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Cite as: [2001] 2 IR 414, [2001] IEHC 47

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Gorman v. Minister for the Environment and Local Government [2001] IEHC 47; [2001] 2 IR 414 (23rd March, 2001)

THE HIGH COURT

JUDICIAL REVIEW

2000 No. 699

BETWEEN

THOMAS GORMAN, VINCENT KEARNS AND

THE NATIONAL TAXI DRIVERS UNION

APPLICANTS

AND

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT,

THE MINISTER OF STATE AT THE DEPARTMENT OF THE ENVIRONMENT AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of the Honourable Mr. Justice Carney delivered on the 23rd day of March 2001.

1. This case is the latest piece of litigation relating to the intractable problems concerning the licensing of taxis. I need not review the history of the problem which is documented in a multiplicity of reports but can take as my starting point the enactment of statutory instrument number three of 2000 entitled the Road Traffic (Public Service Vehicles) Regulations.

2. This sought to address in a meaningful way the intolerable shortage of taxis on the streets of the City of Dublin. It at the same time sought to give taxi drivers who had paid typically sums of £80,000.00 a soft landing in relation to the loss of their of investment which total or substantial deregulation of the issuing of taxi licences would bring about. The mechanism to be adopted was to grant an extra licence to each existing taxi licence holder. It was also proposed to grant wheelchair accessible licences to suitable Applicants giving priority to the holders of public service vehicle driving licences who drive taxis but do not own them, such persons being known in the trade as cosies. This scheme would have got additional taxis in large numbers immediately onto the streets of Dublin while providing a mechanism for protecting existing taxi licence holders against the total capital loss which immediate and total deregulation would bring about.

3. The taxi driver leadership grudgingly accepted this regime. It was quite an achievement that they were brought to this position as I am satisfied that while they have come to accept that there must be more taxis on the streets they have always continued to want deregulation or liberalisation to be so gradual that there would be taxi queues on the streets of Dublin for at least a decade to come; although perhaps in declining numbers year by year. They do not for obvious reasons couch their argument in these terms but this is the logic of the position they take in relation to liberalisation being gradual. Taxi queues or shortages are necessary to preserve the values of £80,000.00 and upwards which have been paid for licences in recent years. If demand for taxi services equalled supply there would be no reason for premium prices being paid for licences in a secondary market.

4. The scheme designed in SI number three of 2000 could well have solved or substantially improved the problem in Dublin if it had had a chance to operate. The regulation was however challenged by the taxi drivers’ traditional adversary, namely the hackney interests in Humphrey and others v The Minister for the Environment and Local Government and others Judgment delivered by Roderick Murphy J the 13th day of October, 2000, (hereinafter referred to as the Humphrey case). By that Judgment Murphy J found SI number three of 2000 ultra vires the powers of the Minister of State at the Department of the Environment and Local Government (hereinafter referred to as the Minister of State) and to be of no force and effect. Two of the applicants in the instant proceedings Mr. Gorman and the Union had had themselves joined as respondents in the Humphrey case. The decision of Murphy J was appealed to the Supreme Court by these parties and accepted by the other Respondents and not appealed by them.

5. Shortly after the delivery of the Humphrey Judgment the Minister of State replaced the quashed SI number three of 2000 with SI number 367 of 2000. This repealed SI number three of 2000 notwithstanding that it had already been quashed by the High Court and provided for taxi licences being issued without limit as to their number at modest fees compared with the prices prevailing for licences in the secondary market. While retaining qualitative standards it abolished quantitative restrictions on the issue of taxi licences. This regulation is national in its effect; the one it succeeded and repealed having been local to Dublin.

6. The present Applicants sought leave from Kelly J to bring Judicial Review proceedings against the Respondents. They seek by way of Judicial Review to quash S.I. Number 367 of 2000 as being ultra vires the second named Respondent. The application was made ex parte late on Tuesday 28th of November, 2000. Kelly J decided that the Respondents should be heard before any primary order was made and an inter partes hearing took place over a number of days. Notwithstanding the inter partes hearing Kelly J for the reasons set out in his judgment ruled that the Applicants need only satisfy the low standard of proof identified by the Supreme Court in G v D.P.P [1994] IR 374 . Giving Judgment on the application for leave Kelly J said:-

“The grant of leave to apply for Judicial Review is not an indicator of the prospects of success at trial still less a warranty of victory. Neither is it the expression of a view as to the prospects of respondents at trial. It is a decision that applicants have met the low standard of proof required of them namely they have an arguable case. It is nothing more and nothing less that that”.

7. The substantive application came on for hearing before me on Tuesday the 19th of December, 2000, and was at hearing for ten days. There had been in Dublin a lengthy complete withdrawal of taxi services. The giving of leave by Kelly J had led to the taxi interests voting to suspend their strike and in these circumstances although not asked to do so I exercised my discretion to waive all restraints as to relevance or admissibility in evidence and argument. At this stage, however, I must return to the very narrow confines of what this Court can do by way of Judicial Review. I am not concerned with choosing between the arguments of economists. I am not concerned with choosing which might the be best or even the most fair solution to an intractable problem. I am most specifically not concerned with the politics of the situation. In the context of this case I am concerned with whether the Minister of State has acted within his statutory powers and if so has he notwithstanding operated in an unconstitutional, unreasonable or irrational manner and has he breached any legitimate expectation the Applicants might have.

8. The Applicants in the first instance rely on what they term their Sinn Fein Funds argument. They submit that the actions of the Minister of State in revoking SI number three of 2000 constitute an unwarranted interference in the judicial domain by reason of the appeal pending before the Supreme Court in the Humphrey Case. The argument is to the effect that by repealing SI number three of 2000 the Minister of State has rendered any argument in the Supreme Court moot and has effectively predetermined the outcome of the appeal. They say the issue is now a forgone conclusion and that the Supreme Court will inevitably rule that having regard to the repeal of SI three of 2000 the issue is now a moot and there is nothing for it to determine.

