The UK government proudly affirms that the country has some of the strongest equalities legislation in the world, particularly the Equality Act 2010. For it to be true, however, the government should implement the legislation in its entirety, including the socio-economic duty, proclaimed in Section 1 of the Act.
The socio-economic duty would require public authorities to actively consider how their decisions and policies of the highest strategic importance can increase or decrease inequalities of outcome. Regrettably, successive governments have failed to commence the duty, and therefore it is not technically binding on public authorities. It is encouraging that the duty was brought to life in Scotland in 2018 and the Welsh Government has announced they will follow suit in 2020.
The socio-economic duty can be a useful lever to understand and address the structural causes of material inequalities and their negative effects on human rights and well-being.
This article presents and draws conclusions from the strategic choices made by the people running a national campaign to bring the socio-economic duty to life. The article introduces four key factors that contributed to making progress between 2017 and 2019, despite the limited resources available: a) the added value of merging advocacy and epistemic communities working on equality and on human rights; b) the engagement with political actors at key stages of the process; c) the combination of ‘naming and shaming’ and best practice; and d) the celebration of smaller victories along the way.
The socio-economic duty, and this article in particular, are cited in an Amicus in front of the Supreme Court of Mexico on the State’s duty to include informal settlements in the census and other appropriate data collection. The Amicus is presented by Dr Koldo Casla and nine national and international organisations that are part of the International Network of NGOs for Economic, Social and Cultural Rights (ESCR-Net).
You can also read ‘Time to listen to people with lived experience of poverty and bring the socio-economic duty to life’, a chapter written by Koldo Casla together with colleagues from Just Fair, Joseph Rowntree Foundation, the University of York and Thrive Teesside, in UNISON’s recent publication (pp. 83-90) on the commemoration of the pledge made two decades ago to end child poverty in the UK this year. (Spoiler alert: It didn’t happen, and in fact, the country moved in the opposite direction in recent years).
Dr Yseult Marique, Senior Lecturer in Law, University of Essex
Dr Yseult Marique and her co-author Enguerrand Marique have published a chapter, entitled ‘Uber in London: The battle between public and private regulation’, in the collection Uber & Taxis: Comparative Law Studies, which was edited by D Renders and R Noguellou (Bruylant 2018).
The expansion of Uber as a major transport provider over the last ten years transforms deeply what is expected from transportation policies in many capitals around the world. It also draws the attention on the digital economy and its social and economic consequences for drivers. Tensions arise about the best ways to tackle the externalities arising from the digital economy: should Uber be banned all together as it has been the case in Spain and France? Should it be more strictly regulated as in California? Or should the market be left to bring competition and self-regulation of some kinds? To try to better understand the strategies followed across the world, the book Uber & Taxis: Comparative Law Studies brings contributions pertaining to 22 countries together, looking in a systematic way into two specific areas: first, how were taxis regulated before the advent of Uber and similar digital platforms? Secondly, how has regulation changed since Uber appeared and how does it address the specific social, economic and environmental challenges posed by Uber?
Our book chapter tries to answer these questions in the specific case of London. London is especially emblematic for its taxis and black cabs. It has also undergone a dramatic expansion of private hire (‘PH’) (such as Uber) in a very short time: in 2011, there were only 77,000 taxis and PH drivers throughout England. In 2017, the taxi and PH market in London represented ca. 150,000 drivers, i.e. nearly 40 % of the overall 356,000 licenced drivers on the English market. Very few aspects of this market are regulated. The quality of taxi drivers, the standards of vehicles and fares are subject to regulation mainly. However, the number of taxis is not limited, and taxis have no monopoly: besides taxis, PH has been operating since the 1960s and regulated since 1998. Therefore, the market is left largely unregulated regarding its outcomes themselves.
Such an expansion brings specific
challenges for London in terms of the number of drivers to control and how to
ensure that this control could be maintained at an appropriate level. It also
means that many Uber drivers were not professional as black cab drivers had previously
been, making the need arise for a range of driving practices to be policed (e.g.
taxi ranks and priority lanes). Yet, London manages to address these challenges
without new powers being delegated to it or without having to invent new
regulatory tools. In short, the regulatory toolbox is at first sight
satisfying. Let us unpack this claim before reflecting on it.
