Case Name and Citation

Case Name and Citation:

R (on the application of United Trade Action Group Ltd) v Transport for London

[2022] EWCA Civ 1026

Courts and Judges:

Court of Appeal (Civil Division):

Bean LJ (para 1)

Singh LJ (para 52)

Phillips LJ (para 56)

Parties:

 United Trade Action Group Ltd (UTAG)

Transopco (Free Now)

Transport for London (TfL)

Material Facts:

The phrase “plying for hire” has been integral to transport law in London for over 150 years, with the Metropolitan Public Carriage Act 1869 granting hackney carriages the exclusive right to carry passengers for a fee. Over time, the Act has been adapted to cover the use of motor vehicles and the licensing of private hire vehicles (PHVs) under laws such as the Private Hire Vehicles (London) Act 1998. The case revolves around the interpretation of “plying for hire” in the context of modern technology, such as mobile apps and GPS systems used by private hire vehicles like the FREE NOW app operated by Transopco UK Ltd.

The issue arose when the United Trade Action Group Ltd (UTAG), representing the hackney carriage industry, challenged the licensing decision made by Transport for London (TfL), which allowed Transopco to operate its private hire app. UTAG argued that drivers operating through the app were effectively “plying for hire” by displaying their availability via the app. This case is significant because it reexamines the definition of “plying for hire” and whether modern app-based methods of booking should be treated the same way as traditional taxi services, where vehicles are visibly seeking passengers on the streets.

Question of Law/Issues:

The central issue in this case is the interpretation of the term “plying for hire,” particularly whether drivers using a mobile app like FREE NOW are considered to be plying for hire under the legal definitions established by earlier case law, such as Cogley v. Sherwood (1959), in light of technological advancements like apps, GPS tracking, and mobile bookings.

Decision:

The Court of Appeal unanimously rejected UTAG’s appeal, ruling that the FREE NOW drivers did not meet the legal definition of “plying for hire.” The court sided with Transport for London and Transopco, affirming that the use of a mobile app, where vehicles are displayed as available but not actively soliciting passengers, does not constitute “plying for hire” as defined by earlier case law. The court’s decision was based on the interpretation of “exhibition” and “solicitation” in the context of the Cogley v. Sherwood case, which required both an exhibition of availability and an invitation to hire without prior arrangement.

Detailed Reason for the Case:

UTAG contested the Court’s narrow interpretation of “plying for hire,” arguing that the mere display of a vehicle’s availability through an app constitutes solicitation. However, the court rejected this argument, emphasizing that the act of merely showing the availability of a vehicle via an app does not meet the established legal standards for “plying for hire.”

The decision upheld the ruling in Reading Borough Council v. Ali (2019), where the Divisional Court found that showing a vehicle’s availability on an app was not equivalent to soliciting passengers in person. The court also noted that technological developments, like apps, do not fundamentally alter the legal distinction between pre-booked hires and those solicited directly from the street or from a public place.

Ratio Decidendi:

The court emphasized that “plying for hire” involves both exhibition and solicitation, which must be clearly present. FREE NOW drivers did not meet these criteria, as the app did not explicitly solicit passengers or display identifying information in a manner that suggested the vehicle was available for immediate hire. The court reiterated that merely being located in a high-demand area does not constitute solicitation, and therefore, FREE NOW drivers were not plying for hire under the established legal framework.

Conclusion:

The appeal was dismissed, and the Court of Appeal upheld the decision to grant a private hire operator license to Transopco UK Ltd (FREE NOW). UTAG was also required to pay the legal costs incurred by both Transport for London and Transopco. This decision reinforces the legal principle that modern booking technologies, such as apps, do not alter the fundamental legal definitions of “plying for hire,” which still rely on the physical act of solicitation and exhibition.

