Dr Mike Galvin is one of the taxi and private hire industry’s most experienced and respected voices. Here he shares his opinion, as CEO of consultancy firm Mobility Services Limited, on the implications of Uber’s successful operation licence revocation appeal and what action is needed to secure the sector’s future?
So where do we go from here?
I have never been one for jumping on the latest conspiracy theory and have spent my life with a fair degree of confidence in the institutions that operate in this country. In particular, I tend to believe in the justice system as I spent many years involved in it as a magistrate sitting in the adult, youth (formerly juvenile) and family (formerly care) courts. I also sat on appeals at Snaresbrook Crown Court. During all of that period, one thing that impressed me was all of my colleagues’ resolute determination to not only do justice but to show it to be done. So, I was somewhat surprised at the outcome of the case this week involving a London Operator appealing against TfL’s decision not to renew its licence due to being considered not fit and proper. I have no comment to make on the merits or otherwise of either sides’ case – I wasn’t involved, I wasn’t present, I didn’t listen to the evidence and I believe that everyone/every entity has the opportunity to put their case to appeal if they feel the original ruling was unfair in some way, technically incorrect or where new evidence has surfaced. British justice has its failings but it is faultless in enabling the dissatisfied and disgruntled to appeal. My concerns at the outcome were more to how this industry will be regulated going forwards. Case law is generally regarded as poor law and magistrates taking the role of the regulator, I would suggest is a step towards even poorer law and a major disincentive for regulators to regulate with the robustness we expect in any industry not only our own.
The QC advised……save your money!
Some years ago I spent the afternoon with one of Britain’s leading QCs. I was part of a team considering commencing legal proceedings against our regulator. The advice we were given was very clear… the High Court looks at cases like this; why is this case before me? I am not a regulatory expert; the regulator is so why am I being asked to judge the regulator’s decision? We were further informed that on that very point the High Court would normally support the regulator as deciding on definitions and infringements of regulation is their role and why they are considered the competent authority in these matters. The second point we were advised to understand was that the public interest featured highly in these proceedings – how is the public interest best served? By supporting or undermining regulatory authorities? Thirdly, of course, the law is considered – has the authority erred? Is there an unlawful decision being made through ignorance, misinterpretation, poor guidance or even deliberately? Our particular issue was scrutinised against these three points and we were advised to save our money and forget launching any kind of action at that point.
The events of this week were somewhat surprising to me in that the regulator appeared to have made a well-reasoned decision, the appellant as is their right put their case and the magistrate decided to uphold the appeal which is his/her right and if thought the correct action his/her judicial duty. From what I understand the reasoning appeared somewhat odd in that the decision appeared to rest on the basis that although they may not have been fit and proper at the time of the refusal to grant them a licence they are now and so should get a licence. I am not going to comment any further on that judgement per se as my interest is not really who won or lost on the day or the merits or otherwise of the decision plenty of people have vented their spleen and elevated their blood pressure on that one I don’t need to join in. No, what concerns me is where we go from here as an industry? Whilst I accept magistrates’ decisions are not precedents but every decision impacts further decisions and is often called on to steer benches, if the fundamentals have changed, to the effect that it doesn’t matter what you are doing/not doing today but in nine months, a year or eighteen months what does that mean from an enforcement or regulatory framework? How can regulators work effectively in such circumstances? Will there ever be another revocation/suspension or similar ever – after all what is the point?
The past and the future
The Crown Prosecution Service (CPS) is often criticised for not prosecuting cases unless they have a high chance of winning. Could regulators including taxi and PH licensing authorities begin to think along similar lines? No point revoking or suspending a licence it will only go to court and potentially end up with us, the regulator, having egg on our face and the appellant walking free or at least having their licence restored. The court could interpret issues such as the relevant point in time when an entity or a person is fit and proper differently to us (the regulator). Would that be a good situation for the industry? Would standards reduce? Would public safety be compromised? Would confidence in the use of taxis and PH reduce, would that mean less work for all? You bet!
