House of Commons - Deregulation

Select Committee on Deregulation Second Report

SECOND REPORT

The Deregulation Committee has made further progress in the matter referred to it and has agreed to the following Report:-

PROPOSAL FOR THE DEREGULATION
(TAXIS AND PRIVATE HIRE VEHICLES) ORDER 1998

Introduction

1. On 8 December 1997 the Government laid before the House of Commons the proposal for the Deregulation (Taxis and Private Hire Vehicles) Order 1998 in the form of a draft of the Order and an Explanatory Memorandum from the Department of the Environment, Transport and the Regions[1]. The proposal contains two provisions relating to two separate issues.

i) Northern Ireland driving licences

2. At present, under the Local Government Miscellaneous Provisions Act 1976 ("the 1976 Act"), a licensing authority in England (outside London[2]) or Wales can not grant a taxi or private hire vehicle driver licence to anyone who has not held a full driving licence, issued under legislation relating to Great Britain or issued by any other Member State of the European Union[3], for at least twelve months. Licences issued under Northern Ireland legislation are not included within the provisions of the 1976 Act. Holders of unrestricted[4] Northern Ireland car driver licences must exchange them for licences issued in Great Britain and then wait for a year before applying for a taxi or private hire vehicle licence. The proposed Order would amend the 1976 Act by making it lawful for local authorities in England and Wales to recognise a Northern Ireland unrestricted driver licence in an application for a taxi or private hire driver licence.

(ii) Use of private hire vehicles for substitute rail services

3. Section 4A of the Transport Act 1962[5] ("the 1962 Act") provides for licensed taxis and public service vehicles (buses), but not private hire vehicles, to be used for the provision of substitute road services when a passenger train service is discontinued or interrupted. The proposal was originally intended to amend the 1962 Act to allow the use of private hire vehicles for this purpose. However, during the course of our consideration of the proposal, we were informed that the Department did not intend to proceed with the provision relating to substitute rail services[6].

4. The Department said in its letter to us of 13 January 1998 that the provisions of section 4A of the 1962 Act applied to the activities of the British Railways Board, and that there was some uncertainty about the extent to which this legislation actually applied to the new Train Operating Companies, given that the British Railways Board no longer operates passenger train services[7]. In response to a request for evidence from the House of Lords Delegated Powers and Deregulation Committee[8] the Director of the Passenger Services Group of the Office of the Rail Regulator reported in a letter of 16 January that although any services run by the British Railways Board or the Franchising Director would have to comply with section 4A of the 1962 Act, Train Operating Companies would not be similarly bound[9]. Given that neither the British Railways Board nor the Franchising Director currently runs any passenger rail services, the Director consequently believed that the proposal would have no practical effect.

5. We were then informed on 28 January that the Department would not proceed with the provision relating to substitute rail services. The Department had reconsidered and had decided that the Office of the Rail Regulator's interpretation of the legislation was correct[10]. There was, therefore, no regulatory burden to be removed and no basis to proceed with the matter under a proposal for a Deregulation Order. An undertaking has been given by the Department that, if laid, the draft Deregulation (Taxis and Private Hire Vehicles) Order 1998 will not include a provision relating to the provision of substitute rail services by private hire vehicles[11].

6. We asked the Department why the decision not to proceed with the provision had been made twenty-seven days into the sixty day period for Parliamentary consideration of the proposal[12]. As early as June 1996 the Office of Passenger Rail Franchising had raised the question of whether the restrictions on the use of private hire vehicles embodied in section 4A of the1962 Act applied to Train Operating Companies at all. The Department undertook consultation in October to December 1996, and the proposal was laid in December 1997. The Department had decided to embark on the process in the knowledge that there were doubts about whether the proposed Order would have any effect. In its response, the Department conceded that it had decided to proceed with the provision on the grounds that it would resolve doubt on the matter[13].

7. We note that the Department acknowledges that it should have clarified this point long before the proposal was laid before Parliament, and are grateful that apologies have been offered for taking up the time of both Committees unnecessarily[14].

8. Nonetheless, the House has instructed us to examine the proposal against nine criteria and then, in the light of that examination, to report whether the Government should proceed, whether amendments should be made, or whether the order-making power should not be used[15]. In the light of the Department's decision not to proceed with the provision relating to substitute rail services, we shall not examine this provision in as great a detail as we would otherwise. However, for possible future reference, we note a number of general concerns raised in the course of our early deliberations.

We now report on each proposal against the criteria in Standing Order No. 141(5)(A), as follows:

Does the proposal appear to make an appropriate use of delegated legislation?

9. We have concluded that the proposal relating to Northern Ireland driving licences may be proceeded with under delegated legislation.

Does the proposal remove or reduce a burden or the authorisation or requirement of a burden?

