Technology and ‘Plying for Hire’: Why there needs to be a clearer definition
For several decades, taxi and private hire drivers have been subject to a two-tier system when it comes to how they operate. Taxi, or Hackney Carriage, drivers are those that provide ‘rank or hail’ services. When these licenced drivers pick passengers up at a rank or are hailed in the street, it is described in legal terms as ‘plying for hire’.
Under the current law, it is illegal for a Private Hire driver to ply for hire. Private Hire drivers can only complete journeys that have been pre-booked through a licenced Private Hire Operator. While this may seem like a simple distinction, in practice it’s a little more complicated.
Why is it so complicated?
One of the big problems with the plying for hire definition is that it only describes what taxis are legally allowed to do. While this is obviously needed, it doesn’t help to clarify what a Private Hire driver might do which could constitute plying for hire. On top of this, it is not a statutory definition but rather a necessary phrase that has been used in various guises since the 19th Century. This means that although plying for hire is covered by quite an extensive body of case law, this material is often inconsistent and contradictory.
The other growing concern in the industry is that giants such as Uber are able to exploit the ambiguity of this area of law. By using technology, private hire services run via an app can in some instances effectively circumvent the current guidance. The biggest case highlighted by this issue involves an Uber driver convicted of plying for hire offences in Reading.
Reading Borough Council vs Ali [2019] found that Mudassar Ali, who was parked legally at the side of the road whilst waiting for his next booking via the Uber app, was illegally plying for hire. The council's argument was based on the fact that Mr Ali’s vehicle could be seen on the map displayed by the Uber map.
This decision was ultimately overturned by the High Court who determined that Mr Ali was not plying for hire. The court's decision, given by Lord Justice Flaux was mainly based upon the following statement:
“the mere depiction of the respondent’s vehicle on the Uber App, without either the vehicle or the driver being specifically identified or the customer using the App being able to select that vehicle, is insufficient to establish exhibition of the vehicle for the purposed of inviting a booking.”
As the passenger still had to make the booking via the Uber app and there was no guarantee which vehicle would be used for the booking, the High Court judged that the way in which Uber operates does not constitute illegal plying for hire.
More legal challenges
Many in the industry believed that the Reading case had laid rest to the issue. However, a judicial review has recently been granted to the United Trade Action Group (UTAG) to investigate Transport for London’s (TFL) decision to grant a Private Hire operator’s licence to Transopco Ltd.
Transopco Ltd is the company behind the FREE NOW platform, a new European ride-hailing app that is growing in major cities across the continent. You might not have heard of them yet but they are poised to become the largest ride-hailing app in Europe. The fact that a judge has allowed a judicial review goes to show that the ruling in Reading is far from being the last we hear on the subject.
This legal challenge has been raised by some of the peculiarities of how the FREE NOW platform works. Namely, the fact that passengers can make ‘immediate bookings’ with private hire drivers. This calls into question what constitutes an immediate hail versus a pre-booking.
A Law Commission report into Taxi and Private Hire Services in the UK recommended that offences relating to plying for hire be scrapped completely. While they recommended continuing with the two-tier system as it exists, the report stated that:
“We propose replacing the concept of plying for hire with a new scheme of offences, resting on the principal prohibition of carrying passengers for hire without a licence, alongside a new offence making it unlawful for anyone other than a local taxi driver to accept a journey starting “there and then”.
Despite this report being published back in 2014, it seems little to nothing has been done to act on the Law Commission’s recommendations. Considering this seems to be a recurring issue, some statutory guidance providing clarification could go a long way to avoid so many legal challenges.
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