Bibliography:

Table of Cases:

Cogley v. Sherwood [1959] 2 QB 311

Reading Borough Council v. Ali [2019] 1 WLR 2635

Sales v. Lake [1954] 1 WLR 1156

R (on the application of United Trade Action Group Ltd) v Transport for London [2022] EWCA Civ 1026

Table of Legislation:

Metropolitan Public Carriage Act 1869

Private Hire Vehicles (London) Act 1998

Local Government (Miscellaneous Provisions) Act 1976

Other Sources:

Andrews, N, Public Transport and Regulation in the UK (Cambridge University Press, 2020)

Poole, J, Textbook on Transport Law (13th edn, Oxford University Press, 2022)

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COURSEWORK WRITING SAMPLE

Discussion Topic

Legislation made by other bodies under powers granted by Parliament is known as ‘secondary’ or ‘delegated’ legislation. Discuss the role of this source of law in the English legal system. In particular:

• Explain why delegated legislation is necessary?
• Analyse the different forms of secondary legislation.
• Analyse what are the inherent possible dangers of secondary legislation?

ANSWERS

Post 1. Introduction

Delegated legislation refers to laws created by members other than the primary legislative authority.[1] The concept of delegated legislation was institutionalized[2] with the passing of the Statutory Instruments Act 1946.[3]Though the act does not specifically outline the necessity of delegated legislation, it points towards it through the interpretation of certain sections. Its necessity revolves around efficiency and practicality, expertise, timelessness, and flexibility.[4]

 Efficiency and practicality are achieved by allocating power to smaller bodies, in turn allowing for more efficient lawmaking as lengthy parliamentary debates are avoided when a law is being enacted.[5] Expertise is also pivotal in the legislative process as the designated authorities will be able to draft more detailed and appropriate regulations for a particular industry or sector.[6]

Delegated legislation is able to address more time-sensitive issues by expediting the usual lengthy legislative process. It allows for urgent cases to be addressed in a swifter manner.[7] This form of legislation permits for laws to be amended, adapted or enacted in an easier manner than typical. Subsequently, this flexibility allows the legislation to adapt to any changing circumstances that may be presented.[8]  During the COVID-19[9] pandemic, delegated legislation’s ability to be time-sensitive and flexible allowed for laws to be created and adapted quickly.[10] This limited UK citizen’s exposure to the disease.

 These separate functions of delegated legislation allow for accurate and responsive laws to be produced in a swifter manner than what is possible through primary legislation.[11] This is necessary, as it enables a broader range of issues to be addressed in a more efficient manner.

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[1] E Finch and S Fafinski S, Legal Skills (OUP 2023) 29

[2] D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet & Maxwell 2025) para§3-002

[3] Statutory Instruments Act 1946

[4] Greenberg (n 2) para§3-004

[5] Statutory Instruments Act 1946 section 1

[6] ibid section 2(1)

[7] ibid section 1(1) & 2(2)

[8] ibid section 1(3) & 2(4)

[9] House of Lords Select Committee on the Constitution, COVID-19 and the use and scrutiny of emergency powers (2021) HL Paper 15

[10] R Huxley-Binns, J Martin and T Frost. Unlocking the English Legal System (Routledge 2017) 15-18

[11] House of Commons, ‘What Is Secondary Legislation?’ (UK Parliament, 2025) <https://www.parliament.uk/about/how/laws/secondary-legislation/#:~:text=Statutory%20Instruments%20(SIs)%20are%20documents,why%20the%20change%20is%20necessary.>  (accessed 21 August 2025)

Post 2. Rule of Law Implications of Delegated Legislation

It is widely known that the rule of law is the concept of constantly measuring the accuracy of regulatory practices and this measurement generally changes over time.[1]  It could be argued that parliament has had a direct impact on the evolution of the respective body of legal frameworks, in order to both evaluate against the rule of law and to accommodate for modernity and social life.[2] Consequently, this evolution enforces the need for parliament to delegate powers to Ministers and other authorized public bodies for the various purposes of legislation to truly be realized.[3]  The aforementioned can be used to explain the continued need for subordinate legislation ( “SL”) throughout the mid-twentieth and twenty-first centuries.[4]

The purposeful approach of statutory interpretation involves Lords and Justices making determinations as to what the legislation intended and then making a significant judgement on a case without using a literal interpretation of legislation.[5]  This is similar to the concept of parliamentary intention (“PI”), which can be difficult to ascertain when interpreting legislation, as members of parliament (“MP” or “MPs”) may have varied views and understanding of the details of any legislation.[6]  To further complicate the matter, MPs may not understand how certain legislation is expected to be evaluated, nor how certain legislation should realistically be applied in everyday life.[7]  The interpretation of PI can be further convoluted by a MP’s personal political views, ideologies and political party loyalties.[8]  Moreover, even though MPs themselves may have difficulty deciphering the true PI of legislation, the power to interpret an act, determine the necessity of any associated SL and its content, firmly belongs to Ministers and other authorized public bodies, out of an ongoing necessity to expand the law with minimal parliamentary intervention.[9]  

What are your thoughts on Ministers being granted the power to create delegated legislation out of necessity, but said creation is based on their own interpretation of parliamentary intention?

