Milton Keynes Loses Skyline Appeal

Milton Keynes Council v Skyline Taxis [2017] EWHC 2794 (Admin)

LGMPA 1976

Deregulation Act 2015

Abstract: the High Court has held that it is in accordance with the LGMPA 1976 (as amended) for a PHV operator in ‘controlled district A’ to provide a car and driver from ‘controlled district B’, if a cloud-based computer programme, with no human intervention, accepts the booking on behalf of ‘operator A’ and then substitutes the name of an operator licensed in ‘controlled district B’ on the booking record.

The decision will be celebrated by many private hire firms, and come as a relief to most: but I am not persuaded that the High Court judgment is sound. It seems to me, to adopt the stern language of Lord Simmonds in Magor and St. Mellions Rural District Council v Newport Corporation [1950] 2 All ER an example of “a naked usurpation of the legislative function under the thin disguise of interpretation.”

Interpretation or Legislation?

I will discuss the decision more fully in a later post: in the meantime, I find the following paragraphs of the Skyline judgment the most difficult to reconcile with the plain wording of the LGMPA 1976 (as amended by the Deregulation Act 2015).

50. [Counsel for Milton Keyes] contended that the words “the sub – contracted booking is accepted in that district” in section 55A(1)(b) meant – indeed, unambiguously meant – that the booking had to be accepted at a base of the second operator which had physically to be within the controlled area where that operator had an operator’s licence. However, that construction would be at least curious; because, as I have explained, an operator’s licence authorises the holder to “operate” in a particular area, i.e. to make provision for the invitation or acceptance of bookings for a private hire vehicle. It is only an offence under section 46 if he operates in that sense. It is irrelevant where any particular booking might in fact initially have been accepted. It would be strange – and inconsistent with the principles of the regime as a whole – if where a booking was accepted under a section 55A arrangement mattered in the crucial way in which [counsel’s] construction suggests.
51. However, it is my firm conclusion that that construction is not correct. In my view, as [counsel for Skyline] submitted, section 55A(1)(b) is focused, not upon place of acceptance, but the district in which the sub – contracted booking is accepted as a booking. To maintain the trinity of requirements, as section 55A does, it is vital that the second operator accepts the booking as one made in the district in which he has an operator’s licence. It is in that manner that the integrity of the scheme is maintained.
52. Therefore, whilst I accept that the wording of section 55A(1)(b) could have been clearer, when seen in the context of the regulatory regime as a whole, in my view it requires that the second operator “… is licensed under section 55 in respect of another controlled district and the sub – contracted booking is accepted as a booking subject to the licence in that district …”. That construction is consistent with the principles underlying the regime; and is, in my view, clearly the construction to be preferred.

With just about every licensing lawyer in the UK at the IOL conference in Stratford Upon Avon last week, there has not yet been much by way of academic discussion of this ground-breaking decision. I expect that there will be in the days and weeks to come – and I intend to contribute to it.

Gerald Gouriet QC

Francis Taylor Building