The real truth about the long-standing interpretation of legislation.Or how Leon Daniels interpreted it for Über!

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Why is the Taxi and Private Hire legislation open to interpretation?

Well, that’s because most people are fairly unique……but are also just like everybody else. In general, one size does not fit all-if that makes sense?

Ask someone to plan a route from A-B and everyone’s experience of the route can be different depending on how far apart the two points are, and how well the person planning the route knows the areas between them and around them.

A novice driver won’t have much of a clue, but someone, who has been working in the same area for many years, may know the way quite well, having, possibly, done the journey more than once or twice before. And then there are traffic conditions, roadworks, diversions and accidents. No two days are exactly alike, although they can be similar.

For example, walk into a local mini cab office (or Private Hire Operation) and want to be driven to the local railway or tube station and it’s probably quite straight forward and something a regular driver at that firm has done before.

However, going somewhere off the beaten track or getting a driver with no experience, means the driver needs longer to look up and plan the route.

Therefore, it’s open to interpretation.

In order to help local authorities with their interpretations, the Government, in this case, the Department for Transport, publish guidelines or ‘Best Practice Guidance’. There are some sections below:

THE ROLE OF TAXIS AND PHVs

6. Taxis (more formally known as hackney carriages) and PHVs (or minicabs as some of them are known) play an important part in local transport. In 2008, the average person made 11 trips in taxis or private hire vehicles. Taxis and PHVs are used by all social groups; low-income young women (amongst whom car ownership is low) are one of the largest groups of users.

7. Taxis and PHVs are also increasingly used in innovative ways – for example as taxi-buses – to provide innovative local transport services (see paras 92-95)

THE ROLE OF LICENSING: POLICY JUSTIFICATION

8. The aim of local authority licensing of the taxi and PHV trades is to protect the public. Local licensing authorities will also be aware that the public should have reasonable access to taxi and PHV services, because of the part they play in local transport provision. Licensing requirements which are unduly stringent will tend unreasonably to restrict the supply of taxi and PHV services, by putting up the cost of operation or otherwise restricting entry to the trade. Local licensing authorities should recognise that too restrictive an approach can work against the public interest – and can, indeed, have safety implications.

9. For example, it is clearly important that somebody using a taxi or PHV to go home alone late at night should be confident that the driver does not have a criminal record for assault and that the vehicle is safe. But on the other hand, if the supply of taxis or PHVs has been unduly constrained by onerous licensing conditions, then that person’s safety might be put at risk by having to wait on late-night streets for a taxi or PHV to arrive; he or she might even be tempted to enter an unlicensed vehicle with an unlicensed driver illegally plying for hire.

10. Local licensing authorities will, therefore, want to be sure that each of their various licensing requirements is in proportion to the risk it aims to address; or, to put it another way, whether the cost of a requirement in terms of its effect on the availability of transport to the public is at least matched by the benefit to the public, for example through increased safety. This is not to propose that a detailed, quantitative, cost-benefit assessment should be made in each case; but it is to urge local licensing authorities to look carefully at the costs – financial or otherwise – imposed by each of their licensing policies. It is suggested they should ask themselves whether those costs are really commensurate with the benefits a policy is meant to achieve.

I’m not going to go through the whole of the guidance as it’s quite lengthy and comprehensive-dealing with many relevant issues. However, I would like to concentrate on the two sections, that for years have been the amongst the main distinction that sets Taxis apart from Private Hire (or mini cabs).

It’s the section under: ‘Topographical Knowledge’.

75. Taxi drivers need a good working knowledge of the area for which they are licensed, because taxis can be hired immediately, directly with the driver, at ranks or on the street. So most licensing authorities require would-be taxi-drivers to pass a test of local topographical knowledge as a pre-requisite to the first grant of a licence (though the stringency of the test should reflect the complexity or otherwise of the local geography, in accordance with the principle of ensuring that barriers to entry are not unnecessarily high).

76. However, PHVs are not legally available for immediate hiring in the same way as taxis. To hire a PHV the would-be passenger has to go through an operator, so the driver will have an opportunity to check the details of a route before starting a journey. So it may be unnecessarily burdensome to require a would-be PHV driver to pass the same ‘knowledge’ test as a taxi driver, though it may be thought appropriate to test candidates’ ability to read a map and their knowledge of key places such as main roads and railway stations. The Department is aware of circumstances where, as a result of the repeal of the PHV contract exemption, some people who drive children on school contracts are being deterred from continuing to do so on account of overly burdensome topographical tests. Local authorities should bear this in mind when assessing applicants’ suitability for PHV licences.

In London, we call this ‘The Knowledge’ and one cannot ply for hire unless one passes quite a strenuous oral examination, that takes place over a period of time. The Examiners of the local authority (TFL) test candidates until they are content that the candidate has reached a competent level and can then be hired immediately.