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[1] E Finch and S Fafinski. Legal Skills (Oxford University Press, 2023) 32

[2] G Slapper and D Kelly. The English Legal System (Taylor & Francis Group, 2017) 115

[3] C Elliott and F Quinn. English Legal System (Pearson Education UK, 2013) 84

[4] Ibid 89

[5] D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet & Maxwell 2025) para§3-002

[6] Ibid

[7] R Huxley-Binns, J Martin and T Frost. Unlocking the English Legal System (Routledge 2017) 15-18

[8] Ibid 23

[9] Slapper and Kelly (n 2) 29

Post 3. Types of Delegated Legislation

Delegated legislation is defined as ‘Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act’, in accordance with s 21(1) the Interpretation Act 1978.  Further, any power granted to create DL is done so within certain parameters as defined by the primary act.[1]

A common form of delegated legislation ( “DL”) created by Ministers and other authorized parties, is a statutory instrument and this includes ‘regulations, rules and orders’.[2]   The legislation that governs statutory instruments is the Statutory Instruments Act 1946.[3]  Bye-laws are another form of DL that is governed by the Local Government Act 1972, which allows local government authorities to create DL related to the respective locale of the Minister or related to local endeavours that the Minister oversees.[4]

There are two other legislative bodies that can implement DL and they are the Rule Committees and the Privy Council.[5]  The Civil Procedure Rules 1998 is an example of procedural rules of court created by the Civil Procedure Rule Committee and governed by the Civil Procedure Act 1997.[6]  The Privy Council’s primary purpose is to oversee the commonwealth.[7] An example of DL created by the legislative committee within the Privy Council, would be an Order of Council entitled the Civil Partnership (Registration Abroad and Certificates) (Amendment) Order 2012, which made amendments to certain terminology within the Civil Partnerships Act 2004.[8]   In particular, this order replaces the term “civil partnership officer” with the term “registration officer” throughout the primary legislation at art 4 and updates the meaning of “registration officer” at Article.3.[9]

What rule of statutory interpretation do you think should be used when Ministers or the Privy Council creates DL?

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[1] C Elliott and F Quinn. English Legal System (Pearson Education UK, 2013) 84

[2]  G Slapper and D Kelly. The English Legal System (Taylor & Francis Group, 2017) 115

[3] R Huxley-Binns, J Martin and T Frost. Unlocking the English Legal System (Routledge 2017) 15-18

[4] E Finch and S Fafinski. Legal Skills (Oxford University Press, 2023) 32

[5] D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet & Maxwell 2025) para§3-002

[6] Slapper and Kelly (n 2) 119

[7] Huxley-Binns et.al. (n 3) 22

[8] Ibid 25

[9] Articles 3, 4, Civil Partnership (Registration Abroad and Certificates) (Amendment) Order 2012, SI 2012/3063

Post 4. Need for Delegated Legislation

The necessity of Delegated Legislation (“DL”) can be broken down into several distinct reasons: time, speed, flexibility, technicality, local expertise and future requirements.[1]

Granting powers to Ministers to create SL allows parliament to make better use of its own time and in turn the need for a lengthy debate can be avoided, all while allowing SL to be introduced quickly.[2]  In addition, parliament can improve its own time management strategies, when the breadth of authority granted to Ministers is fully understood.[3]   

SL also allows for flexibility, as SL can be created and revoked in an easier manner when compared to the inconvenient procedures involved in enacting, amending or repealing primary legislation.[4]  A further advantage is that any particulars of SL that need to change do not need to be heard by parliament, unless required, since the core tenets were already established and reviewed by parliament through the passing of the primary act.[5]  

Moreover, SL can take advantage of the local expertise of Ministers and other authorities and put in place sound technical regulations that can be better implemented through SL and adopted publicly, with respect to local requirements.[6]  

Lastly, a Minister can certainly create or revoke SL at any time, subject to the limitations indicated in the primary act, whenever actionable issues arise.[7]  

All these reasons justify parliament’s continued reliance on SL, so much so that with respect to bye-laws, this type of SL may be considered even more important than the primary legislation.[8]

What is your opinion of subordinate legislation?  Do you think bye-laws carry more importance than the enabling act? 

