England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Leeds Combined Court Centre, 1 Oxford Row, Leeds, LS1 3BG
		27/04/2017

MR JUSTICE KERR :

1. This appeal by case stated has quite a long procedural history, but the issue at the heart of it is simple enough: whether the requirement to undertake periodic training imposed on holders of licences to drive certain passenger vehicles, is valid in law. The claimant (Mr Watts) is the holder of such a licence who did not complete the required periodic training. He challenges the upholding by the Bolton Crown Court on 2 June 2016 of his conviction for the offence of driving a minibus without having completed it, of which he was convicted in the Bury Magistrates' Court on 4 September 2015.
2. Mr Watts is a professional bus driver. In 2000, he obtained a licence to drive certain categories of vehicles including passenger carrying buses falling into "category D1". That category is what would colloquially be called a minibus. The full definition is in schedule 2 to the Motor Vehicles (Driving Licences) Regulations 1999: "motor vehicles designed and constructed for the carriage of not more than sixteen passengers not including the driver, with a maximum length not exceeding 8 meters and including any such vehicle drawing a trailer with a maximum authorised mass not exceeding 750 kilograms."
3. In 2003, the European Community adopted Directive 2003/59/EC (the Directive). It dealt with the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods and passengers. The Directive made certain types of driving (including that of driving a minibus) subject to compulsory initial qualification and periodic training, in order to obtain and maintain a "certificate of professional competence" (CPC).
4. Recital (11) is relied upon by Mr Watts in support of his appeal. It states that the Directive:

"should not affect the rights acquired by a driver who has held the driving licence necessary to carry out the activity of driving since before the date laid down for obtaining a CPC certifying the corresponding initial qualification or the periodic training".

5. Under article 4 of the Directive, drivers such as Mr Watts who were already licensed to drive certain categories of vehicle, including category D1, were exempted from the requirement to obtain an initial qualification. They were not, however, exempted from the requirement under articles 7 and 8 to undergo periodic training and to obtain a CPC certifying period training. By a combination of article 6(2)(b) and article 14(2) of the Directive, that training had to be undertaken, in the case of Mr Watts, by 10 September 2013.
6. The Secretary of State for Transport enacted regulations in this country to transpose the Directive into domestic law. They were the Vehicle Drivers (Certificates of Professional Competence) Regulations 2007 (the 2007 Regulations). They were made under section 2(2) of the European Communities Act 1972, as well as under provisions in domestic legislation (the Road Traffic Act 1988 and the Finance Act 1973). The distinction between an "initial CPC" and a "periodic CPC" formed part of the regime, mirroring provisions in the Directive and defining those terms by reference to its provisions.
7. Non-licence holders for vehicles in the relevant categories had to complete an appropriate "initial CPC test" by 10 September 2008 (see regulation 4(1) and (3)), unless exempt under regulation 4(7). That exemption applied to existing licence holders such as Mr Watts. Their obligation was, instead, to comply with regulation 9(1) and (2). Regulation 9 prohibited driving a vehicle of the relevant category (including a minibus) unless the driver had obtained a "periodic CPC" before 10 September 2013. By regulation 10, it became an offence to drive a vehicle without having done so, for present purposes, by that date.
8. 10 September 2013 came and went, and Mr Watts had not undergone his periodic training, nor obtained a periodic CPC. On 7 December 2013, he was stopped at a service station on the M62, driving a 16 seater minibus. He admitted not having undergone periodic training. He was summonsed on 20 May 2014 to appear before Bury Magistrates' Court to answer an allegation that he had driven a category D1 vehicle without having obtained an initial CPC.
9. This, of course, was misconceived; he was exempt from the requirement to have an initial CPC. He was, nonetheless, convicted in his absence on 18 December 2014, and had to get the conviction set aside. His application to set it aside rightly succeeded, on 18 December 2014. The matter was then adjourned and listed to be re-heard on 17 August 2015. At the hearing on that date, the defendant (the DVSA) successfully applied to amend the summons so as to frame the charge correctly, as one of driving a category D1 vehicle without having completed the appropriate periodic CPC test, contrary to regulations 9(1) and 10(1) of the 2007 Regulations.
10. The matter was adjourned again, and heard by a district judge on 4 September 2015. The facts were not disputed. The district judge decided that the case was proved against Mr Watts, and convicted him. On 22 September 2015, he appealed against his conviction to the Crown Court at Bolton. The effective hearing of the appeal took place before Mr Recorder Eric Lamb, sitting with two lay Justices, on 2 June 2016. The appeal was dismissed. Mr Watts then (on 17 June 2016) asked the Crown Court to state a case for the opinion of the High Court.
11. The sole question for this court is whether the 2007 Regulations, and in particular the requirement in regulation 9(2) that an existing licence holder for a relevant vehicle category must obtain a periodic CPC by (in this case) 10 September 2013, and within five yearly periods thereafter, is ultra vires and unenforceable against Mr Watts. The written case stated, approved by the learned recorder, records that the Crown Court rejected Mr Watts' contention to that effect, taking the view that it should be for this court to determine any challenge to the validity of the legislation.
12. According to the case stated, Mr Watts took three points before the Crown Court. His arguments before us today are essentially a repetition of those same three points. Mr Barnes focuses his submissions on the second of the three points, but without formally abandoning the first and third. They are (i) that the requirement to undergo periodic training and obtain a periodic CPC is a breach of his rights under the 29^th chapter of Magna Carta 1297; (ii) that the 2007 Regulations breach Mr Watts' rights conferred by the Directive, recital (11); and (iii) that the 2007 Regulations unlawfully impose a retroactive condition on the holders of existing licences such as Mr Watts.
13. I deal first with the Magna Carta point. Mr Watts relies on the 29^th chapter which, in modern English, provides:

