit again with updated figures for numbers of vehicles. Similarly the précis of the responses on consultation about hackney carriages in paragraph 23 is in identical terms to paragraph 5.2 of the report to the Licensing Committee as set out above. Although the report’s reference in paragraph 13 to environmental matters is also in the same terms as in the earlier documents, Appendix F contains a memorandum from the Council’s scientific officer, dated 31 December 2008 stating that an age restriction policy would reduce the amount of older taxi vehicles with higher exhaust emission levels and help reduce pollutant levels from road traffic sources.

[29]Again, decisions were taken on the same date as the report to the Cabinet Member. The Cabinet Member adopted the recommendations of the committee. The reasons given for the changes, which included the proposals on door stickers and licenses are:

“The introduction of these conditions would enhance the council’s prime objectives of protecting the public by the ready identification of properly licensed private hire vehicles, improve the safety, appearance and comfort of licensed vehicles, and also enable the public to clearly differentiate properly licensed private hire vehicles from unlicensed vehicles and licensed hackney carriage vehicles. The issuing of dual driver’s licenses [sic] will provide for greater flexibility for license hackney carriage drivers. ”

In relation to the age limit policy the only reason is that the policy would enhance the Council’s prime objectives of protecting the public because it would “improve the safety, appearance and comfort of licensed vehicles”.

Discussion

[30]The submissions made by Mr Saini on behalf of the claimant were wide ranging. I first deal with his submission that the defendant did not comply with the requirements of effective consultation which I have summarised in [2]. At the hearing these requirements were referred to as the “Sedley requirements” because they were originally formulated by Mr Stephen Sedley QC, as he then was, in 1985 in his submissions in Ex parte Gunning

(1985) 84 LGR 168

[31]The first of these requirements is that consultation should take place at a time when the proposals are at a formative stage. Mr Saini submitted that this was not satisfied because the Cabinet Member’s decision schedule published on 17 September 2008 formally approved the licensing committee’s recommendation that age restrictions be implemented. He submitted that although the approval was said to be subject to consultation with the trade, it was clear that the Council had already closed its mind on the issue whether a policy of age restriction should be implemented.

[32]Miss Stockley submitted that all that is seen in the decision schedule is a proposal that the Licensing Committee should consider the introduction of age restrictions; that is that no decision had been made. Secondly, she submitted that while it is stated that the introduction of such restrictions is “preferred”, it is not stated that it has been decided to adopt the restrictions and the decision is subject to the important qualification of consultation with the trade. She submitted that there was accordingly no decision only a statement of preferred choice.

[33]The Council and the Cabinet Member were clearly entitled to set out a developed proposal before consulting. Indeed, not to do so would have risked breaching the second requirement of effective consultation. The words “to approve, subject to consultation with the trade” in the context of the decision schedule and the earlier statement that the proposal was that the Licensing Committee “considered the introduction of age restrictions” could generously be read as a “minded to approve” indication and preference. Against the particular background of this case this is, however, more difficult. I have set out paragraph 32 of the report dated 29 July 2007 to the Licensing Committee (see [13]). It may be that the decision schedule was phrased in the way it was because it was believed on the basis of paragraph 32 that the trade had no objection in principle to the introduction of an age restriction. The modifications to the recommendation made by the Cabinet Member also sit uncomfortably with regarding the document purely as a “minded to approve” indication and preference. Notwithstanding these concerns, I would have been reluctant to set aside the decision made in March 2009 for this reason.

[34]Mr Saini also submitted that the claimant and others in the trade were not provided with sufficient reasons or material upon which to give intelligent consideration to the proposed age limit policy to enable them to respond properly. He submitted that the terms of the letter dated 10 October 2008 went no further than referring to the need to protect the safety of the public, the protection of the environment and the improvement of the appearance and comfort of licensed vehicles. The reports to committees and minutes of committee meetings which would have been available on the defendant’s website he submitted only contained weak and generalised assertions that were unsupported by evidence. In particular no evidence was referred to or provided to show any correlation between the age of a vehicle or the likelihood of its being found to be unroadworthy. The absence of evidence meant that the claimant could not address a specific safety problem posed or make representations about the specific age restrictions proposed. Mr Saini complained that this was also true of the environmental concerns and that the memorandum by the scientific officer which was produced at the end of the consultation period was never provided to the claimant before these proceedings were instituted.

