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Storm Clouds over Uber

Gerald Gouriet QC

Uber is under attack. Last week the London Assembly voted unanimously to ask Sadiq Khan not to renew Uber’s licence. And today (June 11) Labour’s business spokeswoman, Rebecca Long-Bailey, told Sky Television: “Using Uber is not morally acceptable”. To paraphrase ‘Hamlet’ – When troubles come, they come not single spies, but in battalions. The following are thumb-nail sketches of just a few of the slings and arrows currently pointing in Uber’s direction.

Drivers to pass English Language test

In March Uber brought a judicial review of TfL’s ‘English Language requirement’ and the ‘24-hour telephone complaints-line requirement’ (imposed on all London PHV drivers). The High Court held that the English Language requirement is lawful, but that the complaints-line requirement is disproportionate and unlawful. Both Uber and TfL have been given permission to appeal. The English Language requirement will cause Uber significant problems if it is upheld in the Court of Appeal. The High Court found that “on a reasonably cautious view” of the impact of the English Language Requirement, about 40,000 persons were at risk of being prevented from obtaining a PHV driver’s licence in the 3 years 2017-2020. The current English Language Test involves writing a short essay of 100 to 130 words on a given topic that has nothing to do with driving.  Those with experience of hiring an Uber car will be able to hazard a reasonable guess as to how many Uber drivers are likely to be able to jump that hurdle.

LTDA objection to licence renewal

The London Taxi Drivers’ Association has formally objected to the renewal by TfL of Uber’s London operator’s licence. TfL has given Uber a holding renewal of four months only (instead of the usual five years) while it investigates the LTDA’s complaints.  One of several live issues is whether Uber’s drivers are unlawfully plying for hire, and whether plying for hire is inherent in the Uber platform: if it is, that could be fatal to the Uber model. The LTDA case is that Uber drivers/cars unlawfully solicit for custom, and it makes no difference that they do so via the Uber app rather than by a “for hire” sign displayed on the vehicles. Uber’s response is not clear, because the issue has yet to be litigated in the High Court. Prosecutions, however, have been successfully brought against Uber drivers in magistrates’ courts under section 45 of the Town Police Clauses Act 1847 (London) and section 8 of the Metropolitan Public carriage Act 1869 (the rest of the UK), for plying for hire without a hackney carriage (taxi) licence; and there is speculation that what has to date been a trickle of such prosecutions may soon become a steady flow.

Territorial restriction of drivers: another judicial review

Uber drivers have achieved some notoriety for obtaining their driver’s licences from one authority (where, perhaps, it is relatively easy to do so) and operating some distance away (even in districts where licences have been refused). Prima facie, it is lawful for them to do so: long-standing case law has held that a driver who is licensed in a controlled district may lawfully operate outside that district anywhere in the UK, provided that he, the operator who books him and the vehicle are all licensed by the same authority. A significant number of Uber drivers licensed by Knowsley BC are known to operate exclusively or mainly in Manchester. In March this year, Knowsley BC passed a resolution amending its ‘Drivers Policy’ so as to include an ‘intended use policy’ that requires drivers who obtain their licences in Knowsley to operate predominantly in Knowsley. Uber, together with Delta Merseyside Limited, have brought a judicial review of that resolution on the ground that the council is not empowered to insist that its licensed PHV drivers operate within Knowsley, predominantly or otherwise. The governing legislation (LGMPA 1976) does not limit the geographical area in which a licensed PHV driver may operate.

Cross-Border hire

A PHV operator in Milton Keynes has been prosecuted under section 46(1)(e)(ii) of the Local Government (Miscellaneous Provisions) Act 1976, for operating a vehicle for which a licence was not in force: i.e. a licence issued by the same licensing authority as issued his operator’s licence. The summonses against the operator were dismissed by a district judge, on the ground that the Deregulation Act 2015 enables an operator to sub-contract a booking to himself in a different controlled district, if he is licensed as an operator in both districts and the vehicle and driver he provides are licensed by the same authority as licensed him as the sub-contracted operator. Milton Keynes Council has appealed the decision by way of Case Stated. The issue is whether, on the facts found by the district judge, there was a sub-contracting within the provisions of the 2015 Act, or whether there was merely a computer-automated replacement of the name of the operator, from one district to another. The decision of the High Court could have wide ramifications: although Uber are not a party to the proceedings, if the council’s appeal is successful Uber would be vulnerable to similar prosecutions.

Gerald Gouriet QC has been instructed

  • with  Charles Holland, on behalf  of the LDTA
  • with Charles Streeten, on behalf of Delta Merseyside Limited
  • with Sarah Clover, on behalf of Milton Keynes Borough Council.