3.2 Economic Arguments.
Expert economic evidence was given on behalf of the Applicants, the
Hackney drivers, and on behalf of the National Taxi Drivers' Union.
I propose to deal with this evidence before legal arguments.
3.2.1 Rodney Thom is Monet Professor of Economics at University
College Dublin where he is head of the Economics Department.
Professor Thorn's affidavit (at paragraph 29 and 30) concludes as
follows:
"....Regulated entry for taxi services has been detrimental to
consumers.
It restricts competition, perpetuates inefficiencies and protects the
profits of existing licence holders. The principal effect of the
(Minister's) proposal would be to entrench the privileged position of
existing holders by protecting them from competition from new entrants.
Such a decision, in my view, is illogically and entirely without any
economic justification.
It is contrary to common sense and it is in my considered view that
whatever about creating only a limited number of new licences at this
time, the decision to hand Out the vast majority of those licences to
current holders only has no rational basis from an economic or
regulatory perspective.
If a political decision is made to compensate existing holders who
have purchased their licences on the secondary market for their capital
losses, this can be done other than through the mechanisms of S.I. 3 of
2000.
A more competitive and efficient taxi service can be more readily
achieved by granting entry to all PSV licence holders.
In short, the justification for regulation is to protect the consumer
by reducing monopoly profits and inefficiencies resulting in a better
allocation of resources in and an increase of economic welfare.
As in most market situations this can be most readily achieved by
encouraging rather than deterring free entry.
In an earlier part of his Affidavit, Professor Thorn avers (at
paragraph 26 and 27):-
"I say and believe that the decision by the Minister to offer
new licences to incumbents only effectively perpetuates many aspect of
the current situation.
The supply of taxi services will increase, but given excess demand,
there is no real incentive to reduce inefficiencies and to provide
better services for customers.
There is no incentive for the incumbent to operate the second licence
as an independent business in competition with the first licence.
In short, there is no logical reason why the licence holder should
compete with himself If alternatively, the new taxi licences were
available to persons other than current incumbents, the incumbent would
be faced with increased competition leading to greater efficiency,
better service and a reduction in monopoly profits.
This would be the type of disruption which benefits consumers in
society generally."
- 3.2.2 Mr Brendan Lynch on behalf of the National Taxi Drivers
Union gave evidence on affidavit and oral evidence in relation to the
proceedings.
Mr Lynch is an economic consultant and holds an Honours Masters
degree in Economics.
He is the author of a number of reports on the urban economic and
local development area and made proposals on behalf of the National Taxi
Drivers' Union regarding Dublin transport in 1998.
This is referred to in paragraph 32 of the affidavit of Thomas Gorman
the Secretary of the Taxi Union which is exhibited at "TG4"
and entitled "Public Transport and Taxis in Dublin: Proposals for
an improvement in Dublin Transport - An Analysis of the Economic and
Transport Role of Taxis.
Mr Lynch avers that Dublin's city taxi service is a small part of the
total urban transport system which is where the problem lies and not
with the taxi service.
Any analysis of the latter in isolation from its Dublin transport
context is fundamentally flawed.
At paragraph 8 of his affidavit Mr Lynch states:
"A balanced conclusion is that the supply of taxi and hackney
services in Dublin (and other Irish cities) is considerably greater
than other comparable sized cities but that demand for taxi services
is extraordinarily high because of the relatively poor public
transport systems in Irish cities."
Mr Lynch refers to the absence of planning and to an ad hoc approach
to solving problems without reference to an overall urban planning and
transport context which, he says, have frequently caused bigger
problems.
Deregulation of Dublin taxis could fall into this trap.
If there were deregulation there would be strong incentive for taxi
holders to replace expensive vehicles, such as wheelchair accessible
vehicles, and replace them with the cheapest possible cars.
Mr Lynch referred to several transport reports.
While he believes the Dublin Transport Initiative Report and its
recommendations gave a proper planning context for Dublin transport he
believes the Oscar Faber report has critical omissions.
The Oscar Faber Report recommends a progressive increase in taxi
licences leading to full deregulation of entry after ten years but
recommends that there be continued fare regulations.
Mr Lynch avers that deregulating supply without deregulating price
has major implications, will lead to a major deterioration in quality
and would prevent a deregulated market from offering branded premium
products to consumers.
The report fails to give proper consideration to the higher number of
taxis and hackneys in other British or European cities of comparable
size.
Manchester's metropolitan area has a larger population than Dublin
with little more than half the number of taxis and hackneys.
The contiguous area around Birmingham has a population close to 2
million but with fewer taxis and hackneys than Dublin.
In Mr Lynch's opinion the key fact is that demand for taxi services
in Dublin is exceptionally high.
In his opinion three particular factors of the Dublin bus service
served to highlight its inadequacy and demonstrate how that results in
pressure on the taxi services.
- * No Rail Link to Dublin Airport
- * Rudimentary Night Service three nights a week with main service
ending before pub closing
- * Rudimentary or non-existent services on many outlying public
housing estates with low car ownership
He believes that the Oscar Faber Report impliedly assumes excess
labour supply for increased taxis which is not borne out by evidence.
Moreover, responsible taxi drivers will not work excessively long and
unsocial hours without sufficiently high earnings.
In addition, he believes that standards would drop.
Mr Lynch says that it is noteworthy that the 1992 Interdepartmental
Report rejected entry deregulation at a time when there was a plentiful
supply of labour.
Mr Lynch believes that the doubling of taxi licences in Dublin, which
the Government announced in November, 1999 brings the risk of
destabilisation of the business, although the licence for a licence
arrangement mitigates that risk.
It will limit disruption to the trade, the public and the economy by
focussing on existing operators who would provide a seamless
continuation of business.
Professor Thom believes that Mr Lynch failed to have regard to
several germaine factors.
Firstly, the quality of public transport services is not the only
factor determining demand for taxi services.
Economic prosperity, demographic changes and lifestyle patterns are
also important.
Improvements in public transport may moderate the demand for taxi
services but there can be no presumption that demand will actually fall
in the medium term.
Moreover, the public transport sector should not be protected from
competition by taxis.
A greater number of taxis would ease the burden on an inadequate
public transport system.
A decline in quality and reduced wheelchair access would not result
from entry deregulation which cannot be confused with enforcing minimum
safety and quality standards.
The argument that it would not be possible, in deregulation, to find
an adequate numbers of suitable responsible taxi drivers ignores the
widespread practice by taxi licence holders to employ "cosies".
Professor Thorn believes it to be axiomatic that if additional
licences were distributed to current licence holders they will not be in
a position to drive both vehicles.
Bus and rail drivers as well as taxi drivers are required to work
long and unsociable hours.
Finally, Professor Thorn queries what Mr Lynch believes to be
"market instability with entry deregulation".
The deregulation and innovation in the telecommunications services is
not destabilising.
It is simply the normal adjustment of market forces when the existing
situation is disturbed.
Indeed if such a logic commended itself to reason then the issue of
new mobile phone licences would be restricted to existing operators
only, in the interests of stability and in the interests of limiting
disruption in the communications industry.
Professor Thom's opinion is that there does not appear to be any
sound economic basis for the Minister's proposal which confers even
greater privileges on the existing taxi licence holder.
Restrictions on entry are equivalent to restrictions on competition.
At a given pricing structure this creates a potential for incumbants
to make profits which cannot be competed away by new entrants.
Existing licences will reflect the present or discounted value of the
expected profit stream.
If these profits are low, the prices will be close to the face value
or issue cost of the licence.
However, the fact that secondary prices for Dublin taxi licences are
many times the issue price is convincing evidence that existing licences
confer high profits on their owners.
This results in a quasi-monopoly situation in which profits earned by
incumbants are protected from competition from new entrants.
This situation leads to several queuing inefficiencies.
4.1 SUBMISSIONS OF THE APPLICANTS
The detailed submissions made by Mr. McDonagh SC on behalf of the
Applicants can be summarised as follows: Section 82 of the Road Traffic Act,
1961 does not give the Minister power to restrict the number of taxi
licences available on a basis unidentified by that Act nor to favour
particular sections of the community in the grant of taxi licences.