[35]I do not consider that the second requirement of effective consultation meant that in the context of this case, the Council was required to set out the evidence upon which its public safety or environmental concerns were based. Those concerns are set out in the various reports and minutes. Those documents give a sufficient indication of the reasons behind the Council’s proposal. For example, the initial report dated 29 July 2008 to the Licensing Committee mentions the likelihood that older vehicles will require more frequent maintenance, that there is less evidence of the maintenance history of an older vehicle which is subsequently licensed, the greater ability to monitor vehicles which are newer when first licensed, a number of suspended vehicles, the environmental concerns, and the position of other councils.

[36]Mr Saini submitted that it was difficult to make representations about a particular age bar in the absence of the information on which the Council was relying to correlate unreliability and age. In my judgment, the information they had, which included information about practice in many other South Wales licensing authorities, sufficed. The Association had the material in the reports and minutes of the previous committee meetings. Neither the Association nor the claimant requested any more information before, during, or after the meeting of 21 November or in the Association’s letter dated 22 December. The Association appears to have addressed the issues about increased unreliability at the meeting when it referred to the 6 monthly tests, and the suggestion that there be more stringent testing and enforcement. Despite Mrs Ashton’s request at the 21 November meeting for the Association to provide clear proposals and criteria for age limits or conditions for vehicles, these are not dealt with in its 22 December letter. Its written response to consultation was partial and did not deal with many of the issues which it is recorded as having raised at the meeting on 21 November.

[37]The last limb of Mr Saini’s submissions on consultation concerns the fourth of the Sedley requirements; that the product of consultation be conscientiously taken into account in finalising any proposals. Neither the February 2009 report to the Licensing Committee nor the 18 March 2009 report to the Cabinet Member addressed the Association’s points about the adequacy of the 6 monthly plating tests, more stringent tests and more stringent enforcement as a way of addressing the problems. These points are not contained in the précis of responses to consultation, the reports only refer to the annual MOT test, and Mr Fouweather’s statement (paragraph 15) only refers to more regular testing of vehicles in general terms.

[38]Although, notwithstanding Mrs Ashton’s invitation, the Association’s written response did not refer to this, it is clear that the matter arose at the meeting on 21 November. It was, as Mr Saini submitted, the Association’s main and biggest point. The failure to address it and the absence of any indication in the final stages of the decision making process that account was taken of the full range of testing required for licensed vehicles, that is the 6 monthly testing as well as the MOT test to which all vehicles are subject, is a material and important deficiency in the consultation process. It also suggests that this factor, a relevant factor, was not taken into account. I have concluded that for this reason, together with the doubts I have expressed in relation to the first of the Sedley requirements, the defendant’s decision is flawed.

[39]That suffices to require the decision to be quashed but since I heard full submissions on the other Wednesbury grounds I shall deal with these briefly. I shall also deal with the breach of the Model Code/bias ground briefly.

[40]Reasons: The first of the other grounds concerns the adequacy of the reasons for the Cabinet Member’s decision. The reasons in the decision schedule are formulaic. More than a blanket assertion that the policy will improve the safety, appearance and comfort of licensed vehicles is needed in view of the impact on owners of licensed vehicles of the introduction of a limit on the age of their vehicles. The defendant’s officials and the Cabinet Member were aware of this impact.

[41]The purpose of a requirement of reasons, whether statutory or common law, is to give those affected by a decision a short and concise indication of why the decision was made: see Re Poyser & Mills’ Arbitration

[1964] 2 QB 467

and Crake v Supplementary Benefits Commission

[1982] 1 All ER 4898

. A formal recitation of the statutory requirement may not suffice if it does not do this. Although many of the cases concern individual decisions rather than policy decisions such as the one in this case and the degree of particularity of reasons required will depend on the nature of the issues falling for decision (see for example Save Britain’s Heritage v Number One Poultry Limited

[1991] 1 WLR 153

, at 167), the fundamental principles are the same. Here, the decision to adopt age limits was largely based on the premise that the existing testing procedures were not sufficient. This is not mentioned in the decision. While Miss Stockley is correct to say that where the decision itself is a formal and general one like this, it may be legitimate to look at the previous reports and recommendations, it is important for the decision to at least implicitly adopt the reasoning in those reports: see Save Britain’s Heritage v Number One Poultry Limited at 164. In this case there is no clear adoption of the reasons in the earlier reports. Moreover, some of them refer to the Ryder Cup (which, see [42] – [46], it is accepted is an irrelevant consideration) and the report to the Cabinet Member shows that what the Hackney Driver’s Association said about the adequacy of the 6 monthly testing and more stringent enforcement was not taken into account.