"No Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, of free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."

14. Mr Watts further relies on certain later amendments including use of the expression "due process of law" to replace the words "by lawful judgment of his Peers, or by the Law of the Land" (by an amendment in a statute of 1354). He further relies on a version of a commentary attributed by an organisation based in the United States of America to the celebrated jurist, Sir Edward Coke, to the effect that the reference to "Liberties" in the 29^th chapter, includes a "licence", and that the reference to "Customs" includes "the established activity and use of an existing licence".
15. In my judgment, there is no merit in this point and it is legally hopeless. The "right" of Mr Watts to drive a minibus is an authorisation to do so in accordance with the law of the land from time to time. He may lose that authorisation if, or to the extent that, the law changes. Such right as he has to drive a minibus is not to be equated with an immutable and inalienable right of the type protected by Magna Carta. The protection of that great statute is against arbitrary deprivation of liberties, etc, without the authority of the law. It does not prevent abrogation of liberties such as those of a driving licence holder, with the authority of the law.
16. Next, Mr Watts relies on recital (11) to the Directive, quoted above. He relies, in particular, on the concluding words of the recital: "… or the periodic training". He contends that it confers on persons such as himself, who were already holders of a licence to drive a relevant vehicle when the Directive was adopted, protection against any legal requirement imposed by a member state subsequently to undergo periodic training.
17. In my judgment, this argument is also wholly misconceived. Mr Watts' contention would, if correct, nullify the periodic training regime completely for existing licence holders such as himself, and thereby defeat a major purpose of the Directive, which was to introduce periodic training for all drivers of vehicles in the relevant categories, including existing licence holders.
18. A recital such as this is not capable itself of conferring rights directly on individuals which override the express articles found in the body of the Directive. The concluding words of recital (11) do no more than confirm the duration of the protection for existing licence holders, up to but not beyond the date specified for obtaining a CPC for, as the case may be, the initial qualification or the periodic training. Mr Watts' interpretation of recital (11) cannot stand with the regime enacted in articles 7 and 8 of the Directive.
19. Finally, Mr Watts contends that the provisions in the 2007 Regulations requiring him to undergo periodic training and obtain a CPC to that effect by 10 September 2013, unlawfully interfere with his accrued right to enjoy his licence to drive a minibus, untrammelled by the periodic training requirement, on the basis that regulation 9 imposes a retroactive condition on his licence, in beach of his rights. He says that his licence is a species of property, for the purposes of article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms.
20. I do not find any merit in this argument either. The Secretary of State was entitled, and indeed bound, to transpose into domestic law the provisions of the Directive. The 2007 Regulations properly did so. Such interference with the rights of existing licence holders as resulted, was plainly proportionate and lawful. A five year period was allowed, from 10 September 2008, before an existing licence holder had to undergo periodic training. The actual period was longer, because the relevant provisions of the 2007 Regulations entered into force on 27 March 2007.
21. The authorities relied on by Mr Watts in his written skeleton argument on this aspect of his appeal do not assist him. I do not find it necessary to discuss them. They establish no more than the obvious proposition that delegated legislation must be within the scope of the empowering legislation, and that a licence holder may not complain of any legislative interference with the terms of his licence, if the interference is proportionate and justified, as the limited interference clearly was in this case.
22. For those reasons, I do not find any merit in Mr Watts' appeal against the decision of the Magistrates' Court and, on appeal from it, the Crown Court. He was rightly convicted of the offence with which he was charged under the amended summons. His conviction must stand and his appeal to this court must be dismissed.
23. LORD JUSTICE HICKINBOTTOM: I agree. For the reasons set out so clearly in the judgment of my Lord, Mr Justice Kerr, the answer to the question posed by the Crown Court at Bolton to this court is "No". The Vehicle Drivers (Certificate of Professional Competence) Regulations 2007, and in particular regulation 9 thereof, are not ultra vires; and this appeal is dismissed.