Moreover it does not allow the Minister to delegate to local authorities
the power to favour particular sections of the community, which delegation
is, in his submission, unlawful.
Finally Counsel submits that, if the local authority is entitled to set a
fee for the grant of Taxi Licence, such fee should have some relationship to
the principles and policies set out in that section.
In view of the above, his clients seek an Order of Certiorari quashing
the decision of the Minister to offer additional taxi licences to all
current holders and distribute the surplus together with 500 more licences
in accordance with criteria set out in the Statutory Instruments of February
last.
Section 82 allows the Minster to make regulations in relation to the
control and operation of Public Service Vehicles.
The regulations may, in particular, make provision for the licensing of
Public Service Vehicles.
Different regulations may be made under the section in respect of
different classes of vehicles.
In his submission, Mr. McDonagh SC says that the phrase "control and
operation" refers to matters itemised at sub section 2 and other
matters in relation to which principles and policies can be discerned from a
reading of the section in its context within the Road Traffic Act.
The Applicants submits that there is a strong presumption that the
Oireachtas did not intend to delegate to an individual Minister of
Government the legislative powers conferred by the Constitution exclusively
on the National Parliament.
Reference was made to 11 regulations made by the Minister pursuant to
Section 82.
The first of these, the Road Traffic (Public Service Vehicles)
Regulations (Statutory Instrument No 191 of 1963), drew a distinction
between a "Public Hire Vehicle" (Taxi) and a "Private Hire
Vehicle" (Hackney).
Part 3 of those regulations deals with the licensing of Public Service
Vehicles and provided for the grant of such licences by the Garda
Commissioner or an authorised officer.
The fifth regulation, the Road Traffic (Public Service Vehicles)
(Licensing) Regulations, 1978 (SI No 292 of 1978) provided for a local
authority resolution to determine the number of new Public Hire Vehicle
(Taxi) Licences which might be granted during a particular period by the
Commissioner of An Garda Siochana The Road Traffic (Public Service Vehicles)
(Amendment) Regulations (SI No 136 of 1995), in the Applicants' submission,
exacerbated the unfairness of the situation by allowing the local
authorities, as Licensing Authority, to extend or otherwise alter the
boundary of a taxi meter area.
It was stated that, in practice, a hackney driver who was earning a
living outside a taxi meter area could find that he is now in competition
with a large number of taxi drivers as soon as the taxi meter area is
extended to include the area where he operated. (Articles 7) to greatly
increase their capacity to take economic advantage of their privileged
position.
These extra licences which are to be awarded to persons who do not
presently hold a taxi licence are to be awarded in accordance "with the
provisions of a scheme to be determined by the Minister".
The Applicants submit that by virtue of the ultra vires doctrine and the
principles and policies test that the creation of the present taxi licensing
regime is ultra vires the first and second named Respondent.
This is so because the Road Traffic Act, 1961, does not contemplate what
is provided for in the regulations.
The nature of the regulations anticipated by the 1961 Act, the Applicants
submit, is qualitative and not quantitative.
Under the Constitution (Articles 15.2) there is a limit upon the extent
to which legislative powers may be delegated to subordinate agencies by the
Oireachtas.
The Oireachtas may delegate administrative, regulatory and technical
matters.
However, it is for the Oireachtas to establish the principles and
policies of legislation.
The Applicants refer to Keane J (as he then was) in Laurentiu -v-
Minister for Justice (2000) 1ILRM 1, at 43:
"The increasing recourse to delegated legislation has given rise
to an understandable concern that Parliamentary democracy is being
stealthily subverted and crucial decision making powers vested in
unelected officials ".
The Constitution provides that the sole and exclusive power of making
laws for the State is vested in the Oireachtas and that no other legislative
authority has power to make laws for the State.
The first analysis of Article 15.2.1 by Hanna J in Pigs Marketing
Board -v- Donnelly (1939) 1R413 at 421 provide the basis for the
principles and policies test enunciated by O'Higgins C.J. in Cityview
Press Limited -v- An Chomhairle Olliuna (1980) JR 381 at 398/99.
Counsel also refereed to McDaid -v- Sheehy (1991) 1 IR 1 at 9
where Blaney J applied a principles and policies test to the provisions of
the Imposition of Duties Act, 1957, as follows:
"Where this test is applied to the pro visions of the Act 1 957
giving the Government to impose customs and excise duties, and to
terminate and vary them in any manner whatsoever, I have no doubt that the
only conclusion possible is that such provisions constitute an
impermissible delegation of the legislative power of the Oireachtas.
"
In O'Neill -v- Minister for Agriculture and Food (1998) 1IR 539
the Supreme Court held that the power given to the Minister for to make
regulations under the Livestock (Artificial Insemination) Act, 1947 to
control the practice of Artificial Insemination of Animals was
unconstitutional.
Murphy J, at 552 observed that
"It is not merely that the lack ofpolicy or principle deprives the
Minister of suitable guidance but it also fails to provide any significant
restriction on the Ministerial power. This would be a reason for giving a
wide construction to the power conferred on the Minister and a
consequential doubt as to the statutory delegation."
Murphy J, with whom Hamilton C J agreed, continued at 556 as follows:
"It is not that there is any reason to doubt that the scheme
ultimately devised by the (Minister) was desirable, and may well have
operated in the national interest, it is simply that such a scheme is so
radical in qualifying limited number of persons and disqualifying all
others who may be equally competent from engaging in the business (of
artificial insemination).
It may be that a such far reaching power could not be delegated by the
National Parliament at all.
Certainly I would be willing to accept that in using general words the
Oireachtas contemplated such afar reaching intrusion on the rights of
citizens."
Counsel for the Applicants submitted that the above passage is germane to
the issues before this Court.
Where a licensing regime is to be created by regulation, it is not
permissible, in the absence of express legislative authority so to do, to
restrict numbers in order to enforce quality.
The Applicants submit that while it is not permissible to restrict
numbers in order to enforce quality, it is legitimate to insist on quality
as a base requirement in order to obtain a licence.
Once the threshold requirement has been reached the Applicant for a
licence is entitled to same.
The Applicants do not, however, submit that Section 82 of the Act of 1961
is automatically unconstitutional.
It is accepted that the terms of the provision do not make it inevitable
that a Minister making regulations pursuant to the power therein created
must invade the function of the Oireachtas in a manner which would
contravene Article 15 of the Constitution.
The wide scope and unfettered discretion contained in the section can
clearly be exercised by a Minister making regulatory or administrative
regulations only.
Such discretion can not be exercised where it constitutes the making of a
law in a manner which would be invalid having regard to the provisions of
the Constitution.
The power which Section 82 gave to the Minister, which he subsequently
purported to exercise, to determine the policies and principles by reference
to which the power already vested in the State to regulate and control
Public Service Vehicles should be exercised, is inconsistent with the
exclusive role in legislation conferred by the Constitution.
The regime under the 1933 Act was qualitative in nature.
Part VII of the Act is headed "Regulation and Control of Public
Service Vehicles".
If the Oireachtas had intended to facilitate the imposition of
quantitative restrictions in the subsequent 1961 Act this would have
required express provisions.
It was not intended or contemplated that the responsible Minister could
take it upon himself to do so.
The powers had never existed in legislative form at all.
Under the 1961 Act the Minister is entitled to make regulations in
relation to the control and operation of Public Service Vehicles.
However there is no provision whereby the Minister is entitled to set a
numerical limit or even to permit the setting of a numerical limit to the
number of taxi licences.
Even if the regulations made under the Act could be interpreted as
permitting the Minister to impose on local authorities the right to set a
limit to the number of taxi licences which might be granted in their area,
there is nowhere apparent in Section 82 of the Act of 1961 nor in the
Regulations of 1978 (in particular in Article 5 (1) ) any criteria which
such local authorities should or must take into account in determining the
number of new taxi licences which should be granted.