9. The Applicants rely on Buckley v The Attorney General [1950] IR 67 better known as the Sinn Fein Funds case . In 1924 the honorary treasurers of the Sinn Fein organisation as trustees had in their hands a sum of money representing the central fund of that organisation. The Trustees were unable to determine who was entitled to the fund and lodged it in the High Court under the Trustee Act 1893. Proceedings were brought claiming a declaration as to the ownership of the funds and while the action was pending the Sinn Fein Funds Act 1947 was passed by the Oireachtas. By Section 10 it was provided that all further proceedings in the action should be stayed and that the High Court if an application were made ex parte on behalf of the Attorney General should dismiss the action and should dispose of the funds in the manner directed by the statute. On the Attorney General’s application ex parte to the High Court Gavan Duffy P. refused the application on the ground that the Court could not comply with the provisions of the Act without abdicating its proper jurisdiction in a cause of which it was duly seized.

10. On appeal to the Supreme Court it was held that in as much as the provisions of the Sinn Fein Funds Act 1947 were repugnant to the declaration contained in Article 43 of the Constitution as to the rights of private property they were ultra vires the powers of the Oireachtas. It was held further that Section 10 of the Act of 1947 was repugnant to the constitution as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain. Concluding the single judgment of the Supreme Court O’Byrne J said:-

“We have already referred to the distribution of powers effected by Article 6. The effect of that Article and of Articles 34 to 37, inclusive, is to vest in the Courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiffs’ claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain”.

11. The test laid down in Sinn Fein Funds would accordingly seem to be:-

Whether the substantial effect of the legislation or executive action is such that the justiciable controversy is determined by the legislator or executive and
Whether the Court is required or directed by the legislator or executive to dismiss the plaintiffs claim or appeal without any hearing and without forming any opinion as to the rights of the respective parties to the dispute.

12. The right to the appeal under consideration flows directly from the Constitution itself. Article 34.4.3 of the Constitution provides that the Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other Courts as may be prescribed by law. No exception or regulation has been prescribed by law which is material to the instant case.

13. In my view one has only to look at the notice of appeal in the Humphrey case to find that the Sinn Fein Funds case test has not been met. The grounds relied upon in the said notice of appeal are the following:-

“That the Learned Trial Judge misdirected himself in law and upon the evidence and upon the weight and balance of the evidence insofar as he found that the first and second named respondents had no power under Section 82 of the Road Traffic Act, 1961 (as amended) to restrict the number of taxi licences to favour incumbents already holding taxi plates;
That the Learned Trial Judge misdirected himself in law and upon the evidence and upon the weight and balance of the evidence in finding that the policy and principles of Section 82 of the Road Traffic Act, 1961 (as amended) did not permit the imposition of quantitative restrictions on the number of licences of public service vehicles;
That the Learned Trial Judge misdirected himself in law and upon the evidence and upon the weight and balance of the evidence in failing to consider and address the fact that the first and second named respondents had proper and due regard to the policy and principles of Section 82 of the Road Traffic Act, 1961 (as amended) in regulating in respect of the issue of licences for public service vehicles. In particular, the Learned Trial Judge failed to weigh or properly weigh the evidence that the first and/or second named respondent had regard to the policies and principles of Section 82 of the Road Traffic Act, 1961 (as amended) in introducing Statutory Instrument three of 2000 viz to provide for a speedy delivery of additional taxis in Dublin;
That the Learned Trial Judge misdirected himself in law and in fact and on the evidence in determining whether the words ‘ control’ and ‘ operation’ in Section 82 of the Road Traffic Act, 1961 (as amended) meant restriction viz. whether the said words gave a power to impose quantitative restrictions on the number of taxi licences issued and he erred insofar as he found that the said words did not provide for a power to impose quantitative restrictions;
That the Learned Trial Judge erred in fact and in law and misdirected himself on the evidence in accepting that the first and second named applicants, persons who had not applied for a taxi licence and/or would not be eligible to drive a taxi by reason of not holding a valid public service licence at the date of issue of the proceeding, had the necessary locus standi to challenge the Regulations made pursuant to the provisions of Section 5 and 82 of the Road Traffic Act, 1916 (as amended).
The Appellants will rely on the fact that the judgment of the Learned Trial Judge is contradictory and unsatisfactory. In particular, the Learned Trial Judge contradicts himself by indicating that there is power to impose quantitative restrictions arising under Section 82 of the Road Traffic Act, 1961 (as amended) whilst contradicting this statement elsewhere in the judgment by indicating that Section 82 does not provide a basis upon which the Minister can require local authorities to impose a quantitative restriction on the issuance of new taxi licences. The Learned Trial Judge was also contradictory and inconclusive in his treatment of the meanings of the words “ control” and “ operation” and he did not properly weigh the evidence adduced in this regard and misdirected himself in law and upon the facts;
The Appellants will further rely on the fact that the Learned Trial Judge erred in law and in fact and on the evidence in that he had regard to matters of law and fact which were not opened to him during the course of the hearing and in respect of which the parties were not afforded an opportunity to make submissions contrary to basic fairness of procedures and the requirements that justice be administered in public in an independent, fair and impartial manner. In particular, the Appellants will rely on the fact that no party to the proceedings sought to rely on principles of discrimination contained in European Law and no submissions were invited regarding the case law of the European Court of Justice. Furthermore, no evidence was adduced at the hearing to suggest that any non-Irish European national was aggrieved by Statutory Instrument three of 2000 and certainly no challenge was brought on this basis. Insofar as the Learned Trial Judge relies on principles of discrimination for the purposes of his judgement, the said judgment is fundamentally flawed and unsustainable;
The trial of this action was unsatisfactory;
That the Learned Trial Judge misdirected himself in law and upon the evidence and upon the weight and balance of the evidence in failing to consider or adequately consider the long standing regulatory framework which has been applied to the taxi industry and which has caused taxi drivers to act to their detriment in reliance on the said Regulations.
The Appellants appeal the judgment and Orders herein on the basis that the Learned Trial Judge misdirected himself in law and on the facts in failing to find clearly that the first and/or second named Respondents have power pursuant to the provisions of the Road Traffic Acts 1961 - 1968 to make regulations in relation to the control and operation of the public service vehicles in Section 5 and 82 of the Road Traffic Act, 1961 (as amended).
The Learned Trial Judge misdirected himself in law insofar as he found that Statutory Instrument three of 2000 was ultra vires the power of the Minister on the basis that there was no power by virtue of Section 82 of the Road Traffic Act, 1961 (as amended) to restrict the number of taxi licences;
Insofar as the Appellants were a necessary party to the proceedings and applied to be joined as Notice Parties as a result of the granting of an Ex Parte Injunction to the Applicants herein restraining the respondents, in breach of contract, from issuing licences to taxi drivers who had applied for the said licences issued pursuant to Ministerial Regulation and had invested heavily in anticipation of the grant of a licence and whose interests were represented in these proceedings by the Appellants, the Learned Trial Judge erred in law in refusing to award the Appellants the costs of the proceedings;
Such further of other grounds as this Honourable Court may permit to be advanced at the hearing of this Appeal”.

