R Uber London Ltd and Others v Transport for London
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 03 March 2017 |
| Neutral Citation | [2017] EWHC 435 (Admin) |
| Date | 03 March 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4130/2016 |
[2017] EWHC 435 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
The Strand
London WC2A 2LL
Mr Justice Mitting
CO/4130/2016
Mr T de la Mare QC and Mr H Mussa (Instructed by Hogan Lovells) appeared on behalf of the Claimants
Mr M Chamberlain QC, Mr T JohnstonandMr D Heaton(Instructed by Transport for London) appeared on behalf of the Defendant
Friday, 3rd March 2017
The licencing and regulation of private hire vehicles and of their operators and drivers within the Metropolitan Police District and the City of London is governed by primary legislation, the Private Hire Vehicles (London) Act 1988: Section 1(1)(a) defines a private hire vehicle:
"A vehicle constructed or adapted to seat fewer than nine passengers other than a taxi or public service vehicle which is made available for hire with a driver to the public for the purpose of carrying passengers".
An operator is a person who invites and accepts bookings for private hire in relation to such a vehicle, (section 1(1)(b)).
The Secretary of State for the Environment, Transport and the Regions was, but Transport for London, ("TfL") now is, the licensing authority for the grant of a licence to an operator (section 3) to a driver, (section 13) and in respect of a vehicle (section 7). No person may operate or drive a private hire vehicle unless an operator's, driver's and vehicle licence has been granted to him or them, (sections 2 and 12,) and in respect of the vehicle, (section 6).
Standard conditions are laid down by the 1988 Act including the following: the operator must be a fit and proper person (section 3(3)(a)); the driver must be over 21, a fit and proper person and have held a UK driver's licence for at least three years, (section 13(2)(a)); and the vehicle must be suitable and safe (section 7(2)(a)).
Two further specific requirements of the Act are relevant to this case. The licensing authority must be satisfied that:
"There is in force in relation to the use of the vehicle a policy of insurance, or such security as complies with the requirements of part (vi) of the Road Traffic Act 1988", (section 7(2)(b)); and applicants for a driver's licence must show to the licencing authority's satisfaction:
"That they possess a level (a) of knowledge of London or parts of London, (b) of general topographical skills, which appear to the authority to be appropriate", (section 13(3)).
TfL are, in addition, entitled to prescribe further requirements for operators, (section 3(3)(b)) and in respect of vehicles (section 7(2)(c)). They must be prescribed by regulations made by TfL (section 32(1)). The decision to make the regulations is formally and in fact made by the TfL Commissioner, Mike Brown. Three regulations have been made:
1) By the Secretary of State, the Private Hire Vehicles (London Operators Licence) Regulations 2000.
2) by TfL, the Private Hire Vehicles (London Private Hire Vehicle Drivers Licences) Regulations 2003 and the Private Hire Vehicles (London Private Hire Vehicles Licences), Regulation 2004.
On 9th June 2016, TfL amended all three regulations. Some amendments are not controversial but three are. Regulation 9(11) was added to the 2000 regulations:
"At all times during the operator's hours of business and at all times during the journey, the operator shall ensure that the passenger for whom the booking was made is able to speak to someone at the operating centre if they want to make any complaint or discuss any other matter either carrying out of the booking".
Regulation 3(A) was added to the 2003 regulations:
"3(A)
(1) The English language requirement is hereby prescribed as a section 13(2)(b) requirement.
(2) The English language requirement is that the applicant must be able to communicate in English at an appropriate level.
(3) The ability to communicate in English for the purpose of this requirement includes speaking, listening, reading and writing.
(4) Transport for London shall specify from time to time what constitutes an appropriate level for the purposes of paragraph 2 and what evidence information or documents that it may accept to determine this".
Guidance published by TfL indicated that persons from a list of anglophone countries would not be required to provide evidence of English competence but that those who were not would be required to demonstrate competence in English to the level of B(1) in the Common European Framework Reference, (CEFR).