The Applicants submit that by ensuring that the number of taxi licences
is strictly limited, the Minister has created a saleable market in taxi
licences.
The Competition Authority (discussion paper No 6 of November 1998)
refereed to taxi plates trading for a sum in the region of £80,000.00.
The report estimates further that the monopoly profits arising from the
present system as at that date were in the region of £30 million per annum.
The Applicant submit based on Hempenstal -v- The Minister for the
Environment (1994) 2 IR 20 that there is not legal obligation upon the
Minister to create or to maintain such a market.
The restriction in number envisaged by the 1978 Regulations has meant
that no new taxi licences were awarded until recent years.
This has prevented persons who were in possession of Public Service
Vehicle Driving Licences from operating Public Service Vehicles for Public
Hire.
In the Applicants submission entry into the taxi market is artificially
restricted by the said regulations.
Leaving aside legislation and regulations, the practice of the carriage
of persons for reward is a lawful one.
Accordingly it would seem prima facie that any person who can satisfy the
Minister as to that persons technical qualifications and who is willing to
comply with requirements is entitled as a matter of right to a licence.
In East Donegal Co-operative Livestock Mart Limited -v- Attorney
General (1970) 1R317 at 344 Walshe J stated:
"All the powers granted to the Minister which are prefaced or
followed by the words "at his discretion" or "as he shall
think proper" or "if he so thinks fit" are powers which may
be exercised only within the boundaries of the stated objects of the Act;
they are powers which cast upon the Minister the duty of acting fairly and
judicially in accordance with the principles of Constitutional Justice,
and they do not give him an absolute or an unqualified or an arbitrary
power to grant or refuse at his will.
Therefore, he is required to consider every case upon its own merits,
to hear what the Applicant or the Licensee (as the case may be) had to
say, and to give the latter an opportunity to deal with whatever case may
be thought to exist against the granting of a licence or the refusal of a
licence or for the attaching of conditions, or for the amendment or
revocation of conditions which have already attached, as the case may be
".
The Applicants submit that the Minister is not entitled to pursue his own
policy in relation to the control and operation of public service vehicles
other than as provided in the Act.
The Minister gave no indication to the local authorities, to whom he
delegated the function, of the factors to be considered in limiting the
numbers of taxis.
Moreover the local authorities to whom the function of determining fees
was delegated were left at large in relation to same and in relation to
relevant considerations justifying the expansion of their particular taxi
meter areas.
They were not requested to undertake economic analysis of their
respective areas.
The Applicants further submit that the maintenance of the monopoly
created and fostered since 1978, has, in fact, operated contrary to the
common good.
Even if the Courts were satisfied on the basis of economic evidence that
the result created was laudable, the Applicants contend that this was not
identified in the principle act as an objective to be achieved by way of
regulations.
Moreover it submitted on behalf of the Applicants that it was not
intended by the Oireachtas that the powers conferred on the Minister by
virtue of Section 82 of the Road Traffic Act, 1961 could be further
delegated by him to local authorities.
By permitting Dundalk UDC, and other local authorities, to set their own
fees, the Ministers acting ultra vires.
The Oireachtas has no opportunity whatsoever of revoking same.
The power to impose charges in respect of taxi and hackney licences
derives from Section 82 (2) of the 1961 Act as amended by Section 57 of the
1968 Act.
This provides that the Minister may by way of regulation make provision
for payment of specified fees in respect of licences etc.
The Act does not confer this power on local authorities nor - does it
provide for its conferral on them.
The Applicants submit that in the Cityview Press case O'Higgins C J
observed that the relevant act contained clear declarations of policies and
aims in relation to the making of an industrial levy and its collection by
An Chomhairle Oiliúna (AnCO).
The only matter left over for determination by AnCO was the manner of
collecting this levy in relation to a particular industry and this did not
amount to more than a "mere giving effects to principles and
policies" contained in the parent act.
If the imposition of a licence fee is a form of tax then the Act must be
construed strictly.
CAG -v- Wilts United Dairies Limited (1921) 37TLR884 at 886 and
Gos1ing -v- Veley (1850) 12QB328 at 407.
The Applicant submits that if the imposition of a licence fee is not the
exercise of power to raise tax but of the power to regulate and control the
said licences then the Respondents have failed to show how the imposition of
such a licence fee contributes to the regulation and control of licences.
The only effect, it is submitted, is to limit the number of possible
Applicants to wealthier members of the public, which cannot have been
contemplated by the Oireachtas in delegating the power.
The Applicants reject the contention that they are out of time in making
the Application.
Delay should not protect regulations which are ultra vires.
The Applicants were unaware of the possible illegality of the various
regulations until Statutory Instrument 3 of 2000 exacerbated the situation.
Moreover no party to the proceedings has altered its position to its
determent on foot of the delay in bringing the proceedings.
The only consequence of a finding of invalidity is that the current
holders of taxi licences will be deprived of the future benefit of that
invalidity.
4.2 SUBMISSIONS OF THE STATE
Mr. Paul O'Higgins SC on behalf of the State referred to a wide range of
licensing procedures.
Some are of a quasi judicial nature and others are administrative or
executive.
Insofar as the licensing authorities are required by the Courts to
observe the Rules of Natural Justice, the Application of those Rules must be
flexible.
De Smith, Woolf and Jowell (Judicial Review of Administrative Action,
4th ed. at 222, poses the question whether licensing authorities are
under any implied duty at all to act judicially.
The precise requirements of procedure of fairness will depend very much
on the particular context.
As a general principal a decision to require an executive authority to
act judicially when dispensing discretionary benefits partly on the basis of
policy factors ought to be taken by politicians rather than Judges.
The author continues at page 223 as follows:
"Nonetheless the persuasive duty to act fairly makes prediction
difficult.
For example, the imposition ofprocedural duties would not be entirely
surprising when policy guidelines have been established (especially, if
published) within which discretion would normally be exercised.
First, they may raise an expectation of benefit in those who believe
that they fall within the guidelines.
Secondly, their existence may decrease the policy element in the
disposition of individual cases.
Thirdly, an opportunity to be heard, both in the Application and the
merits of the policy, may be required in order to prevent a fettering of
discretion.
Moreover, when a refusal of a licence casts a slur on the Applicant's
reputation or financial stability the duty to act fairly may well require
that the body should offer an opportunity for a hearing ".
The State regards that decision as very significant.
The Court recognised an important legal consequence of the structure of
the market - the right of the Minister to discriminate as between taxi
drivers and hackney drivers so as to accommodate the side effects of the
market which exist for the former.
The State Respondents believe that the above mentioned decision is
critical in appraising the challenge of the Applicants to regulations 3 of
2000.
The circumstances in which the Courts will declare invalid regulations
duly made pursuant to statutory instruments were expressed by Diplock U
in Mixnams Property Limited -v- Churtsey Urban District Council (1964) 1QB
214 at 237 and approved by Henchey J in Cassidy -v- Minister of Industry
and Commerce (1978) 1R297 at 311 as being:
"such manifest arbitrariness, injustice or partiality... that
parliament never intended to give authority to make such rules; they are
unreasonable and ultra vires. "
Moreover as is stated by Finley CJ in O'Keffee -v- An Bord Pleanala
(1993) 11R39 at 71 that the circumstances under which the Court can
intervene on the basis of irrationality with the decision maker involved in
an administrative function are limited arid rare.
The passage which followed, which was cited by all parties is that:
"The Court cannot interfere with the decision of an administrative
decision making authority merely on the grounds that (a) it is satisfied
that on the facts as found it would have raised different inferences and
conclusions, or (b) it is satisfied that the case against the decision
made by the authority was much stronger than the case for it."
Mr. O'Higgins SC on behalf of the State submitted on the basis of Mr.
Weafer's Affidavit that the decision to issue new licences in the Dublin
area was prompted by widespread public concern as to the availability of
taxis in the city.
At the same time existing taxi licence holders were in a situation in
which taxi licences were being exchanged in Dublin for very substantial sums
of money.