14. It is clear from this that notwithstanding the repeal of SI number three of 2000 there is a great deal left for the Supreme Court to debate and rule upon. In no sense can it be said that the effect of the said repeal is to require the Supreme Court to dismiss the Applicants appeal without any hearing and without forming any opinion as to the rights of the respective parties to the dispute.

15. This does not however seem to me to be the end of this aspect of the case. SI number three of 2000 was quashed by Murphy J and that rendered it wholly null and void and of no effect. This would in the ordinary way remain the position until any reversal of the Learned Trial Judge took place in the Supreme Court if it ever did. There was no immediate purpose served by the Minister of State purporting to repeal it. A judicial quashing is not inferior to a Ministerial repeal. If the applicants are to succeed in ground number eleven in their grounds of appeal in the Humphrey case the normal consequence would be that SI number three of 2000 would revive by operation of law. The Ministerial repeal prevents that and in these circumstances I find it to be an unwarrantable interference arising in the unique circumstances of this case in the applicants appeal. Severability of legislation is dealt with in Maher -v- Attorney General [1973] I.R. 140 . At page 147 Fitzgerald C.J. said:-.

“ The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional and that provision is independent of and severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent ”.

16. I find regulation SI number 367 of 2000 to be severable and quash Section 3 (1) (a) thereof as ultra vires the powers of the Minister of State on the grounds that it represents a gratuitous and unwarranted interference in the applicants appeal in the Humphrey case. The balance of the statutory instrument remains in full force and effect. S.I. Number 3 of 2000, while no longer repealed by the Minister of State, remains quashed by the Order of Murphy J.

17. While I have described the said repeal as an unwarranted interference with the Applicants appeal I accept that it was an innocent and not a malevolent one. The Minister of State was concerned that if the appeal succeeded there would be two regimes in place side by side and his repeal of SI three of 2000 was to guard against that situation. If that scenario arises the Minister of State may effect the repeal at that stage. It is argued that in the event of a successful appeal he will effect the repeal in any event. To that argument I say that we do not know when the appeal will be finally determined and there might then be a different taxi policy in operation and a different Minister. The Applicants are entitled to have their chance of restoring the instrument that they are seeking to defend without being ambushed at this stage in their pursuit of an appeal provided for directly in Article 34 of the Constitution.

18. S.I. number 367 of 2000 is next challenged on the basis that the State in introducing the same into law without compensation has mounted an unjust attack on the Applicants constitutionally protected rights in their taxi plates. Recent entrants into the taxi business have had to pay sums of typically £80,000.00 to purchase their taxi plates. This payment is made by an aspirant to enter the business to someone typically retiring from it for the purchase of the plate in which the law permits transferability. It is a matter of frustration and anger to the Applicants and their members that:-

former taxi owners have sold their plates for £80,000.00 and upwards, acquired for almost nothing a hackney licence and entered into competition with the taxi owners who have remained as such, and,
former taxi plate owners who sold out at a substantial windfall profit can now acquire a full taxi plate for a small consideration under the new regime prevailing.

19. The taxi plate is not accepted as collateral by the financial institutions and purchasers of same in recent years have had to use redundancy money or raise second mortgages on their own or relatives houses. In the case of some deceased members of the taxi trade income from the letting of plates to cosies was being used as a pension provision for widows.

20. The Applicants rely on Article 43 of the Constitution and Article 40:3:2.

21. Article 43 of the Constitution under the heading “ Private Property ” provides that:

1. 1 The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods

2 The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2. 1 The State recognises, however, that the excerise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2 The State accordingly may as occasion requires delimit by law the excercise of the said rights with a view to reconciling their excerise with the exigencies of the common good.

22. Article 40:3:2 under the heading “ Personal Rights ” provides that:

1 The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

23. The test as to whether constitutionally protected property rights have been the subject of an “unjust attack” was recently considered by Keane C.J. in Re Article 26 of the Constitution and Part V of the Planning and Development Bill, 1999 . Unreported, Supreme Court 28th August, 2000. In that case the Supreme Court was asked to pronounce on the constitutionality of part V of the Planning Bill, 1999, which allowed for a scheme of compensation providing an amount in compensation less than full market value to landowners.

24. He quoted from the judgment of Costello J. In Heaney v. Ireland 1994 3IR 593 :-

“In considering whether a restriction on the excerise of rights is permitted by the Constitution the courts in this country or elsewhere have found it helpful to apply the test of proportionality, a test which contains the notion of minimum restraint on the excerise of protected rights, and the exigencies of the common good in a democratic society”.

25. The Chief Justice then discussed the issue of compensation, observing at page 59 of the judgment:

“There can be no doubt that a person who is compulsorily deprived of his or her property in the interests of the common good should normally be fully compensated at a level equivalent to at least the market value of the acquired property ”

26. However, the Chief Justice also went on hold, that there is no right to full compensation in all circumstances. Legitimate objectives of “ public interest ” may call for less than reimbursement of the full market value.

