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What reasons were given for the decision?
Transport for London (TfL) is a statutory body with responsibility for London's transport system, including the regulation of taxis (black cabs) and the private hire trade (minicab and chauffeur). TfL sets regulations and policies in relation to taxis and the private hire trade that are designed to ‘protect customers, and ensure vehicles are safe, accessible and meet strict environmental standards’. In order to operate, all taxi and private hire drivers must be licensed by TfL, and this requires applicants to meet certain criteria in order to satisfy TfL that they are 'fit and proper' to hold a licence. The same applies when a licence comes up for renewal. Without a licence, a company cannot accept private hire bookings.
Uber was launched in San Francisco, California in March 2009. It grew rapidly into a global company and now operates in hundreds of cities around the world, including dozens in the UK. It launched in London in July 2012 after TfL granted the company’s London operation, Uber London Limited, a private hire operator licence. Since then, Uber has become ubiquitous in London and had a huge impact on the private hire market. With great success in London and around the globe, however, have come significant challenges. The company has faced criticism for, among other things, its corporate culture and the rigour of its screening of drivers. When Uber’s licence came up for renewal ahead of its expiry date of 30 September 2017, some of these issues seem to have weighed heavily in the balance.
In announcing the decision to refuse Uber’s application for renewal, TfL explained that Uber had failed to demonstrate that it remained 'fit and proper' to hold a licence because the company’s approach and conduct demonstrated a lack of corporate responsibility, particularly in relation to three areas with potential public safety and security implications. These were the reporting of serious criminal offences, the approach taken to how medical certificates are obtained, and the approach taken to how Enhanced Disclosure and Barring Service (DBS) checks are obtained. TfL also criticised Uber for its lack of cooperation with regulators, including how it explained the use of ‘Greyball’ software in London, which could be used to block regulatory bodies from gaining access to the Uber app and prevent officials from undertaking their duties in relation to the company.
All of these criticisms appear to link back to some of the public outcry Uber has faced in the British media. Critics have long been expressing concerns about Uber’s alleged treatment of its drivers and failure to take more responsibility for the safety of its passengers, and it has been claimed that Uber has added to congestion in the capital, which is a major issue that the Mayor has been seeking to tackle. In May of this year, Uber was also dealt a blow by the opinion of an advocate of the European Court of Justice to the effect that the company qualifies as a transportation company, rather than a digital service, as argued, and therefore should abide by stricter rules. Additionally, in June of this year, a number of employees were fired following an investigation into sexual harassment.
It is also interesting to note that, before TfL made the decision, it was reportedly threatened with judicial review proceedings by the GMB in the event that it granted Uber’s renewal application without the imposition of conditions on the company’s licence. This is a reminder of the potential importance of timely interventions deploying public law arguments in the run-up to major decisions of this kind.
Will Uber challenge the decision?
Uber has 21 days from last Friday to appeal TfL’s decision under the procedures in section 25 of the Private Hire Vehicles (London) Act 1998 and, under the same legislation, Uber will be able to continue to operate until any appeal is determined. It seems inevitable that Uber will appeal, and the essence of any appeal will be for Uber to address the areas for which it has been criticised. In particular, it appears from recent commentary and press coverage that responsibility for DBS checking is likely to be a significant theme.
In addition to any appeal, Uber is already reported to be engaged in talks with TfL. The outpouring of public feeling since TfL’s decision (including a petition against the decision that has received over 750,000 signatures) also points to a parallel contest in the court of public opinion. From a regulatory perspective, one question likely to come under scrutiny is whether it is right for TfL to refuse Uber’s licence altogether, rather than imposing strict conditions on its operation. This would allow Uber to work with TfL to improve on the areas of concern.
What impact might the decision have in other major cities?
This is not the first time Uber has faced setbacks. The Uber app is no-longer available in several countries and regions around the world, including Italy and Australia’s Northern Territory, and around the world it has come under fire from taxi drivers, regulators and interest groups for matters ranging from safety to employment practices. However, the company has continued to thrive.
If Uber is unable to overturn TfL’s decision on appeal, the specific legislative framework governing the private hire trade in London is not directly analogous to the arrangements in other cities, so it is difficult to predict what bearing it will have elsewhere. Even if the essential licensing questions are similar, the people making the decisions on future Uber applications will be different and will need to exercise their discretion in the light of the particular circumstances in their area at that time.
That said, having such a major city’s private hire regulator come out against Uber on the basis that it lacks ‘fitness and propriety’ sends a powerful message which may resonate with licensing authorities well beyond the British capital. Uber has, however, proved itself remarkably innovative and adaptable to change, and perhaps this latest adversity will spur it on to greater things.
Our specialist Public Law team can assist you to challenge or help defend a decision by a public body. Additionally, if you work in a regulated industry and need support in dealing with your regulator, please contact our Regulatory team.
A version of this blog was first published on LexisNexis on 22 September 2017.
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
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