Appeal No.  T/2015/40

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER (TRAFFIC)

 

ON APPEAL from the DECISION of the Deputy Traffic Commissioner for the Welsh Traffic Area, Mr Miles Dorrington, of 30^th June 2015.

 

Before:

 

Mr E Mitchell, Judge of the Upper Tribunal

Mr M Farmer, Member of the Upper Tribunal

Mr D Rawsthorn, Member of the Upper Tribunal

 

 

Appellant:

 

Tacsi Gwynedd Ltd

 

 

Attendances:

 

For the Appellant: Mr James Backhouse of Backhouse Jones Solicitors 

 

 

Heard at: Cardiff Civil Justice Centre

Date of hearing: 22 September 2015

Date of decision: 26 November 2015

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that (a) this appeal be ALLOWED, (b) the Deputy Traffic Commissioner’s revocation of the operator’s standard licence for the Welsh Traffic Area is itself revoked, (c) the operator must comply with the tachograph and drivers’ hours audit and reporting requirements specified in paragraph 100 below.

 

SUBJECT MATTER:- transport manager; time-limit for rectifying non-compliance with requirements; revocation of PSV licence; termination of PSV licence; operator’s discs; good repute; co-operation with traffic commissioner and DVSA; public inquiry evidence in the Welsh language.

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, [2011] RTR 13; Subesh & ors v. Secretary of State for the Home Department [2004] EWCA Civ 56, [2004] INLR 417; Priority Freight 2009/225; Assicurzioni Generali SpA v. Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577; In the matter of Angloram Trans (UK) Limited [2004] EWCA Civ 998; Crompton (t/a David Crompton Haulage) v Department of Transport North Western Area [2003] EWCA Civ 64

 

REASONS FOR DECISION

 

Introduction

 

1. This appeal raises potentially significant issues for licensed public service vehicle operators. The nature of the relationship between a transport manager and operator is addressed, in particular whether a voluntary manager is permitted. The case also considers how a Traffic Commissioner should identify the starting point of a period for rectifying regulatory non-compliance (the ‘period of grace’). We need to decide whether a Commissioner interpreted the law correctly in deciding that no period of grace could possibly be granted to an operator that had always been non-compliant.

 

2. Legal differences between connected features of the regulatory scheme for public service vehicle operators also feature in this case. The distinction between revocation of a licence and its termination, and between a licence and the linked operator’s discs, are relevant issues on this appeal.

 

3. More generally, this appeal considers aspects of the conduct of public inquiries before Traffic Commissioners. The relationship between co-operation with, and at, the inquiry and good repute is dealt with as is the way in which regulators deal with claims that evidence of regulatory compliance has been stolen. Finally, we give guidance on the approach Commissioners should take to documentary evidence in the Welsh language.

Background

Events leading to the public inquiry

4. Sequentially, Tacsi Gwynedd Ltd. (“the operator) was granted two licences under the Public Passenger Vehicles Act 1981 (“the 1981 Act”). A restricted licence authorised two vehicles with effect from 30^th October 2013 and a standard licence authorised six vehicles with effect from 11^th September 2014. The operator’s directors are Mr Hugh Edwards (father) and Mr Sion Edwards (son). A significant part of the operator’s business is contracted school transport for Gwynedd County Council.

5. In August 2014, North Wales Police informed the Driver & Vehicle Standards Agency (DVSA) that, in their view, the operator’s vehicles had been speeding and so their speed limiters might not be working. A subsequent check found the limiters to be in working order and I am aware of no prosecutions or penalties for speeding offences. The DVSA also received an anonymous allegation that the operator was operating more vehicles than authorised.

6. On 23^rd September 2014 DVSA officials made an unannounced visit to one of the operator’s operating centres to seize relevant documentation. The officials were told by Mr Hugh Edwards that he did not know where the paperwork was kept; the officials should speak to Sion Edwards, who was at a different operating centre.

7. A ‘production letter’ was served on Mr Hugh Edwards. A range of information, mainly related to drivers’ hours, had to be produced to the DVSA Caernarfon office by 9 a.m. on 6^th October 2014. Signed off by DVSA Vehicle Examiner Nia Lloyd, it stated that “as an alternative when complying with the above, you may contact me to make arrangements for their collection”.

8. On 6^th October 2014 at 9.25 a.m. DVSA received a ‘phone call informing them a laptop was stolen from a car at an operating centre. At a subsequent DVSA interview under caution on 10^th October 2014, Mr Sion Edwards said all the documentation referred to in the production letter was stolen, manuscript records as well as those held on a laptop. 

9. Mr Sion Edwards attended a further DVSA interview on 30^th October 2014. As DVSA requested, he took a specific vehicle (the digital data downloaded from this vehicle seems to have led to some of the allegations referred to below). Then on 20^th November 2014 DVSA issued two further letters:

(a) one requested a director attend a further DVSA appointment on 8^th December 2014 and he may wish to “have legal advice present during the interview”. In the event of unexplained non-attendance, the letter said a report would go to a traffic commissioner without the directors’ comments; and

(b) a further ‘production letter’ required specified documents to be produced at the DVSA Caernarfon office by 10 a.m. on that same date. We note the letter also said “as an alternative when complying with the above, you may contact me [Examiner Lloyd] to make arrangements for their collection” and tachograph download data was to be emailed direct to Examiner Lloyd.

10. On 8^th December 2014, Mr Sion Edwards emailed DVSA. He could not attend the meeting because his legal representative was unavailable and he requested an alternative date. That day, DVSA’s emailed response sought Mr Edwards’ availability details. At the date of DVSA’s public inquiry statement (23^rd December 2014), neither availability dates nor the documentation in the production letter had been supplied.

11. A Deputy Traffic Commissioner for the Welsh Traffic Area decided to hold a public inquiry in the light of “an investigation carried out by DVSA regarding the company’s compliance with tachograph and driver’s hours”. According to the public inquiry call-up letters of 29^th April 2015, its purpose was to “investigate these apparent shortcomings” and Vehicle Examiner Lloyd’s report. The call-up letters made clear both the standard and restricted licence would be considered at the inquiry.

12. The call-up letter for the restricted licence identified “issues of concern” and that an explanation was called for as to why the restricted licence “was still valid” since the application for a standard licence included an undertaking to surrender the restricted licence. The call-up letter for the standard licence identified these “issues of concern”:

(a) whether undertakings given on the licence application had been honoured;

(b) that the operator may no longer be of good repute;

(c) that the operator may not have the appropriate financial standing;

(d) that the operator might not meet the requirement of professional competence;

(e) that the operator’s transport manager might not be professionally competent and of good repute.

13. Examiner Lloyd’s public inquiry statement included the following allegations:

(a) digital tachograph data was downloaded but not backed up;

(b) digital data, once downloaded, was not analysed;

(c) “no formal analysis is completed of any drivers hours / digital / time sheets and the failure to produce such documents to the DVSA means that there is no way of scrutinising these documents”;

(d) the transport manager did all his work voluntarily.