Accordingly, the decision to offer those licences in the first place to
existing taxi licence holders was prompted by the dual concern to ensure
that the licences were issued in such a manner as to facilitate their being
rapidly mobilised, and to operate in a manner which was in all the
circumstances fair and reasonable having regard to these considerations.
Indeed in the case of R-v- Manchester City Justices, ex parte McHugh
(1989) RTR 285 the Respondent would only grant new hackney licences in
respect of vehicles which had been generally adapted to carry wheelchair
bound passengers.
It was held that the Council was entitled to impose the condition upon
new licensees and not upon the existing licence holders simply in
recognition of the impact of the new licences upon the value of the old
ones.
More recently in O'Dwyer and Others -v- Minister for the Environment
and Others, unreported High Court 27th March 1998 when the Plaintiffs
complained that, as hackney drivers, they could not radio into another
hackney car while on a public road or in a taxi meter area with information
as to new work nor could the driver telephone or radio back to headquarters
on the public road.
This obvious restriction which the Plaintiff sought to have removed was
referred to by Geoghegan J, at page 5, as follows:
"It is no function of the Court to interfere with that policy
decision and regulation made pursuant thereto unless the regulation was
wholly unreasonable or clearly unconstitutional."
In my view it was neither.
I therefore consider that on that part of their case the Plaintiffs must
fail. The submission of the State is that the Minister has, indeed, recently
permitted hackneys to use radios in the manner contended for in that case
therefore conferring a substantial advantage upon them.
However, there is no obligation on the Minister to create such an
advantage.
Counsel for the State submits that there is a critical difficulty facing
Applicants who seek to raise objections to regulations over a period in
excess of 20 years in circumstances in which all of the Applicants have been
hackney drivers during that period.
They have derived financial benefits from the limitation of taxi licences.
The Applicants contend that the power conferred by Section 82 of the 1961
Act is insufficient to enable a quantitative restriction to be made on the
number of taxi licenses to be issued.
Counsel for the State says, in this regard, that the control and
operation of Public Service Vehicles implies and entails the imposition of
limitations and restraints.
Moreover, the issue whether the statute sets forth principles and
policies do not, in their submission, arise.
Even if they were to arise the Applicant has failed to identify what
those principles and policies might be.
For this reason, cases such as Laurentiu -v- The Minister for Justice
(2000) ILRM 1 are not directly in point.
The Minister has been granted the power to control and he can achieve
that control through licensing.
He does not have to be told in the legislation how he can control and
accordingly Cityview Press -v- An Comhairle Oilúna (1980) 1R381 and
Laurentiu are not apposite.
The statute is not one which simply confers upon the Minister the power
to grant licences.
The general power to control is wider than the specific power to licence.
Accordingly, the facts in this case are plainly distinguishable from
those of O'Neill -v- Minister for Agriculture (1998) 1IR539.
In relation to delegation, the Applicants, in contending that the
Minister acted ultra vires in delegating to Local Authorities the power to
impose quantitative restrictions on taxi licences, misunderstands the nature
and the effect of the prohibition on delegation.
Counsel for the State says that the Minister is empowered to make
regulations in relation to the control and operation of Public Service
Vehicles.
These regulations allow the minister to "make provision" for
the licensing of vehicles.
The legislation does not expressly or impliedly provide, that the
Minister must conduct the exercise of licensing.
The vesting of these powers on the Local Authority is not prohibited.
Moreover, there is no requirement imposed by the Act that the fees for
licensing be specified by the Minister himself.
4.3 SUBMISSIONS ON BEHALF OF DUNDALK:
The fifth named Respondent, Dundalk Urban District Council, decided on
the number of taxis and the extent of the taxi meter area in Dundalk and the
appropriate fee to be charged.
The resolution of the 11th of January 2000 was a decision in principle as
to the number of taxi licences to be put in place following ratification of
the decision regarding the taxi meter area.
Dundalk UDC accepted that the required statutory notice of one month for
public consultation was not met but that it was its intention to remedy this
by advertising a fresh and holding further ratification meeting in relation
to taxi numbers and the area to be covered by the taxi meter licensing.
Mr. James Connolly SC, on their behalf, submitted that there is no public
consultation process required in relation to the fixing of the taxi licence
fees.
This was fixed at £25,000 at the Council meeting of the 11th of January
2000.
Mr. Connolly submits that it is not incumbent on the authority to use
those funds solely and exclusively for the monitoring or supervision of the
operation of taxi services or licences issued thereunder.
It is sufficient that the funds be paid into the municipal fund and be
used for designated Local Authority requirements.
In relation to reasonableness the Urban District Council relied on
Section 82 and on judicial authorities already opened by the State parties.
In addition to those cases Dundalk UDC relied on Central Dublin
Development Association -v- AG (1975) ILTR69 where Kenny J, in relation
to the Dublin Development Plan stated that
"the making of a plan will necessarily decrease the value of some
property but I do not think that the Constitution requires that
compensation should be paid for this as it is not an unjust attack on
property rights".
Similarly any diminution in the opportunity of any of the present
Applicants to earn a living by virtue of the increase in the number of taxi
licences does not, in itself, amount to an unconstitutional or illegal
restriction which cuts across their property rights.
It is for the Minister to determine what is in the best interests of the
public as to how many taxis and hackneys should be available at a given
time.
Counsel on behalf of the Dundalk UDC also submit that is is in the best
interests of the public that the Minister should delegate the decision as to
how many taxis should be available in any Local Authority area and what
areas are to be covered by the taxi meter regulations.
In Shanley -v- Galway Corporation (1995) 1IR396 McCracken J
dismissed a constitutional challenge to the Casual Trading Act, 1980 which
gave the Local Authority a wide discretion for the imposition of conditions
on the granting of permits.
(See also Hand -v- Dublin Corporation (1991) 1IR409 at 419 per Griffin
J) Moreover in Pigs Marketing Board -v- Donnelly (Dublin) Limited
(1939) 1R41 3 at 422 Hanna J stated, in relation to the delegated powers
of the Pigs Marketing Board that:
"... the legislator, being unable to fix such a price itself is
entitled to say.
"we shall leave this to a body of experts in the trade who shall
in the first place determine what the normal conditions in the trade would
be apart from the abnormal conditions prescribed by statute, and then form
an opinion as to what the proper price (..) would be under such normal
conditions.
" The Pigs Marketing Board in so doing, is not making a new law;
it is giving effect to the statutory provisions as how they should
determine that price.
" In his submission, Mr. Connolly urged that a law making function
to be exercised by the Minister according to his discretion from time to
time could not properly be described as a policy in itself but amounted to
the delegation of a policy making role of the Oireachtas to the relevant
Minister.
In relation to the 1995 regulations, Counsel submits it is a long way
from the Laurentiu case.
4.4 SUBMISSIONS OF DUBLIN CORPORATION
Mr. Conleth Bradley BL for the Corporation submits that the Applicants
case is essentially based on the principles and policies argument outlined
in Cityview Press (1980) and expanded further in Laurentiu -v- Minister
for Justice (2000).
He submits that the statutory regulations impuned in these proceedings do
not offend the principles and policies tests.
In relation to quantitative restrictions O'Neill -v- The Minister for
Agriculture should be distinguished insofar as it dealt with the
division of the State into nine areas with one licence in each area.
Counsel submits that the decision in the State (Lynch) -v- Cooney
(1982) 1R337 at 380 has application insofar as Parliament intended the
power to be exercised only in a manner that would be in conformity with the
Constitution and within the limitations of the power as they are to be
gathered from the statutory scheme or design:
"This means, among other things, not only that the power must be
exercised in good faith but that the opinion or other subjective
conclusion set as a pre condition for the valid exercise of the power must
be reached by a route that does not make the exercise unlawful - such as
by misrepresenting the law, or by misapplying it through taking into
consideration irrelevant matters of fact, or through ignoring relative
matters. Otherwise, the exercise of the power would be held to be invalid
for being ultra vires."
In his submission the regulations sought to be impuned do not lack legal
certainty.
