QUEEN'S BENCH DIVISION
The Strand London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
(1) UBER LONDON LIMITED
(2) MR SANDOR BALOGH
(3) MR NIKOLAY DIMITROV
(4) MR IMRAN KHAN
|TRANSPORT FOR LONDON
WordWave International Limited
A DTI Global Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7421 4036
Official Shorthand Writers to the Court)
MR M CHAMBERLAIN QC, MR T JOHNSTON and MR D HEATON (Instructed
by Transport for London) appeared on behalf of the Defendant
Crown Copyright ©
MR JUSTICE MITTING:
"A vehicle constructed or adapted to seat fewer than nine passengers other than a taxi or public service vehicle which is made available for hire with a driver to the public for the purpose of carrying passengers".
An operator is a person who invites and accepts bookings for private hire in relation to such a vehicle, (section 1(1)(b)).
"There is in force in relation to the use of the vehicle a policy of insurance, or such security as complies with the requirements of part (vi) of the Road Traffic Act 1988", (section 7(2)(b)); and applicants for a driver's licence must show to the licencing authority's satisfaction:
"That they possess a level (a) of knowledge of London or parts of London, (b) of general topographical skills, which appear to the authority to be appropriate", (section 13(3)).
1) By the Secretary of State, the Private Hire Vehicles (London Operators Licence) Regulations 2000.
2) by TfL, the Private Hire Vehicles (London Private Hire Vehicle Drivers Licences) Regulations 2003 and the Private Hire Vehicles (London Private Hire Vehicles Licences), Regulation 2004.
(1) The English language requirement is hereby prescribed as a section 13(2)(b) requirement.
(2) The English language requirement is that the applicant must be able to communicate in English at an appropriate level.
(3) The ability to communicate in English for the purpose of this requirement includes speaking, listening, reading and writing.
(4) Transport for London shall specify from time to time what constitutes an appropriate level for the purposes of paragraph 2 and what evidence information or documents that it may accept to determine this".
Guidance published by TfL indicated that persons from a list of Anglophone countries would not be required to provide evidence of English competence but that those who were not would be required to demonstrate competence in English to the level of B(1) in the Common European Framework Reference, (CEFR).
"The owner shall not use the vehicle or permit it to be used as a private hire vehicle at any time when there is not in force for the vehicle a policy of insurance, or such security as complies with the requirements of part vi of the Road Traffic Act 1988 covering the use of the vehicle carrying passengers for hire or reward."
The new provisions read, in paragraph 11 of schedule 1:
"The vehicle must be insured to carry passengers for hire or reward" and in condition 14 of schedule 2:
"(1) The vehicle must be insured to carry the passengers for hire or reward at all times for the duration of the licence.
(2) Details of the insurance must be displayed in the vehicle at all times for the duration of the licence. Transport for London shall specify from time to time the details which are to be displayed and how they are to be displayed".
I will refer to this requirement, as have the parties, as the "insurance requirement".
9. On 13 October 2016, TfL inserted a new regulation 3(A) in the 2003 regulations:
"1) The English language requirement is hereby prescribed as a section 13(.2)(b) requirement.
2) The English language requirement is that the applicants must be able to communicate in English at or above level B1 on the Common European Framework of Reference for Languages ("CEFR").
3) The ability to communicate in English for the purpose of this requirement includes speaking, listening reading and writing.
4) The applicant may satisfy Transport for London with their ability to meet the requirement in regulation 3(A)(2), by providing:
(i) A certificate from a test provider appointed by Transport for London confirming that the applicant's level of proficiency in the English language is at level B(1) on the CEFR or above, or;
(ii) Documentary evidence of a qualification whether or not the qualification was obtained in the United Kingdom on the basis of which Transport for London is satisfied that the applicant's level of proficiency in the English language is equivalent to level B(1) on the CEFR or above".
There were transitional provisions for the implementation of this requirement. I will refer to this as the "English language requirement".
"At all times, during the operator's hours of business and at all times during the journey, the operator shall ensure that the passenger for whom the booking was made is able to speak to a person at the operating centre, or other premises, with a fixed address in London or elsewhere whether inside or outside the United Kingdom which has been notified to the licensing authority, in writing, if the passenger wants to make a complaint or discuss any other matter that might be carried out as the booking with the operator."
I will refer to this as "the telephone requirement". On the same date, TfL postponed the date for applicants for a driver's licence whether new or on renewal to satisfy the English language requirement until 30th September 2017. By order of Holgate J of 1st September 2016, TfL are restrained from enforcing the telephone requirement until the substantive hearing of this claim.
The English language requirement.
"1) For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin
(b) Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
Article 3 deals with the scope of measure:
"(1) Within the limits of the powers conferred upon the Community, the Directive shall apply to all persons as regards both the public and private sectors including public bodies in relation to:
(a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions whatever the branch of activity and at all levels of the professional hierarchy, including promotion."