27. It is necessary first of all to examine the kind of property rights protected by these two Articles. It must be established there is a property right in a licence which is capable of being recognised at law.

28. Professor Kelly in his treatise on Constitutional law says:-

“Most obviously of all, the constitutional guarantee applies to land and to rights arising from land ownership. It also applied to moveable property and money. Intangible rights are also protected - Article 43:1:2 itself refers to a “general right to transfer, bequeath and inherit property”, while the guarantee has been invoked in relation to intangible rights created by legislation, such as licences, and by contract ”

29. Thus, it is clear that it is possible to have property rights in a licence which attract constitutional protection. However, the extent of the right has been the subject of judicial consideration.

30. The nature of the property right enjoyed by the applicants in their licence was specifically addressed by Costello J. in Hempenstall v. Minister for the Environment 1994 2IR 20 . The facts of that case merit recitation in some detail in that they provide a ready analogy to the instant case.

31. The Applicants were also holders of taxi licences who claimed that certain regulations made by the Minister for the Environment under the Road Traffic Act, 1961 had had the effect of reducing the value of their taxi licences and that this constituted an unjust attack on their property rights. In the course of a review of the operation of taxi and hackney cab licences, the Minister made regulations in 1991 which placed a temporary moratorium on the issuing of hackney cab licences. After a further review the Minister lifted the moratorium by means of the Road Traffic (Public Service Vehicles) (Amendment) Regulations 1992 and it was these regulations which formed the subject matter of the judicial review in the case and which it was claimed constituted an unjust attack on the applicants’ property rights. It was claimed that the effect of the lifting of the moratorium on the issuing of the new hackney cab licences would be to severely reduce the value of their taxi licences.

32. Costello J. in rejecting the applicant’s arguments, primarily on the ground that no diminution in the value of their licences had actually occurred, made observations on the nature of the property right enjoyed by the applicants. He states at page 28 of his judgment that:

“...even, if it were established that the making of the Regulations of 1992 resulted in a diminution in the value of the applicants’ taxi-plates this would not as a matter of law amount, in my opinion , to an attack on the applicants’ property rights. Property rights arising in licences created by law (enacted or delegated) are subject to the conditions created by law and to an implied condition that the law may change those conditions. Changes brought about by law may enhance the value of those property rights (as the Regulations of 1978 enhanced the value of taxi-plates by limiting the numbers to be issued and permitting their transfer) or they may diminish them (as the applicants say was the effect of the Regulations of 1992). But an amendment of the law which by changing the conditions under which a licence is held cannot be regarded as an attack on the property right in a licence-it is the consequence of the implied condition which is an inherent part of the property right in the licence.[emphasis added]”

33. Thus the property right invoked by the Applicants in this case is one which, although recognised as a valuable property right, is also a right which is subject to an important qualification in that the licence is at all times subject to the conditions created by law. As Costello J. makes clear this is “ an inherent part of the property right in a licence ”

34. He examined more fully the issue of whether a change in the law can be said to have been an “ unjust attack ”:-

“Thirdly, a change in the law which has the effect of reducing property values cannot in itself amount to an infringement of constitutionally protected property rights. There are many instances in which legal changes may adversely affect property values (for example, new zoning regulations in the planning code and new legislation relating to the issue of intoxicating liquor licences) and such changes cannot be impugned as being constitutionally invalid unless some invalidity can be shown to exist apart from the resulting property value diminution. In this case no such invalidity can be shown. The object of the excerise of the Ministerial regulatory power is to benefit users of small public service vehicles. It has not been shown or even suggested that the Minister acted otherwise than in accordance with his statutory powers. Once he did so then it cannot be said that he has thereby “attacked” the applicants’ property rights because a diminution in the value may have resulted. [emphasis added]”

35. The Applicants submit that SI 367/2000 also constituted an unjust attack on their contractual right in that it is alleged SI 3/2000 created a contractual right to a new licence.

36. This argument, insofar as it relies upon the terms of the instrument, is misconceived. The terms of article 9 of SI 3/2000 are unambiguous:

“9 (1 ) Subject to sub-article (2), the Corporation shall make an offer to grant a wheelchair accessible taxi licence to each qualified person from whom an application for such licence is duly received .

(2) Offers to grant a wheelchair accessible taxi licence to a qualified person who on 31 December 1999 did not hold a wheelchair accessible taxi licence shall only be made following the grant of the licence to which the offer under article 12(2) of the Regulations of 1995 relates .”

37. The wording used in the statutory instrument clearly indicates that the only rights which accrued to the Applicants, upon application to the Corporation, were rights to receive an offer from the Corporation of a grant of the licence, not an immediate grant of a licence. Thus, no binding contract existed between the parties.

38. It remains to examine the property rights which the Applicants claim to enjoy in their licence pursuant to statute.

39. The Applicants seek to rely on cases such as Dreher v. Irish Land Commission 1984 ILRM 94, ESB v. Gormley 1985 IR 129, Blake v. Attorney General 1982 IR 117 and Re Article 26 and the Employment Equality Bill 1996, 1997 2 IR 321 in order to establish that the exigencies of the common good in this case, as envisaged by Article 43, are not such as to justify the measures taken by the Minister of State in SI 367 which have been introduced without any provision for compensation.

40. However, insofar as these cases do not concern property rights vested in an individual by virtue of a licence granted by law, they would appear to be irrelevant . The nature and extent of the property rights enjoyed by the Applicants in this case were described thus by Costello J. in Hempenstall:

“Property rights arising in licences created by law (enacted or delegated) are subject to the conditions created by law and to an implied condition that the law may change those conditions”

41. The decision of Costello J. in Hempenstall, far from having no relevance to the factual scenario which presents itself in this case, clearly defines the scope of the property rights enjoyed by a holder of a taxi licence. In addition, it would appear to be on all fours with the facts of the instant case. The Applicants in Hempenstall also claimed that they had been subject to an unjust attack on their property rights as a result of a change in the law. The temporary nature of the moratorium does not seem to have been in any way central to Costello J. ‘s decision in this case.

