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

A licensing requirement affecting a fundamental freedom must pursue a legitimate public interest and be proportionate. The licensing authority may select the level of protection required, but must show that the same protection cannot be achieved by a less restrictive measure.

An English-language requirement for private hire drivers was lawful because written as well as spoken English was reasonably connected with passenger safety, regulatory communications and traffic information, and no practicable less restrictive alternative had been shown. A requirement for a permanent telephone facility was lawful only insofar as it addressed emergencies. Its wider application to ordinary complaints and booking issues was disproportionate. A separate insurance requirement was unlawful where existing statutory and Motor Insurers’ Bureau arrangements already provided equivalent passenger protection.

Uber London Limited and three private hire vehicle drivers sought judicial review of amendments made by Transport for London to regulations governing London private hire vehicle operators, drivers and vehicles.

The challenged measures included an English-language requirement for drivers, a telephone requirement requiring operators to provide access to a person at an operating centre, and an insurance requirement. The claim raised issues of proportionality under European Union law, indirect race discrimination, the public sector equality duty and procedural fairness.

The central questions were whether the requirements pursued legitimate public interests and whether those interests could be achieved by less restrictive means.

1. English-language requirement. The relevant public interests were passenger safety, welfare and convenience. TfL was entitled to determine that drivers should understand passengers’ requirements, including unexpected requirements in a medical emergency, discuss routes and fares, explain safety requirements, and understand regulatory and traffic information.
2. The proportionality exercise required TfL to identify the public interest, determine the necessary level of protection and demonstrate that that level could not be attained by less restrictive means. The B1 standard under the Common European Framework of Reference was a permissible means of testing general written and spoken competence. Although the test was not driver-specific, a person meeting the standard could reasonably be expected to understand the gist of regulatory documents and act appropriately. No practicable less restrictive alternative was available. The requirement was therefore lawful.
3. The significant adverse impact on non-UK nationals did not itself require a different measure. TfL had considered that impact, was not required to await the creation of a driver-specific test, and did not breach its duty under section 149 of the Equality Act 2010. Any procedural defect would in any event have been subject to the statutory bar on relief where the same decision was highly likely to be made lawfully again.
4. Telephone requirement. TfL was entitled to require a facility capable of giving reassurance and rapid assistance to passengers who believed they faced an emergency. Uber’s existing app-based systems were, however, effective for non-emergency complaints and booking issues. TfL had not shown that duplicating those systems with a permanent telephone service was necessary. Regulation 9(11) was quashed in its full width. TfL could reconsider a narrower emergency hot-line requirement.
5. Insurance requirement. TfL accepted that it had not considered the protection available through the Motor Insurers’ Bureau. Under the combined effect of Part VI of the Road Traffic Act 1988, article 75 of the Motor Insurers’ Bureau’s memorandum and articles, and the relevant agreement with the Secretary of State, an injured passenger could recover against the insurer despite unauthorised use under the policy. The insurance requirement therefore filled no real gap and was quashed.

Not an appeal. The judgment records that the claim for judicial review was issued on 15 August 2016 and that interim relief had previously restrained enforcement of the telephone requirement.