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
13 Evidence,
page xxv. Back
14 xxvi. Back
15 Standing
Order No. 141. Back
16 Explanatory
Memorandum paragraph 2.7. Back
17 Sections
51 and 59 of the Local Government (Miscellaneous Provisions) Act
1976, as amended. Back
18 They
noted that the assumption was made that when a disabled person
is ordering a private hire vehicle, they can notify the operator
of special requirements. This would clearly not be the case for
a disabled passenger using a train service that was disrupted. Back
19 Official
Report, 5th February
1998, written answers col 723. Back
20 Evidence,
page xiv. Back
21 Evidence,
page xiv. Back
22 Evidence,
page xii; see also Official Report, 5th February
1998, written answers col 723. Back
23 Standard
form for franchise agreements (supplied by the Department); see
Evidence, page xvi. Back
24 Evidence,
page xv. Back
25 Evidence,
page xxii. Back
26 Letter
from the Department to the House of Lords Committee dated 27 January
1998 (Evidence, page xxii), the day before notification was given
to us that the provision relating to substitute rail services
would not be proceeded with. Back
27 Evidence,
page xxvi. Back
28 ibid. Back
29 Sir
George Young's Private Hire Vehicles (London) Bill, which would
provide for the regulation of private hire vehicles in London. Back
30 Evidence,
page xxvi. Back
31 Evidence,
ibid. Back
32 Evidence,
page xiv. Back
33 Evidence,
page xv. Back
34 ibid. Back
35 Annex
A to Explanatory Memorandum. Back
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