I spoke earlier about case law – I am sure many people of my vintage and even younger recall the crazy situation regarding cross border hiring. This was never law made in Parliament it was case law/poor law. Judges puzzled over the law and the logic of taxi/PH operations and devised a system that was clunky, not in the drivers’, passengers’ or operators’ interests, had a detrimental effect on the environment and was imposed on the trade all within the period of the trial. No surprises there as learned as I am sure the judges were they did not know, understand or suddenly become experts in taxis and PH during the course of the cases concerned. They expeditiously applied that great misnomer of the English language – common sense! The trade laboured under the crazy situation for many years until the Deregulation Act in 2017 and now labours under an even stranger situation where anyone can work anywhere subject to some cursory obligations. ABBA (all bookings must start or finish in the area that the operator, car and drivers are licensed in) is often held up as the answer (no one ever seems to quite formulate the question!) to this problem. Will it happen? Will it see the light of day? If not does the current system work and if so measured against what criteria?
Likewise, the most modern legislation that the industry operates under in the UK is the 1998 Private Hire (Vehicles) London Act. It doesn’t mention the internet, apps, smartphones, aggregators, platforms or any other modern technology. It was never envisaged that calls would be answered offshore, transactions would be billed from Holland/Ireland or that national and international operators would provide services that the policymakers who set out the legislation assumed would always be small and local. Regulators battle bravely across the country with acts from the 1800s and 1900s in the 2000s trying to make sense of law that bears little relation to the reality of modern-day operation in a world where everyone has at least one computer on their person. Policy and Regulation shores up a rickety legislative foundation.
The years of research, conversations and a draft bill developed by the Law Commission that attempted to encompass all of the technology, actors and regulation and enforcement went nowhere and languishes on the proverbial shelf gathering dust. The first advice I ever give anyone coming into the taxi and private hire industry is rarely believed for the first week – that is ‘this is a very complex industry’. It is not believed because, on the face of it, this industry is very simple; one car, one driver one passenger going from a-b. We all know better.
So, what happens next? Do regulators retreat into their shells? What’s in for them; desperately battling to make sense of the chaos of poor and outdated law, courts who now operate as regulators and an industry that is evolving and changing further and further from the principles that they are asked to regulate the industry from? Do we need a new law, what will it say? How will it remain relevant…if the last twenty years is our guide – it won’t!
Self Determination?
In business school generations of students are taught that if you can’t solve the problem, change the problem. On that basis should we be canvassing, cajoling and lobbying for new law, for better law or should we redirect our energies to a bigger and ultimately more wholesome outcome…self-determination? There are many professions that have a regulatory function, that manage their own affairs and do so successfully. Could this industry unite to a level whereby there is sufficient trust and integrity to launch a real campaign to achieve self-determination? An industry run by the people in it who know it, who can adapt and adjust as practice, technology and operations evolve.
The biggest battle will not be convincing the authorities to give the industry autonomy although that will be tough, the real battle will be to convince each other that a. it is possible, b. it would be transformational and c. amongst our midst, we have the people who could pull this off. London established the London Taxi Board which ran successfully for a number of years where regulator, fleet, manufacturer, operator and driver representatives sat together as peers and importantly as industry experts. Competitive issues were left at the door and real strategic issues were proposed, argued, agreed and implemented. Arguably it was one of the most successful periods in the history of London’s taxi industry. Regional or better still a national entity empowered to manage the industry could address so much but from an expert perspective rather than trying to convince policymakers, politicians, legislators and courts who have no expertise in taxis and PH and who however well-intentioned get things wrong. The important and vital subtleties and nuances get lost in the flotsam of scrutiny and debate resulting in poorer policy, regulation and legislation.
The alternative is for the industry and its regulators to struggle through with poor law, outdated law and sticking plasters whilst the risk grows that the gaping holes in our institution grow larger every year providing a growing opportunity for interlopers to take advantage from the industry’s descent into weakness. It is interesting that whilst people in the industry have complained to me about regulations, law and policy they have only ever complained about wanting it tougher not watered down. The outcomes will be a loss of confidence in the industry as regulators shy away from regulating as we would want them to. A move to self-determination would I believe lead to much stronger regulation, enforcement and importantly greater public safety – the alternative, I fear, doesn’t bear thinking about.
Dr Michael S. Galvin
To read more from this author please visit www.mobilityserviceslimited.com
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