A specialised driving test is also required in a specially adapted vehicle built for the purpose. Currently, that vehicle must have a 25 foot turning circle, a partition and be wheelchair accessible. At this moment in time, there is only one model available to buy, made by the London Taxi Company, called the TX4.

There are two other models that are on the streets of the Capital- the Mercedes Vito and the MetroCab but they are in the minority.

However, there is only one on-demand, instant, immediate hailed on the street, Taxi service. Or is there?

Well, up until 2012, there was.

And then TFL made their mistake. They licensed a Private Operator without checking their method of dispatching work or, to Boris Johnson, the former Mayor of London, their ‘modus operandi’!

Über hit the streets in the summer of 2012.

A comprehensive account, by Sam Knight, can be read in the Guardian:

https://www.theguardian.com/technology/2016/apr/27/how-uber-conquered-london

However, what Knight doesn’t explore is the legality of Über, or how TFL suddenly decided to let Private Hire Drivers operate on-demand or so that the driver does not have an opportunity to check the details of a route before starting a journey.

Surely, Transport for London realised their error?

How does an Über driver check the details of his route when his first problem is finding the customer’s pick up address? And how does he do it safely, whilst often driving, without having an accident?

Doesn’t TfL, the local authority, have a duty, when licensing the taxi and PHV trades, to protect the public?

How are unqualified drivers who do not take an additional driving test able to operate safely on roads they may largely be unfamiliar with, whilst trying to plan routes on their smartphones?

The Guidance suggests that: “Local licensing authorities will, therefore, want to be sure that each of their various licensing requirements is in proportion to the risk it aims to address.”

Below are a number of accidents posted on the social media forum ‘Twitter’. TFL are aware of most of them having had them sent to the TPH Directorate by angry cabbies and members of the public-particularly other road users and cyclists.

In all my thirty two years as a London Cab Driver, I have never seen so many accidents on our roads. It’s a daily occurrence; so much so, that the LCDC made a request that TPH separate the Taxi data on accident collisions from the Private Hire data before it tainted our reputation by association.

We also asked that their ‘Cab-related’ Sexual Assault figures be renamed and separated.

The column, furthest on the right, is Taxis.

Why didn’t the Taxi trade complain about Über and the way they have been allowed to operate? We did! In fact, we asked the Greater London Assembly at City Hall to investigate our industry in July 2014, almost 2 years ago, and they made 19 recommendations which should have been implemented by May 2015.

In January, last year, the Transport Scrutiny Committee at City Hall began interviewing the Executive Officers of TFL to find out what progress had been made on their ‘Future Proof’ report.

The Mayor of London was also held to account at Question Time.

To say that all the Officers and the Mayor were humiliated would be an understatement of fact!

From former Transport Commissioner, Sir Peter Hendy, through Deputy Mayor, Isabel Dedring, to Chief Operating Officer Garrett Emmerson and Managing Director, Leon Daniels, TfL’s top brass were embarrassed by Caroline Pidgeon and Val Shawcross, often to the sound of applause from Taxi Drivers.

The investigation ran throughout 2015 and into the early part of this year, culminating in proposals and a consultation on new Private Hire Rules and Regulations, which are still yet to be implemented.

However, the consultation led to acrimonious and controversial scenes at City Hall in January 2015. Grant Davis, the Chair of the LCDC, walked out of the meeting being held upstairs, in disgust at the watering down of the proposals after some background manoeuvrings by the Private Hire industry, in particular Über.

Downstairs in the Chamber, whilst Boris Johnson was making his announcement, Chair of the Transport Committee, Val Shawcross asked the Mayor whether he had been personally lobbied via text messages from the Chancellor of the Exchequer, George Osborne on behalf of Über:

“My question is a personal one to you, Mr Mayor. I know that there has been lobbying in every direction as well as the consultation itself. Can I just check a rumour with you, Mr Mayor? Is it true that George Osborne [The Rt Honourable George Osborne MP, Chancellor of the Exchequer] contacted you personally by text in order to lobby on behalf of Uber? Is there any truth in that rumour?”

The eventual answer, after much waffling, was: “Yes. If you want a general answer, yes. This is a subject that keenly exercises the Government. 

I have to say that there is a category error that is being made by some of my friends in the Government because they think that Uber – to pick a firm entirely at random – must be a great thing because it is Californian, it is tech and it is all of that sort of thing. Of course, that is true. It is wonderful. It provides a service for Londoners that did not exist in quite that way before. However, it has various consequences that we have to manage. Of course we are all in love with tech and it has been brilliant for London in the last few years, but there is a difference between welcoming tech investment or welcoming tech start-ups in London and necessarily wanting to see….”

Valerie Shawcross CBE AM interjected: ‘A free-for-all.’

And Boris Johnson MP (Mayor of London) continued: “- technology do substantial environmental damage – or whatever it happens to be – in a market that is already very heavily regulated. After all, we ask the black cab drivers to go through all sorts of hoops and they spend huge amounts on their vehicles. They have to do the turning circle. They have to do the Knowledge. This is a big deal for them and in the rest –”

Valerie Shawcross CBE AM: ‘That is partly helpful, Mr Mayor. You have not denied that there has been enormous lobbying by the Government?’