14. Examiner Lloyd’s statement also made the allegations concerning record-keeping:

(a) V5 documents (log books) were reported stolen in the 6^th October 2014 incident. By 11 November 2014, however, applications for replacements had not been made;

(b) for one 17 seat minibus, digital recording equipment was only installed on 3^rd October 2014 and the operator “locked into the VU on the 27/10/14”. The installer told Examiner Lloyd the driver who brought the vehicle to the installation centre told him the previous owner removed its recording equipment “as he did not want anyone to see his data”. Neither the employee nor the driver are named or have supplied statements. This raised a suspicion that, during the operator’s ownership of the vehicle, recording equipment was removed;

(c) digital download data showed that on multiple occasions during October 2014 a vehicle was driven without insertion of a digital driver card;

(d) digital download data showed multiple working time infringements by drivers during October 2014.

15. The call-up letters required the directors to submit financial standing evidence to the Commissioner before 19^th May 2015. No other evidence was required to be supplied beforehand. The letter also required the Directors to bring certain evidence to the hearing “to allow you to set out your case at the inquiry”. For drivers’ hours, the only listed evidence was “evidence of your systems for ensuring compliance with the drivers’ hours and tachograph legislation”.

16. The financial evidence was provided by the deadline. Other evidence was also supplied before the public inquiry date including various analyses of tachograph data for October 2014 and subsequent periods; public service vehicle test certificates; the operators own guidance on working hours rules; and details of Mr Sion Edwards’ impending examination for the transport manager qualification.

17. The operator’s transport manager was Mr David Worth, appointed on 11^th September 2014. The Commissioner decided the public inquiry would also consider his professional competence and repute. On 22^nd April 2015, Mr Worth gave the Commissioner written notice that he would resign as transport manager with effect from 14^th May 2015.

The Deputy Traffic Commissioner’s findings and decision

18. Some of the call-up letter issues of concern were resolved in the operator’s favour in that the Deputy Traffic Commissioner found:

(a) the operator was of appropriate financial standing;

(b) the operator was “of stable establishment”;

(c) the operator had not operated more vehicles than authorised;

(d) the operator had its own mechanics and was able to maintain its fleet. There were no adverse findings concerning roadworthiness of the fleet.

19. Adverse findings were also made:

(a) the operator had no “adequate systems and checks in place to ensure compliance with EU drivers’ hours and tachograph rules and regulations” in September 2014;

(b) the operator failed to comply with a requirement to bring to the inquiry evidence of its systems for complying with drivers’ hours and tachograph legislation;

(c) there was no “tangible evidence” of the compliance with drivers’ hours and tachograph legislation and the operated breached its undertaking to have a proper system in place for ensuring compliance;

(d) the operator failed to co-operate with Vehicle Examiner Lloyd’s investigation and most of the stolen documents could and should have been re-created and supplied to DVSA;

(e) the transport manager was a volunteer without a written contract of employment or a contract for services. He had never been paid anything. As such, that finding of fact is not challenged on this appeal;

(f) the transport manager’s oral evidence that he worked as a transport manager for 20-25 hours a week for free was not credible;

(g) the operator breached the undertaking in its application for a standard licence to surrender its restricted licence. The Commissioner rejected Mr Sion Edwards’ evidence that, from a conversation with a DVSA official, he thought this was not required.

20. The matters going to the operators’ credit were:

(a) clean vehicle maintenance record;

(b) a recent clear roadside traffic encounter;

(c) Mr Sion Edwards’ recent enrolment on a course for the transport managers’ qualification.

21. The Commissioner found the operator’s failure to co-operate with DVSA was “serious misconduct”, as shown by the following:

(a) after the reported theft, the operator failed to re-create and re-supply the stolen records. We note that while doubts were expressed the Commissioner did not find the theft to be a fabrication;

(b) the operator’s failure to bring to the public inquiry documents “specifically requested” in the call-up letter;

(c) the failure to have professional competence since the commencement of the standard licence (by never having had a proper transport manager since a volunteer manager did not count);

(d) obtaining a commercial advantage by having a cost-free transport manager for nine months. 

22. The Commissioner concluded he could not “trust this operator to be compliant now or in the near future as a result of the acts or omissions of its directors which have led to the negatives in this case far outweighing the positives. I have therefore answered the Priority Freight question in the negative”. That was a reference to the decision of the Upper Tribunal in decision 2009/225: “how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”

23. Finally, the Commissioner concluded “the negatives in this case far outweighed the positives and that it is proportionate to answer the Bryan Haulage question in the affirmative; the conduct of this operator is such that it ought to be put out of business”. The Commissioner added that, while he relied collectively on his findings of serious misconduct, he would have answered the Bryan Haulage question in the affirmative “just for the operator being without professional competence since the operator’s licence was granted” (i.e. without ever having had a transport manager). The Bryan Haulage question is found in Upper Tribunal decision 2002/217:

“the question is not whether the conduct is so serious as to amount to a loss of repute but whether it is so serious as to require revocation.  Put simply, the question becomes “is the conduct such that the operator ought to be put out of business?”.  On appeal, the Tribunal must consider not only the details of cases but also the overall result.”

24. Since the operator was not of good repute, the Commissioner decided “it is therefore a mandatory requirement that I revoke [both licences].”

25. In respect of Mr Worth (the transport manager), the Commissioner decided that he retained good repute but it was “tarnished” and his file was marked with a “First and Final Formal Written Warning”. The Commissioner stepped back from a more severe sanction since he was accepted that Mr Worth was unaware that, as a volunteer, he could not be a duly designated transport manager.

The stay of the decision

26. The Deputy Traffic Commissioner’s decision was expressed as coming into effect on 16^th August 2015. On 8^th July 2015, Mr Backhouse, who was not instructed before the public inquiry, applied for a direction under section 50(6) of the 1981 Act suspending the effect of the Commissioner’s decision pending resolution of the operator’s appeal to the Upper Tribunal. The Commissioner granted that direction.

 

The role of the Upper Tribunal on appeal from a decision of a Traffic Commissioner

27. Section 50(4) of the 1981 Act confers a right of appeal to the Upper Tribunal against a traffic commissioner’s revocation of a licence. Paragraph 14(1) of Schedule 4 to the Transport Act 1985 provides:

“…the Upper Tribunal are to have full jurisdiction to hear and determine all matters (whether of law or of fact) for the purpose of the exercise of any of their functions under an enactment relating to transport”.

