Uber London Ltd & Ors, R (on the application of) v Transport for London

Where a regulatory measure engages freedom of establishment, its proportionality depends on suitability and necessity. A less restrictive alternative defeats the measure only if it is equally effective, practicable and materially less burdensome. In an unharmonised field of consumer regulation, a regulator has a wide discretion to choose the proper level and means of protection, particularly where the measure remains subject to review.

A court should not replace the regulator’s judgment with an untested alternative. A requirement for passengers to have live voice contact with a private-hire operator was proportionate. It secured public safety, equality and customer-convenience benefits, including in non-emergency situations, and its costs were not disproportionate.

Transport for London appealed against Mitting J’s decision allowing Uber London Ltd and others’ judicial review and quashing Regulation 9(11) of the Private Hire Vehicles (London) (Operators’ Licences) Regulations 2000. The regulation required private-hire vehicle operators to ensure that a passenger could speak to a person at all times during the operator’s business hours and throughout a journey.

The judge held that the requirement interfered disproportionately with freedom of establishment under Articles 49 and 54 of the Treaty on the Functioning of the European Union, principally because an emergency-only telephone service was a less restrictive alternative. Uber’s appeal concerning an English-language requirement was withdrawn by consent. The central issue was whether the full Voice Contact Requirement was a lawful and proportionate restriction.

1. Appeal allowed unanimously. The court held that the Voice Contact Requirement was a proportionate and lawful condition. Mitting J erred in quashing it.

2. Applying the proportionality approach in [2016] AC 697, the relevant question was whether an alleged alternative was equally effective while less restrictive. The emergency-only alternative had not been proposed during consultation or advanced by Uber’s case. There was no evidence that it was practicable, enforceable, or genuinely less burdensome. It would be difficult to define and screen an emergency, and it might wrongly be seen as an alternative to calling the emergency services.

3. The regulation of private-hire vehicles was an unharmonised area in which lack of regulation could harm consumers. TfL therefore had a wide discretion in setting the desired level of public safety, equality and customer protection. The measure’s reviewability reinforced that margin. The court held that the judge had substituted his own view for TfL’s assessment.

4. Live voice contact supplied reassurance and a faster response not only in emergencies but also in non-emergency situations. An app-based booking system did not show that customers would be content to use written messaging to resolve every later issue. The costs to Uber, other operators and small driver-operators had been considered and were not disproportionate to the benefits. Existing statutory booking-centre obligations and the ability of small operators to share facilities reduced the burden.

5. TfL’s failure to impose an equivalent condition on taxis did not render the requirement unlawful. Taxis and private-hire vehicles operated under materially different regulatory regimes. In particular, a private-hire operator could be licensed, inspected and sanctioned, whereas TfL could not indirectly regulate an unlicensed taxi booking agent through the taxi driver’s licence.

• Court of Appeal (Civil Division) Allowed TfL’s appeal and held the Voice Contact Requirement lawful and proportionate: [2018] EWCA Civ 1213.
• High Court of Justice, Queen’s Bench Division, Administrative Court Mitting J allowed the judicial-review claim and quashed Regulation 9(11), but dismissed the challenge to the English-language requirement: [2017] EWHC 435 (Admin).