42. The Applicants in this case accepted a similar restriction on the excerise of their property rights ab initio. They must have been aware of the risk inherent in the licence that legislative change might affect its value. Dramatic legislative changes had been introduced by means of Regulations in 1978 and 1995 and the Applicants were under no misapprehension that changes in the licensing scheme effected by means of Regulation could have a considerable impact on the value of their investment. Indeed, such conditions must be necessarily implied if the Minister of State is not to be unduly hampered in excerising his powers under statute in the public interest.

43. The Applicants in the instant case, as well as the applicants in Hempenstall , have in the past reaped the benefits of legislative change. It is not open to them to complain about such changes in the law having a detrimental effect on the value of their licences. It follows therefore that the actions of the Respondents in introducing a scheme of deregulation by means of SI 367 cannot constitute an unjust attack as this restriction is inherent in the very nature of a licence. As Costello J. stated in Hempenstall:

“ A change in the law which has the effect of reducing property values cannot in itself amount to an infringement of constitutionally protected property rights.

Such a legislative change per se cannot be unconstitutional in the absence of some further invalidity. Therefore, to the extent that the Regulations do not fall foul of the Article 6 and the principles of the separation of powers, they must stand”.

44. It remains to be examined whether the absence of any scheme of compensation, introduced in tandem with the scheme of deregulation, could be said to render the same unconstitutional.

45. The Chief Justice commented in Re Article 26 and Part V of the Planning and Development Bill that there was a general right to compensation.

46. With regard to the claim for compensation in the present case four comments can be made:

1 As the only interference with their rights has been one implemented by means of an implied condition of which the Applicants were fully aware and one which is envisaged by the very terms and conditions under which a licence was held, then it would seem incongruous if the State should be obliged to introduce a concomitant scheme of compensation.

2 Moreover, the interference with property rights is not only justified, but it is minimal in that the applicants are still free to dispose of their licence and also to use it in any way they see fit. There has been no expropriation of their licences.

3. The payments made in the secondary market achieved the objective for which they were made at the time, namely the purchase of a job when jobs were otherwise unobtainable.

4. Finally, the Applicants are mistaken if they believe there is an automatic right to compensation in all circumstances. The very fact that compensation to the full market value of land was denied in Re Article 26 of the Constitution and Part V of the Planning and Development Bill 1999 is sufficient evidence of the fallacious nature of such a contention.

47. SI 367 of 2000 is challenged as being ultra vires and void for irrationality and flying in the face of reason and common sense. The Court in this case has exceptional material available to it for the purpose of considering this argument. The Regulation when enacted was the subject of a comprehensive statement by the Minister of State to Dail Eireann on the 21st of November, 2000. No issue was taken in these proceedings with the bona fides of the Minister’s reasons. In his statement the Minister said:-

“The DTI final report recognised that taxis form an important part of the overall transport system in Dublin. They are designed to provide the most flexible form of public transport, offering a door to door service at all times of the day. Taxis come within my delegated responsibilities as Minister of State, and I wish to pay particular attention to this element of tonight’s motion.

Deputies will be aware that the Government parties’ revised Action Programme for the Millennium has made an explicit commitment to improving the Dublin taxi service in the following terms. “We will introduce measures to increase progressively the number of taxi licences in Dublin as quickly as possible in order to ensure a proper balance between supply and demand in the market.”

The background to this initiative was the failure of the previous Government to make any impact on the chronic taxi deficit in Dublin. The sum total of new taxi licences issued in Dublin under the last Government was zero. Between 1997 and 1999, under this Government, 750 new wheelchair accessible taxi licences were granted by Dublin Corporation. While this limited increase in taxi supply was welcome, the present Government determined in late 1999 that a much greater supply of taxis was needed in Dublin to meet public demand.

That is why we developed our radical initiative for the issue of 3,100 new Dublin taxi licences. This initiative was followed up by new regulations which I made in January of this year. As the House will know, these regulations have been struck down by the High Court in a Judgment which was finalised on 14 November. In that Judgment, the High Court made it clear that limitation of taxi licences in the interests of existing licence holders cannot be contemplated. The outcome of the court case calls for a modified policy approach to the issues involved but the direction and resolve of the Government’s proposed reforms has not been altered.

In light of the High Court Judgment, and in consultation with my Government colleagues, I have determined that it would not be reasonable or desirable to maintain quantitative controls on taxi licences, such as have operated for over 20 years. Accordingly, the new regulations do not place or authorise any restriction on the numbers of new taxi licences which will be granted by local licensing authorities. These changes will apply not just to Dublin, but also to the taxi services operating in all other taximeter areas.

The regulations provide, in accordance with EU requirements, for more frequent and systematic testing of taxis and other public service vehicles. This function is to be discharged in future annually instead of biannually by the National Car Testing Service Limited and for a transitional period, vehicle testing by Garda public service vehicle inspectors, including the Dublin Carriage Office, will also continue in parallel with NCTS testing.

Taxis must also by 1 January 2002 be fitted with taximeters which are capable of printing automatic receipts. The new regulations also validate the operation of taxi sharing from taxi stands designated by local authorities for this purpose.

All of these new provisions, together with the continuation of existing requirements for public service vehicle driver licensing and insurance, are designed to ensure an improved quality of service to customers in the new situation.

I look forward to a rapid improvement of taxi services under the new arrangements. In addition, I intend to consult extensively with representatives of customer groups, of disabled persons and of taxi services providers to develop further quality improvements for taxi services in the medium term.

I believe that there is a continuing need to promote and incentivise the provision of wheelchair accessible taxis. It is also desirable to ensure that new applications for taxi licences are bona fide for the purpose of providing public service. With these considerations in mind, the regulations fix the fee for the grant of a new taxi licence at £5,000 and for a new wheelchair accessible taxi licence at £100.