28. This appeal raises matters of both fact and law. So far as matters of fact are concerned, the Upper Tribunal’s jurisdiction was examined by the Court of Appeal in Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, [2011] RTR 13. The Court applied Subesh & ors v. Secretary of State for the Home Department [2004] EWCA Civ 56, [2004] INLR 417 where Woolf LJ held:

"44…The first instance decision is taken to be correct until the contrary is shown…An appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one...The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category."

 

29. Part of the rationale for this was that the “material before the [Tribunal] will consist only of the documents placed before the Deputy Commissioner and the transcript of the evidence; the Tribunal will not have the advantage that the Deputy Commissioner had of seeing the parties and the witnesses, hearing them give evidence and assessing their credibility both from the words spoken but also the manner in which the evidence was given”.

30. It should not be overlooked that the Court of Appeal also drew attention to the appellate distinction between ‘primary facts’ and other findings of fact. The Court referred to Clarke LJ in Assicurzioni Generali SpA v. Arab Insurance Group [2002] EWCA Civ 1642, [2003] 1 WLR 577:

“16. Some conclusions of fact are…not conclusions of primary fact…They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way."

31. Paragraph 17(3) of Schedule 4 to the Transport Act 1985 provides that “the Upper Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.

32. The Upper Tribunal’s powers of disposal on allowing an appeal are found in paragraph 17(2) of Schedule 4. The Tribunal may make “such order as it thinks fit” or remit the matter for “rehearing and determination”.

The regulatory legislation

33. Section 14ZA of the 1981 Act contains the requirements for standard Public Service Vehicle (PSV) licences. The “first requirement” in section 14ZA(2) is in fact a set of conditions, including that:

(a) the operator “is of good repute (as determined in accordance with paragraph 1 of Schedule 3)”;

(b) the operator “is professionally competent (as determined in accordance with paragraphs 3, 4 and 6 of Schedule 3”.

34. In relation to “good repute”, Schedule 3 to the 1981 Act requires a traffic commissioner, in determining whether an individual or company is of good repute, to “have regard to all the relevant evidence” (para. (1) & (2)).

35. For “professional competence”, Schedule 3 links a company’s professional competence to that of its transport manager: “a company satisfies the requirement as to professional competence if, and so long as it has a transport manager…who…is of good repute and professionally competent”.

36. Paragraph 7B of Schedule 3 provides that in proceedings concerning whether a transport manager is of good repute or professionally competent, “ a traffic commissioner must consider whether a finding that the person was no longer of good repute or (as the case may be) professionally competent would constitute a disproportionate response”.

37. The “second requirement” in section 14ZA(3) concerns the operator’s transport manager. The relevant conditions include that the operator “has designated a transport manager in accordance with Article 4 of the 2009 Regulation”.

38. The above requirements apply on an application for a standard licence. They are also form mandatory grounds for revocation of an existing licence (section 17). A Traffic Commissioner must revoke in two cases (section 17(1)). First, if it appears to a Commissioner that the requirements of section 14ZA(2) are no longer satisfied. In other words, revocation is required if any conditions within the “first requirement” are not satisfied. The second case is where it appears to a Commissioner that a designated transport manager “no longer satisfies” the conditions within the “second requirement” of section 14ZA(3). However, provision is made for a ‘period of grace’ which is discussed below.

Issue 1 – whether a volunteer can properly be appointed a transport manager

39. The Deputy Traffic Commissioner’s finding that the operator had never had a transport manager – because he was a volunteer – was of key importance. The inquiry transcript records the Commissioner’s view that, in such circumstances, any ‘period of grace’ for rectifying matters runs from the date on which the operator was in fact non-compliant. Since the maximum period of grace is six months, there was no scope to grant this operator, which had been non-complaint for nine months, a period of grace. If that was right, the Commissioner correctly concluded the law required immediate revocation of the standard licence.

40. We shall therefore consider the transport manager issues first, starting with the question whether a volunteer such as Mr Worth can be duly designated as a transport manager.

The Commissioner’s approach

41. The Deputy Traffic Commissioner found Mr Worth to be a volunteer acting for no remuneration and without any contract, employment or otherwise, with the operator. As such, those findings are not disputed. The Commissioner went on to conclude that, applying those findings, Mr Worth was not, and never had been, a transport manager: “I do no accept…that there was a genuine link [with the operator] because in my determination “genuine link” means a legal link that can be demonstrated by clear tangible documents”.

42. This finding was deployed by the Commissioner to conclude that the operator lacked professional competence. As noted above, generally the only way a company has professional competence is through a professionally competent transport manager.

The legislative provisions

43. Section 14ZA(3) of the 1981 Act requires an operator to have “designated a transport manager in accordance with Article 4 of the 2009 Regulation”. The “2009 Regulation” is Regulation (EC) No 1071/2009 of the European Parliament and of the Council “establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator”. In the 1981 Act “transport manager” has the same meaning as in the 2009 Regulation (section 82(1)).

44. Article 2 of the 2009 Regulation defines “transport manager” as follows:

“a natural person employed by an undertaking or, if that undertaking is a natural person, that person or, where provided for, another natural person designated by that undertaking by means of a contract, who effectively and continuously manages the transport activities of that undertaking.”

45. Further conditions are found in Article 4.1’s requirements for designation of transport managers. Drawing everything together, we find:

(a) an undertaking, such as a limited company, must designate at least one natural person as transport manager (article 4.1);

(b) the transport manager must be of good repute (article 4.1 & 3.1(b));

(c) the transport manager must “have the requisite professional competence” (article 4.1 & 3.1(d));

(d) the transport manager must effectively and continuously manage the transport activities of the undertaking (article 4.1);

(e) the transport manager must have a “genuine link to the undertaking such as being an employee, owner or shareholder or administering it” (article 4.1); and

(f) by the definition of “transport manager” in Article 2, the transport manager must be “employed” by the undertaking.

46. Article 4.2 is a relevant part of the context. Applying to an undertaking that does not itself satisfy “the requirement of professional competence laid down in Article 3.1(d)”, it permits the undertaking to be authorised to carry on business as a road transport operator “without a transport manager designated in accordance with [Article 4.1]”. But there are conditions. The undertaking must designate a natural person who satisfies the requirements laid down in Article 3(1)(b) and (d) (good repute and professional competence) and who is entitled under contract to carry out the necessary duties as transport manager. Article 4.2 specifies in some detail the contractual obligations to be imposed on this type of transport manager.

The European context

47. The legal authority for the 2009 Regulation is Title 5 of the Treaty on the Functioning of the European Union. Article 71 of the Treaty authorises, amongst other things, “measures to improve transport safety”. The European Commission’s reasons for proposing the 2009 Regulation included the need for “stricter rules governing [a transport manager’s] links with the company” (COM (2007) 263).

48. In fact, the first draft of the Regulation included an Article 4(b) that required a transport manager to “be employed and remunerated by the undertaking or, if the undertaking is a natural person, be that same person”. At a glance, that supports Mr Backhouse’s argument since the requirement for remuneration was subsequently deleted.