Indeed, in a judicial review context, Counsel submits, the principle of
legal certainties is closely aligned to the rule against the decision maker
fettering his or her discretion.
He refers to the De Smyth, Woolf and Jowell in Judicial Review of
Administrative Action (fifth ed., 1995 at 506) where it is exhorted that:
"the full rigor of certainly and consistency be tempered by the
willingness to make exceptions, to respond flexibly to unusual situations
and to apply justice to the individual case Counsel submits that the grant
of a new licence to current holders to the exclusion of others does not
amount to a breach of Article 40.1 as the provision can not be equated
with objectives of uniformity or homogeneity."
Moreover, Counsel submits, that the Court's supervisory jurisdiction with
regard to discretionary relief should be applied by denying the Applicants
relief because of their failure to comply with the requirements of
promptness in seeking judicial review.
4.5 SUBMISSIONS OF THE NATIONAL TAXI DRIVERS UNION
The National Taxi Drivers Union and Thomas Gorman, the General Secretary
of that Union, were joined by Order of the High Court.
In his Affidavit Thomas Gorman outlines the recent history and
development of the licensing of Public Service Vehicles and, to that extent,
overlaps with the Affidavit of Mr. Weafer in respect of that development and
in the statutory framework underlying the development.
Mr. John Rogers SC for the seventh and eight named Respondents, the Taxi
Drivers Union and its General Secretary, submitted that there was no radical
limitation of licenses or an exclusivity regime operated by the Minister
unlike in O'Neill -v- The Minister for Agriculture and Carrigaline
Community Television Broadcasting Limited -v- The Minister for Transport,
Energy and Communications.
The language of Section 82 of the 1961 Act was clearly introduced with a
view to permitting the Minister to regulate for policy appropriate to the
proper control and operation of Public Service Vehicles.
This power expressly included a power to regulate in relation to the
licensing of Public Service Vehicles.
There was no such regulatory power vested in the Minister under the Act
as was subject to challenge in the O'Neill case.
In relation to the O'Neill case Murphy J said at 553 that:
".. the Act of 1945 provides little guidance as to the policy and
principles to be implemented by the first Respondent or the regulations
contemplated by the Oireachtas.
It is not merely that the lack of policy or principles deprives the
first Respondent of suitable guidance but it also fails to provide any
significant restriction on the ministerial power."
In relation to the delegation of powers Mr. Rogers submits that the
Minister is not in reality delegating a power vested in him but is simply
regulating, as he is permitted to do by Section 82, for a power to impose
quantitative restrictions in relation to licenses which he determines should
properly be exercised by the licensing authorities in accordance with the
purpose and objectives of that section.
Moreover Section 82 (3) expressly authorises the making of
"different regulations" for "different circumstances and for
different areas Accordingly, it is clear that when the Minister authorised
quantitative restrictions of taxi licenses by Local Authorities, he was
acting within the express power given by the Section.
Mr. Rogers submitted that the regulations sought to be impuned by the
Applicants were within the four corners of the regulatory power vested in
the Minister by the Oireachtas.
In particular, the decision to introduce regulation 3 of 2000 was arrived
at for a purpose which, in his submissions, were consistent with the
principles and policies set out in the Road Traffic Act of 1961.
The determination to issue licences was prompted by widespread public
concern as to the number of taxis available in the Dublin area.
Regard was had to the fact that the solution proposed to the problem of
the number of taxis in Dublin should be fair to the investment made by taxi
license holders.
This was clear from the Affidavit of Mr. Weafer.
It is not improper for the Minister to have regard to the significant
investment of taxi drivers in the industry in deciding how to respond to the
need for additional taxi plates.
This decision, in Mr. Rogers submission, did not entail unfairness to
hackney drivers.
The mechanism selected by the Minister mitigates the risk of
destabilisation of the business and, in this regard the evidence of Mr.
Brendan Lynch as to the economic effects of such a decision, is significant.
Mr.Lynchs' evidence was that the best way of limiting disruption to the
trade, the public and the economy is to focus on existing operators in the
trade as this makes it more likely that there would be a seamless
continuation of business without a deterioration in the quality, reliability
or safety of the service.
This is clearly consistent with the matters which fall within the
contemplation of the Oireachtas in enacting the powers vested in the
Minister in Section 82 of the 1961 Act.
It is not either irrational or unreasonable.
The Applicants complained that the regulations unlawfully discriminate
against persons other than current holders of licences and does so in an
invidious fashion.
However, the Minister was given express power under Section 82 to
differentiate by regulation between different types of licences, different
classes of vehicles and for different circumstances and for different areas.
The Applicants have not been prevented from working or earning a
livelihood.
In any event that right is not an unqualified right to any particular
means of livelihood.
The maintenance of two assessment systems for the allocation of taxi
licences and wheelchair assessable licences, according to Mr. Rogers
submissions, is clearly contemplated by Section 82 of the Act.
Mr. Rogers finally submitted that the Applicants had failed to establish
that they had the necessary standing to mount the present challenge.
He submits that the Applicants had failed to show a personal interest in
the challenge to the regulations while their evidence was that they wished
to apply for a taxi licence in Mr. Rogers submission it was clear that
neither would be available to drive a taxi and could not, accordingly, be
genuine Applicants for such a licence.
DECISION
- 5.1 In relation to the in applying for judicial review, Order
84 Rule 21(1) provides as follows:
"An Application for leave to apply for judicial review should
be made promptly and in any event within 3 months from the date when
grounds of the Application first arose, or six months where the relief
sought is Certiorari, unless the Court considers there is good reason
for extending the period within which the Application shall be
made."
The Applicants say they were unaware of the possible illegality of
the various regulations until recently when Statutory Instrument No 3 of
2000 "exacerbated the situation."
Moreover, they argue that delay should not protect regulations which
are ultra vires.
It seems to me that such delay may indeed be a ground for
acquiescence and laches in respect of earlier regulations which, on the
Applicants own arguments, are defective without reference to the most
recent statutory instrument.
Accordingly, the Court cannot, it seems to me, extend the period
within which Application should be made in respect of those regulations
unless there was a good reason for so doing.
The reasons given do not justify an extension of the period as
requested.
However, it is clear that the Applicants are within time to seek
judicial review in relation to the Statutory Instrument No 3 of 2000.
- 5.2 In O'Dwyer -v- the Minister for the Environment
(unreported) High Court 27th March 1998 Geoghegan J held that the
position regarding Taxis and Hackneys are quite different:
"The Minister's duties under the Road Traffic Acts are to
provide for public transport services.
Under the scheme which he has traditionally operated there are two
types of small Public Service Vehicles: the Taxi and the Hackney.
As a side effect of the manner in which taxis are regulated there
is practice a saleable market in taxi licences... Hackney licences are
regulated quite differently and the mere fact that the regulation of
hackneys does not produce similar side effects as the side effect
produced by the regulation of taxis does not in any way render the
regulatory scheme discriminatoy.
Indeed, subsection 3 of Section 82 of the Road Traffic Act 1961
allows different regulations to be made under the Section in respect
of different classes of vehicles and for different circumstances and
for different areas ".
It follows that regulations may differentiate between both
categories.
Can regulations differentiate in relation to fees and quantative
restrictions in respect of different Applicants?
- 5.3 The Statutory Instrument proposes to delegate to the local
authorities the power of raising of fees which go beyond the economic
cost of control and operation.
Section 82(2) of the Act of 1961, as amended by Section 57 of the
Road Traffic Act of 1968, provides that the Minister may by way of
Regulation make provision for the payment of specified fees in respect
of licences, badges or plates granted or applied for.
The Act does not confer this power on local authorities.
The provisions of the Local Government (Financial Provisions) (No 2)
Act, 1983 does not seem to me to answer this question.
That act was introduced to permit local authorities to make certain
charges consequent on the abolition of rates on domestic dwellings and
agricultural land.
Section 2 of that Act empowers the authority to charge for the
provision of services notwithstanding that it may be precluded from
doing so or required to do so free of charge under any enactment.
