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PostPosted: Tue Apr 16, 2019 9:23 am 

Joined: Wed May 16, 2012 6:33 am
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This from the Taxi Defence Barristers site is about the ability of London black cab drivers to do pre-booked work outside of the capital, which was recently the subject of a question to the Mayor of London by a member of the Assembly.

In view of the Berwick situation a few years ago, and Rossendale more recently, suspect most on here know the answer to the question - as a lawyer might say, it's pretty much 'trite law' for taxi specialists.

However, the issue has maybe just been highlighted in the capital recently because of the rise in the apps etc, and the more casual nature of the driver's relationship with the app provider - a London HC driver could maybe do some work in other areas on an occasional basis, for example near where they live or if they're stuck out-of-area for a while, for whatever reason. (Possibly more so for the yellow badge/suburban drivers rather than the green badge/all-London drivers, who're presumably more likely to be working in central London the vast majority of the time.

Likewise, while unlike the Rossendale-plated HC drivers who work full-time in Bradford (say) doing private hire work, it seems unlikely that anyone would go to the effort of obtaining a London HC badge to go full-time minicabbing elsewhere, so again more likely to be on the more occasional basis facilitated by app platforms.

Anyway, here's barrister Stephen McCaffrey's article, with the question to the mayor below it. There's a slight inconsistency between the two perhaps, because while Mr McCaffrey's article focuses simply on the ability of London HCs to do pre-booked work elsewhere, the mayor's answer focuses on the plying for hire angle - ie, whether accepting app work might amount to plying for hire, which would obviously be illegal outside of London.

So because the question asked about 'radio, phone or app' jobs, maybe the intention was to address the method of pre-booking, which to a degree the mayor's answer does specifically mention, while at the same time avoiding it in terms of a substantive response. Of course, in terms of method of booking a conventional telephoned job and a vehicle despatched by radio would amount to trite law.

London cab drivers pre-booked work outside London

Stephen McCaffrey
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence. ... de-london/

Sadiq Khan has reportedly told London cab drivers that they must seek their own legal advice on the ability for them to take pre-booked app jobs outside of London.

Whilst this article does not constitute official legal advice on the matter (and should therefore not be interpreted as such), I have provided some preliminary thoughts on the issue that may assist London Cab with considering some of the legislative issues relevant. Please contact me if for further formal advice.

Local Government (Miscellaneous Provisions) Act 1976

The starting point should be what licensing requirements are specified in legislation. The primary legislation is the Local Government (Miscellaneous Provisions) Act 1976.

There is no disputing the fact that a London cabs (Hackney Carriages) cannot ply for hire outside of London.

This therefore reduces the matter to private hire/advanced booking work. Section 46(1)(a) of the 1976 Act states:

    1) Except as authorised by this Part of this Act—

    (a) no person being the proprietor of any vehicle, not being a hackney carriage or London cab in respect of which a vehicle licence is in force, shall use or permit the same to be used in a controlled district as a private hire vehicle without having for such a vehicle a current licence under section 48 of this Act:

And section 46(2):

    If any person knowingly contravenes the provisions of this section, he shall be guilty of an offence.

Section 80 of the 1976 Act defines a “private hire vehicle” as being:

    “private hire vehicle” means a motor vehicle constructed or adapted to seat fewer than nine passengers, other than a hackney carriage or public service vehicle or a London cab or tramcar, which is provided for hire with the services of a driver for the purpose of carrying passengers;

Section 46(1)(a) and 80 explicitly excludes London cabs. This is correct because a licensed hackney carriage vehicle cannot be both a private hire vehicle and a hackney carriage vehicle, it is always either/or.

The fact that Section 46(1)(a) explicitly excludes London cabs, suggests that they are exempt from the requirements to be licensed as private hire operators to operate in areas outside of London.

Section 46(1)(d) states that “…no person shall in a controlled district operate any vehicle as a private hire vehicle without having a current licence under section 55 of this Act.”

Since London Cabs are explicitly excluded from the definition of “private hire vehicle” (s. 80), section 46(1)(d) should not apply.