[42]No or insufficient evidence: It was also submitted that the decision is flawed because the Cabinet Member did not equip himself with appropriate evidence relating to a public safety imperative for the new policy when making the decision. The evidence relied on was that in Mrs Ashton’s report to the Licensing Committee dated 29 July 2008 and repeated in the subsequent reports. The position taken was that the safety and mechanical reliability of older vehicles must be in doubt. Reliance was placed on the fact that some vehicles had been found to be unroadworthy shortly after passing the 6 monthly inspection. In her witness statement Mrs Ashton seeks to support the statements in the reports by exhibiting the records showing vehicle tests results in the period between 24 October 2008 and 4 March 2009. She states:

“It is clear that increased frequency of testing was unable to address this safety problem and a reasonable age limit policy was the only means of ensuring public safety. This age limit policy has not been adopted as a substitute to regular inspections, which will still be carried out, but as a means of ensuring that vehicles remain safe between inspections.”

[43]This material was, however, not before the Cabinet Member before he made his decision or before the Licensing Committee when it made its recommendations. The statement in the reports for the Licensing Committee meeting on 29 July 2008 and the subsequent meetings do not link the problems that have arisen with vehicles soon after their 6 monthly tests with the age of those vehicles. Paragraph 12 of the report dated 29 July 2008, paragraph 2.4 of the report for the Licensing Committee meeting on 27 February 2009, and paragraph 12 of the report dated 18 March 2009 for the Cabinet Member refer to failures of tests by all vehicles. Moreover, analysis of the test results exhibited to Mrs Ashton’s statement does not in fact support the statements that the high usage and mileage of the older licensed vehicles puts into doubt their ability to remain consistently mechanically sound, safe and of an acceptable standard. Mr Saini and his team analysed the test results of vehicles first registered between December 1997 and April 1998 and vehicles first registered between October 1999 and March 2000. 52% of the vehicles in the first group and 55% of the vehicles in the second group passed the tests. The data about the oldest vehicles covered by these figures is to the same effect: 55.7% of vehicles first registered between 5 January 1990 and 19 September 1995 passed the test and 44.3% failed the test.

[44]Irrelevant considerations: Under this heading Mr Saini relied on the references in the documents to environmental considerations and to the Ryder Cup. I do not accept his submission that environmental considerations were not relevant considerations to the decision but it is common ground that the Ryder Cup was an irrelevant consideration. Miss Stockley submitted that, since Councillor Fouweather states clearly (paragraph 11 of his statement), that he did not take the Ryder Cup into account in reaching his decision and since it is clear from the timescales involved in the new policy that the new age limits would have no real impact prior to the Ryder Cup event, I should accept that this was not a factor taken into account by him. Alternatively, she submitted, that if it was, in view of the timescale, relief should be refused by the exercise of discretion.

[45]The Ryder Cup is referred to in the 29 July report to the Licensing Committee, the minutes of that committee, the 17 September report to the Cabinet Member and the 10 October letter to consultees. Mrs Ashton’s evidence is that this issue was never considered by the Licensing Committee but she does not explain why it is referred to in the reports and, possibly of more significance, in the minutes of the Licensing Committee and in the report to the Cabinet Member. The position taken by the defendant is that while it is entitled to rely on the recommendations of the committee to show the relevant considerations were taken into account and adequate reasons were given, it can distance itself from the committee papers and recommendations in this respect. Mr Saini’s written submissions relied on R (Goldsmith) v Wandsworth LBC [2004] 7 CCL Rep 472 in support of the proposition that the defendant cannot distance itself from the recommendation of the Licensing Committee in this way. In that case, however, the local authority had not stated that it had not taken account of the tainted recommendation of its continuing care panel. In any event, that recommendation had been made as a result of a process that was procedurally unfair which tainted the whole recommendation.