Boris Johnson MP (Mayor of London): “No, I do not deny that.”

Valerie Shawcross CBE AM: ‘One of the reasons I asked this is because, in the private hire regulations response, which has just been published, there are a couple of really important areas where you have thrown us back onto the Government to help. I am thinking of a crucial safety issues, which is the number of hours a driver drives for. In the document, it says that TfL will work with the Department for Transport (DfT) and that the DfT is going to have to solve the problem of controlling the number of hours that private hire drivers drive for. We all think that that is a crucial issue.
If the DfT has had to take on this responsibility, can you be confident that it will do it when you are receiving such anti-regulatory lobbying from the Government?’

So, how does that bring us to Leon Daniels and his ‘interpretation’ of the long-standing legislation? Well, after Grant Davis walked out of the PH announcement, the LCDC started to make some enquiries via Freedom of Information requests, and after a number of rejections, this email popped up:

From Leon Daniels to Über’s Jo Bertram, the content of the email shows how complicit the MD of Surface Transport was in trying to help the Operator around the long-standing interpretation of the legislation. Daniels can be seen coaching Bertram away from using the term ‘no pre-booking’ because ‘pre-booking is the rationale behind PHV’s’!

What makes this exchange even more extraordinary is that Daniels was about to give evidence at City Hall.

On the 8th of July, 2015, Valerie Shawcross CBE AM (Chair) concluded the hearing with this rather withering assessment of the evidence provided by TfL’s Executive members:

“Thank you very much. Isabel, can I just thank you for those positive words? That takes us back to where we began. We need a vision and a strategy for the industry. Even if you just wrote down what you said and acted on it, it would be a very good first step forward.

I am duty-bound to thank you for your time today, but I have to say that personally I feel really disappointed by a lot of what has gone on today. I am very disappointed that commitments and promises that the Mayor and Sir Peter Hendy [Commissioner, TfL] have made have not been followed up on. I do not think all of our guests have prepared by looking at previous debates and discussions and that was very disappointing. It does suggest that you are not taking this issue seriously enough.

I do feel the point that was made by Isabel about the big challenge in the industry with more technology but, more than that, the issue here is about whether or not TfL as a regulator is behaving in a way that is now cosy and flabby to the point of unprofessionalism.

We do understand the regulations do need updating but I personally felt, I did not feel that TfL were doing their regulatory function in a way that is fast and fly and professional and transparent enough to deal with market entrants that have an aggressive approach in their business models and where they do try to push the limits and push the bounds and behave in a way that more traditional operators feel they are not playing by the same rules of understanding, which is basically about trying to fulfil the spirit of the regulation.

The spirit of the regulation is about public safety and it is about the convenience of the public and the health of the industry as a whole. Getting people obeying the spirit of the rules is where we need you to be and I do feel we have heard a lot today that suggests there is much to do.

We will write back to you with a list of asks because there were a number of discussions today about things like the strategy, about some clear information on the regulatory activities you have been undertaking so far and some issues about the ranks. We do have some more information we need from you and it is pretty clear now, although some things have started to move and we very much appreciate the fact you are undertaking the private hire review and we have seen some increased activity on Project Neon and some attention to those issues.

The heat is not going to go off in this area and, until we feel that TfL is meeting the challenge of regulating this industry in the way it now needs to be regulated in the changed world, then we are going to have to keep coming back to it. There is not going to be any breathing space on this. We need to see that strategy.

We want to see all of those things delivered and we want to see TfL up its game and become much more professional as a regulator.

It is clear from what we have heard from the Mayor and from Isabel that the Mayor would like to see that too. It is a bit shocking actually that TfL does not seem to be rising to the Mayor’s aspirations in this, either.

I will leave you with those thoughts.

I thank you, our guests, for your time today.”

http://www.london.gov.uk/moderngov/documents/b13002/Minutes%20-%20Appendix%203%20-%20Transcript%20Taxi%20and%20Private%20Hire%20Wednesday%2008-Jul-2015%2010.00%20Transport%20Co.pdf?T=9
During the hearing, Valerie Shawcross CBE AM (Chair) also asked:

“Who is going to be responsible for ensuring that all of these are seen through? Where is the buck stopping?”

Leon Daniels (Managing Director, Surface Transport, Transport for London) responded:

“The buck always stops with me, but of course I am entirely supported by Garrett and his team in the delivery of this because Garrett is responsible for, amongst other things, the Taxi and Private Hire Directorate.”

The London Cab Drivers Club now demand that Leon Daniels, having mislead City Hall, take his ‘buck’ and resign, whilst we still have a trade worth fighting for!

Regardless of which Mayoral candidate is elected, it is quite clearly time for Leon the Liar to go: Über for Daniels!

 

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