In AG -v- Wilts United Dairies Limited (1921) 37TLR 884 at 886
Atkin U declined to infer that a power expressed in wide terms
included the right to raise charges:
"... the circumstances would be remarkable indeed which would
induced the Court to believe that the legislator had sacrificed all
the well known checks and precautions and, not in express words, but
merely by implication, had entrusted a Minister of the Crown with
undefined and unlimited powers of imposing charges upon the subject
for purposes connected with his department."
In Gosling -v- Veley (1850) 12QB328 at 407 Wilde C.J. stated:
"The rule of law that no pecuniary burden can be imposed upon
the subjects of this country, by whatever name it may be called,
whether tax, due, rate or toll, except upon clear and distinct legal
authority established by those who seek to impose the burden, has been
so often the subject of legal decision that it may be deemed a legal
axiom, and requires no authority to be cited in support of it."
It seems clear to me that the imposition of a licence fee in the case
of Dundalk Urban District Council where such a fee is related to the
capital value of the subject of a licence is indeed in the nature of a
tax.
It is clearly not limited to the administration of the licence or to
the regulation and control of same.
It does not seem to have been in the contemplation of the legislature
to delegate to the Minister such a right let alone allow the minister to
delegate to a local authority.
Indeed such a right is more properly reserved to the Oireachtas.
- 5.4 It is conceded by Counsel on behalf of the fifth named
Defendant, Dundalk Urban District Council, that the resolutions passed
on the 11th of January last are ambiguous insofar as they purport to be
a final decision and yet maintain that they are preliminary to
advertising and consultation.
The Council accept that the required statutory notice of one month
for public consultation was not met by virtue of a shortfall in the
appropriate notice of four days.
The intention is to remedy this by advertising fresh and holding a
further ratification meeting in relation to taxi numbers and in relation
to the area of taxi metre licensing.
It seems to me that the resolution of 11th January is invalid
Applications for taxi licences which were invited and received can not
be deemed closed.
- 5.5 In relation to the power of the Minister to delimit the
issue of licences raises complex legal as well as economic issues.
The extensive pleadings, the evidence including the expert evidence
and the legal submissions of the State, local authorities and the
National Taxi Drivers' Union in response to the equally extensive
submissions of the Applicants, are evidence of that complexity and of
the competing rights of the public and of the industry.
It is remarkable that little evidence was given as to the rights of
the public and to the level of unmet demand.
The concept of public service in exchange for quasi monopolistic
privileges received scant mention.
The Court has to be mindful that, in judicial review proceedings it
is not a Court of Appeal.
Moreover, no matter how compelling the economic arguments are, the
issue being reviewed are fundamentally political decisions made within
the parameters of legislative discretion.
Judicial Review is, of course, not a matter of reviewing the decision
itself but rather of the power to decide and of. the procedure adopted
in making that decision.
The Courts have only a supervisory as opposed to an appellate
jurisdiction.
It is concerned with the powers conferred by the Oireachtas and the
manner by which the Minister has exercised those powers rather than with
the merits of the decision itself.
(See MurphyJ in Devlin -V- Minister for Arts, Culture and the
Gaeltacht (1999) 1 ILRM 462 at 474) The decision maker must act
within jurisdiction.
The doctrine of Ultra Vires allows a Court to annual decisions made
by public bodies acting outside their powers.
- 5.6 The central issue for judicial review is whether the
Minister is empowered under Section 82 of the Road Traffic Act to
restrict the number of taxi licences, to favour incumbents already
holding taxi licences and whether he has the power to delegate to local
authorities the power to restrict and the power to set a licence fee.
That key section does allow the Minister to make regulations in
relation to the control and operation of public service vehicles.
The regulations make provision of the licensing of different classes
of vehicles.
Moreover, the regulations made under that section - eleven in total -
have not up to now been the subject to any challenge such as the present
one.
The challenge to the Road Traffic (Public Service Vehicles)
(Amendment) Regulations, S.J. No. 3 of 2000 is within the requisite
time for judicial review (see 5.1. above).
Section 82 of the Road Traffic Act, 1961 provides as follows:
- "82. -
- (1) The Minister may make regulations in relation to the
control and operation of public service vehicles.
- (2) Regulations under this section may, in particular and
without prejudice to the generality of sub-section (1) of this
section, make provision in relation to all or any of the
following matters:
- (a) the licensing of public service vehicles;
- (c) the payment of specified fees in respect of licences
granted under the regulations and the disposition of such
fees,
- (h) the authorising of the fixing of maximum fares for
street service vehicles;
- (3) Different regulations may be made under this section -
- (a) in respect of different classes of vehicles,
- (b) for different circumstances and for different
areas."
The Applicant says that the word control and operation contained in
sub-section (1) of the above section does not extend to numerical
restrictions.
The Applicants have submitted that the Road Traffic Act, 1961, does
not contemplate what is provided for in the regulations restricting the
issue of licences and, in particular in S.L No. 3 of 2000.
The Applicants say that where a licensing regime is to be created by
regulation, it is not permissible, in the absence of expressed
legislative authority so to do, to restrict numbers in order to enforce
quality.
The Applicants say that the regime under the 1961 Act is qualitative
and not quantitative in nature.
It is necessary to consider the dictionary definition of both terms
as they are not defined in the legislation itself nor, indeed, are they
given any precise meaning in the context of licensing in Butterworths
"Words and Phrases Legally Defined" (3rd edition, 1988).
The second edition of the Oxford English Dictionary (1989) gives a
derivation from the French controle (earlier contrerolle)
"the copy of a role (of account, etc) a parallel of the same
quantity and content with the original; also, a con trolling or
overseeing.
" A primary meaning is given as follows: "The fact of
controlling, or of checking and directing action; the function or
power of directing and regulating, domination, command, sway.
" A secondary meaning is given as follows: "restraint,
check," and "a method or means of restraint; a check.
Also, a means adopted esp. by the Government, for the regulation of
prices, the consumption of goods, etc, a restriction, usually in pl.
"The word would, accordingly, appear to have quantative as
well as qualitative meanings as are indeed evident from the examples
given in relation wartime consumption controls:
"after the war when consumption controls are relaxed"
(1941 : New Statesman 26 Apr. 31).
According to the same edition of the Oxford English Dictionary, the
word operation, from French and Latin, is defined, inter alia, as manner
of working, the way in which anything works (see 2a).
In Australia, Dixon J. said in relation to the word control:
"An unfortunate word of such wide and ambiguous import that it
has been taken to mean something weaker than 'restraint', something
equivalent to 'regulation' (Bank of New South Wales -v-
Commonwealth [1948] 76 CLR 1 at 385)."
In other contexts it is defined as possession, management, carrying
on business.
If it is weaker than restraint and something equivalent to regulation
then it seems to me that the word control may not be wide enough to
include quantitative control.
The reference to a Minister making regulations for control arose in O'Neill
-v- The Minister for Agriculture and Food (1988) 1 IR 539 In that
case the Oireachtas attempted to control the practice of artificial
insemination by Section 3 of the Livestock (Artificial Insemination)
Act, 1947 which provides as follows:
"(1)The Minister may make regulations for controlling the
practice of artificial insemination of animals to which this Act
applies and, in particular, for prohibiting the distribution and sale
of the semen of animals to which this act applies except under and in
accordance with a licence."
The Supreme Court (at 550) found very little guidance in the
regulations which followed as to the persons to whom a licence to
distribute or sell might be granted or the conditions which might be
imposed in any such licence.
The Minister had adopted a licensing scheme based on the division of
the State into nine areas and had granted only one licence in each area
on the basis that the licensee was obliged to provide an appropriate
service for that area.
The exclusivity scheme was carried into effect by way of
administrative decisions rather than by way of regulations made under
the section.
In his judgment Murphy J. (at 551 to 556) stated that the power
conferred on the Minister to make law by way of regulation in any given
case is primarily to be determined by the interpretation of the
legislation purporting to confer the power.