49. The first draft was formally considered by the European Parliament. It objected and suggested a “genuine link” provision which found its way into the final draft (article 4.1). The European Parliament’s reasons for objecting to the requirement for a transport manager to be “employed and remunerated” were:

“According to the Commission proposal, the transport manager can only be a paid employee of the undertaking or its owner. In reality it is often the person who is in charge of the day-to-day running of the partnership, in other words the director or managing director, who has obtained the certificate of professional competence.” (21.5.08, report A6-0087/2008).

 

50. It seems, therefore, the Parliament thought the requirement for employment and remuneration would inappropriately prevent certain individuals from being designated as transport manager (for example, directors or managing directors). From a UK legal perspective, the perceived problem was that an operator’s director might be prevented from being transport manager if s/he received no pay (which is possible).

 

51. The problem we face is that the European Commission’s re-draft in response to those concerns created a legal conundrum: (a) the definition of transport manager still required the individual to be employed yet (b) the individuals who were declared to have the necessary “genuine link” with the operator included non-employees: “such as an employee, owner or shareholder or administering it”. Of the four in the list, three were expressly not employees

The operator’s argument and our conclusions

52. Mr Backhouse, for the operator, argues the need for a “genuine link” between transport manager and operator imports no requirement for any formal legal connection. The list of individuals declared by Article 4.1 to have a genuine link includes those without a formal connection to the operator. Mr Backhouse tackled article 2’s requirement for the “transport manager” to be employed by pointing out that, in ordinary language, an individual can accurately be described as employed on a task despite doing so for free and without any contractual obligation. If an individual has sufficient commitment to an operator, argued Mr Backhouse, s/he can demonstrate the required genuine link.  Neither Mr Backhouse nor ourselves were aware of any authority directly on this point, domestic or European.

53. The transport manager provisions of the 2009 Regulations are challenging to interpret. However, we disagree with Mr Backhouse’s interpretation. It is inconsistent with the 2009 Regulation’s purpose, its legislative history and its other provisions.

54. We step back and ask why the 2009 Regulation requires a link between a “transport manager” and a transport operator. The history shows a legislative aim to tighten rules about a transport manager’s links with an operator (as the European Commission expressly stated). Since promoting road safety was a fundamental purpose of the 2009 Regulation, it is clear the nature of the link between a manager and operator was thought capable of having a beneficial effect on the safety of the operator’s transport activities.

55. “Link” is not a word that often features in UK legislation; the cognate word “connection” is more often seen. A link or connection can take many forms. The 2009 Regulation says it must be “genuine”. We do not think it is used here in the sense of a link that is not fabricated. In the light of the legislative history and Article 4.1’s identification of those with a genuine link, our view is that “genuine” is used in the sense of a special commitment or stake in the operator’s business. That is a quality that connects the four individuals identified in Article 4.1. We do not attempt to identify an exhaustive list of those within Article 4.1 but we are satisfied it does not include a person in Mr Worth’s position.  

56. A pure volunteer in Mr Worth’s position can decide at a moment’s notice to have no further dealings with the operator, go home when s/he likes or refuse to co-operate in countless other ways. And there is nothing the operator can do about it. Designating as transport manager an individual with neither a legal obligation to the operator nor any other stake in the business seems to us fundamentally at odds with the regulatory purpose. The general purpose is that at all times the operator should be able to rely on an individual whose function is to ensure competent and effective management of transport activities.  We therefore conclude that a person in Mr Worth’s position cannot properly be designated as a transport manager in accordance with Article 4(1) of the 2009 Regulation. Such a person cannot establish the necessary “genuine link” with the operator.

57. The definition of “transport manager” does pose difficulties. It requires a person to be “employed” by the transport manager yet, as we have pointed out, Article 4(1) pre-supposes that a non-employee might properly be designated as transport manager. Can this be squared with the definition’s requirement for the person to be “employed”? Yes, but only by concluding that the definition of transport manager in Article 2 uses “employed” to convey a different concept to that conveyed by “employee” in the “genuine link” provisions. In the definition, it has a looser and broader meaning of someone engaged to do work but in Article 4(1) it connotes a formal employment relationship. We also stress that a person who satisfies the broad definition in Article 2 is not, thereby, entitled to be designated transport manager. The specific designation requirements in Article 4.1 or 4.2 must also be met.

58. Support for this interpretation is found in the legislative history. This suggests the re-drafting of the transport manager designation provisions of Article 4, in response to the European Parliament’s concerns, may have overlooked the need to make consequential amendments to the definition of transport manager in Article 2.

59. We also note the provisions of Article 4.2. These provide an alternative transport manager designation route and require certain contractual obligations to be placed on a contract transport manager. Article 4.2 ensures, firstly, the individual and operator are legally tied to each other and, secondly, that the nature of those ties promotes compliance with the road safety aims of the 2009 Regulation. As explained below, if Article 4 is construed as a whole, taking into account Article 4.2, it gives further support to the narrower interpretation of employee in Article 4.1.

60. Article 4.2 is for operators who “do not satisfy the requirement of professional competence laid down in article 3.1(d)”. This is simply a requirement to pass an examination (see article 8). Accordingly, any transport operator company lacks professional competence in this sense: only a natural person can sit an exam.

61. Without a transport manager, a limited company will lack professional competence. A manager can be obtained under either Article 4.1 or 4.2. Article 4.2 permits contract transport managers if the contract meets minimum specifications. That provides further support for a narrow meaning of “employee” as it is used in Article 4.1. If employee in Article 4.1 included a person engaged as a contractor there would be no need for Article 4.2 (and if “employee” in Article 4.1 does not include a contractor it certainly does not include a volunteer such as Mr Worth).

62.  Article 4.2 permits a contracted out transport manager but, at that same time, requires specific legal ties between manager and operator that are designed to promote compliance with the 2009 Regulation’s road safety requirements. Since Article 4.2 is an alternative to Article 4.1, the requirement for legal ties is aimed at ensuring broadly equivalent levels of commitment to the operator on the part of both Article 4.1 and Article 4.2 transport managers. A person in Mr Worth’s position does not have a type of commitment that can properly be compared to the contractual commitments of an Article 4.2 transport manager. That is a why the role played by Article 4.2 further undermines Mr Backhouse’s argument that Mr Worth is capable of falling within Article 4.1.

63. To conclude, we agree with the Deputy Traffic Commissioner that Mr Worth could not properly be designated as a transport manager. It follows that the operator should not, nine months before the public inquiry, have been granted a standard licence and that, at the date of the public inquiry, remained without professional competence.

Issue 2 - from what date does the period of grace run?

