In recent weeks, there have been a number of cases where local taxi drivers and/or associations have taken matters into their own hands to force the hand of their local councils to take action against alleged unlawful cross-border hiring practices.

York Private Hire Association taking such action has widely been reported but following suit was Thurrock Taxi Drivers Association who were successful in getting a Full Council (of Thurrock Council) to pass a motion to formally request that Uber exclude the town from its greater London geo-fencing region.

This sort of proactive and concerted efforts by local licence holders is relatively rare but speaks of the strong feeling and conviction when it comes to the issue of cross-border hiring.  A crucial factor in this coming together of licence holders is also the perceived lack of enforcement by licensing authorities against out of town vehicles.

Whilst there is fierce debate at all levels about the lawfulness of cross border hiring, in this article we will be focussing on what duties exist on licensing authorities to enforce against unlawful activity in the taxi and private hire sector.

Enforcement

Enforcement can include a variety of measures and actions ranging from informal (advice) action to formal actions (prosecutions or revoking licences).

The strict duty to enforce legislation normally comes down to the relevant legislation.  In some cases, legislation is explicit and thereby places a statutory duty on a regulator to act.  In other cases, enforcement powers exist generally in the legislation but does not explicitly place a duty on the regulator to act.

In the case of taxi and private hire enforcement, the legislation does not specifically place a statutory duty on licensing authorities to enforce – either proactively or reactively.  This is not a “get out of jail free” card for licensing authorities however.  It is a universally accepted fact that lack of enforcement fundamentally defeats the purpose of licensing all together.  In other words, what purpose is there for a licensing authority to administer a licensing regime, in the interest of public safety, if they do not also take action against those who do not bother to get a licensed, thereby acting with impunity?

Licensing principally exists for public protection and safety.   It therefore follows that where a licensing authority fails to enforce, and it can be shown that in its failure public protection and safety has to a substantial or unreasonable level been compromised, action may be taken.

In practical terms however, it should not be necessary to go to this extreme.  Most councils are careful to protect their reputation.  Where it is clear that lack of enforcement is jeopardising public safety and fairness in local trade, political pressure could be sufficient.  This was seen in the example the Thurrock Taxi Drivers Association who was successful in gaining political support to their plight.

Complications

One common complication is interpretation of law.  At the moment, there are a variety of arguments put forward on what is, and is not, lawful in respect of cross-border hiring practices.

The complication for the licensed trade is that these are only legal options and whilst these remain solely opinions, concerted action on enforcement will be lacking.  Ultimately what is needed is the judgement of at least the High Court.

Until this happens, the arguments over what is lawful, or not, in respect of border-hiring practices will continue at the expense of concrete enforcement action in the interest of public safety and a level playing field for local licence holders.

Stephen McCaffrey

Regulatory Barrister specialising in taxi and private hire licensing law.

Head of Taxi Defence Barristers and Taxi Defence Scotland.

Taxi or private hire legal issue?