(i) Northern Ireland driving licences

Holders of unrestricted car driver licences issued in Northern Ireland must exchange their licences for ones issued in Great Britain and must then wait 12 months before applying for a taxi or private hire vehicle driver licence in England (outside London) or Wales. The proposal would remove a burden on people who wish to become taxi or private hire vehicle drivers in England (outside London) or Wales and who now hold Northern Ireland unrestricted car driver licences. It would bring the requirements for holders of Northern Ireland licences into line with the requirements for the holders of licences from all other European Union member states. We conclude that the proposal meets this criterion.

(ii) Use of private hire vehicles for substitute rail services

10. In the light of advice from the Department that the restriction on the use of private hire vehicles for the provision of substitute rail services would not apply to Train Operating Companies (see paragraph 5 above) we accept the Department's view that there is no regulatory burden to remove.

Does the proposal continue any necessary protection?

(i) Northern Ireland driving licences

11. The Department does not believe that the proposal would remove any necessary protection[16]. A licensing authority would still need to satisfy itself that "the applicant is a fit and proper person to hold a driver licence"[17]. We conclude that this proposal would maintain necessary protection.

(ii) Use of private hire vehicles for substitute rail services

12. Before we were informed that the provision relating to substitute rail services would not be proceeded with, we considered the question of whether the proposal would remove necessary protection.

Provision for disabled passengers

13. A significant number of the respondents to the consultation exercise raised specific concerns regarding provision for disabled passengers. A number argued that the effect of the proposal would be to undermine not only existing protection for disabled passengers, but also the effectiveness of forthcoming regulations requiring standards of accessibility in other forms of transport. The Manchester Taxi Owners and Drivers Association noted that all taxis in Manchester were required to be wheelchair accessible, whilst the majority of private hire vehicles in Manchester were not accessible. The Transport and General Workers Union believed it to be a retrograde step to introduce a form of transport that was generally not wheelchair accessible whilst efforts were being made to improve accessibility on the railways. A representative of the Licensed Taxi Trade in Plymouth noted that Regulations to be brought in under the Disability Discrimination Act 1995 would eventually require all taxis to meet a certain standard of accessibility. Griffith Smith Solicitors, acting for the Brighton Hackney Carriage Alliance, stated that such regulations would not be applicable to private hire vehicles[18].

14. We expressed concern to the Department that at a time when efforts were to be made to apply mandatory standards of accessibility to buses, coaches, taxis and trains, a provision was to be introduced to allow private hire vehicles (a form of transport that was not to be subject to accessibility regulations[19]) to be used for the provision of substitute services, with no guarantees that disabled passengers would be catered for[20]. We now understand that the restrictions on the use of private hire vehicles are no longer effective. The Department noted that future transport accessibility regulations could also be introduced to apply to substitute rail services[21]. If regulations are to be introduced to require standards of accessibility in public transport, we believe that we should draw the Department's attention to the question of provision for disabled passengers in the event of disrupted rail services.

15. In seeking to assess whether the original provision would retain necessary protection, we also sought to establish what current protection existed for disabled passengers in the event that train services were disrupted or discontinued. We considered whether disabled passengers benefited from a certain de facto protection in areas, such as Manchester, in which licensed taxis were required to meet certain accessibility standards by the local authority which would be undermined if Train Operating Companies were able to utilise the services of private hire vehicles for the provision of substitute services. It was noted, however, that given that there was no obligation on Train Operating Companies to use the services of taxis at all (buses could be used instead), any such provision would be purely incidental and dependent on the behaviour of the individual arranging the transport.

16. The Department reported that there was no specific guarantee that accessible public transport would be provided for disabled passengers in the event of such disruption[22]. At present, Train Operating Companies are required only to use "reasonable endeavours ... having regard to safety and cost", to provide alternative transport for passengers in such circumstances[23]. The Rail Regulator's Code of Practice merely recommends that disabled passengers be advised of planned disruptions at the time of booking[24]. They did note, however, that there was to be a review of the Rail Regulator's Code of Practice on meeting the needs of disabled passengers. We draw the Department's attention to the fact that there are no existing requirements that Train Operating Companies provide accessible transport for disabled passengers in the event of disrupted services.

General passenger safety

17. The fact that there are apparently no restrictions on the use of private hire vehicles for substitute services also has important implications in terms of general passenger safety, particularly in London where private hire vehicles are currently not licensed. In response to an inquiry from the House of Lords Committee on Delegated Powers and Deregulation about statistics of assaults on passengers by unlicensed private hire vehicle drivers in London[25], the Department wrote to assure that Committee[26] that the proposal would apply only to licensed private hire vehicles, and so there would be no prospect of rail passengers being picked up by unlicensed drivers in London.