A new paragraph 11 to schedule 1 and a substituted condition 14 of schedule 2 to the 2004 regulations were added. In its original form condition 14 of schedule 2 provided:
"The owner shall not use the vehicle or permit it to be used as a private hire vehicle at any time when there is not in force for the vehicle a policy of insurance, or such security as complies with the requirements of part vi of the Road Traffic Act 1988 covering the use of the vehicle carrying passengers for hire or reward."
The new provisions read, in paragraph 11 of schedule 1:
"The vehicle must be insured to carry passengers for hire or reward" and in condition 14 of schedule 2:
"(1) The vehicle must be insured to carry the passengers for hire or reward at all times for the duration of the licence.
(2) Details of the insurance must be displayed in the vehicle at all times for the duration of the licence. Transport for London shall specify from time to time the details which are to be displayed and how they are to be displayed".
I will refer to this requirement, as have the parties, as the "insurance requirement".
By a claim form issued on 15th August 2016, Uber London Limit (Uber) and three private hire vehicle drivers contracted to Uber challenged the lawfulness of the three requirements plus one other (not now, in its amended form in issue).
On 13 October 2016, TfL inserted a new regulation 3(A) in the 2003 regulations:
"1) The English language requirement is hereby prescribed as a section 13(.2)(b) requirement.
2) The English language requirement is that the applicants must be able to communicate in English at or above level B1 on the Common European Framework of Reference for Languages ("CEFR").
3) The ability to communicate in English for the purpose of this requirement includes speaking, listening reading and writing.
4) The applicant may satisfy Transport for London with their ability to meet the requirement in regulation 3(A)(2), by providing:
(i) A certificate from a test provider appointed by Transport for London confirming that the applicant's level of proficiency in the English language is at level B(1) on the CEFR or above, or;
(ii) Documentary evidence of a qualification whether or not the qualification was obtained in the United Kingdom on the basis of which Transport for London is satisfied that the applicant's level of proficiency in the English language is equivalent to level B(1) on the CEFR or above".
There were transitional provisions for the implementation of this requirement. I will refer to this as the "English language requirement".
On 9th February 2017, TfL substituted a new regulation 9(11) in the 2000 regulations:
"At all times, during the operator's hours of business and at all times during the journey, the operator shall ensure that the passenger for whom the booking was made is able to speak to a person at the operating centre, or other premises, with a fixed address in London or elsewhere whether inside or outside the United Kingdom which has been notified to the licensing authority, in writing, if the passenger wants to make a complaint or discuss any other matter that might be carried out as the booking with the operator."
I will refer to this as "the telephone requirement". On the same date, TfL postponed the date for applicants for a driver's licence whether new or on renewal to satisfy the English language requirement until 30th September 2017. By order of Holgate J of 1st September 2016, TfL are restrained from enforcing the telephone requirement until the substantive hearing of this claim.
The English language requirement.
A substantial proportion of Private Hire Vehicle drivers do not have English as a first language. Various estimates appear in the documents which it is unnecessary to cite because the parties are now agreed that it is approximately 75 per cent. The impact of the English language requirement as originally made was estimated by the Finance Department of TfL, after consulting with Mr Robinson, a senior official in the Taxi and Private Hire Department, who reported to Ms Chapman, the general manager of the department. It estimated the number of licensed private hire vehicle drivers at about 100,000, of whom in the three years 2017–2018, to 2019–2020, 16,300 would fail to satisfy the requirement; and a further number, an unknown fraction of those who would be deterred from reapplying for a licence by either the English language requirement, or by the rigorous application of the existing topographical test by TfL itself. It had been fraudulently administered by a number of private companies to which testing had been outsourced. Their total number was estimated at about 15,000. On any view, the number of licensed private hire vehicle drivers estimated to be likely to fail or to be deterred were substantial, not less than 20,000. In addition, it was estimated that there would be a significant impact on new applicants for licences. The model suggested that just under 20,000 would...
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