64. What tends to be known as the ‘period of grace’ is found in section 17 of the 1981 Act. Section 17(1A) gives a Traffic Commissioner power, before revoking a standard licence, to serve on the operator a notice setting out a time-limit for rectifying “the situation”. The provision is drafted so that the power only arises where a Commissioner would otherwise revoke on mandatory grounds (see above). This includes that the operator lacks professional competence.

65. The time-limit for rectifying the situation must be set “in accordance with Article 13.1 of the 2009 Regulation”. Linked to that, subsection (2B) prevents a commissioner from revoking a licence if rectification occurs within the specified time-limit.

66. In this case, the practical effect of the Deputy Traffic Commissioner’s interpretation was that, at the date of the public inquiry, it was impossible to grant a period of grace. The operator’s lack of professional competence could not be rectified so their licence had to be revoked. We conclude that interpretation was wrong in law. For that reason we allow this appeal.

67. We are again taken back to the European Regulation. Article 13.1 provides (with our emphasis):

“where a competent authority establishes that one or more of [the Article 3 e.g. professional competence] requirements is no longer satisfied, it may set one of the following time limits for the undertaking to rectify the situation:

…a time limit not exceeding 6 months, which may be extended by 3 months in the event of the death or physical incapacity of the transport manager, for the recruitment of a replacement transport manager where the transport manager no longer satisfies the requirement as to good repute or professional competence”.

68. So the power to set a ‘period of grace’ is triggered by Article 3 requirements being “no longer satisfied”. There are two possible interpretations of this both of which are linguistically viable:

(a) Article 13 refers to cases where Article 3 requirements were previously met – in fact – but are no longer. In other words, it is for an operator who used to be compliant in fact. If the operator has never been compliant, the period of grace can only run from the date of non-compliance which is the date from which the licence had effect; or

(b) Article 13 refers simply to a current regulatory determination that differs to an earlier determination. In other words, it is for an operator who is now in fact non-compliant but whether it was previously in fact non-compliant is irrelevant to the question whether the power to grant a period of grace has arisen.

69. The Commissioner followed interpretation (a). The operator never had professional competence because it never had a properly designated transport manager. Therefore, the Commissioner had no power to grant a period of grace because, by then, the operator had been non-compliant for more than six months.

70. We decide that the Commissioner was wrong in law. When Article 13 refers to requirements no longer being satisfied, it refers to the instant determination of non-compliance that has just been made (since this issue only arises in revocation cases, a commissioner must have made a determination differing from that made when a licence was granted). That is what Article 13.1 means when it refers to requirements “no longer” being satisfied.

71. In our view, the Commissioner’s interpretation is wrong because it runs counter to the purpose of the 2009 Regulation. It would lead to the disproportionate regulatory outcomes that the Regulation seeks to avoid. As a piece of European legislation, the recitals to the 2009 Regulation are an important aid to interpretation. Recital 12 reads reads:

“Fair competition and road transport that is fully compliant with the rules call for a uniform level of monitoring by Member States. The national authorities responsible for monitoring undertakings and the validity of their authorisations have a crucial role to play in this respect, and it is appropriate to ensure that they take suitable measures if necessary, in particular in the most serious cases by suspending or withdrawing authorisations or declaring as unsuitable transport managers who are repeatedly negligent or who act in bad faith. This must be preceded by due consideration of the measure with respect to the proportionality principle. An undertaking should, however, be warned in advance and should have a reasonable period of time within which to rectify the situation before incurring such penalties.”

 

72. Cases will arise where an Article 3 requirement has never been satisfied but the operator is entirely blameless. For example, a transport manager may have failed to disclose regulatory offences or not realised s/he was technically resident outside the European Union. This does not provide wriggle room for unscrupulous operators because there is no right to a period of grace. It is a regulatory dispensation the appropriateness of which will vary from case to case.

 

73. The Commissioner’s interpretation would prevent, in certain cases, the proportionate regulatory response which the 2009 Regulation requires.

Issue 3 - Whether the operator failed to co-operate with DVSA and the public inquiry: good repute

74. We have no doubt that the operator did not fully co-operate with DVSA. In reality, this is really an aspect of the wider issue whether the operator took its regulatory obligations seriously. There were failings. Mr Backhouse conceded that at the hearing. But we also accept his argument that, in order to operate the regulatory scheme proportionately, findings need to be made as to gravity of failings. Not all failures are of the same seriousness.

75. While we have already decided to allow the appeal, the extent of the operator’s co-operation with DVSA and the public inquiry are matters which we need to address. They inform our decision whether to remit the case back to a Traffic Commissioner or make our own order.

Record-keeping and record disclosure

76. While the Deputy Traffic Commissioner did not conclude the theft of relevant documentation and records was fabricated, he expressed suspicions. The Commissioner also noted the surprisingly regularity of similar thefts on the eve of a production deadline. Regrettably, that reflects our experience. This creates a dilemma. The seriousness of a finding of fabrication, in that it might imply a very serious criminal offence, may lead to reluctance to make the finding without overwhelming evidence.

77. Even without a finding of fabrication, however, a serious regulatory breach has probably occurred. To keep vital evidence of regulatory compliance in an insecure location is unacceptable. The industry needs to hear that message loud and clear. We therefore find that this operator failed to make adequate arrangements for safely storing records of its regulatory compliance. That is a serious regulatory breach.

78. Following the reported theft, DVSA issued the operator with a further production letter whose deadline of 8^th December 2004 was also the date fixed for a meeting with DVSA. On that date, Mr Sion Edwards emailed DVSA stating he could not attend since his legal representative was unavailable.

79. At the public inquiry, Mr Sion Edwards gave evidence that, after 8^th December 2014, he visited Caernarfon DVSA office but was told his usual contact, Vehicle Examiner Lloyd, was on a period of extended leave. Mr Edwards said he did not leave the documents at the office because he wanted his solicitor present and he was unavailable until mid-January 2015. He also assumed he needed to deliver the documents to Examiner Lloyd personally.

80. The transcript of the public inquiry shows the Commissioner was unimpressed by Mr Edwards’ evidence that he assumed personal delivery to Examiner Lloyd was required. However, no evidence was given about why, after mid-January 2015 (when the solicitor became available) the documents were not supplied. The Commissioner’s line of questioning ended once Mr Edwards said he had the documents with him at the inquiry. Mr Backhouse argues the Commissioner was unduly confrontational which prevented Mr Edwards from giving a full explanation. We are not sure about that but it is clear that potentially relevant matters were not dealt with. These included why Mr Edwards believed personal production was required, whether that was a reasonable belief and what steps were taken after mid-January 2015 to comply with the production letter and re-arrange an interview with DVSA. These were all matters that would go to the seriousness of the regulatory breach of failing to comply with the production letter.

