Bus And Coach Association Ltd, R (On the Application Of) v Secretary of State for Transpor

A court should not issue a declaratory judgment on an abstract question where the parties identify no dispute requiring resolution. In public law, a court may decide an otherwise academic issue where there is a good public-interest reason, particularly where a discrete point of statutory construction is likely to recur. The court should consider whether the issue is pure law, whether all materially affected interests are represented, and whether another method of resolution is more effective.

Civil courts should also avoid determining questions reserved to the criminal courts. The difficulty of applying an agreed legal test to particular facts does not create legal uncertainty or justify a refusal by the responsible authority to enforce the law.

The claimant, a campaign organisation representing commercial bus and coach operators, sought judicial review of the Secretary of State’s approach to enforcing the licensing requirements governing community transport organisations.

The central issue concerned the meaning of the exception in article 1(4)(b) of Regulation (EC) No 1071/2009 for undertakings engaged in road passenger transport services exclusively for non-commercial purposes. The Secretary of State had relied on asserted legal uncertainty when declining, at that stage, to pursue enforcement action. The parties ultimately agreed the relevant legal principles, but disagreed about whether the court should make a declaration in the abstract.

1. Declaratory relief. The court declined to make the requested declaration. Courts exist to resolve disputes between parties, and a declaration on an abstract question cannot establish a binding ratio where no disputed issue has been decided. In public law, an otherwise academic issue may be determined where there is a good public-interest reason, but the discretion must be exercised with caution.
2. Relevant considerations include whether the question is one of pure law rather than fact-sensitive application; whether all materially affected interests are before the court or adequately represented; and whether there is a better or more effective means of resolving the issue.
3. Criminal jurisdiction. A civil court should avoid deciding whether particular conduct constitutes a criminal offence, especially where the organisation concerned is not a party. Questions of criminal liability are ordinarily best resolved by the criminal courts in proceedings arising from actual conduct.
4. Meaning of the exception. The court recorded the agreed principles. The exception focuses on the purposes for which the organisation provides road passenger transport services. A charity or not-for-profit organisation does not automatically qualify. Payment, cost recovery or profit does not alone establish a commercial purpose. However, services provided to generate revenue or profit for other transport services or activities outside road passenger transport will not be exclusively non-commercial.
5. Whether the exception applies is a factual question assessed in the round. Relevant considerations include payments received, competitive tendering, the size and scale of operations, and reliance on volunteers or paid staff whose remuneration is comparable with that of commercial operators.
6. There was no dispute about the legal test. The court therefore had no issue to resolve, and any declaration would lack binding legal force. The Secretary of State could not rely on alleged uncertainty about the legal test to justify non-enforcement. Difficulty in applying the test to particular facts was not, by itself, a sufficient reason to decline enforcement, particularly given article 22(1) of Regulation (EC) No 1071/2009.
7. The claim was dismissed in substance. The order provided that there be no order on the claim and no order as to costs.

This was a first-instance judicial review in the Divisional Court of the Queen’s Bench Division. Permission to apply for judicial review was granted by Sir Duncan Ouseley on 28 January 2019. The court made no declaratory order, ordered that there be no order on the claim, and made no order as to costs.