Blog: Licensing ”Uber” in Scotland - nothing to see here?

Scott Blair

Advocate Scott Blair looks at the Uber case and its implications for the company’s operation in Scotland.

Uber London Limited was licenced as a Private Hire Operator in 2012. On 26th May Transport for London (“TfL”) granted a 4-month Private Hire Operator Licence pending consideration of a five-year licence. This licence expired on 30th September. On 22nd September TfL determined that Uber London Limited is not fit and proper to hold a private hire operator licence.

TfL stated in their public statement on the decision, that Uber’s approach and conduct demonstrate a lack of corporate responsibility in relation to a number of issues which have potential public safety and security implications. These included:

  • Its approach to reporting serious criminal offences.
  • Its approach to how medical certificates are obtained.
  • Its approach to how Enhanced Disclosure and Barring Service (DBS) checks are obtained.
  • Its approach to explaining the use of Greyball in London - software that could be used to block regulatory bodies from gaining full access to the “app” and prevent officials from undertaking regulatory or law enforcement duties.

The legislation – the Private Hire Vehicles (London) Act 1998 –includes provision to appeal a licensing decision within 21 days of it being communicated to the applicant. Uber London Limited can continue to operate until any appeal processes have been exhausted. A statement by Uber states that it currently has 3.5 million Londoners that are using the app and more than 40,000 licensed drivers who rely on Uber to make a living.

There has of course been a massive social media response to the decision. While many hundreds of thousands have expressed concern over the decision (and signed a petition to support reinstatement of the licence) a considerable proportion of those who have commented on the case have supported the decision, voicing concerns in particular over the possibility that vulnerable people, including women travelling late at night, could be placed at risk if the driver checks used by Uber London Limited are poor. It is anticipated that an appeal will follow.

Meantime are there implications for Uber in Scotland? Uber already provides services in Glasgow and Edinburgh and intends to start operating in Aberdeen. The situation here is of course governed by the Civic Government (Scotland) Act 1982. Local authority and trade comment to date in Scotland has not expressed concern along the lines identified by TfL.

For one the operator in Scotland is a different company (albeit under the Uber “umbrella”) and as such a finding of not being fit and proper by another licensing authority does not mean that an authority in Scotland would be bound to follow the approach of TfL.

Moreover, it does not follow that the substantive concerns identified in the London case which appear to relate to general structural issues on how Uber operates are likely to be replicated here. Both the local authorities and Police Scotland take a far more direct role in the assessment of applications and the calling for information in support of them (under paragraphs 2 and 4 of Schedule 1 of the 1982 Act) than is understood to be the case in the more “light touch” system under the 1998 Act. The 1982 Act also, for example only permits a temporary licence for a period of six weeks whereas the 1998 Act permits, in effect, temporary licences of far greater length pending determination of a full licence.

The problems which appear to have arisen in the London case could though, if made out in a Scottish case, be capable of forming the basis of a finding of not fit and proper under the 1982 Act. What then of the possibility of a complaint with a view to seeking suspension of an existing Scottish licence?

Any person can make a complaint to the licensing authority with a view to seeking suspension of a Scottish licence. They could seek to rely on the London case but they would also need to show that the problems associated with the London operation were replicated in the relevant local authority area and then to material degree. The ease with which a lay complainer would be able to establish shortcomings in say the use of Disclosure Checks by an Uber company in Scotland is perhaps open to question. It would seem that by reason of their greater power and access to resources that it would be more likely that a complaint aimed at such structural licensing issues would be more likely to be brought by a concerned public authority, such as Police Scotland or the licensing authority itself.  However having already having been granted full licences it would probably require very cogent material-such as clear evidence of a course of conduct in breach of licence conditions before such a complaint would seem likely.

Equally, stepping away from the sort of structural issues in the London case and looking at more specific concerns such as if there was an allegation of an incident taking place in a car licenced to one of the Scottish Uber operations it would be open to the person claiming to be the victim of such an incident to make a complaint with a view to suspension. It is perhaps more likely for Police Scotland to consider bringing the matter before the licensing authority. Such a complaint once brought could then involve the operator in having to explain and justify practices, policies and procedures as they apply in practice as opposed to how they may have appeared “on paper” at the time an application was granted.

While to date there is no immediate suggestion of any pending suspension complaints or licensing litigation in Scotland it must surely only be a matter of time before the “Uber phenomenon” is considered in a contentious licensing context in Scotland.