"(1) A person (A) discriminates against another (B) if (A) applies to (B) a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of (B's).
2) For the purpose of subsection (1) a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of (B's), if:
(a) (A) applies, or would apply it to persons with whom (B) does not share the characteristic.
(b) It puts or would put persons with whom (B) shares the characteristic at a particular disadvantage, when compared with persons with whom B does not share it.
(c) It puts or would put (B) at a disadvantage.
(d) (A) cannot show it to be a proportionate means of achieving a legitimate aim." The relevant protected characteristics include race, which, by virtue of section 9(1) includes nationality and ethnic or national origins.
"33 Proportionality as a general principle of EU law involves a consideration of two questions: first, whether the measure in question is suitable or appropriate to achieve the objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method.".
In two circumstances, proportionality is applied "more strictly": when measures interfere with fundamental freedoms guaranteed by the treaties, and when they derogate from them in purported compliance with EU law, see paragraphs 37 and 38. The approach to evidence deployed in support of the measure was explained in paragraph 56:
"The justification for the restriction tends to be examined in detail, although much may depend upon the nature of the justification, and the extent to which it requires evidence to support it. For example, justifications based on moral or political considerations may not be capable of being established by evidence. The same may be true of justifications based on intuitive common sense. An economic or social justification, on the other hand, may well be expected to be supported by evidence."
The example of the case of the Commission of the European Communities v Grand Duchy Luxembourg (Case C-319/06)  ECR I-4323 was cited to support and explain that proposition.
"66. This margin of appreciation applies to the member state's decision as to the level of protection of the public interest in question which it considers appropriate, and to its selection of an appropriate means by which that protection can be provided. Having exercised its discretion, however, the member state must act proportionately within the confines of its choice. A national measure will not, therefore, be proportionate if it is clear that the desired level of protection co uld be attained equally well by measures which were less restrictive of a fundamental freedom
67 In applying the "less restrictive alternative" test it is necessary to have regard to all the circumstances bearing on the question whether a less restrictive measure could equally well have been used. These will generally include such matters as the conditions prevailing in the national market, the circumstances which led to the adoption of the measure in question, and the reasons why less restrictive alternatives were rejected".
"The sensitivity of this impact is expected to be high, as new and renewal drivers who do not speak English to the level required will not be able to work as a driver until the qualification has been acquired.
Whilst some will be able to pass the test relatively quickly, this will not apply to all and there could be costs involved in training and sitting the test. For present drivers, this could create a period of unemployment and reduced income. Given this, the impact this proposal is assessed as major/adverse."
The Commissioner knew when he decided to oppose the English language requirement that it included a written element as well. He did not need to be told the precise figures provided by the Finance Department's assessment to judge its likely impact.
The telephone requirement.
"Ensure that the passenger for whom the booking was made is able to speak to someone at the operating centre or other premises with a fixed address in London or elsewhere if they want to make a complaint or discuss any other matter about the carrying out of the booking."
It is not confined to a requirement to provide that facility in what the passenger believes to be an emergency, or a situation which requires immediate resolution, such as the refusal of the driver to comply with disability law in respect of the passenger, in other words, a "hot-line".
33 It requires a large app-based operator such as Uber to maintain, round the clock, a telephone service to deal with complaints and any other matter about the carrying out of the booking immediately. It may not be possible to quantify the cost of doing so precisely. It has been estimated at between £700,000 if done from India and £3.4 million if from Uber's call centre in Limerick, as Mr Byrne, Uber's head of public policy for the UK, explained in his witness statement of 12th August 2016. On any view, the cost will be significant. The cost to operator drivers, those with no more than two private hire vehicles, is not readily quantifiable but is likely to be significant in relation to the 700 or so who fall into this category.
"In relation to London, we receive about 800 communications and/or complaints a week that we classify as potentially critical or urgent, 70 per cent of which are responded to within 6 hours, 99 per cent within 24 hours and 60 per cent are fully resolved within that time. The system alerts our support teams to complaints as they come in. Within the support teams, we have a team dedicated to identifying and triaging critical incidents through a set of key a words and natural language processing. For the most urgent complaints, as soon as the complaint is received and identified as such, it is escalated to a critical incident support team. We immediately restrict the partner driver's access to the Uber driver app during the investigation and make direct contact with the complainant. This will be via phone or email depending on the incident and the time of day so as not to disturb passengers in the middle of the night. The relevant partner driver's access to his or her account is immediately restricted so that the driver cannot carry out any bookings for the duration of the internal investigation or police investigation if police are involved."
He also explained later that Uber have the telephone number of the driver and can and do call him immediately.
The insurance requirement.