It has not been practicable to maintain a universal requirement of wheelchair accessibility in the short-term given that early and rapid progress is needed to respond to customer demand for taxis. However, I now put on record my intention that, from the end of 2003, the process will commence of making all taxi vehicles wheelchair accessible. Taxi service providers should now gear themselves to this requirement.

I would like to call on taxi services providers to respond positively to the challenges and opportunities of the new business environment which the regulations will establish. I acknowledge that the adjustments which have now been necessitated will be difficult for many existing taxi operators. However, I am confident that with appropriate organisation and monitoring, these operators and others can achieve good returns given the current urgent and buoyant demand for enhanced taxi services.

Given the many changes which are now taking place, certain recent new holders or wheelchair accessible taxi licence will be in the position of having paid much higher licence fees to local authorities than those which will now obtain. I intend to consult local authorities and taxi representative bodies with a view to developing an administrative scheme to address this situation. In addition, I wish to inform the House that the Minister for Finance will consider a provision to allow tax relief over a number of years for any actual capital loss incurred by existing taxi licence holders by reference to the actual sum paid for the licence. The details will be contained in the Finance Bill, 2001.

In my statement to the House this time last year, I said that as the capital of a rapidly expanding economy, Dublin has experienced increasing demand for mobility in all travel modes. Numbers passing through Dublin Airport have more than doubled since 1993 and reached almost 13 million in 1999. There are now in the region of 122 hotels in Dublin, compared to only 88 in 1995, and tourism has become a major industry in the Dublin region.

The current inadequate supply of taxis in Dublin risks harming the capital’s reputation in the eyes of international business people and other visitors. It also remains a source of frustration to the residents of the city. A continuation of this situation is not supportable. I am confident that this important Government initiative will benefit the public and the Dublin taxi industry alike. The Dublin taxi market, like many other sectors of Dublin’s economy, is capable of significant and sustained growth. As such, it can well support a larger, service-driven industry to the mutual benefit of all concerned.

The Government has acted decisively to ensure a high quality taxi service for customers in Dublin and in the other urban taximeter areas. I hope our actions will have the support of all Members of the House.”

48. I am unable to find in the foregoing that the Minister of State acted in an irrational manner or one which flies in the face of reason or common sense.

49. The courts when engaged in a judicial review proceeding examine the manner in which a decision is made rather than the substantive merits of the decision itself. It is only when the decision is manifestly unreasonable or irrational that they will seek to overturn it.

50. In terms of Irish law, The State (Keegan)-v-Stardust Victims’ Compensation Tribunal [1986] IR 642 marks the introduction of the concept of unreasonableness. Reliance was placed on the following passage of Lord Greene M.R. In Associated Provincial Picture Houses Limited-v-Wednesbury Corporation [1948] 1 KB 223:-

“It is true to say that if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the Courts can interfere; but to prove a case of that kind would require something overwhelming.”

In Keegan Finlay C.J. said at page 654:-

“It seems to me that the principle that judicial review is not an appeal from a decision but a review of the manner in which the decision was made...is consistent with this concept of judicial review based on irrationality of the decision.”

51. Henchy J. outlined the test thus at page 658:-

“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason or common sense. If it does, then the decision-maker should be held to have acted ultra vires for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”

52. Finlay CJ’s Judgment in O’Keeffe-v-An Bord Pleanala [1993] I.R. 39 builds upon the principles outlined by Henchy J. In Keegan. It found that the Court could intervene to quash the decision of an administrative officer or tribunal on grounds of unreasonableness or irrationality in three sets of circumstances: (1) Where the decision was fundamentally at variance with reason and common sense, (2) Where it was indefensible for being in the teeth of plain reason and common sense; (3) Where the court was satisfied that the decision-maker had breached his obligation not to reject flagrantly or disregard fundamental reason or common sense in reaching his decision.

53. On the other hand, he also looked at those circumstances under which the court cannot intervene.

“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

(b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it”

54. Counsel for the Applicant cited the following passage enunciated by Lord Greene M.R. in Wednesbury:

“The Court is entitled to investigate the action of the local authority with a view to seeing whether it has taken into account matters which it ought not to take into account, or, conversely, has refused to take into account or neglected to take into account matters which it ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the Court to interfere in each case is not as appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.” [1948] 1 KB 223 at 233-234

55. A further passage from Wednesbury is also instructive when it comes to considering how a public body should seek to exercise discretionary powers

“...A person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey these rules, he may truly be said, and often is said to be acting “unreasonably”. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority.” [1948] 1 K.B. 223 at 229.

56. The Applicants in the present case have drawn the Court’s attention to the fact that the departmental studies over the years have shown that deregulation of numbers is not an appropriate means of controlling and operating public service vehicles. It is fair to infer that these studies were taken on board by the Minister while adopting and maintaining the regulatory framework that existed over the years. However, when exercising a statutory discretion a public body is bound to consider circumstances as they exist at the time in which the decision is being made. As Barr J. said in Egan-v-Minister for Defence (Unreported, High Court, 24 November, 1988):

“The criterion is whether the Minister’s decision is reasonable having regard to the circumstances of the particular case. He is entitled to take account of special circumstances.. [which] created a new situation.”

57. A public body is entitled to change its position where new factors or objective alterations in circumstances will justify it in doing so doing and this remains true even though the private citizen had a legitimate expectation that the public body would adhere to the previous practice. The increased demand for public service transport was the “ special circumstance ” entitling the Minister of State to reach his decision to change his previous policy. It is not within the Court’s remit to suggest alternative methods that the Minster of State might have adopted to meet this public interest. The one chosen, deregulation of the taxi trade cannot be said to “ fly in the face of fundamental reason ”. Beyond establishing this, the Court cannot go. The impugned statutory instrument passes the test of “ reasonableness”. I do not take it into account but I cannot help but notice that during the currency of this case while taxi numbers have increased by well over 2,000 in Dublin taxi shortages and queues remain. This suggests to me that the defeatist tone of the hardship Affidavits filed on behalf of the Applicants may not be justified.