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[1]  D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet&Maxwell 2025) 1-012 to 1-015

[2] C Elliott and F Quinn. English Legal System (Pearson, 2013) 82-86

[3] G Slapper and D Kelly. The English Legal System (Taylor & Francis, 2017) 118

[4] R Huxley-Binns, J Martin and T Frost, Unlocking the English Legal System (Routledge 2017) 24

[5] D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet & Maxwell 2025) para§3-002

[6] Elliott and Quinn (n 2) 94

[7] Greenberg (n 1) 2-012

[8] Slapper and Kelly (n 3) 125

Post 5. Judicial Scrutiny of Legislation

Once delegated legislation (“DL”) is in force, that DL can be challenged to determine if it is ultra vires.[1]  Essentially, DL can be found to be procedural ultra vires, if DL was created in contravention to the specifications of the enabling act; whereas, DL can be found to be substantive ultra vires if DL is beyond the scope of the authority granted to the Minister and does not meet parliamentary intention.[2]

The case of Secretary of State for the Home Department v Asif Javed, Zuifiqar Ali, Abid Ali [2001] EWCA Civ 789, as discussed in my earlier post, was a case where the order was created in accordance with the powers granted in the enabling acts, but the resulting Order was inaccurate and did not meet the intention of parliament, making it substantive ultra vires, which is why the Court of Appeal found the Order to be unlawful.[3]

The case of R (National Union of Teachers) v Secretary of State for Education and Employment [2000] 7 WLUK 424 provides a solid example of DL being found to be both procedural and substantive ultra vires.[4]  The National Union of Teachers challenged the Education (School Teachers’ Pay and Conditions) (No 2) Order 2000 and alleged that the Secretary of State (“SOS”) did not properly follow any of the statutory procedures, including the fast track procedure, of the enabling acts to create the DL, making this order procedural ultra vires.[5]  Further, it was out of scope of parliamentary intention for the SOS to change the eligibility of teachers to receive pay raises based on performance alone and without fair consultation processes, also making this order substantive ultra vires.[6]   The High Court ultimately quashed the DL for these reasons.[7]

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[1] R Huxley-Binns, J Martin and T Frost. Unlocking the English Legal System (Routledge 2017) 16 

[2] C Elliott and F Quinn. English Legal System (Pearson Education UK, 2013) 83, 84

[3] Secretary of State for the Home Department v Asif Javed, Zuifiqar Ali, Abid Ali [2001] EWCA Civ 789

[4] R (National Union of Teachers) v Secretary of State for Education and Employment [2000] 7 WLUK 424; Huxley-Binns et.al. (n 1) 17

[5] TG Fleming and T Ghazi, “Scrutinising Delegated Legislation: What Can Westminster Learn From Other Parliaments?” (Political Quarterly, 12 July 2023) <https://politicalquarterly.org.uk/blog/scrutinising-delegated-legislation-what-can-westminster-learn-from-other-parliaments/> (accessed 19 August 2025)

[6] G Slapper and D Kelly. The English Legal System (18^th edn, Taylor & Francis Group, 2017) 122

[7] D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet & Maxwell 2025) para§3-002

Post 6. Dangers of Delegated Legislation

It is widely known that delegated legislation (“DL”) has many advantages in assisting parliament in upholding the rule of law.  However, critics argue that there are the following disadvantages that should be considered: accountability, scrutiny, lack of control and overuse.[1]  

There are arguments made that parliament’s constitutional role of being the true source of law is being undermined due to the continued reliance on DL.[2]  It can be further argued that confusion in accountability is caused by granting too much power to Ministers and authorized public authorities, in addition to parliament’s limited oversight on the drafting of the necessary particulars for DL.[3]   Moreover, this leads to the issue of scrutiny.  The technicality of DL may provide confusion in understanding the parliamentary intention for members of parliament (“MP” or “MPs”) creating a paradox of control, such that, the purpose of DL only exists according to the control and powers granted by the primary legislation; however, DL is created separately and without the same stringent requirements of the primary act.[4]   

