Uber London Ltd & Ors, R (On the Application Of) v Transport for London (TfL)

The claim was a judicial review challenge to three regulatory amendments made by Transport for London to private hire licensing requirements: an English language requirement for drivers, a requirement that operators provide a continuous telephone service for passengers, and a requirement about display and continuity of insurance cover. The court applied the proportionality test required by EU law (including Article 49 TFEU and Council Directive 2000/43/EC) and domestic equality law (Equality Act 2010, section 19) to the English language requirement and assessed whether less restrictive means were available.

The court held that TfL lawfully adopted an English language requirement set at CEFR level B1 for spoken and written English because TfL had identified legitimate public interests (passenger safety, welfare and convenience), selected an appropriate level of protection within its margin of appreciation, and demonstrated that no practicable less restrictive alternative was available in the foreseeable future. The court accepted the evidence about impact on drivers but concluded strict justification was established.

The telephone requirement (regulation 9(11)) was held to be wider than necessary. While a live emergency "hot-line" could be justified for passenger safety and reassurance, TfL had not shown that a round-the-clock telephone facility for all complaints and queries was necessary; regulation 9(11) was therefore quashed and left to the Commissioner for reconsideration to provide a more narrowly tailored emergency facility.

The insurance requirement was quashed because TfL had failed to take into account that passengers are protected by the Motor Insurers' Bureau and relevant statutory and contractual arrangements (as explained in Bristol Alliance v Williams), so the additional regulatory insurance display requirement was unnecessary.

Background and parties

The claimants were Uber London Limited and three private hire drivers. They sought judicial review of three amendments made by Transport for London on 9 June 2016 (and a subsequent amendment on 13 October 2016 and 9 February 2017) to regulations governing private hire operators, drivers and vehicles under the Private Hire Vehicles (London) Act 1988 and subordinate regulations of 2000, 2003 and 2004. The contested measures were: (i) an English language requirement prescribing CEFR B1 as the required standard for drivers; (ii) a requirement that operators ensure passengers can speak to a person at the operating centre at all times during business hours and during journeys (the telephone requirement); and (iii) an insurance requirement requiring continuous passenger-for-hire insurance and display of details in the vehicle.

Nature of relief sought

• The claimants sought to quash the three requirements as unlawful.

Issues framed by the court

• Whether the English language requirement was lawful and proportionate in light of EU free movement and anti-discrimination law and the Equality Act 2010.
• Whether the telephone requirement was lawful and proportionate.
• Whether the insurance requirement was necessary for passenger protection.
• Whether procedural or equality duty failures vitiated the decisions.

Court’s reasoning and conclusions

The court set out the relevant domestic statutory framework (Private Hire Vehicles (London) Act 1988, and the subordinate regulations) and the applicable EU and domestic legal tests for proportionality and indirect discrimination (including Article 49 TFEU, Council Directive 2000/43/EC and section 19 Equality Act 2010). The court applied the two-stage proportionality test (suitability and necessity) as explained in R (Lumsden and others) v Legal Services Board and considered the appropriate intensity of review, concluding that TfL was entitled to a margin of appreciation when setting the required level of protection.

On the English language requirement, the court accepted TfL’s identification of passenger safety, welfare and convenience as legitimate aims and accepted the B1 CEFR standard as an appropriate level within its margin of appreciation. The court considered the evidence of impact on drivers (including estimates that tens of thousands would be affected) but concluded TfL had sufficiently shown that no practicable less restrictive alternative was available in the foreseeable future. The court therefore upheld the English language requirement, including its written element, and rejected arguments that TfL had breached its section 149 duty. The court also held that, even if there had been procedural flaws, relief would be refused under section 31(2A)(a) of the Senior Courts Act 1981 because the same decision would probably be reached on re-consideration.

On the telephone requirement, the court found the regulation too broad: while a live emergency hotline could be justified, TfL had not shown that a continuous telephone service for all complaints was necessary given operators’ (including Uber’s) efficient app-based and triage systems. Regulation 9(11) was quashed and the Commissioner was directed to reconsider whether and how a narrowly drawn emergency hotline requirement should be imposed.

On the insurance requirement, TfL conceded it had not taken into account the Motor Insurers' Bureau arrangements and the court agreed that there was no gap to be filled in passenger protection. The insurance requirement was quashed.

At first instance the court allowed the claim in part. The court quashed regulation 9(11) (the telephone requirement) and the insurance requirement in the 2004 regulations because they were broader or unnecessary for the protection identified. The court upheld the English language requirement (CEFR B1, spoken and written) as lawful and proportionate, concluding TfL had identified a legitimate aim, selected an appropriate level of protection within its margin of appreciation and shown that no practicable less restrictive alternative was available. The court also found that even if there had been procedural errors, relief would be refused under section 31(2A)(a) of the Senior Courts Act 1981 because the same decision would probably be reached on re-consideration.