58. It remains to examine the arguments of the applicants in relation to:

1 - Lack of fairness in procedures.

2 - The legitimate expectation argument.

59. In relation to the alleged lack of fairness in the manner in which the Respondents introduced the scheme of deregulation, the Applicants contend that the failure by the Respondents to consult them in the period immediately prior to the introduction of liberalisation, was contrary to the principles of natural and constitutional justice and the decision is consequently ultra vires , null and void. They claim that this omission on the behalf of the Respondents to consult the Applicants and invite their views on the decision to deregulate was compounded by the fact that the applicants themselves made a written request for information on the 17th November, 2000.

60. Whilst there can be no doubt as to the existence of a constitutionally protected right under Article 40:3 to fair procedures in decision-making, it has been recognised in the case-law that the principles of constitutional justice do not apply with equal force in every situation and indeed in some circumstances where decisions are taken by public bodies, such as a decision to enact a particular piece of legislation by the Oireachtas, the audi alteram partem rule or the duty to consult and hear submissions does not arise at all. The citizen is not consulted in relation to increased taxation in the budget. There may of course be various practices in place to consult interested bodies or persons before legislative decisions are taken, but this is undertaken as a matter of practice, not of law.

61. Thus, the requirements of constitutional justice are largely dictated by the circumstances and it must be emphasised that the right to fair procedures and, in particular, the right to be consulted which must be regarded as an aspect of the audi alteram partem rule is subject to the exigencies of pragmatism. This is particularly so in the context of the legislative process.

62. Legislative decisions, on grounds inter alia of practicability, have traditionally been taken not to attract the rules of constitutional justice- Bates -v- Lord Halisham [1972] 1 WLR 1373, Essex CC -v- Minister for Housing [1967] 66 LGR 23.

63. The rationale for this was stated by Hogan and Morgan in their work on administrative law as:-

“...the audi alteram partem rule, at any rate, is more appropriate where a compact range of facts is in issue-for example-in a dismissal case, whether an employee was dishonest-and less appropriate when a broader range of acts and divergent considerations, for example, the economy or some other national interest, is concerned.”

64. This line of thinking was approved by McMahon J. In Cassidy -v- Minister for Industry and Commerce [1978] I.R. 297 at page 304:-

“I am not satisfied that the exercise of a legislative power by the Minister in making the order can be subject to the concept of constitutional or natural justice which is so frequently applicable where a decision-making function is exercised, but I am satisfied that before making the order the Minister considered, so far as the information available permitted, those facts which required to be considered in fixing a fair level of prices on any arbitrary basis”.

65. That case, of course, concerned secondary or delegated legislation in the context of the making of a statutory instrument fixing maximum prices for the sale of intoxicating liquor. The Court found that there was no obligation to consult the Vintners' Association before bringing the instrument into effect.

The case of R -v- Liverpool Corporation, ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299 has been advanced by the Applicants in support of their argument that they have a right to consultation before the introduction of SI 367/200.

66. The case concerned a challenge taken by a number of taxi cab owners to a decision of Liverpool City Council to increase the numbers of hackney cabs operating in the city. At a public meeting with the council prior to the decision having been taken the chairman had given a public undertaking that the numbers of hackney cabs would not be increased until the proposed legislation, which included provisions for controlling private hire vehicles, had been enacted by Parliament.

67. The majority of the Court of Appeal held that on account of this public representation, the applicants were “justifiably aggrieved” by the council’s subsequent unfair conduct.

68. Lord Denning, however, although speaking obiter, seemed to go further and suggest that, even in the absence of such a public undertaking, the applicants would have had a right to be consulted. Per Denning MR:

“It is perhaps putting it a little high to say that they [Liverpool Corporation] are exercising judicial functions. They may be said to be exercising an administrative function. But even so, in our modern approach, they must act fairly: and the Court will see that they do so.

To apply that principle here; suppose the corporation proposed to reduce the number of taxicabs from 300 to 200, it would be their duty to hear the taxicab owners’ association: because their members would be greatly affected. They would certainly be persons aggrieved. Likewise suppose the corporation propose to increase the number of taxicabs from 300 to 350 or 400 or more it is the duty of the corporation to hear those affected before coming to a decision adverse to their interests.”

69. Lord Roskill and Sir Gordon Willmer, on the other hand, laid emphasis solely on the unequivocal public undertaking given by the Respondents.

Per Roskill L.J.:

“It has been said that the council and its relevant committee and sub-committee were never under any duty to hear any representations from the Applicants. That may or may not be correct. In the light of what has happened, I do not think it necessary to express any opinion upon that question...It seems to me to allow the council to resile from that undertaking without notice to and representations from the Applicants is to condone unfairness in a case where the duty was to act fairly. [emphasis added]”

70. Sir Gordon Willmer similarly opined:

“It seems to me that in these very special circumstances, having regard to the history of how this matter had been dealt with in the past, and having regard especially to the giving of the undertaking, the Applicants are justified in regarding themselves as “aggrieved” by what I can only describe as unfair treatment on the part of Liverpool Corporation.”

71. Thus, it would appear that the majority of the Court of Appeal reached their decision in favour of the Applicants in Liverpool Taxis largely on the basis of the explicit representation made to them by the Respondents on which they relied, i.e. on grounds of legitimate expectation. Indeed, this case has been cited in Ireland in several cases as an authority on legitimate expectation.

72. It is also clear that insofar as the Liverpool Taxis case can be said to have been a principle that there is a duty to consult, quite apart from any legitimate expectations that may have been created in the case, the case does not apply to the exercise of a legislative function. This is borne out by the dicta of Megarry J. in Bates-v-Lord Halisham [1972] 1 WLR 1373 at p.1378:

“The case [Liverpool taxis] supports propositions relating to the duty of a body to act fairly when exercising administrative functions under a statutory power.. Accordingly, in deciding the policy to be applied as to the number of licences to grant, there was a duty to hear those who would be likely to be affected. It is plain that no legislation was involved: the question was one of the policy to be adopted in the exercise of a statutory power to grant licences.

