Guidance

English Devolution and Community Empowerment Bill: European Convention on Human Rights: Supplementary Memorandum No.2

Updated 19 November 2025

Applies to England

Introduction

1. This memorandum supplements the memorandum published on 10 July 2025 (“the initial ECHR memorandum”) prepared by the Ministry of Housing, Communities and Local Government, which addressed issues under the European Convention on Human Rights (“ECHR”) in relation to the English Devolution and Community Empowerment Bill (“the Bill”). ^{[footnote 1]}

2. This supplementary memorandum addresses the issues under the ECHR from government amendments tabled on 17 and 18 November 2025 for Commons Report stage. This memorandum has been prepared by the Ministry of Housing, Communities and Local Government with the support of the Department for Transport.

3. The amendments considered in this memorandum relate to new clause (standards relating to the suspension of revocation of a regulated licence) and amendments to existing Schedule 11 and 12 to the Bill.

Amendments to Schedule 12 and Schedule 11: to remove the power of the Secretary of State to approve Mayoral Development Orders and Power for the Secretary of State to identify the planning applications of potential strategic importance which relevant mayors may elect to determine by written representations, rather than by mandatory oral hearing.

4. Amendments to Schedule 12, paragraphs 1(4) to (5) further amend the changes clauses 31 and 32 of the Bill make to the primary legislative regime for the consent for the development of land contained in the Town and Country Planning Act 1990. On introduction, clause 32 and Schedule 12 created a new power for the Secretary of State to approve a mayoral development order, which would grant planning permission for future development of a specified description, in circumstances in which the order was proposed by a mayor of a strategic authority and not all of the relevant local planning authorities for the area consented to it.

5. The amendments to Schedule 12 remove the requirement for all affected local planning authorities to consent to a mayoral development order, and in turn, remove the mechanism by which the Secretary of State could approve the order in the event of a conflict between the mayor of a strategic authority and local planning authorities. In other words, the decision to grant planning permission reviewable by a court is that of the mayor to make the mayoral development order under section 61DA(1) of the Town and Country Planning Act 1990, rather than the approval of the Secretary of State.

6. Unlike the approval of the Secretary of State contained in the Bill on introduction, the decision of the mayor to make a mayoral development order is not subject to the planning statutory review procedure in the High Court contained in Part XII of the Town and Country Planning Act 1990. Accordingly, the grant of a mayoral development order would be subject to judicial review in the same manner as any other administrative decision.

7. Accordingly, the change brought in by this amendment does not change the existing analysis contained in paragraphs 50 - 53 of the ECHR Memorandum. In summary, the government considers that consenting regimes regarding the use and development of land are presently compliant with Article 6, and the availability of judicial review has long been held to provide Article 6 compliance in planning decisions (see ISKCON v United Kingdom, App. No. 20490/92, 8 March 1994; applied in Chapman v United Kingdom, App. No. 27238/95, 18 January 2001).

8. Amendments to Schedule 11, paragraph 1(7) remove the mandatory requirement for mayors of strategic authorities contained in section 2F(2) of the Town and Country Planning Act 1990 to offer applicants and relevant local planning authorities the opportunity to make oral representations before determining applications of potential strategic importance following a direction under section 2A of the Town and Country Planning Act 1990. Instead, for planning applications of a specific description prescribed in regulations, mayors will have a discretion to instead invite written representations in lieu of an oral hearing. Mayors will be required to publish a document setting out the form and procedure for representations, as well as the persons (in addition to the applicant and the local planning authority) who may make written representations. Applications subject to a direction that the mayor be the local planning authority for the purpose of determining the application under section 2A of the Town and Country Planning Act 1990 are subject to the right of appeal to the Secretary of State in section 78 of the 1990 Act. The appeal decision in turn is subject to the High Court statutory review procedure contained in Part XII of the 1990 Act, by virtue of section 284. Government considers, therefore, that the amendments to Schedule 11 are consistent with the existing analysis of the interference with Article 6 ECHR above. Amendment introducing new clause (Standards relating to the suspension or revocation of a regulated licence): Power for the Secretary of State to set national minimum standards (‘NMS’) relating to the suspension or revocation of taxi and PHV regulated licences.

9. Article 1 Protocol 1: From a reading of the standard textbook Button on Taxis, it would appear that there is a distinction between the two types of licences relating to hackney carriages and private hire vehicles that local authorities grant:

a. vehicle licences (both hackney carriage/taxi and PHV) that can be transferred to another party (often at a premium); and

b. hackney carriage/taxi and private hire drivers’ licences, and private hire operators’ licences, which are personal and therefore have no transfer value.

10. Unfortunately, there is no single English authority on the point, with a variety of cases arriving at different conclusions. For example, in Cherwell DC v Anwar [2011] EWHC 2943 (Admin), it was a secondary question as to whether a driver’s licence was a possession. Held: a driver’s licence was not a possession for the purposes of Article 1 Protocol 1.

11. This reveals a contrast with a licence which can be transferred and which can generate goodwill. Vehicle licences fall into this category and do appear to be possessions following the reasoning in the case law above. It can, therefore, be seen that if a local authority is considering action against a driver’s licence, there is no need to consider the impact of Article 1 Protocol 1. However, from the above analysis, in relation to a goodwill-generating, transferable licence such as a vehicle licence, Article 1 Protocol 1 will come into play, and the authority will then have to be able to demonstrate that its decision did not unjustifiably infringe the human rights of the licensee.

12. If a vehicle licence is a possession for the purposes of Article 1 Protocol 1and if sanctions under NMS interfere with, deprive the owner of their property or control the use of the property by the State, this can be justified on the basis of legitimate public interest: that of protecting public safety in the wake of the Casey report, and that it is proportionate to the aim.

13. The retrospective provisions referred to above, which potentially extinguish existing claims to property, can be justified again on the basis of legitimate public interest, being public safety and protection from defective or inadequate vehicles used as taxis or PHVs. If an appeal system is built into the legislation, as intended, that interference is proportionate to the aim and creates a fair balance between the individual interests affected and the general interests of the community. An effective appeal system will also go to address concerns about potential interference with rights under Article 6 (see below).

14. Article 6: It is considered that Article 6 applies, to civil sanction procedures including revocation and suspension of taxi & PHV licences. No criminal sanctions are envisaged. It is envisaged that the current system of civil sanctions embedded in the existing legislative framework, giving a right of appeal to the magistrates’ court, will apply to the process created by the proposed NMS regulations. This should ensure a fair system of civil sanctions with a right of appeal, with reasonable time limits, by an independent and impartial tribunal in the magistrates’ court.

1. hcb283_echr_memo.pdf ↩