81. The Commissioner concluded on the evidence that the operator’s directors failed to co-operate with DVSA. We do not disagree with that finding as such. However, the Commissioner’s reasons do not calibrate the gravity of the failings. These are important because, without them, how can a proportionate regulatory response be devised? See In the matter of Angloram Trans (UK) Limited [2004] EWCA Civ 998. Indeed, as Mr Backhouse argued, the production letter contains features that might mitigate the seriousness of a failure to comply with the production letter. Certain data was to be emailed direct to Examiner Lloyd and she also offered to make personal arrangements for collection of the documents. Yet she was absent from work for an extended period beginning shortly after 8^th December 2014.

82. The difficulty we face in drawing inferences about the operator’s good repute from the public inquiry evidence is that potentially relevant matters were not probed. Evidential context is lacking. Since the requirements of the production letter were not as clear-cut as the Commissioner thought, we cannot conclude the operator’s failure to produce the records amounted to wilful non-compliance which would of course have been a very serious matter.

83. Before us, the operator conceded its tachograph systems had not been adequate. But Mr Backhouse argued that this failure should be seen in its proper context which was of an operator some of whose journeys fell within the sub-50 kilometre exemption to the tachograph rules (see Article 3 of EC 561/2006). Mr Backhouse says this was accepted by the DVSA official at the public inquiry and that is supported by the inquiry transcript.

Co-operation with the Deputy Traffic Commissioner & public inquiry

84. The Deputy Traffic Commissioner also found ‘serious misconduct’ because the operator failed to comply with a requirement to produce certain documentation to the public inquiry. However, according to the inquiry call-up letter, the only documentation to be disclosed in advance concerned finances. For other documentation, the call-up letter directed the Directors to bring certain evidence to the hearing “to allow you to set out your case at the inquiry” but did not require it to be supplied to the Commissioner. In those circumstances, we conclude the Commissioner’s finding of serious misconduct for failure to bring “specifically requested” documents to the inquiry cannot be sustained.

85. We do not however accept Mr Backhouse’s wider argument that a Traffic Commissioner has limited scope to rely on an operator’s lack of co-operation with a public inquiry. Mr Backhouse accepted an operator who failed to produce at a public inquiry documentation required by a call-up letter risked an adverse factual inference being made but, beyond that, argued nothing further could be inferred. At the hearing, Mr Backhouse said he was supported by a Court of Appeal decision involving an individual who acted inappropriately at the conclusion of a public inquiry.

86. Mr Backhouse must have meant the Court of Appeal’s decision in Crompton (t/a David Crompton Haulage) v Department of Transport North Western Area [2003] EWCA Civ 64. In that case, the Court said:

 

“The issue which arises in this appeal is whether loutish and intimidating behaviour by an operator of good character at the end of a public inquiry before a Deputy Traffic Commissioner could properly be regarded by the Commissioner as depriving the operator of his good repute, having regard to not only what happened at the time, but also to what occurred up to the time at which the commissioner gave her decision.”

 

87. Crompton does not support Mr Backhouse’s argument; it simply reminds Traffic Commissioners that all decision-making must be directed to the statutory tests in issue in a particular case. The problem in Crompton was that a Commissioner sanctioned certain behaviour simply because it was considered unacceptable but without relating it to the regulatory issues arising in the case. That is shown by this passage from the Court of Appeal’s decision:

 

“24. Reading the decision of the Traffic Commissioner as a whole I cannot escape the conclusion that although she did initially ask herself whether the operators behaviour related to his fitness to hold a licence she then became more concerned with the unacceptability of the behaviour, and failed to give mature consideration to the question of whether that behaviour really did demonstrate for the purposes of s 27(1) a loss of good repute, bearing in mind the inevitable consequences of such a finding, and the need for proportionality.”

88. It must be borne in mind that, for the regulatory scheme to achieve its purpose, relevant information needs to be made available to the regulator. Much of that information can only realistically be produced by the entity or person called-up to the public inquiry. It must, therefore, in principle be open to a Traffic Commissioner to make adverse findings about good repute in the light of an unreasonable failure to supply records that a Commissioner has precisely and reasonably requested or ‘required’.

The restricted licence issue

89. Section 12(3) of the Public Passenger Vehicles Act 1981 provides that “a person may hold two or more operator’s licences but shall not at the same time hold more than one such licence in relation to the same traffic area”. Licences are granted by a Traffic Commissioner.

90. The duration of licences is governed by section 15 of the 1981 Act. Section 15(2)’s general rule is that “a PSV operator’s licence shall continue in force indefinitely”. That, however, is “subject to its revocation or other termination under any provision of this Act or another statutory provision”. This is an exhaustive provision. Accordingly, there are only two means by which a licence ceases to be in force, revocation and “other termination” under a statutory provision.

91. Revocation is tightly controlled by the 1981 Act and only permitted on a specified statutory ground. There is no ground for revoking a restricted licence because it has been superseded by another licence for the same traffic area (see section 17 of the 1981 Act). We acknowledge the ground in section 17(3)(e) that “there has been since the licence was granted or varied a material change in any of the circumstances of the holder of the licence which were relevant to the grant or variation of the licence”. However, that cannot apply where a restricted licence is superseded by a standard licence. This would imply a discretion not to revoke contrary to the clear words of section 12(3).

92. Accordingly, where an operator is granted an additional licence for a particular traffic area that must terminate an existing licence for the area. It is a section 15(2) statutory termination event given the declaration in section 12(3) that a person (operator) cannot hold more than one licence for a single traffic area.

93. As a matter of law, therefore, this operator’s restricted licence terminated upon a Traffic Commissioner granting a standard licence with effect from 11^th September 2014. The statement in the public inquiry call-up letter – at the inquiry the Traffic Commissioner will require an explanation as to why the restricted licence is still valid – was therefore based on a legal misunderstanding. The restricted licence could no longer be valid because it had terminated.

94. Section 18(2) of the 1981 Act provides for a Traffic Commissioner, upon granting a licence, also to issue operator’s discs. The disc is not the licence, only evidence of the licence. The Public Service Vehicles (Operators’ Licences) Regulations 1995 make further provision about discs and licences. If a licence expires, both the licence and related operator’s discs must be returned to a Commissioner. Here, the licence must mean the piece of paper recording the grant of a licence.

95. This operator’s apparent failure to surrender its restricted licence needs to be scrutinised in the light of that legal context. Mr Sion Edwards’ oral evidence was that a DVSA official told him he did not need to surrender the “restricted disc” because his original application did not include an undertaking to that effect. The Deputy Traffic Commissioner did not accept that. But the licence and the disc are separate things. The Commissioner repeatedly asked Mr Edwards why he failed to surrender the licence but Mr Edwards’ responses show he thought he was being asked about returning the disc and that was the failure he attempted to explain. Given this misunderstanding, we do not have an evidential basis on which to find that the operator breached its undertaking to surrender its restricted licence.

Disposal of the proceedings

96. We allow this appeal. As explained above, the Deputy Traffic Commissioner made errors of law and fact so that his decision cannot stand.