18. We asked the Department whether, given that the restrictions of section 4A of the 1962 Act did not apply, Train Operating Companies in London would in fact be able to make use of unlicensed private hire vehicles for the provision of substitute services[27]. In reply, the Department stated that the question of whether or not a Train Operating Company used the services of private hire vehicles was a matter for Train Operating Companies to decide taking into account the requirements in their franchise agreement relating to safety[28]. We understand that there is therefore no restriction on Train Operating Companies using the services of unlicensed private hire vehicles in London for the provision of substitute services as long as they consider them to be safe. Although we note that a private members bill is currently before the House of Commons to provide for the regulation of private hire cars in London[29] we draw the Department's attention to the fact that, currently, unlicensed private hire vehicles may be used for the provision of substitute services in London.

Conclusion

19. We also suggested to the Department that the statutory requirements that existed for the British Railways Board should perhaps have been passed on by the Director of Passenger Rail Franchising through franchise agreements to the Train Operating Companies[30]. The Department were unable to comment on this point but noted that it would be possible for a revised regime to be brought in through a Code of Conduct to introduce provisions relating to substitute rail services[31]. There may be other previous statutory provisions that have not been passed on under franchise agreements to Train Operating Companies. The Department might wish to examine this.

Has the proposal been the subject of, and does it take appropriate account of, adequate consultation?

20. The Department went out to consultation on four proposals on 16 October 1996, and replies were requested by 13 December 1996. Of the eighty replies received, forty-eight referred to the proposal relating to substitute services, and twenty-one referred to the proposal relating to Northern Ireland driving licences.

(i) Northern Ireland driving licences

21. All twenty-one of the responses on this proposal were in favour. The scope and timing of the consultation were adequate.

(ii) Use of private hire vehicles for substitute rail services

22. Of the forty-eight responses received on this proposal, twenty-seven were in favour, whilst twenty-one were opposed, or had reservations. We noted that a large number of respondents to the consultation process reported that this provision would have implications for disabled passengers (see paragraph 14 above). Before we were informed that this provision would not be proceeded with, we asked the Department why organisations representing the disabled had not been consulted[32]. The Department's response was that they "originally saw the issue as essentially one of increasing the supply of road passenger vehicles to train companies, for the general benefit"[33]. The fact that so many of the respondents explicitly raised concerns about provisions for disabled passengers should have prompted the Department to further consultation.

23. The proposal was discussed "at some length" by the Disabled Persons Transport Advisory Committee[34]. We do not believe that discussions in the Department's statutory advisory committee are a substitute for a proper consultation exercise.

24. Before the decision was taken to withdraw the provision, we had decided to take oral evidence from organisations representing disabled people. Such organisations should have been consulted on a proposal which clearly had implications for disabled passengers. We do not believe that consultation was adequate on this proposal.

25. On a further point, we note that although the British Railways Board were consulted over the proposal, the Office of the Rail Regulator was not[35]. We note that it was on the advice of the Office of the Rail Regulator that the belated decision was taken not to proceed with this provision. The Office of the Rail Regulator should clearly have been consulted by the Department.

Does the proposal impose a charge on the public revenues or contain provisions requiring payments to be made to the Exchequer or any government department or to any local or public authority in consideration of any licence or consent or of any services to be rendered, or prescribe the amount of any such charge or payment?

Does the proposal purport to have retrospective effect?

Does the proposal give rise to doubts whether it is intra vires?

Does the proposal require elucidation or appear to be defectively drafted?

Does the proposal appear to be incompatible with any obligation arising from membership of the European Union?

26. We have no concerns about the provision relating to Northern Ireland driving licences to raise under any of these headings.

Extent

Northern Ireland driving licences

27. The proposal would apply to England and Wales, outside London. No corresponding Order is necessary for London, Scotland or Northern Ireland.

Report under Standing Order No. 141

28. We note that the Department does not intend to proceed with the provision relating to substitute rail services. Accordingly, we have made only incidental comments on this provision. We conclude that a draft Order in the terms of the provision relating to Northern Ireland driving licences should be laid before the House.

1 Copies of these are available to Members from the Vote Office and to members of the public from the Department of the Environment, Transport and the Regions. Back

2 Licensing of taxis in London is covered by the Metropolitan Public Carriage Act 1869. Back

3 Since 1 January 1997. Back

4 In Northern Ireland, drivers who pass a test of competence are required to serve a 12 months restricted period during which they must display an 'R' plate. This period may be extended by the courts if a motoring offence is committed. Back

5 Inserted by section 118 of the Transport Act 1985. Back

6 Evidence, page xxv. Back

7 Evidence, page xvii. Under the Railways Act 1993, the powers of the British Railways Board were transferred to the Director of Passenger Rail Franchising. The Franchising Director does not operate rail services but franchises the right to do so to Train Operating Companies. Back

8 HL Evidence. Back

9 Evidence, page xxi. Back

10 Evidence, page xxv. Back

11 ibid. Back

12 Evidence, page xxiv. Back