Having referred to Article 15.2 of the Constitution, City View Press
and other authorities he stated:
"It is the scope of such regulations and above all the manner in
which they affect or touch upon the property or other constitutional
rights of the citizen which may raise doubts as to how far they were
within the contemplation of the Oireachtas."
Whether the Oireachtas itself would have agreed to the division of
the State into nine identified areas for the allocation of a single
licence for the sale and distribution of semen may be open to doubt
but I find it inconceivable that the legislature would have
contemplated or authorised the creation of such a scheme by the
executive.
The scheme manifestly affects the right of citizens to work in an
industry for which they may be qualified and the rights of potential
customers to avail of such potential services.
It is not that there is any reason to doubt that the scheme
ultimately devised by the first Respondent was desirable, and may well
have operated in the national interest, it is simply that such a
scheme is so radical in qualifying limited number of persons and
disqualifying all others who may be equally competent from engaging in
the business.
It may be that such afar reaching power could not be delegated by
the national parliament at all.
Certainly I would be unwilling to accept that an issue in general
words the Oireachtas contemplated such afar reaching intrusion on the
rights of citizens."
Counsel for the Taxi Union submitted that there is no radical
limitation of licences or an exclusivity regime operated by the
Minister.
Counsel for the State submits that the Minister has power to Control
by limiting numbers.
In the main, new licences are to be issued exclusively to existing
licence holders.
While there may not be a radical limitation it is clear that the
increase is limited both quantitatively and personally.
While the Minister was given express power to differentiate between
taxi and hackney licence holder, Section 82 does not expressly or
necessarily give power to restrict numbers.
- 5.7 The Applicants have also referred to the lack of policy or
principles guiding the Minister.
This was also an important element in the decision of the Supreme
Court in O'Neill referred above, Murphy J, 552, observed that:
"It is not merely that the lack of policy or principles
deprives the Minister of suitable guidance but it also fails to
provide any significant restriction on the Ministerial power"
While some distinction might be made in relation to the Minister
making regulations for controlling the practice of artificial
insemination of animals (Section 3 of the Act of 1947) and the Minister
making regulations in relation to the control and operation of Public
Service Vehicles (Section 82 (1) of the 1961 Act), what is common is the
provision of a regulated service through a defined licensing system for
the benefit of customers.
There are some licensing regimes where issues of policy and principle
do not arise.
Keane J in Carrigaline Community TV Broadcasting Company Limited
-v- Minister for Transport (1997) 1TLRM 241 at 284 refers to
Television and Driving Licences.
He continues:
"At the other extreme, question of policy must obviously
affect the granting or refusal of planning permission and indeed in
that area the authorities obliged by statute to adopt a specific set
ofpolicy objectives in the form of a development plan.
The licensing regime under the Act of 1926 as amended by subsequent
legislation belongs to an intermediate category.
In the case of this and similar licensing regimes, the adoption by
the licensing authority of a policy could have the advantage of
ensuring some degree of consistency in the operation of the regime,
thus making it less likely that decisions might be categorised as
capricious or arbitrary.
But it is also clear that inflexible adherence to such a policy may
result in a countervailing injustice."
It seems to me that the licensing regime under the 1961 Act is at
most of a similar order to that of the broadcasting regime but more
likely of a much less order in terms of numerical regulation.
There is no legislative basis for exclusivity.
In O'Neill Keane J and Hamilton CJ held that, even if the Oireachtas
had envisaged the adoption of an exclusivity scheme, it was highly
improbable that they intended the scheme to be established by a series
of administrative decisions (thus avoiding legislative supervision and
accessibility to the public) rather than by way of regulations.
Moreover, Murphy J and Hamilton CJ held that whether the Oireachtas
would have agreed to such an exclusivity scheme might be open to doubt
but it was inconceivable that the legislator would have contemplated or
authorised the creation of such a scheme by the executive.
In the present case the intended scheme is to be established by
regulation and administered by the relevant local authorities.
However the import of O'Neill to the present case is relevant
nonetheless.
Keane J (then a Judge of the High Court) posed the question apart
from legislation and regulations in the following terms:
"Since the practice of artificial insemination of cattle was a
lawful one, it would seem prima facia that any person who can satisfy
(the Minister) that he has whatever technical qualifications appear
appropriate and is in a position to comply with whatever other
requirements might reasonably be imposed on him by the (Minister) is
entitled as a matter of right to a licence.
That, however, inevitably raises the question as to whether (the
Minister), in considering applications for licences under the Act of
1947, was entitled to adopt a particular policy which might mean that
Applicants, such as the Applicant in the present case, who appeared to
be in a position to comply with such threshold requirements, would
nonetheless not automatically receive a licence. (at 443/4,)."
The Applicants have made a case, which I accept, that they are in a
position to comply with threshold requirements.
Under the Regulation of February last they are unlikely to receive a
licence.
It is clear that operation and control can indirectly extend to
numerical control insofar as the Minister is clearly empowered to accept
or reject applications whether, by himself, or through powers delegated
to local authorities.
The real issue is the manner in which control and operation is
exercised.
In this regard the decisions of O'Neill and Carrigaline together with
Regina -v- Port of London Authority are clearly relevant.
The question is whether the Minister's exercise of control and
operation is valid and lawful.
R. -v- Liverpool Corporation ex. P.
Taxi Fleet (1972) QB 22 g and R -v- Manchester City Justices
(1989) RTP 285 were decided on the basis of s.37 of the Town Police
Clauses Act, 1847 which expressly provides for the limitation of
numbers.
In O'Neill nothing was said as to whether control and Section 3 of
the 1940 Act referred to above extended to quantitative control.
MurphyJ held that a manner in which the Minister had exercised his
powers under Section 3 was Ultra Vires.
By conferring a power of control, the Oireachtas could not have
contemplated that the Minister would put in place a scheme which (M)
manifestly affects the rights of citizens to work in an industry for
which they may be qualified and the rights of potential customers to
avail of such potential services.
The Constitutionality of any delegation by the Oireachtas of a power
to institutionalise such a scheme was; so radical in qualifying a
limited number of persons and disqualifying all others who may be
equally competent from engaging in the business must be questionable.
While O'Neill is not an authority for the proposition that the
Minister can not exercise quantitative control over the number of taxi
licenses issued, his authority insofar as that relates to the manner in
which the Minister can exercise control over the taxi licence scheme.
The relevance of O'Neill lies in its unambiguous rejection of the
possibility of the Minister fettering his discretion under the Act and
the doubt which its casts on the Constitutionality of any scheme which
would have the effect of excluding persons from an industry for which
they may be perfectly well qualified.
In relation to Carrigaline some doubt is cast on the possibility of
the Minister institutionalising a policy under such a scheme and
inveterately adhering to that policy to the extent that the merits of an
individual application may not be considered.
- 5.8 Having referred to his decision in Carrigaline to and in R
-v- Port of London Authority, ex parte Kynoch (1919) 1KB 176 at 184
and other authorities Keane J. held it unquestionably a case that the
Minister had fettered the exercise of the discretion conferred on him by
the Act of 1947 by excluding the possibility of granting a licence which
would conflict with the exclusivity scheme.
It seems to the Court that the Minister, in restricting the numbers
for reasons unrelated to qualitative standards of the vehicles and of
drivers has fettered the exercise of the discretion conferred upon him
by Section 82 of the 1961 Act.
A quantitative restriction not alone affects the rights of citizens
to work in an industry for which they may be qualified but it also
manifestly affects the right of the public to the services of taxis and,
indeed, restricts the development of the taxi industry itself.
Regulations which restrict the number of public hire vehicles
contradict the very concept of public service.
It is, of course, open to the relevant authority to insist on quality
as the base or threshold requirement in relation to a vehicle license as
well as a drivers license.
The 1961 Act does not contemplate the restriction of numbers in order
to enforce standards.
Moreover, there would appear not to be any criteria in the Act, nor
in the regulations, by which a determination should be made on the
number of new licenses to be granted.
Indeed, no indication has been given to the local authorities to whom
the Minister purports to delegate the function of the factors to be
considered in limiting the number of vehicles.
