There is no doubt that the public transport sector has been one of the hardest hit sectors as a result of the coronavirus (Covid-19) pandemic. With strict lockdown measures introduced through The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (and similar legislation in the other devolved administrations around the UK), the demand for public transport services has virtually flat lined.
However, as we are now approaching an easing of the lockdown measures and with this an easing on the movement of people, the transport landscape of the future is beginning to take shape including that which will have an impact on the taxi and private hire trades. As this new public transport landscape is emerging, it is a crucial time for the taxi and private hire trades to seize the opportunity to innovate and adapt or face the threat of an uncertain and unsustainable future.
In this article, I will look at the regulatory and legislative future for the taxi and private hire sector in this new” public transport revolution”.
Public Transport Revolution
There is no doubting the fact that the coronavirus has changed the way we live our lives. Through this emergency, opportunity has also arisen and the Government is seeking to capitalise on these to influence people’s changed behaviour for the long term and to create a new normal for sustainable and safe transport. Some of these changed behaviours will certainly have an impact on the licensed taxi and private hire trade.
People’s reliance on public transport is one such change. As the UK is beginning emerge from the effects of the pandemic, the Government is pushing hard to get people out of cars and other forms of public transport and on to bicycles and into walking. This is also where the Government is aiming to spend significant money and capital investment. It announced “£2 billion package to create new era for cycling and walking” as alternative ways to travel. This will include “pop-up bike lanes with protected space for cycling, wider pavements, safer junctions, and cycle and bus-only corridors” according to the Government.
This public transport revolution is also seeing investment in new modes of transport and statutory regulation to support this for example e-scooters and renewed vigour and investment in green and sustainable forms of transport and infrastructure.
In the context of the transport revolution, the lack of any reference to the role of licensed taxis and private hire vehicles is unfortunately notable. This is a shame because it overlooks the very important contribution taxis and private hire vehicles have made to support the fight against the coronavirus pandemic, in many cases supporting the fight against the virus selflessly which has unfortunately resulted in some driver losing their lives. Despite facing financial ruin, licensed taxis and private hire drivers have put their efforts to providing transport and other logistical support during this national crisis.
There has been extensive debate over the years over whether taxis and private hire services should also be put in the same category of “public transport”. Whilst there is no authoritative judgements on this matter, it is largely accepted that taxis and private hire services does not conform to the definition of “public transport” mainly because it is not a subsidised for of transport.
The implications of excluding taxi and private hire services from the scope of public transport is that it creates an un-level playing field with the taxi and private hire always playing uphill. However, this public transport revolution presents both opportunities and threats.
On the positive side, taxis and private hire vehicles offer a unique transport opportunity for people who might chose not to user other forms of public transport such as busses or trains. This opportunity has already been capitalised on through the installation of passenger screens and clever marketing to provide the public with confidence that taxis and private hire cars can be a safer alternative to other forms of crowed public transport.
A proactive approach to this will be important for the trade moving forward. A recent study in the US found that consumer there plan to, either reduce, or completely stop using ride-sharing cars following the pandemic there.
The US study concluded that:
“The study provides further evidence that COVID-19 is permanently altering U.S. consumer behaviour. There are long term implications of the new consumer behaviours for industries like retail, transportation, and travel among others.
“These organizations need to quickly adapt their business models to serve the new consumer behaviours in order to survive and thrive.”
It is too soon to tell what the real impacts on transportation will be in the UK but this study should sit as a stark warning that inaction might be very dangerous for the taxi and private hire trade.
Draft Statutory Guidance
As the focus of this article is looking at the regulatory landscape, it would be amiss if I did not consider the draft statutory guidance.
It seems a lifetime ago when the Department for Transport (DfT) consulted on draft statutory guidance for the licensed taxi and private hire trade. The DfT has not yet published the final version of the proposed statutory guidance but has at every opportunity indicated that it is still fully committed to doing so. Most recently, the Parliamentary Under-Secretary at Department for Transport, Rachel Maclean, said:
“The Government will continue to engage with the sector on our plans for reforming the regulation of taxis and private hire vehicles, including options to introduce new legislation. The Department is supporting licensing authorities to make use of their extensive existing powers through statutory taxi and private hire vehicle standards, which will be issued shortly. The Department will consult on updated best practice guidance on other matters later this year.”
Whilst it has actually taken a long time – not “shortly” – to get to a point where this statutory guidance will be issued, it is coming and will impact on the licensed taxi and private hire trade. I want to therefore dedicate some time to relook at the draft statutory guidance to act as a reminder of what is to come and how this will shape the future of the sector
The draft statutory guidance will compel licensing authorities to have “cohesive policy documents”. In areas where there are existing and comprehensive licensing policies, the DfT has made it clear that it expects these to be reviewed in light of the statutory guidance and for licensing authorities to implement changes. Therefore either way, the licensed trade should expect policy changes in light of the forthcoming statutory guidance. As a minimum, the department has stated that policies should include comprehensive sections on convictions, a ‘fit and proper’ person test, licence conditions and vehicle standards.
Fit and proper test
The department has formalised an approach by defining fit and proper in the statutory guidance:
Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night?
Disclosure and Barring Service Barred list – The biggest changes the licensed trade can expect are to criminal records and other background checks.
At present, all taxi and private hire drivers and applicants for a drivers licence are subject to an enhanced disclosure and barring service (BDS) check. However, not every taxi and private hire driver and applicant for a drivers licence is checked against the barred list. The statutory guidance will make this a mandatory requirement for individuals applying for or renewing taxi and private hire driver licences.
Criminal record checks for PHV operators and staff
PH Operators should also expect more rigorous checks. The draft statutory guidance has recommended basic disclosure checks for licensed operators as a minimum standard (including overseas convictions checks). Additionally, the statutory guidance has suggested that licensing authorities should request that, as a condition of granting an operator licence, a register of all staff that will take bookings or dispatch vehicles is kept and the operator should be required to evidence that they have had sight of a Basic DBS check on all individuals listed.
The trade should expect the imposition of mandatory safeguarding and equality awareness training. The government has been consistently indicating the importance of safeguarding and equality awareness training for the licensed trade. There is no indication from the government that it will set the training requirements/content and so mandatory training courses will be developed locally.
The draft statutory guidance has upheld the merits of licensing authorities imposing mandatory CCTV requirements by way of licence conditions. The jury is still out on this proposal since the Camera Surveillance Commissioner recently argued that a more proportionate approach should be adopted rather than blanket policies. Having said that, there is no doubt that more licensing authorities will seek to impose CCTV requirements on licence holders.
Cross border enforcement
Licensees should expect to see more collaborative approaches to enforcement powers. At the moment licensing authorities cannot formally enforce against drivers and drivers not licensed by them. I expect more formal agreements to be adopted that will sub-delegate enforcement to other council for example in places where cross-border hiring is a particular problem.
Taxi Defence Barristers have been working with the trade for many years which has given us a unique perspective and understanding of the wider issued facing the licensed taxi and private hire trade.
We are living in unprecedented times and the impact of the pandemic will bring permanent change to our behaviour. There is no doubt that it has been a hugely challenging time for the trade and this will continue to be the case for some time to come.
The regulatory landscape will change for many drivers with the potential publication of the statutory guidance and there will certainly be many local policy changes as licensing authorities grapple with the implications of this pandemic.
However, there is opportunity here for the licensed trade to capitalise and innovate as the country is emerging from the effects of the pandemic.
As always, Taxi Defence Barristers is here to support the trade. Please contact us if you have any further queries or for a free, no obligation assessment of your case or legal issue.
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.
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