97. The operator lacked professional competence at the date of the Commissioner’s decision because it did not have a duly designated transport manager. That has now been addressed. Mr Backhouse informs us a new transport manager has been appointed. We do not think the legislation requires us to ignore that matter once we have decided to allow the appeal.

98. Upon allowing an appeal, the Upper Tribunal has a discretion whether to remit to a Traffic Commissioner for re-hearing or to make some other order. We acknowledge the unanswered questions in this case concerning, in particular, the extent to which this operator failed to comply with tachograph-related obligations because no findings were made about the proportion of its business that was within and without the legislation. Despite that, we decide not to remit. We do not think specific findings are necessary in relation to tachograph compliance in order to operate the regulatory scheme appropriately because, whatever those findings might realistically be, we do not think this operator’s conduct calls for it to be put out of business. That would be a disproportionate regulatory response for the following reasons:

(a) the absence of any maintenance contraventions or any allegation that this operator is unsafe;

(b) the absence of any previous adverse regulatory findings;

(c) the Commissioner’s finding that the operator is of appropriate financial standing and of stable establishment and our view that this is a viable business;

(d) that no concerns about the operator on the part of Gwynedd council’s education department have been drawn to our attention;

(e) the operator having acted promptly to secure a new designated transport manager and to employ an external tachograph analyst. We do not think this is an operator whose real business model involves non-compliance with regulatory rules;

(f) that at the inquiry DVSA did not dispute that a sizeable proportion of some vehicle’s journeys fell outside the tachograph legislation.

99. We do decide however, using the language conventionally adopted by Traffic Commissioners, that the operator’s good repute is “tarnished” and is to be recorded as such. We so conclude taking into account its admission that it did not fully comply with tachograph-related legislation, its failure safely to store its records of compliance and its failure promptly to comply with a DVSA production letter in circumstances where, despite the ambiguities in the production letter, the responsible course would have been to leave the records at the Caernarfon DVSA office and let staff there worry about the implications of Examiner Lloyd’s extended leave.

100. We also stress the vital importance of compliance with tachograph-related legislation and for that reason also order (as Mr Backhouse sensibly suggested at the hearing) the operator:

(a) within three months of the issue of this decision, to undergo a full tachograph and drivers’ hours audit which results in a report about the extent to which the operator is complying with its obligations under tachograph and drivers’ hours legislation. This is to be carried by an organisation generally accepted as reputable by the transport industry such as the Freight Transport Association, Road Haulage Association or Confederation of Passenger Transport; and

(b) submit that report to the Traffic Commissioner for the Welsh Traffic Area within four months of the issue of this decision.

The Welsh language dimension to this case

How this arises

101. The operator’s directors speak Welsh. They communicated in Welsh with local DVSA officials and school transport officials. Anyone familiar with Gwynedd would not find that surprising. Certain untranslated Welsh documents were included in DVSA’s public inquiry papers. Although these were only a handful out of hundreds of pages, that does not necessarily mean they were insignificant. The treatment of this material has caused us concern and could have led to injustice. That is why we address it even though it is not strictly necessary to do so.

102. At the public inquiry, reference was made to some of the Welsh language documents. Towards the start of the inquiry, there was this exchange:

 

“MR SION EDWARDS: But it [a letter written by a Gwynedd council official] says, I don’t know if you’ve read it in Welsh –

MR WARREN (Mr Edwards’ solicitor) – At page 100 and 101 of the bundle the Welsh letter from the Council.

THE DEPUTY TRAFFIC COMMISSIONER: Well I do not speak Welsh –

MR WARREN: No I do not.

THE DEPUTY TRAFFIC COMMISSIONER: - so how does that help me.

MR WARREN: Well, to be honest, it is DVSA’s evidence.

THE DEPUTY TRAFFIC COMMISSIONER: Well they are not my client and I do not know who this has come from. I am nothing to do with DVSA –

MR WARREN: No, but it is –

THE DEPUTY TRAFFIC COMMISSIONER: - so I do not understand it.

MR WARREN: It is annexed to Miss Lloyd’s report, I mean –

THE DEPUTY TRAFFIC COMMISSIONER: Yes, but I do not understand the letter so I do not know what it says.

MR SION EDWARDS: It says here that the timings are different on the contracts.

THE DEPUTY TRAFFIC COMMISSIONER: But it also says the minimum seats by the look of it.

MR WARREN: I think the point Mr Edwards –

MR SION EDWARDS: Yeah.

THE DEPUTY TRAFFIC COMMISSIONER: - is making is that if they can service one group of 16 at eight o’clock after that is done the next one is due at nine when the same bus can be used for that as well. You do not need four buses for the four routes.

MR SION EDWARDS: And it says there she has got no obligations of us using taxis.

THE DEPUTY TRAFFIC COMMISSIONER: Well I have not got a translation of that letter. (Pause). So what are you saying in a roundabout way, Mr Warren?

MR WARREN: Well firstly there is no evidence that more busses have been used than were licensed. This business has a fairly sizeable fleet of taxis, including eight seaters, and that as a business they ran these four contracts in the way that they did but within the law of the restricted licence.”

 

103. At that stage, therefore, the Deputy Traffic Commissioner seemed content to accept a translation given on Mr Edwards’ behalf. Subsequently, however, Mr Sion Edwards was called to give evidence about the operator’s school transport contracts:

 

“Q. [THE DEPUTY TRAFFIC COMMISSIONER]: Yes, what is 309.

A. A school run.

Q. From where to where and at what time?

A. It’s after…You know the, where it says (inaudible) there it says, in Welsh, afternoon only.

Q. Well I am looking actually at page 107 [a document in English] because I do not speak Welsh and I am afraid I am not going to allow you to interpret for me.”

 

104. Later, there was further discussion about how the school transport contract was managed:

 

“THE DEPUTY TRAFFIC COMMISSIONER: So he was only doing one contract a day?

A [Mr Warren, solicitor for the operator]: No he, he did two, sometimes…There’s two locations there.

Q: Now forgive for not speaking Welsh because I do not.

A: Yeah

Q. – and forgive me for not understanding this language which is written here because I do not know whether those are words or addresses -

A: Yeah.

Q. – so what are those? Are those addresses? Is that locations?

A. Yeah, they’re addresses. They’re all school and college.

Q: Right, all school and college.

A. Yes.”

 

105. That is where matters lay which suggests the Commissioner made his decision without knowing the content of at least some of the Welsh language documents (see paragraph 103 above). It seems that, in reality, certain evidence was not admitted because it was in Welsh.

