BLURRED PLYING-FOR-HIRE LINES: The ‘GREY’ distinction between taxis and private hire vehicles

When we think of the distinction between taxis and private hire vehicles, there is usually one big difference that all licensing authorities use. The distinction between ‘plying-for-hire’ and pre-booked journeys.

It is something that should be very black and white given the industry works in two tiers. However, for those working in the sector, the distinction has become grey and blurred in areas.

Back in May 2014 the Law Commission produced recommendations for taxi and private hire vehicle (PHV) services with the aim of providing a clearer distinction between the services offered by the two trades.

Though not defined in the legislation, ‘plying-for-hire’ describes the activity reserved to licensed taxis. Simply, most people might define ‘plying-for-hire’ as driving around looking to be hailed or waiting for passengers at a taxi rank.

The Law Commission however said the concept had developed into something ‘inevitably more complex’ and ‘leaves considerable grey areas, particularly in the interface with licensed private hire vehicles’. There were even questions over the legitimacy of new ways of providing services, especially those using technology such as mobile phones and smartphone applications.

What is plying-for-hire?

Your black cabs and licensed taxi services are referred to in legislation as “hackney carriages”. A hackney carriage is defined by section 38 of the Town Police Clauses Act 1847 in the following terms:

‘Every wheeled carriage, whatever may be its form or construction, used in standing or plying for hire in any street within the prescribed distance... shall be deemed to be a hackney carriage within the meaning of this Act.’

The legislation applying to London is slightly different to that used elsewhere around the UK, but uses similar terminology. Taxis in the capital have exclusive right to ‘ply-for-hire’ making it the defining characteristic of taxis under current law, but crucially the term is not defined in legislation.

In the Law Commission report it says: ‘Picking up passengers at ranks and in response to hailing is generally understood to be at the core of plying for hire, but these activities do not feature in the legislation. Instead, the case law refers to factors such as the “exhibition” of the vehicle, which may indicate plying for hire, its availability to the general public and the “immediacy” of its availability.

‘Parking a vehicle in a public place may or may not amount to plying for hire, depending on an assessment of these factors.

‘The case law is often inconsistent and unclear. Technology has highlighted the indeterminacy of some of these factors by adding new ways for consumers to engage services. Internet bookings for example can be virtually immediate, suggesting taxi- like behaviour, and yet have all the characteristics of a pre-booking, making them compliant with private hire requirements.’

Plying-for-hire without a taxi licence is a criminal offence and is therefore the critical point in defining what private hire vehicles are and are not allowed to do.

It has been nearly EIGHT YEARS since it was suggested that the definition of ‘plying-for-hire’ should be placed on a statutory footing to reflect the modern understandings of what taxis do.

Modern Day Questions: Can drivers accept fares whilst charging their electric taxis?

London Assembly Member Keith Prince asked the Mayor whether a taxi driver is plying for hire when they are parked in an electric taxi bay charging their taxi. Prince also asked whether they are compelled to take a passenger on a 12 mile or 1 hour trip when on charge.

Sadiq Khan responded: “Taxi-dedicated rapid charging bays are not located at taxi ranks.

“Transport for London (TfL) advises me that it would not expect a taxi parked in a dedicated rapid charging bay and charging to have its ‘Taxi’ light turned on, which denotes that it is available for hire.

“Subject to a taxi being available for hire, where it is either parked in a rank or has its ‘Taxi’ light illuminated, the reasons a taxi driver can refuse a fare are: If the journey is over 12 miles (or over 20 miles if it starts at Heathrow Airport); or the journey is likely to last for more than one hour; or the journey ends outside the Greater London area.”

As a licensed taxi driver, and someone that has a good understanding of the regulations, the response is hard to understand. The charging bay is not seen as taxi rank, which would raise alarm bells with regards to plying-for-hire, but the Mayor of London also states it is the taxi light that denotes the availability of a taxi.

Can taxi drivers accept a fare whilst charging their black cab up with their light on?

How is Plying-for-Hire Enforced?

Police forces across the UK work with the licensing authorities to patrol hotspots looking to catch unlicensed cars, private hire vehicles and even licensed taxis for unlawfully plying-for-hire.

Earlier this year Metropolitan Police officers approached and reported a licensed black cab which was parked up outside Paddington Station’s Praed Street entrance displaying his taxi availability on an unofficial taxi rank with his light on.

The moment the driver accepts a fare outside of ‘plying-for-hire’ rules an offence has been committed. If pulled over, enforcement officers will usually check whether the vehicle is insured correctly and interview the driver. After that a case could then be built to prosecute the driver.

If a driver is found guilty of ‘plying-for-hire’ without a licence, they could face a fine up to £2,500. According to Tuckers Solicitors they could potentially also face disqualification from driving as at the point the offence has been committed the insurance of the vehicle would be invalidated. This could ultimately lead to a 6-8 points penalty on a driver’s licence or a period of disqualification.

Plying-for-Hire: The Digital Hail

Here’s where it gets really grey. Given that ‘plying- for-hire’ is what distinguishes the two sectors the rules should be clear and concise to maintain a thriving two-tier system that works for both parties. However, ride-hailing and the digital hail blurred itself between taxi and private hire legislation under the name of ‘disruption’.

Until recently there has been little movement, and certainly no desire from Government, to remove the fog around how digital hailing fits into current legislation.

In December 2021 the London taxi trade won the right to Judicially Review rules around plying-for-hire as a result of a landmark ruling at the High Court.

The opportunity arose, after years of debate within the taxi sector, when a Judicial Review led by the United Trade Action Group (UTAG) against FREE NOW was challenged in two parts; the Operator point and Facilitating Private Hire

Vehicles (PHV) to Ply for Hire via an App. UTAG was successful on the Operator ground only, but crucially WERE ALLOWED to appeal the decision regarding plying-for-hire at a higher authority.

This new Judicial Review appeal granted will allow the industry to re-open an important court result that has remained central to all plying-for-hire arguments since. The infamous ‘Reading vs Mr Ali’ case.

Ever since technology gathered pace and smartphones began ‘immediately pre-booking’ minicabs, many drivers and representatives within the sector simply see the technology as a way of circumventing the regulations currently in place.

Back in June 2015 four taxi unions came together to call for a new statutory definition of ‘plying-for-hire’ off the back of the Law Commission report. They called for a ‘robust’ definition that would enable the industry to maintain and sustain a two-tier system (taxis and minicabs) for future generations. There was also a belief that the ‘Knowledge of London’ and the right to ply-for-hire was ‘intrinsically linked’.

Could 2022 now be the year that the ‘grey’ becomes the black and white for all?