The language of proportionality

Even those of us who took our law exams some decades before the turn of the century – when the common market was in its infancy and the protection of human rights was achieved by judicial instinct, the rules of natural justice, and common sense – even we from a bygone age can recognise that certain EU principles may now legitimately be called ‘trite law’.

The joint judgment of Lords Reed and Toulson in R (on the application of Lumsden and others) v Legal Services Board [2016] AC 697 gives us an example: ‘Proportionality as a general principle of EU law involves a consideration of two questions: first, whether the measure in question is suitable or appropriate to achieve the [legitimate] objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method.’

The application of that principle fell to be considered by Mr Justice Mitting in a recent judicial review in which the lawfulness of certain regulations made by Transport for London (TfL), concerning the grant of licences to drivers of private hire vehicles (PHVs) in the capital, was challenged by Uber London Limited and three Uber drivers. This article focuses on just one of those regulations: that applicants for a PHV driver’s licence have to satisfy TfL of their ability to meet the ‘English language requirement’ (ELR) set out in regulation 3A of the Private Hire Vehicles (London Private Hire Vehicle Driver’s Licences) Regulations 2003 (as amended).

The ELR is that applicants must be able to communicate in English at or above level B1 on the Common European Framework of Reference for Languages. Importantly, regulation 3A(3) provides: ‘The ability to communicate in English for the purpose of this requirement includes speaking, listening, reading and writing’ (emphasis added).

The High Court found that ‘on a reasonably cautious view’ of the impact of the requirement, about 40,000 persons were at risk of being prevented from obtaining a PHV driver’s licence in the three years from 2017 to 2020. It was common ground that a measure having such an impact on so many people has to be strictly justified. The judge had no difficulty in identifying a legitimate object of the requirement in the safety, welfare, and convenience of the public.

As for the level of protection of those public interests, Mitting J said: ‘The level of protection selected stands or falls on the need to understand documents setting out regulatory requirements principally for safety reasons and documents providing information principally for passenger convenience reasons.’ He was satisfied on the evidence that the English language requirement fell within the margin of appreciation afforded a member state as to what it considers an appropriate level of protection.

As for the need for a member state – having decided what level of public protection is appropriate, and selected the means by which that protection can be provided – to act proportionately within the confines of its choices, Mitting J was persuaded that because there was no driver-focussed English test yet available, the second of Lord Toulson’s and Lord Reed’s questions was satisfactorily answered in the negative: there was no less onerous method of attaining the legitimate object.

He said: ‘There is now and for the foreseeable future no practicable alternative means of achieving the protection of the legitimate public interests which TfL have identified to the level properly set by them.’

A question mark that some may feel hangs over the High Court’s decision asks why a minicab driver needs to achieve a level of competence, not just in reading and understanding English, but in writing it. The current English language test involves writing a short essay of 100 to 130 words on a given topic that has nothing to do with driving. Why should a PHV driver be able to do that? And why should an inability to do so stand in the way of being licensed?

Mitting J said that the ELR ‘tests general compliance in written and spoken English. A person who can demonstrate that level of competence can be expected to develop, in short order, an understanding of regulatory documents and traffic information sufficient to permit him to understand their gist and to be able to act appropriately on receipt of them’.

No doubt that is correct: but I am troubled by an uneasiness as to whether the ability to write a 130 word essay in English is truly necessary to the achievement of an appropriate level of comprehension. Permission has been granted to appeal the decision to the Court of Appeal.

Gerald Gouriet QC is a barrister at Francis Taylor Building

@FTB_law www.ftbchambers.co.uk