A lack of control over DL is further exacerbated by the fact that individuals (both civilian and MP) are often unaware of DL and their requirements, limiting the likelihood that challenges would be brought before the court, and further limiting the ability of the courts to exert some control through statutory interpretation.[5]  Judicial review is further hindered by Ministers being granted extensive authority to create DL as indicated in the primary act, making it difficult for the courts to determine if DL is procedural or substantive ultra viresand requires correction.[6]  

Generally, MPs face difficulties staying up to date on DL and critics conclude the source of law is saturated with DL and it is generally overused.[7]  

Do you think that DL is too heavily relied on to enforce the enabling act? 

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[1] G Slapper and D Kelly. The English Legal System (Taylor & Francis Group, 2017) 118

[2] Ibid 124

[3] D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet & Maxwell 2025) para§3-002

[4] C Elliott and F Quinn. English Legal System (Pearson Education UK, 2013) 62

[5] R Huxley-Binns, J Martin and T Frost. Unlocking the English Legal System (Routledge 2017) 17

[6]  Elliott and Quinn (n 4) 85

[7] Slapper and Kelly (n 1) 126

Post 7. Reply 1. Monitoring the Delegated Legislation

Thank you for your insightful post. The post highlights the various forms of supervision that are implemented by Parliament to monitor and scrutinize delegated legislation.[1]That being said, these precautions are often ineffective in practice due to political, procedural, and practical constraints.

 Despite Parliament’s ability to revoke or annul delegated legislation, it is rarely exercised.[2] Due to the sheer volume of statutory instruments that are produced annually[3], Parliament lacks the time and expertise to examine each one adequately. The negative resolution procedure allows Parliament to annul legislation within forty days.[4] However, it is not practical. This resolution places the majority of the burden on Parliament to spot problematic legislation and to request it to be debated. Due to the government’s control over Parliamentary time, debates are not always granted.[5]

 The effectiveness of the scrutiny created by affirmative and positive resolution procedures is diminished by executive dominance.[6] Executive dominance is when a government with a strong majority can secure broad approval of delegated legislation.[7] The super-affirmative procedure is utilized for in-depth reviews of delegated legislation.[8] Nevertheless, it is rarely used and only in specific cases. The complexity and time consumption involved make it impractical for routine oversight.[9]

 While Parliament does have the ability to supervise delegated legislation, it is oftenimpractical. This reveals a need for change within the existing legal framework. Enhanced committee engagement and better allocation of time for debate could help restore the intended purpose of these precautions.[10]Parliamentary supervision can be effective, but only if the procedures are supported by transparency and the institution.

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[1] G Slapper and D Kelly. The English Legal System (Taylor & Francis Group, 2017) 116

[2] House of Lords Select Committee on Delegated Powers and Regulatory Reform, ‘The Scrutiny of Delegated Legislation’ (House of Lords, 2002) <https://publications.parliament.uk/pa/ld5802/ldselect/lddelreg/106/10605.htm> (accessed 19 August 2025)

[3] House of Commons, ‘Negative Procedure’ (UK Parliament n.d.) <https://www.parliament.uk/site-information/glossary/negative-procedure/> (accessed 20 August 2025)

[4]  D Greenberg (ed.), Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation to Legislation (Sweet & Maxwell 2025) para§3-002

[5] Department for Business, Energy & Industrial Strategy, ‘The Future of UK Carbon Pricing’ (House of Commons Library, CP 302, 2019) <https://assets.publishing.service.gov.uk/media/5a757c2d40f0b6360e4747b9/chap7.pdf> (accessed 21 August 2025)

[6]  The Constitution Unit, “Scrutinising Delegated Legislation: What Can Westminster Learn from Other Parliaments?” (The Constitution Unit Blog, August 18, 2023) <https://constitution-unit.com/2023/08/18/scrutinising-delegated-legislation-what-can-westminster-learn-from-other-parliaments/?utm_source=chatgpt.com

[7]  Ibid

[8] Slapper and Kelly (n 1) 117

[9] M Jack M and M Hutton, Erskine May: Parliamentary Practice (Butterworths 2019) para§31.15

[10]  The Constitution Unit (n 6)