The policies and principals contained in Section 82 of the Road
Traffic Act, 1961 do not provide a basis upon which the Minister can
require local authorities to impose a quantitative restriction on the
issuance of new taxi licenses within their respective areas.
In arriving at such a conclusion the Court is not attempting to
interfere with the Minister's right to make regulations for the control
and operation of taxis.
That right does not appear to extend to the limitation of number or
to discriminate in favour of existing taxi licence holders.
To recapitulate, then, on this portion of my judgment, I have held
the following: (I) The words "control and operation ", as they
appear in S. 82 of the Road Traffic Act, 1961, do permit the Minister in
question to exercise a measure of numerical or quantitative control over
the licensing of public service vehicles.
That this is so is apparent simply from the fact that the Minister is
empowered to grant licences.
By granting or, indeed, by refusing any application for a licence,
the Minister is ipso facto exercising quantitative control over the
licensing of such vehicles.
This fact is not challenged by the fact that a licence may have been
granted for qualitative reasons relating to the condition of a
particular vehicle or the extent to which the applicant for the licence
is qualified to hold a licence.
To frame the central legal question which has been thrown into focus
by these proceedings as being that of whether the Minister in question
is empowered under the 1961 Act to exercise numerical control over
public service vehicles is largely unhelpful at all events, insofar as
it deflects the mind from the real issue, which is that of whether the
Minister in question is empowered to exercise numerical control over
such vehicles in the manner in which he has purported to do under the
impugned Statutory Instrument.
The O'Neill case, to which the parties have already referred and to
much already made abundant reference in the course of this judgment, is
relevant not because it provides authority for the proposition that the
Minister may not exercise quantitative control over public services
vehicles, which it does not, but rather because: (a) it unambiguously
rejects the possibility of the Minister fettering his discretion in
purporting to exercise quantitative control under the Act; it casts
serious doubt on the constitutionality of any scheme authorised by the
Oireachtas which would have the effect of excluding persons from working
in an industry for which they may be perfectly well qualified.
The scheme at suit in O'Neill, like the scheme at suit before the
Court, was
"so radical in qualifying a limited number of persons and
disqualifying all others who may be equally competent from engaging in
the business"
that
"[i]t may be that such afar reaching power (ii) (iii) (b)
could not be delegated by the national parliament at all."
Murphy, J., op. cit. (iv) The Minister, in restricting the number of
licences in the manner under consideration, has fettered the discretion
conferred upon him by s. 82 of the Act of 1961.
The scheme ostensibly put in place by SI 3 of 2000 represents an
exercise of quantitative control and there can be little objection to
that per Se.
However, it is also a blanket restriction which renders nugatory
applications from parties other than current taxi licence holders.
It represents a fettering of the Minister's discretion which affects
the rights of citizens to work in an industry for which they may be
qualified and, further, which affects public access to taxis and
restricts the development of the taxi industry.
The foregoing is, to my mind, sufficient to dispose of this matter.
However, beyond these considerations, I feel bound to add a further
point which is of no little importance.
I was not addressed by Counsel in the course of these proceedings on
the issue of the extent to which European Community law affects the
scheme put in place by the Minister.
Nevertheless, I consider that European Community law is relevant to
these proceedings and may also be fatal to the scheme whereby additional
taxi licences will only issue to current holders of licences.
The argument is just this.
Non-discrimination is a general principle of Community law and, as
such, it is a principle which is binding upon this State as a Member
State of the European Union.
It is no less binding upon this Court than it is upon the Executive
and the Legislature.
It need hardly be observed here that this principle has informed the
development of Community Law as a whole and has found expression in
fields of that law as diverse as nationality and sex equality.
Most recently, the Amsterdam Treaty has inserted a new Article 13 EC
which provides a legislative basis for Community measures aimed at
combating discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation.
Discrimination on grounds of nationality is expressly proscribed by
Article 12 of the EC Treaty (formerly, Article 6 EC).
It is trite law that this prohibition extends also to indirect
discrimination on grounds of nationality.
Such a case of indirect discrimination would arise where, as in the
case before me, a national rule which appears on its face not to
discriminate on grounds of nationality in practice affects nationals of
other European Union Member States to a greater degree than nationals of
Ireland.
In this regard, it is not necessary for it to be established that the
national measure in practice affects a higher proportion of foreigners,
but merely that the measure is "intrinsically liable" to
affect nationals of other Member States more than Irish nationals: see,
in the context of Article 39 EC (formerly, Article 48 EC) Case C
-237/94, O'Flynn v. Adjudication Officer [1996] ECR 1-26 17.
Article 12 EC is directly effective and can be relied upon before
this Court without the necessity of relying on any other Treaty article:
Case C-92192, Phil Collins v. Imtrat Handelsgesellschaft mbH [1993] ECR
1-5145, [1993] 3 CMLR 773.
I have come to the conclusion that the scheme purportedly put in
place by SI 3/2000 may very well indirectly discriminate against Member
States of the European Union other than Ireland in a manner which is
prohibited by Article 12 of the EC Treaty.
I venture that all and, if not, the great majority of current taxi
licence holders are Irish nationals.
By restricting the grant of new licences to this category of persons,
the Minister is effectively precluding nationals of other EU Member
States from becoming the owners of new taxi licences in Ireland.
That those nationals could purchase the licences at the market rate
is no defence.
It is true that Irish persons who are not taxi licence holders are
equally negatively affected, but the favouring of one group, all or most
of the members of which are Irish nationals, remains.
I am guided, in reaching this conclusion, by such seminal European
Court of Justice cases as Case C-279193, Finanzamt Koln-Altstadt v.
Roland Schumacker [19951 ECR 1-225 and, in applying such principles
in the Irish context, by such cases as Bloomer v. Law Society [1995]
3 JR 14. Even if my interpretation of Article 12 EC is misguided
because of the equal exclusion of Irish nationals who are not taxi
licence holders, Article 86 EC (formerly Article 90 EC) has to be
considered, which provides, in relevant part that:
"1. In the case of... undertakings to which Member States
grant special or exclusive rights, Member States shall neither enact
nor maintain in force any measure contrary to the rules contained in
this Treaty, in particular to those rules provided for in Article 12
and Articles 81 to 89." Wyatt and Dashwood, European Community
Law (Sweet and Maxwell, 3rd edn., 1993), 551, explain that the
rationale behind the portion of Article 86 EC quoted above is
"the fact that the State has deliberately intervened to relieve
the undertaking concerned wholly or partially from the discipline of
competition, and must bear the responsibility for the consequences.
It is my view that the taxis must fall within the regulatory
framework of Article 86 EC, as "undertakings to which [the State]
grant[s] special or exclusive rights ".
The scheme might further be impugned under Article 86 on the ground
that it might lead taxi drivers to abuse Article 82 EC, which is the
Treaty provision dealing with abuses of dominant positions.
This might seem a little extreme, but the jurisprudence of the
European Court of Justice has established that the grant of exclusivity,
such as in the present case, may infringe Articles 86 and 82 either when
the exercise of the exclusive rights cannot avoid being abusive (Case
C-41/90, Hofner and Elser v. Macrotron GmbH [1991] ECR 1-1979, [1993]
4 CMLR 306), or where such rights are liable to create a situation
in which the undertaking is induced to commit an abuse (Case C -260/89, Elliniki
Radiophonia Tileorassi AE (ERT) v. Dimotiki Etairia Pliroforissis (DEP)
and Sotirios Kouvelas [1991] ECR 1-2925, [19941 4 CMLR 540).
Also instructive in this regard is Case C-179/90, Merci
Convenzionali Porto di Genova SpA v. Siderurgica Gabrielli SpA [19911
ECR 1-5889, [1994] 4 CMLR 422, as to which, see Craig and de de Búrca,
EU Law, 2nd ed., Oxford, 1998.
Taxis may very well be induced to commit abuses of their dominant
position in Ireland by the scheme purportedly put in place by SI 3/2000.