[46]The references to the Ryder Cup in the earlier documentation are, at a minimum, indicative of the rather unfocussed way in which this issue was approached. I do not consider that they would, had they stood alone, have justified the setting aside of this decision, particularly in the light of Councillor Fouweather’s evidence. The references to the Ryder Cup in those documents, however, are not the only problematic part of the decision-making process.

[47]Breach of the Code of Conduct and Bias: Finally, I come to the submissions that the decision should be set aside for breaches of the Code of Conduct by Councillor Fouweather and apparent bias because his brother and half brother were in the trade. The relevant provisions of the defendant’s Members’ Code of Conduct, which transposes the National Assembly for Wales’ Model Code of Conduct, are contained in paragraphs 10-14. Paragraphs 10 and 11 deal with “Personal Interests”. The material parts provide: “10(1) You must in all matters consider whether you have a personal interest, and whether this code of conduct requires you to disclose that interest.

(2) You must regard yourself as having a personal interest in any business of your authority if... (b) a member of the public might reasonably perceive a conflict between your role in taking a decision, upon that business, on behalf of your authority as a whole and your role in representing the interests of constituents in your ward or electoral division; or (c) a decision upon it might reasonably be regarded as affecting- (i) your well-being or financial position, or that of... any person with whom you have a close personal association; (ii) any employment or business carried on by persons as described in 10(2)(c)(i); (iii) any person who employs or has appointed such persons described in 10(2)(c)(i)... to a greater extent than the majority of- (aa) in the case of an authority with electoral divisions or wards, other council tax payers, rate payers or inhabitants of the electoral division or ward, as the case may be, affected by the decision; or (bb) in all other cases, other council tax payers, rate payers or inhabitants of the authority’s area. … 11...

(3) Subject to paragraph 14(1)(b) below, where you have a personal interest in any business of your authority and you have made a decision in exercising a function of an executive or board, you must in relation to that business ensure that any written statement of that decision records the existence and nature of your interest...”

to a greater extent than the majority of-

[48]“Prejudicial Interests” are dealt with in paragraphs 12-14. The material parts provide:

“12 (1) ...where you have a personal interest in any business of your authority, you also have a prejudicial interest in that business if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice your judgment of the public interest... 14 (1) ...where you have a prejudicial interest in any business of your authority you must, unless you have obtained a dispensation from your authority’s standards committee – (b) not exercise executive or board functions in relation to that business; (c) not seek to influence a decision about that business...”

[49]Mr Saini submitted that Councillor Fouweather took the decision in clear breach of the Code because he had a personal interest under paragraphs 10(2)(b) and (c) and that this, or alternatively apparent bias under the common law, justifies the quashing of the decision. The failures relied on are a failure to disclose the relationship to any meeting or in any decision on the matter. He also submitted that Councillor Fouweather had a prejudicial interest because a member of the public would regard his interest in a decision which would affect the livelihood of his brother and half-brother as being significant enough to be likely to prejudice his assessment of the public interest.

[50]The reason Councillor Fouweather gives for not disclosing is that he had informed officers within the licensing section that his brother was a licensed hackney carriage driver and his half brother a licensed private hire driver, of the nature of his relationship with them and that the officers were satisfied that the family connection would not preclude him from taking the decision. He considered that because he had so little contact with his brothers, in particular his half-brother, their family connection was not a sufficiently close association to require him to declare a personal interest.

[51]I do not consider that Councillor Fouweather had a personal interest within paragraph 10(2)(b). That paragraph concerns the perception of conflicts between a councillor’s duty to his ward constituents and his duties on behalf of the authority as a whole.

[52]As for paragraph 10(2)(c), Mr Saini submitted that being a brother must be deemed to be a close personal association within the purposes of the Code and there was no need for an investigation of the precise facts because a member of the public would not know those. On this point, I accept Miss Stockley’s submissions. What Mr Saini’s submission seeks to do is to put some, but not all, of the facts in front of a member of the public. The Code does not deem family members to have a close personal association with a councillor. The express reference to family members in the 2001 Model Code of Conduct (2001 Number 2289 W177) was removed from the 2008 Model Code. I accept Miss Stockley’s submission that this is an indication that a family connection does not of itself constitute a close personal relationship. Moreover, Mr Saini’s submission that the relationship should be deemed is not consistent with the position under the common law rule of bias. Thus, for example in Porter v Magill

[2002] 2 AC 357

at [103] Lord Hope stated that “the question is whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (emphasis added).

