Wednesday, October 29, 2014

From A Legal Perspective: Solicitor Ted Mercer's View On The Uber App.

I shall be upfront about my preferences in this area.  I like London Black Cabs.  
A number of times they have saved my bacon in delivering me to some unknown destination in the Metropolitan area that I would never have found by myself in time for whatever meeting or Court hearing I have had.  
Moreover, although some of them can be a trifle surly from time to time, the majority of cab drivers I have consistently found are helpful, pleasant and often an unexpected fountain of knowledge.  
This blog, however, is prompted by not taxis I suppose but by the Uber App and a service which enables you to hail a car by app and then have the price of the journey calculated by the distance from the point of pick up to the point of drop off.
What I am about to comment is actually prompted by the Chairman of the Commons Public Accounts Committee suggesting that the Uber App is in someway anticompetitive.
The starting post for my examination of the law as it relates to the Uber App is however to look at the situation from a different perspective.  
It’s a wonder Transport for London (“TFL”) may consider that it does not need to licence Hackney Carriages but that, as they say, is not the point.  
The point that TFL needs to consider is that whether in so acting, not whether it is doing what it is required to do by the general law, but whether or not in terms of Competition Law it is actually discriminating against Hackney Carriage drivers.
Why should they have made to go through “The Knowledge” and maintain their cars in a certain way and keep to the, one might say, relatively archaic rules relating to London cabs, most of it dating from the 19th Century and governed by a set of 1934 Regulations.
The fact is that when it comes to controlling who effectively applies for hire on City streets the person in control of the market is TFL.  
That is because they have a public duty in respect of both transport generally and of public safety in respect of certain forms of transport and in respect of enforcing the law.  
It is, with respect, not good enough to want to argue that new, particularly internet borne, forms of competition should not be subject to unnecessary regulation but rather why should you subject existing forms of competition (i.e. taxis) to regulation?
Nobody should take this as a plea that Hackney Carriages are no longer regulated in respect of their ability to publically apply for hire.  I am actually specifically not arguing that it is unnecessary to licence Black Cabs.  I think they are a wonderful feature of London life and personally I would very much not like to see competition drive them out of the business.  
When it comes to a legal analysis of the situation that they face themselves over Uber and the app the position I think they need to adopt is to argue how they are discriminated against.
TFL needs to be faced with a scenario where there is a free-for-all as being the only way to go forward, not one group that can do what they like and one group that is subject to a form of regulation which even in Dickensian times was probably regarded as onerous.
What TFL has to acknowledge is that it is the person who controls and is the dominant player in the market.  It controls competition and having that dominance it needs to use it in a way which does not lead to discrimination.
Now TFL is probably then going to try and utilise the unappetising argument and say that it is an excuse to abuse a dominant position by exercising discrimination to have to comply with UK Legislation.  Compliance with UK legislation is a Competition Law “get out of jail free card”.
I do not think, however, you need to be a genius to move to a position where Hackney Carriage Legislation in fact needs to be struck down as being incompatible with EU law on competition.  
If push comes to shove, maybe that is what the taxi drivers might just do but I would suggest that it would be a brave Mayor of London and, in terms of “Yes Minister”, a politically courageous Mayor of London who would abandon the Hackney Carriage legislation.  
I think Londoners, and indeed visitors to London, rather like Black Cabs manned by people who, in the majority of cases, indeed the vast majority of cases, seem to know where they are going.
The result of the Uber App question may be that all regulation of cabs disappears.  One wonders, in an existential sense, if that is a place any Mayor wants to go.

Mablaw.com