The Deregulation Act and How it is being abused.

All Licensed Private Hire & Hackney Association

Since the Deregulation Act 2015 many authorities have blamed it for the increasing number of cross-border working vehicles, which is in fact an urban myth surrounding this matter.

The Deregulation Act 2015 only modified the Local Government (Miscellaneous Provisions) Act 1976 (76 Act) at s55 by making an addition named s55A where it explains that an Operator licensed in one controlled district may accept a booking from another controlled district and can sub-contract the booking to a licensed operator in that controlled district to provide the vehicle.

It was quite clear in the Hansard records that this was to enable a business (the licensed operator) to expand its business into other areas, but this is where the Deregulation Act has fallen foul.

The 76 Act is now written quite clearly that an operator can sub-contract a booking within the controlled district to which it is licensed to another operator licensed by the same controlled district, but can also sub-contract a booking that it has taken from another controlled district provided that the booking that is sub-contracted is then accepted by an operator licensed under s55 of the 76 Act in that other district.

Should the Deregulation Act have intended for any booking to be contracted to any other operator regardless of where either operator or booking was located, then the modification to the 76 Act would have simply stated that a booking accepted by an operator licensed under s55 of the 76 Act can sub-contract the booking to any other operator licensed under the s55 of the same Act and therefore giving total disregard for where any vehicle was licensed and/or making itself available.

By deliberately modifying the 76 Act in the way that it did, it kept alive s75 (1) (a) of the 76 Act which explains that a vehicle can bring customers or goods into another controlled district, provided that it does not make itself available for hire in the district that it is not licensed, in other words, sit out of area and wait for another booking to be dispatched by its operator to be covered by that vehicle.

The fact is that s75 (1) (a) was inserted so far down the Act because clarity was required on where a vehicle can in fact make itself available for work and that this section ensured the localism of the 76 Act was kept in place. S75 of the 76 Act is in fact a saving clause, which as per Lord Simon of Glaisdale stated in Ealing v Race Relations Board 1971 that ‘Saving clauses’ are often included by way of reassurance, for avoidance of doubt or from abundance of caution.’ And this is exactly what s75 is implying, the 76 Act to this point explains who can do what, with what and by whom and where. The section 75 makes it clear and explains the avoidance of doubt that a vehicle can indeed drive anywhere in the country with a paying passenger or his/her goods but can not make itself available in a district that it is not licensed.

Therefore s75 (1) (a) is directly linked to s46 (1) (d) which states that no person shall in a controlled district operate any vehicle as a private hire vehicle without having a current licence under section 55 of this Act, because should the vehicle make itself available then the vehicle and or driver would already be in breach of s75 (1) (a) when out of area  and that the modification of the 76 Act by the Deregulation Act 2015 uses the wording of s55A (1) (a) and (b) where (a) states ‘same controlled district’ and (b) states ‘another controlled district’.

To summarise the above, a licensed vehicle when working can not make itself available for hire unless it is in the controlled district of which it was licensed.

There are three main rules to interpret a statute, those being the literal, golden and mischief rule and also the integrated approach, known as the purposive approach.

The literal rule uses the plain ordinary meaning of words. In Fisher v Bell [1960] 3 All ER 731 the defendant, a shopkeeper, displayed in his window a flick knife with a price ticket, and was prosecuted for “offering for sale” an offensive weapon contrary to the Restriction of Offensive Weapons Act 1959. The High Court said the phrase “offer for sale” was to be taken literally, in accordance with its meaning in contract law, and that the shopkeeper’s display of the weapon was no more than an invitation to treat. It was presumed that Parliamentary draftsmen know technical legal language thus common law expression was not altered.

The golden rule is an extension of the literal rule and has both a narrow and wider application and is used where the literal rule creates an absurdity. This is evident in the narrow sense in Adler v George [1964] All ER 628. Adler gained access to a RAF station and obstructed a member of Her Majesty’s forces engaged in security duties ‘in the vicinity of a prohibited place’ He argued that, as he was actually in the prohibited place, he could not be said to be “in the vicinity” of the prohibited place. The literal interpretation of the Official Secrets Act 1920 would allow protesters to demonstrate within military bases but not outside them, creating an absurdity. This was clearly not the intention of this Act. Adler was found guilty of the offence because “in the vicinity of” should be interpreted to mean on or near the prohibited place.

The mischief rule allows judges slightly more discretion. It looks at the gap or the mischief the statute was intended to cover. In the case of Corkery v Carpenter [1951] 1 KB 102, the Licensing Act 1872 stipulated that it was an offence to be drunk in charge of a carriage. Whilst no direct reference was made to bicycles, the court ruled that Corkery was guilty as the term “carriage” could also be applied to a bicycle.

The purposive approach is used by the majority of European countries when interpreting their own legislation and also by the European Court of Justice in interpreting European Union law and is becoming increasingly influential. In Jones v Tower Boot Co Ltd (1997) IRLR 168 CA, the complainant suffered racial abuse at work, which he claimed amounted to racial discrimination for which the employers were liable under s32 of the Race Relations Act 1976.  The Court of Appeal applied the purposive approach and held that the acts of discrimination were committed “in the course of employment” is to be given an everyday, rather than a tort law, meaning.

As explained above, the legislation in this matter is very much of the ‘golden rule’ because if the literal rule was applied then it would be absurd that a person would apply for a license in one controlled district to work in another and the mischief rule would never come into the equation because the 76 Act is very much an adoptive Act for each authority.

The purposive approach would in fact bring into question the operator who willingly and knowingly allowed customer requests to be dispatched to vehicles that had made themselves available in an area that neither the vehicle, driver or operator were licensed when they had a legal option of sub-contracting that booking to an operator in the area that the customer was requesting a service.