[53]The precise factual position is thus relevant, although Mr Saini is right to observe that, if one relies on the precise factual situation the “appearances” basis of the bias rule and the rules under the Code depending on a perception of conflict or closeness of association may be diluted. What is, however, clear, is that it is not for an individual himself to determine whether a personal association or relationship is sufficiently close to require disclosure and or disqualification. For this reason, prudence suggests that in cases near the border-line, disclosure should be made so that the matter can be considered in advance of or at the time the decision is made. So, although the claimant and other members of the Hackney Drivers’ Association may have known of Councillor Fouweather’s family connections and not objected to him taking decisions about hackney carriage and private hire licensing policy, it would have been prudent for Councillor Fouweather to disclose that relationship at the meetings even if, on examination, the association was not a close one.

[54]As to whether the relationship was in fact a close one, Councillor Fouweather’s evidence as to its nature was not challenged. For the reasons I have given, the Code of Conduct would not deem the relationship to be a close personal association. The fact that Councillor Fouweather’s relationship was with a brother and a half-brother, however, means that the case must be seen as close to the line. Had it been necessary for me to decide the case on this point, I would have been inclined to conclude that, on the facts as they appeared at the commencement of the hearing, there was no breach of the Code or the rule against bias which required that the decision be set aside on this ground.

[55]As a result of the information provided during the hearing the position changed. It emerged that, before the matter first came to the Licensing Committee on 29 July 2008, Wayne Fouweather was present at one of the meetings between council officials and trade representatives which discussed vehicle age limits and that at the meetings the trade representatives are said to have indicated broad agreement in principle to the introduction of such limits. The additional information means that this is a case in which Councillor Fouweather’s brother was positively supporting age limits when others in the trade were objecting to them, and that the matter then fell for decision by Councillor Fouweather. While Wayne’s participation in these discussions does not necessarily change the nature of their relationship for the purpose of the Code of Conduct, it may well change the perception a fair minded and informed observer would have. It is, to say the least, unfortunate that, once the challenge based on breach of the Code of Conduct and bias was raised, this was not disclosed to the claimant or his representatives. There is no evidence before me as to the precise position or whether Councillor Fouweather was aware of Wayne’s involvement in the discussions about vehicle age limits. Councillor Fouweather’s statement tends to suggest that he was not aware of this. Councillor Fouweather also states that Wayne will be one of the first drivers to be affected by the new rules. On this basis there is no question of him deciding to adopt a policy which favoured a family member.

[56]All this shows the need for disclosure to be made according to the rules in the Code of Conduct. If Councillor Fouweather did not disclose the relationship because of the advice he received from the officers he consulted, he was not served well by them. It would have been prudent for him to disclose the relationship before making any decisions on the matter, particularly if he knew that Wayne had taken part in the pre-July 2008 meetings in which trade representatives agreed in principle to an age restriction.

Delay

[57]The defendant submitted that relief should be refused on the ground of delay and non-compliance with the Pre-Action Protocol. Miss Stockley submitted that proceedings were instituted on the last day of the 3 month period and were not prompt and that the letter before action dated 9 June 2009 from the claimant’s then solicitors did not comply with the Protocol because it did not set out any of the grounds of challenge. I reject these submissions. Although the letter before action did not set out the grounds upon which the application was to be made, it refers to and attaches a letter dated 11 April from the association to Mrs Ashton in which the Association’s concern about the lack of proper consultation and belief that irrelevant considerations were taken into account are mentioned. The defendant replied to this only on 13 May after a chasing letter dated 11 May had been sent by the Association. It is unfortunate that the claimant’s then solicitors did not set out the proposed grounds in the letter dated 9 June, but I do not consider that the defendant has been prejudiced by this.

[58]For the reasons given, I have concluded that the defendant’s decision to impose age restrictions for licensed hackney carriages and private hire vehicles made on 18 March must be set aside. The failure to take account of the 6 monthly plating tests together with the other matters to which I have referred mean that this is not a case in which it would be appropriate to deny the claimant a remedy in the exercise of discretion.