 

106. The treatment of the Welsh language documents was raised as a ground of appeal. At the hearing before the Upper Tribunal, the judge member of the Tribunal put his understanding of the Welsh language documents to Mr Backhouse. Having taken instructions from Mr Sion Edwards, who was present, he agreed with the Judge’s understanding that the documents set out Gwynedd Council’s view as to the minimum number of vehicles necessary for the operator to meet its contractual duties. The council’s position did not support the allegation that the operator was running more vehicles than licensed. The timetables were such that a single vehicle could be used to comply with both of the operator’s school transport contracts.

 

107. The issue to which the Welsh evidence related was in fact resolved in the operator’s favour. The Commissioner found that the operator had not operated more vehicles than licensed. Therefore, the effective exclusion of the Welsh language evidence did not directly prejudice the operator’s case. However, the Commissioner could not have known that. The approach taken could have led to a real injustice. With a view to avoiding that in future cases, we give our views about the the approach taken and provide guidance about the issue.

The legislative context

108. Section 1(1) of the Welsh Language (Wales) Measure 2011 declares that “the Welsh language has official status in Wales”. This came into force on 9^th February 2011. The Measure does not define “official status” but section 1(2) states that, without prejudice to “the general principle of subsection (1)”, the Welsh language’s official status is given effect to by certain enactments. The enactments themselves are not specified but their content is. The enactments include:

 

“the enactments about (a) duties on bodies to use the Welsh language, and the rights which arise from the enforceability of those duties, which enable Welsh speakers to use the language in dealings with those bodies (such as the provision of services by those bodies)”.

 

109. This draws attention to (rather than establishing) the correlation between enforceable duties and rights. They are two sides of the same coin. While this provision did not, therefore, establish correlative Welsh language rights – they already existed to the extent that enforceable rights already existed – it does clearly signal the importance that the democratically elected legislative body for Wales attaches to Welsh language rights. Otherwise, it would not have included this type of enactment in the list of enactments by which the Welsh language’s official status is given effect. While we do not attempt to identify the precise legal effect of section 1(1)’s declaration that Welsh has “official status in Wales”, we do note its existence and the nature of the enactments in section 1(2) by which it is said to be given effect.  This is part of the context to operating public services, including exercising quasi-judicial functions, in and for Wales an awareness of which is desirable for a number of reasons.

 

110. The ‘Driver & Vehicle Standards Agency’ (DVSA) is a name given to administrative arrangements for the exercise of certain functions of the Secretary of State. Due to administrative rationalisation, the DVSA currently has two Welsh language schemes. One applies to functions previously were within the remit of the Driving Standards Agency and the other to functions that used to be performed by the Vehicle and Operator Services Agency. The DVSA website says “we’re still following the schemes from those agencies until they run out. They’ll then be replaced with a new single scheme for DVSA”.

 

111. For this operator’s directors, the relevant Welsh language scheme would have been the Vehicle and Operator Services Agency’s (VOSA) scheme which was prepared under section 21 of the Welsh Language Act 1993 and approved by the Welsh Language Board. For the time being, it seems that, by virtue of savings provisions, these schemes continue to have effect under Part 2 of the Welsh Language Act 1993 despite that Act’s repeal by the Welsh Language (Wales) Measure. The directors therefore had an entitlement, to the extent that such an entitlement can be derived from the 1993 Act, to communicate with DVSA in Welsh.

 

112. For reasons including those at paragraph 109 above, an individual’s entitlement to communicate with DVSA in Welsh ought not to be diluted or its exercise inhibited by the risk that, subsequently, such communications might be ignored at a Traffic Commissioner public inquiry. It places an operator in an invidious position. Do I use Welsh and run the risk that what I say will be left out of account in a subsequent public inquiry? Or do I abandon Welsh so that I can be certain the evidence will be taken into account?

What should the Commissioner have done?

113. In the circumstances in which the Deputy Traffic Commissioner found himself, we do not think his approach can be justified. The Commissioner was not subject to formal rules of evidence. He was exercising a regulatory jurisdiction, not conducting an inter-party action, and was able to make the inquiry as formal or informal as needed in order to ensure all the regulatory issues were properly dealt with. An inquiry will not meet the required minimum standards of fairness if relevant documentary evidence is left out of account simply because it is in Welsh.

 

114. There was nothing in law to have prevented Mr Edwards from being invited to offer a translation of the Welsh documentation. The Commissioner was not required to accept a translation but, for all he knew, Mr Edwards’ translation might have been harmful to his case. The local DVSA officials who were at the inquiry may well have spoken Welsh and could have been invited to dispute a translation.

 

115. In the circumstances, however, the preferable course would have been to invite any Welsh-speaking DVSA official to offer a translation or to take a short adjournment so that officials and Mr Edwards could agree a translation. We say this was preferable because DVSA officials have no direct personal interest in the outcome. If Mr Edwards had disputed the accuracy of such a translation, the Commissioner would have needed to decide how to proceed but fairness would not necessarily have called for an adjournment to obtain a professional translation. Generally, this would depend on the circumstances of a particular case including the relevance of the subject-matter of the Welsh evidence to the issues that need to be resolved.

 

116. However, this issue should not have been addressed for the first time at the inquiry. Taking the steps outlined above, while preferable to the course taken, results in a Welsh-speaking party having to deal on the spot with a procedural obstacle that an English-speaking party would not face.

 

117. The Traffic Commissioners’ staff are provided by the Secretary of State (paragraph 7 of Schedule 2 to the 1985 Act). The Commissioners’ public inquiry call-up letters include a statement that “the Welsh Traffic Area Office welcomes correspondence in Welsh or English”. 

 

118. Since the public inquiry was not to be conducted in Welsh, in the light of DVSA’s and the staff of the Traffic Commissioners’ Welsh language commitments, arrangements should have been made for Welsh documentation to be translated in advance of the inquiry date, included in the inquiry papers and sent to the parties.  It contradicts the letter and spirit of those commitments if operators who correspond with DVSA in Welsh find themselves prejudiced before a public inquiry by that correspondence being ignored or by having unexpectedly to deal with a translation issue on the on the spot. We draw this matter to the attention of the Senior Traffic Commissioner. In doing so, it is right that we also acknowledge that the Senior Traffic Commissioner and the designated Traffic Commissioner for Wales are fully aware of the need to provide as good a service for Welsh-speaking parties as is provided for those who only use English. This is made very clear by the Senior Traffic Commissioner’s recent annual reports.

 

119. The Senior Traffic Commissioner may also wish to note the way in which the Welsh language is treated in the First-tier Tribunal and the Upper Tribunal by virtue of the Senior President of Tribunal’s Practice Direction of 30^th October 2008 on “Use of the Welsh Language in Tribunals in Wales”. Not only does this permit the Welsh language to be used at any hearing of a Welsh case (as defined), it also provides that, subject to certain listing requirements, “the Welsh language may be used…in any document placed before the Tribunal”. 

 

 

 

 

Mr E Mitchell

Judge of the Upper Tribunal

26^th November 2015 (signed on original)