The Scottish Law Commission talks to angrypolicyholders.com to clarify Scottish Law
To research all the laws and any exemptions in the private hire legislation meant I also had to take into account Scotland’s Legislation as well. The laws in England and Wales are very similar to Scotland, except Scotland still has an exemption from the act for contracts and has a cross border exemption.
The two exemptions that interested me were: nothing in sections 10 to 21 (with the exception of subsection (7) of section 21) of this Act shall—
(a)apply to a vehicle used for bringing passengers or goods within and taking them out of an area in respect of which the vehicle is not licensed as a taxi or a private hire car in pursuance of a contract for the hire of the vehicle made outside the area if the vehicle is not made available for hire within the area
(c)apply to any vehicle while it is being used for carrying passengers under a contract for its exclusive hire for a period of not less than 24 hours.
Section 22(a) explained
Starting with section 22(a) what does this mean? Does this mean someone can avoid the licensing of their vehicles and drivers as long as they don’t make any vehicle(s) available in one town, whilst operating in another? I approached the Scottish Law Commission who were very generous with their time and helped me understand this exemptions.
The Scottish Law Commission told us section 22(a) effectively means that a pre-booked journey beginning within the area where the vehicle is licensed to operate and finishing outwith that area, or vice versa. For example, a taxi licensed in Moray can take a pre booked hire and deliver a passenger to a location in Aberdeenshire, without requiring a licence in Aberdeenshire.
Equally, such a taxi could pick up a pre booked hire in Aberdeenshire and deliver the passenger to a location within Moray. What that taxi can’t do, is ply for hire within Aberdeenshire outwith the pre booked hires. These vehicles are not allowed to sit on taxi ranks outwith their licensed areas either. It mostly covers airport and railway runs where these are not local to the area.
Section 22(c) explained
Section 22(a) was quite straightforward, but for a layman was easy to misinterpret. England used to have a 7 day contract exemption, but this was repealed in February 2008 after it was abused on an industrial scale, mostly by executive hire and chauffeur companies. Scotland’s equivalent is section 22(c) but this exemption is for a minimum of 24 hours, not 7 days.
To understand section 22(c) took a great amount of time and effort. We spoke at great length about this exemption, including what it means and how it could be used. I used the following two examples:
- A travel agent offers customers a free chauffeur service if they spend over £3,000. The customer is given the chauffeur companies contact details and is left to book the service using a voucher code. The service is free up to a 40 mile radius of any of Scotland’s airports. Any journeys which exceed this mileage incurs a extra fee which is payable directly to the chauffeur company.
- A company offers as part of a CEO’s package a chauffeur and vehicle for his/her use whilst employed by the company. The chauffeur service can extend to the individual if he/her leaves on gardening leave or for a pre-agreed period after the employment end.
I put it to the @ that I believed the second example of a CEO was what the Scottish Government had in mind when writing section(c) and creating the 24 hour exemption and they agreed. The travel agent example caused all sorts of problems when addressing the ‘exclusive’ part of the 24 hour exemption.
Speaking to not only the Law Commission but to contract and legal experts all agreed that each booking under the travel agent scenario would be a separate contract in law. If a vehicle was picking up six different passengers in one day that vehicle would be carrying out six separate contracts in one day.
I was also reminded by the Scottish Law Commission not to forget about the exclusive part of the exemption in section 22(c). To be classed as ‘exclusive’ I was told several times that the service could not be made available to the public, including being advertised.
‘Exclusive hire’ is defined in a report commissioned by the (UK) Department for Transport in 2009 as a hiring in which the vehicle is hired as a whole by a single person or group.
Section 5.16. states: The “Notes on Clauses” which accompanied the 1982 Act stated, in respect of this exemption: It is not the intention of the taxi and private hire car licensing system to apply to a vehicle used for carrying passengers for hire and reward under contract for its exclusive hire for periods of not less than 24 hours and sub-paragraph (c) specifically exempts such vehicles – on the argument that longer hires are likely to be the subject of informed individual inspection and negotiation – e.g. company hires – where there is not the same need to protect the casual hirer.
A casual hirer would not fall into the travel agent example because section 5.17. says: Licensing authorities will be aware that this exemption allows drivers and vehicles being used exclusively for contract work to fall outwith the licensing regime. This is on the assumption that the person/body contracting the work will be responsible for the scrutiny of the person/company fulfilling the contract. However, the use of unlicensed individuals or firms to provide transport services, particularly to vulnerable groups, should be carefully considered. Any tendering process and final contract must clearly be compliant with relevant legislation (i.e. registration with Protecting Vulnerable Groups scheme where appropriate) but should also build in time and capacity to effectively establish the safety and suitability of the drivers and vehicles. Considering the wide range of factors that this covers (road worthiness, accessibility requirements, criminal records checks, driver training etc), the use of licensed drivers and vehicles may be more efficient.
So, with two regimes – England and Wales plus Scotland – can any of the above exemptions be used outside Scotland? The short answer is NO as the legislation is specific to Scotland as operations in England would fall under the the Local Government (Miscellaneous Provisions) Act 1976 (England) and The Town Police Clauses Act 1847.
Any journey must begin or end in the local authority area where the operator is actually based. The vehicles would have to be registered to an address within Scotland in order to use the exemption. In fact buried within the small print of the Civic Government (Scotland) Act Scottish Act – section 137(9) – the section states quite unequivocally that apart from section 16 of this Act everything else is applied to Scotland only.
Add into the equation that businesses would also have to build in time and capacity to effectively establish the safety and suitability of the drivers and vehicles, including ensuring road worthiness, accessibility requirements, criminal records checks, driver training etc would in my opinion relate to the ‘duty of care’ and corporate manslaughter act to ensure the unlicensed service being provided is safe.
Any chauffeur company based in England, trying to use sections (a), (b) or (c) under section 22 of the Civic Government (Scotland) Act are nothing more than criminals with a total disregard for the fundamental roles of the licensing regime and have no regard for the safety of the public or their clients.