Brentwood BC v Gladen [2004] EWHC 2500 (Admin)

The district judge posed this question for the opinion of the High Court:

“Whether it is necessary to hold a licence under section 55 of the Local Government (Miscellaneous Provisions) Act 1976, in an area where that Act is in force, to operate a hackney carriage duly licensed as such under the Town Police Clauses Act 1847 as a private hire vehicle.”

The High Court ruled it was not.

At paragraph 30 of the judgement, Collins J said:

    “It seems to me apparent that section 80 excludes hackney carriages from section 46(1)(d). I say that because, without going in detail over ground that I have already covered, “operate” relates to business in relation to bookings for a private hire vehicle. An “operator’s licence” means a licence under section 55, and a “private hire vehicle” is defined as meaning a vehicle other than a hackney carriage [or London Cab*]. Thus, that, coupled with the provisions of section 55 and 56 which I have already read, seem to me to make it apparent that Parliament has recognised that different regimes apply to hackney carriages and to private hire vehicles, and that it is not necessary for a licensed hackney carriage [or London Cab*], driven by a licensed hackney carriage driver, to be subject also to the requirements of an operator’s licence; otherwise the limitations on the wording which Parliament has clearly set out would not be given their true meaning.”

And at paragraph 34:

    I have reached the clear view that the district judge in this case was correct and that section 46(1)(d) is not breached where a licensed hackney carriage [or London Cab*] and a licensed hackney carriage driver is provided for the relevant conveyance of a passenger, albeit it is provided through an operator. In those circumstances, an operator’s licence under section 55 of the Act is not appropriate, since that section does not cover hackney carriages [or London Cab*].

* Added

The judgement in this case did not specify in any way that the judgement was limited to merely hackney carriages operating in Brentwood. The outcome of the case related to the use of hackney carriages generally and to this extent the implications of the ruling can be interpreted more broadly.

Additionally, although this case involved the ability of hackney carriages (outside of London) to undertake private hire work, it can be argued that the principles established in the judgement should apply to London cabs since, like these hackney carriages, they too are explicitly excluded in the same way.

Based on the above, it appears therefore that London cabs are able to legitimately work outside London undertaking advanced or private hire work.

Taxi Defence Barristers contact details:

Cross-border Hiring and Taxi Apps

Question to the Mayor of London

Please can you tell me if a London Licenced Taxi Driver can accept pre-booked Radio, Phone or App jobs from an out of London operator in a TFL registered Taxi when physically located in an area outside of London, such as Bishops Stortford or Aylesbury?

Answer to David Kurten, London Assembly Member

Transport for London (TfL) is the licensing authority and regulator for London taxi and private hire services. Licensing areas outside of London are subject to different legislation and how that legislation applies and what is (or is not) permissible in a given situation is not within TfL’s remit. For advice on what is permissible outside of London, such as in Bishops Stortford or Aylesbury, I encourage individual taxi drivers to speak to the relevant local licensing authority and/or seek their own legal advice.

I recognise that taxi drivers would welcome clarity in this area, but whether or not a taxi is plying for hire through a Smartphone app for example does depend on how the particular app works and the particular circumstances of individual cases. A High Court judgment on 7 February 2019 illustrates the complexity of the law in this area and that decisions depend on the particular circumstances of individual cases. However, it did provide a number of criteria that can be considered, including in circumstances where a licensee is engaged via a Smartphone app.

We have called on Government to introduce statutory definitions of “plying for hire” and “pre-booked” so as to achieve more certainty for licensees in such situations. However, the Government recently decided not to proceed with the relevant recommendation in the DfT commissioned Task and Finish Report.

Our position remains that the introduction of statutory definitions would provide more certainty for licensees, and I would urge the government to reconsider its position.

PostPosted: Tue Apr 16, 2019 4:44 pm 
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whether accepting app work might amount to plying for hire, which would obviously be illegal outside of London.

If we go back to the Reading case, it's quite apparent that the Chief Magistrate made a big thing about the TfL Uber vehicle not having any marks/signage (other than the discs which no one other than other taxi/PH drivers ever note).

Thus she deemed the vehicle as not 'plying for hire'.

Now could the same defence be used by a London cab with a 'for hire' top sign on? I doubt it.


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