Transport for London’s (TfL) toolkit includes licensing, which has two main noticeable features: a) a fit for purpose test for drivers and b) a licensing fee. These two features have been tweaked in the case of Uber. Firstly, the fit for purpose test is no longer applied by Transport for London itself in the PH system (such as Uber). It has been transferred to Uber which now bears the risks of poor assessment of drivers’ qualities (i.e. withdrawal of the license). Secondly, the licensing fee became more differentiated. In the case of Uber, it has been multiplied by 1000 (Yes!) and stands now at £ 2,900,000 payable over 5 years. Other aspects such as a technical test, an English test, waiting times, tariffs and taxi meters, and hotlines have all been subjects to discussions and tensions. For instance, establishing a hotline for non-urgent matters is a significant burden for Uber, while not proving efficient. Similarly, the use of a taximeter, and of smartphone computing time and distance into a price, has been challenged, but ultimately accepted by the courts. Small differences remain to distinguish taxis from PH. For instance, upon a reference for a preliminary ruling to the European Court of Justice by English courts, the court recognized that ‘instant hailing’ was distinct from ‘hailing’. Waiting time and waiting areas cannot end up decreasing public safety. Yet, regulatory principles basically have not been changed after the advent of Uber in London.
The regulation of Uber in London triggers three
comments. First, the main problem brought by Uber is not the availability of
regulatory tools to address Uber’s innovative features, but the need for TfL to
adapt its enforcement strategy. In looking for ways to ensure compliance in a
changed environment, more inspectors are needed, which is costly for TfL, yet
extremely important to ensure clients’ security all over the city. Here, TfL
made Uber bear in the first place the extra costs that it generated for TfL.
Secondly, the London Mayor is not satisfied with the current solution and he
has asked the national level to get broader powers to regulate private hire
(and to impose a maximum number of licence). Thirdly, Uber is only one part of
the transport policy in London. The overall policy objective in London is to
ensure more sustainable transport, which means that too many cars – Uber car or
otherwise – are not welcome in London. A range of measures are thus taken to
seek to limit their use in general. At the same time, a broad range of transport
means is welcome as it makes mobility more flexible. In short, London can see
Uber both as a blessing and a curse – what matters is not to ban it, only to
keep it within reasonable measure. This leads TfL to seek to tweak Uber’s
licence to adapt it to the ongoing changes in the ways in which mobility
platforms work. Here a striking
development is the fact that Uber is now operating in London under a short-term
licence that is regularly renewed subject to modifications. Such practice of short-termism
compels economic actors to behave on their best at all time, mindful to take
social interest to hart rather than thinking about price cuts in the long term.
A creative way to keep Uber under TfL’s control without making any drastic
innovative changes to the regulatory tools?
A newly published book, The Triangular Constitution: Constitutional Pluralism in Ireland, the EU and the ECHR, by Tom Flynn, lecturer in law at the University of Essex, offers a fresh account of modern European constitutionalism. It uses the Irish constitutional order to demonstrate that, right across the European Union, the national constitution can no longer be understood on its own, in isolation from the EU legal order or from the European Convention on Human Rights.
The constitution is instead triangular, with these three legal orders forming the points of a triangle, and the relationship and interactions between them forming the triangle’s sides. It takes as its starting point the theory of constitutional pluralism, which suggests that overlapping constitutional orders are not necessarily arranged ‘on top of’ each other, but that they may be arranged heterarchically or flatly, without a hierarchy of superior and subordinate constitutions.
However, it departs from conventional accounts of this theory by emphasising that we must still pay close attention to jurisdictional specificity in order to understand the norms that regulate pluralist constitutions. It shows, through application of the theory to case studies, that any attempt to extract universal principles from the jurisdictionally contingent interactions between specific legal orders is fraught with difficulty. The book is an important contribution to constitutional theory in general, and constitutional pluralism in particular, and will be of great interest to scholars in the field.
Essex Law Research Blog 