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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Independent Workers' Union of Great Britain & Ors, R (On the Application Of) v Mayor of London  EWHC 1997 (Admin) (24 July 2019)
Cite as:  EWHC 1997 (Admin),  WLR(D) 429
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
(1) INDEPENDENT WORKERS' UNION OF GREAT BRITAIN
(2) MUHUMED ALI
(3) CATHERINE MINSHULL
|- and -
|THE MAYOR OF LONDON
|- and -
|TRANSPORT FOR LONDON
Martin Chamberlain QC, Malcolm Birdling and David Heaton (instructed by TfL Legal) for the Defendant and Interested Party
Hearing dates: 10th and 11th July 2019
Crown Copyright ©
Mr Justice Lewis:
THE LEGAL FRAMEWORK GOVERNING THE CONGESTION CHARGE
The Greater London Authority Act 1999 ("the 1999 Act")
"(1) The Mayor shall develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities to, from and within Greater London".
"(1) Each of the following bodies, namely
(a) Transport for London,
(b) any London borough council, or
(c) the Common Council,
may establish and operate schemes for imposing charges in respect of the keeping or use of motor vehicles on roads in its area.
"(2) Schedule 23 to this Act (which makes provision supplementing this section) shall have effect."
"A charging scheme may only be made if it appears desirable or expedient for the purpose of directly or indirectly facilitating the achievement of any policies or proposals set out in the Mayor's transport strategy."
"A charging scheme must
(a) designate the area to which it applies;
(b) specify the classes of motor vehicles in respect of which charges are imposed;
(c) designate those roads in the charging area in respect of which charges are to be imposed; and
(d) specify the charges imposed."
The Charging Scheme
"Motorbicycles, licensed hackney carriages and licensed private hire vehicles
"2(1) A vehicle which falls within any of the following descriptions is a non-chargeable vehicle:-
(a) a motorbicycle,
(b) a vehicle licensed as a hackney carriage under section 6 of the Metropolitan Public Carriage Act 1869;
(c) a vehicle being used as a private hire vehicle, so long as the conditions specified in sub-paragraph 2 are met"
"(c) a designated wheelchair-accessible private hire vehicle being used as a private hire vehicle, so long as the conditions specified in sub-paragraph (2) are met."
"designated wheelchair-accessible private hire vehicle means a vehicle that appears on a list of vehicles maintained by Transport for London under s167 (1) of Equality Act 2010."
THE FACTUAL BACKGROUND
The Transport Strategy
"The Mayor, through TfL, will keep existing and planned road user charging schemes, including the Congestion Charge, Low Emission Zone, Ultra Low Emission Zone and the Silvertown Tunnel schemes, under review to ensure they prove effective in furthering the policies and proposals of this strategy."
The Amendments to the Scheme
The Aim of the Amendment
"London's streets are some of the most congested in the world contributing to poor air quality, delaying vital services and making walking and cycling less attractive options. Without further action, average traffic speeds are forecast to fall across London, with central London particularly affected. Excess traffic is estimated to be responsible for around 75% of congestion in London so managing demand for road space is crucial.
"In addition to inconvenience to the road user, the annual cost of congestion in London is assessed at around £5.5 billion. By 2041, if action is not taken, it will take more than an hour to travel 10km by road in central London, 15 minutes longer than today. A reduction in traffic of about 10-15% (six million vehicle kilometres per day) is required by 2041 is required to keep congestion in check, whilst also achieving the aims of the Mayor's Transport Strategy."
The CEPA Report
The Oxera Report and CEPA's Reply
"2.15 The CEPA Report forecasts that the removal of the PHV exemption would reduce traffic and congestion in the zone. In summary, they forecast that during charging hours in the Congestion Charging zone there would likely be:
- 45% reduction in unique PHV entries;
- 6% reduction in PHV traffic; and
- 1% reduction in traffic overall.
(CEPA who forecasted these figures have stated that they represent broad estimates only but given the conservative approach they adopted, CEPA consider the 1% figure is at "the lower end of the range" (see page 5 of CEPA's further response dated 9 November 2018 (Appendix E to the Report to the Mayor which is attached at Appendix 2)).
2.16 CEPA's forecast of a 45% reduction in the number of unique entries by PHVs into the zone during charging hours is based on the assumption that operators with larger fleets will distribute their bookings to minimise the number of PHVs needing to enter the CCZ. Doing so would mean that a smaller number of vehicles specialise in taking bookings within the zone, potentially undertaking more trips in the zone than they would have previously. The greatest impact on congestion will result from the expected lower demand for PHVs in the CCZ during charging hours as a consequence of the price per journey increasing to reflect the cost of the Congestion Charge.
