R Bus and Coach Association Ltd v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leggatt |
| Judgment Date | 06 December 2019 |
| Neutral Citation | [2019] EWHC 3319 (Admin) |
| Date | 06 December 2019 |
| Docket Number | Case No: CO/4989/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3319 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Leggatt
and
Mr Justice Lewis
Case No: CO/4989/2018
and
James Segan (instructed by Martin Lee & Co) for the Claimant
Alan Bates (instructed by the Government Legal Department) for the Defendant
Richard Drabble QC (instructed by Russell-Cooke LLP) for the Interested Parties
Hearing date: 19 November 2019
Approved Judgment
Lord Justice Leggatt (giving the judgment of the court):
Introduction
Regulation (EC) No 1071/2009 of the European Parliament and of the Council dated 21 October 2009 (the “EU Regulation”), which has direct effect as part of UK law, establishes rules which govern admission to, and the pursuit of, the occupation of road transport operator. There is an exception from these rules for “undertakings engaged in road passenger transport services exclusively for non-commercial purposes”.
On this claim for judicial review, Bus and Coach Association Limited, a campaign organisation dedicated to representing the interests of commercial bus and coach operators in the UK, is asking the court to declare what the words of this exception mean. The claimant says that there is, or should be, no lack of clarity about their meaning; but the court should nevertheless make a declaratory order because an alleged lack of clarity is being relied on by the Secretary of State for Transport as a reason for not prosecuting certain community transport organisations which are allegedly providing road passenger transport services in England and Wales for commercial purposes in breach of the EU Regulation.
The Secretary of State has defended the claim on the basis that there is “legal uncertainty” as to the proper interpretation of the “non-commercial purposes” exception and that this is a relevant factor to take into account in deciding whether it is in the public interest to bring a criminal prosecution or take other enforcement action. However, the Secretary of State when acknowledging service of these proceedings did not oppose the grant of permission to apply for judicial review, “in view of the potential benefit of the proceedings in providing judicial clarification of the relevant law”.
Two interested parties have been joined. They are the Community Transport Association, which represents organisations providing community transport services in the UK; and Mobility Matters Campaign Limited, which campaigns on behalf of community transport organisations. The interested parties have common representation.
In this judgment we will:
(1) outline the relevant legal framework;
(2) summarise the background to the proceedings;
(3) identify the principles to be applied in deciding whether it is appropriate for the court to make an order declaring what the law is in a case of this kind;
(4) consider whether or in what respect there is any real dispute about the law between the parties to these proceedings; and
(5) explain our reasons for concluding that it is not appropriate to make a declaratory order in this case, as there is no such dispute, and that it is the responsibility of the Secretary of State to enforce the law as it stands.
(1) The legal framework
Section 12(1) of the Public Passenger Vehicles Act 1981 prohibits the use of a “public service vehicle” on a road for carrying passengers for hire or reward except under a “PSV operator's licence” granted in accordance with the Act. Pursuant to section 12(5), it is a criminal offence to use a vehicle in contravention of this rule (unless the operator establishes a defence under section 68(3) of the Act by proving that he took all reasonable precautions and exercised all due diligence to avoid the commission of an offence).
A “public service vehicle” is defined in section 1 of the Act as a vehicle used for carrying passengers for hire or reward which is either adapted to carry more than eight passengers or is used for carrying passengers at separate fares in the course of a business of carrying passengers.
PSV operator's licences, commonly known as “O-licences”, are granted by traffic commissioners who are appointed by, but act independently of, the Secretary of State. To obtain an O-licence, an applicant must satisfy requirements of having an effective and stable establishment in Great Britain, being of good repute, having appropriate financial standing and having the requisite professional competence. The applicant must also have a designated transport manager who satisfies requirements of good repute and professional competence. The relevant requirements derive from the EU Regulation.
The prohibition in section 12(1) of the Public Passenger Vehicles Act 1981 against using a public service vehicle without an O-licence is subject to exemptions provided for in sections 18 to 23 of the Transport Act 1985. These exemptions apply to bodies operating under two kinds of permit:
(1) A permit granted under section 19 to a body concerned with education, religion, social welfare, recreation or other activities of benefit to the community. Such a permit does not cover the use of a public service vehicle for the carriage of members of the general public or with a view to profit or incidentally to an activity which is itself carried on with a view to profit.
(2) A “community bus permit” granted under section 22 to a body concerned for the social and welfare needs of one or more communities to provide a “community bus service”. This is defined in subsection (1) as a “local service” provided by such a body without a view to profit, either on the part of that body or of anyone else. For this purpose, a “local service” means a service using public service vehicles for the carriage of passengers by road at separate fares on which passengers may travel for less than 15 miles (see section 2 of the Act).
Local authorities and other bodies designated by the Secretary of State may grant section 19 permits in relation to the use of public service vehicles other than large buses (defined as vehicles adapted to carrying more than 16 passengers). Section 19 permits for large buses and community bus permits issued under section 22 may only be granted by traffic commissioners.
Bodies operating vehicles under section 19 or section 22 permits have to comply with some regulatory requirements including a requirement to have adequate facilities or arrangements for maintaining any vehicle used under the permit in a fit and serviceable condition. But these requirements are much less onerous than the regime applicable to bodies that require an O-licence.
The EU Regulation
Underlying the UK licensing regime is the EU Regulation, which took effect on 4 December 2011. As set out in article 1(2), the EU Regulation applies to “all undertakings established in the Community which are engaged in the occupation of road transport operator.” Article 1(4) specifies certain categories of undertakings to which, by way of derogation from this general rule, the EU Regulation does not apply (unless otherwise provided for in national law). These include:
“(b) undertakings engaged in road passenger transport services exclusively for non-commercial purposes or which have a main occupation other than that of road passenger transport operator;”
It is the meaning of the first part of this exception which is the subject of the present proceedings.
Article 22(1) of the EU Regulation imposes an obligation on member states to lay down the rules on penalties applicable to infringements of the regulation and to “take all the measures necessary to ensure that they are implemented”.
(2) Background to the proceedings
Amendments to the 1985 Act
When the EU Regulation first came into force, someone reading sections 18 to 22 of the Transport Act 1985 would reasonably have got the impression that meeting the requirements for and being granted a section 19 or section 22 permit was sufficient to exempt the operator of a public service vehicle from the need to obtain an O-licence. It appears that this was also the view of the Department for Transport, which no doubt explains why, until recently, sections 18 to 22 made no reference to the EU Regulation. The Department's understanding was that an operator who met the requirements for a section 19 or section 22 permit would fall outside its scope: there was therefore no possibility that a body operating in accordance with such a permit would be contravening the EU Regulation.
The Secretary of State now accepts that this is not necessarily the case. Accordingly, with effect from 1 October 2019, sections 18 to 22 of the 1985 Act have been amended to make it clear that a section 19 or section 22 permit may only be granted to an “exempt body” and also that the dispensation from the requirement to hold an O-licence only applies to the use of any vehicle under a section 19 or section 22 permit by an “exempt body”. An “exempt body” is defined in section 18(5) to mean a body to whom the EU Regulation does not apply for one of three possible reasons – one such reason being that the body is not engaged (and does not intend to engage) in the occupation of road transport operator (as defined in the EU Regulation) and another reason being that the body falls within the exception in article 1(4)(b) because it is engaged in road passenger transport services “exclusively for non-commercial purposes” or because road transport operator is not its main occupation.
Community transport organisations
Already by 2010 there were, according to research...
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