In the present case, the committee in question has an entirely different function: it is legislative rather than administrative or executive. The function of the committee is to make or refuse to make a legislative instrument under delegated powers.”

73. It is important to emphasise that this case concerns the exercise of the Minister’s discretionary powers under s.82 of the Road Traffic Act, 1961 to enact secondary legislation. This is of crucial importance when considering whether the rules of natural and constitutional justice import a duty to consult in the circumstances.

74. The Minister of State in introducing deregulation by means of SI 367/2000 was acting not in judicial or administrative capacity but in his capacity as a legislator, to make or refuse to make a statutory instrument under delegated legislative process.

75. The imposition of a duty to consult in the instant case would render the Minister’s task largely unworkable. An obligation to consult and hear submissions from every interested party would not only severely delay the legislative process, but it would also leave the instrument subsequently made open to challenge on the basis that the Minister of State failed to consult an “interested party”. In the case in hand in particular the category of interested persons is unlimited in that every member of the public may be said to have an interest in the efficient working of small public service vehicles. After SI 3/2000 had been declared unlawful in the Humphrey decision, swift action had to be taken by the State.

The Liverpool Taxis case is not relevant to the instant case. It concerns the discharge of an administrative function, not a legislative one. The majority of the Court of Appeal (Roskill L.J. and Sir Gordon Willmer) appeared to base their decisions on the particular facts of the case and the representation made to the Applicants. It was only Denning M.R. who suggested in a clearly obiter statement that this duty to consult with the taxi men would have arisen in any event.

76. The Minister of State, in exercising his powers under the Act of 1961 to make statutory instrument was engaged in a legislative process and as such, his decision to deregulate the taxi industry does not attract the full rigours of natural and constitutional justice. Further, it would have been impractical to impose such an obligation in the circumstances. Accordingly, there was no duty to consult the holders of taxi drivers of their representative bodies prior to taking this decision.

77. Furthermore, I am satisfied from the evidence and material adduced on behalf of the Applicants by Mr. John Rogers S.C. that the Respondents were at all times kept fully informed of the applicants’ views on deregulation. This is a matter I am entitled to take account of in relation to the making or non-making of a discretionary order.

78. The Applicants are particularly aggrieved because they believe they had a legitimate expectation that the previous taxi plate regime would continue subject to gradual increases in the numbers of taxi plates. This they say arises from the authorities making taxi plates transferable on payment of fees, acquiescing in the growth and development of a secondary market and the taxation authorities levying capital gains and probate taxes on the values of taxi plates in the secondary market. They particularly rely on disputed assurances allegedly given by An Taoiseach to the Dublin Taxi Forum .

In Tara Prospecting -v- Minister for Energy [1993] I.L.R.M. 771 the Applicant companies had been awarded mining prospecting licences by the State. When they applied for a renewal of these licences, large areas of territory included in the original licences were excluded. The Minister justified this exclusion on environmental, religious and cultural grounds. The Applicants challenged this aspect of the decision on the basis that it violated the principle of legitimate expectation. They claimed that the Minister had represented that their licences would be renewed in full if the prospecting had proved to be successful. Costello J. concluded that in cases involving the exercise of statutory powers the doctrine of legitimate expectation was limited to procedural matters. In other cases the doctrine might exceptionally include substantive rights, but such cases really represented an application of the principles of promissory estoppel rather than legitimate expectation as such. He summarised the position with regard to discretionary statutory powers as follows:

“(3) In cases involving the exercise of a discretionary statutory power the only legitimate expectation relating to the conferring of the benefit that can be inferred from words or conduct is a conditional one, namely that a benefit will be conferred provided that at the time the Minister considers that it is a proper exercise of the statutory power in the light of current policy to grant it. Such a conditional expectation cannot give rise to an enforceable right to the benefit should it later be refused by the Minister in the public interest.

(4) In cases involving the exercise of a discretionary statutory power in which an explicit assurance has been given which gives rise to an expectation that a benefit will be conferred no enforceable equitable or legal right to the benefit can arise. No promissory estoppel can arise because the Minister cannot estop either himself or his successors from exercising a discretionary power in the manner prescribed by parliament at the time it is being exercised” .

79. It is unnecessary in the instant case to establish whether representations had been made or assurances given to the Applicants on foot of which they formed the belief that the previous policy would not be altered. However, even in the event that such assurances had in fact been given, even by high-ranking members of the Executive, the nature of such assurances is such that they could only have been regarded as being conditional. Where a public interest emerges to make another policy the appropriate one to follow in the altered circumstances, the expectation that the beneficiary of the previous policy can legitimately expect is a procedural rather that a substantive one. As was stated by Keane J. (as he then was) in Pesca Valentia Limited -v- Minister for Fisheries [1990[ 2 I.R. 305 at 323

“While the Plaintiffs were undoubtedly encouraged in their project by semi-state bodies, they were not given any assurance that that the law regulating fishing would never be altered so as adversely to affect them nor, if such an assurance had been given, could any legal right have grown from it. No such estoppel could conceivably operate so as to prevent the Oireachtas from legislating or the executive from implementing the legislation when enacted”

80. A public body is entitled to resile from its previous practice or representation where there actually exists in the particular case objective reasons which justify this change of position. A person or groups of persons who have benefited from a previous policy can legitimately make representations as to why the policy should not be changed. They cannot, however, legitimately expect to fetter the body’s statutory discretion to adopt a new policy in the public interest, as it is the public interest and not the private rights incidentally created that the public body must ultimately seek to vindicate.

81. I have quashed for the reasons given the repeal provision contained in S.I 376 of 2000. The balance of the Applicants’ claim is dismissed.

DD699(CARNEY)