2.17 Some have criticised CEPA's forecasts, in particular the Addison Lee Group who have submitted an independent report by Oxera, which contended that specialisation was a flawed concept and therefore the predicted traffic reduction of 1% was also unlikely to be realised. In response, TfL commissioned further work from CEPA to consider Oxera's report. The further work by CEPA (Appendix E to the Report to the Mayor at Appendix 2) states that their view remains that some specialisation is likely to occur as a response to competitive pressure. It also clearly acknowledges that there are uncertainties with regard to the scale of specialisation; however, the impact on traffic is not dependent on their judgement of specialisation. CEPA also explained that the 1% reduction in traffic is a conservative estimate. TfL support CEPA's analysis and note that the reduction in traffic is more closely tied to the demand response than specialisation. TfL also note that a 1% reduction in traffic in the zone is not an insignificant benefit where the potential for more radical change (during charging hours) is very limited, but congestion is still very high.2.18 Although the purpose of the Congestion Charging Scheme is to reduce traffic and congestion, there have always been consequential improvements in air quality from doing so. Removing the exemption for PHVs should reduce the number of vehicles in the zone and, therefore, help to improve air quality. The introduction of the CVD may further incentivise PHV drivers continuing to drive in the CCZ to do so in the cleanest possible vehicle. These will complement other initiatives including the introduction of the ULEZ Scheme in April 2019. "
The Position in relation to Wheelchair-Accessible Vehicles
"For these same reasons, the proposals safeguard the exemption for the small number of [private hire vehicles] which are designated wheelchair accessible".
The Equality Impacts
"BAME PHV drivers
Around 94% of all PHV drivers are from a BAME background so they will be disproportionately impacted by the removal of the exemption;
Increased professional costs as a consequence of having to pay the Congestion Charge will be incurred. Those PHV drivers who enter the CCZ every day during charging hours could expect to pay around £230 a month (assuming a 22-working day month and use of Auto Pay). In cases where a driver would need to absorb all costs, and travel in the zone every day, the impact would be at its greatest. This scenario is unlikely to be typical, except in cases of specialisation (which itself implies that the business model is set up to absorb the costs beyond just the driver);
Overall, the impact is assessed as a minor adverse one because the distribution and scale of the impact is considered to be low. Not all drivers will regularly enter the CCZ in charging hours. The taxi and private hire driver diary survey undertaken by Steer Davies Gleave in 2017 indicates 33% of the sampled PHV drivers made journeys into the CCZ in charging hours, while 23% of trips involved travel to, from or within the CCZ. This data would suggest that there is a fairly large number of PHVs which do not regularly enter the CCZ and so would not see a substantial increase in operating costs through paying the Charge. As suggested in the CEPA Report, some operators may take on the costs themselves or choose to pass the cost on to passengers; and
Sensitivity to the impact was assessed as low because the overall financial costs will be reduced if the payment constitutes a tax deductible expense, drivers qualify for a 100% discount such as the CVD or they are able to spread the cost over multiple trips.
Part-time female PHV drivers
A higher proportion of women across all industries tend to work part-time as compared to men (42% of women versus 13% of men). Part-time PHV drivers will be less able to spread the cost of the Congestion Charge across a number of journeys. As women can be assumed to be more likely to work as part-time PHV drivers, they will be disproportionately affected.
However, this impact was assessed as being "very low" as women make up less than 2% of PHV drivers in London, of which not all will work part-time, or in the CCZ during charging hours. Notwithstanding the scale of the impact, for those women who fall within the 2% and work day time weekday shifts in the CCZ, sensitivity to increased professional costs may be high."
The IIA and the Report
"2.5.13 This proposal may put pressure on earnings for PHV operators and drivers. This could result in negative health outcomes for individuals. It may be difficult for some individuals to cover these costs and as such the removal of the exemption may lead to stress related and mental health issues for PHV drivers. It may also impact on physical health as a result of potential longer working hours.
How sensitive PHV drivers are to this impact will depend upon whether they meet the criteria for alternative discounts and exemptions, whether they are able to pass all or some of the cost onto passengers, whether they can share all or some of the cost with operators and whether they can adapt their behaviour to operate in the CCZ outside charging hours or outside the CCZ. Additionally, the IIA notes that the cost of the Congestion Charge may be tax deductible as a business cost (for drivers and/or operators). In cases where a driver would need to absorb all costs, and travel in the zone every day, the impact would be at its greatest (around £230 a month assuming a 22-working day month and use of Auto Pay).
This scenario is unlikely to be typical, except in cases of specialisation (which itself implies that the business model is set up to absorb the costs beyond just the driver). And as stated at the beginning of this chapter, the proposal may only affect a relatively small proportion of PHV drivers as two thirds of PHV drivers do not enter the CCZ in charging hours. The overall impact was assessed as minor adverse.
"2.5.14 This proposal may lead to some smaller PHV operators experiencing a rise in price per trip and potentially a reduction in demand for their services. This may lead to poor health and wellbeing outcomes for operators. The sensitivity of operators to this impact will depend on a number of scenarios including whether drivers will absorb some or all ofthe cost, if drivers are eligible for alternative discounts, whether drivers frequently enter the CCZ and the ability to spread costs over multiple trips. This was assessed as a minor adverse effect.
"2.5.15 The removal of the PHV exemption may also limit the ability of older or disabled passengers to access essential services related to their health and wellbeing. Although designated wheelchair accessible PHVs will remain exempt, disabled passengers who do not use a wheelchair could see an increase in fares of around £1-2 for trips in the CCZ, depending on how the cost is passed on, unless they are eligible for another discount or exemption (e.g. the Blue Badge discount). This was assessed as a minor adverse effect.
"2.5.16 It is recognised that any increase in fares may not be an insubstantial sum for these categories of people. However, there may be opportunities to avoid increased fares or minimise the impact of them. Older and disabled passengers may also be eligible to use Taxicard services to access essential services related to their health and wellbeing. Black cabs are used to carry out around 90 per cent of Taxicard journeys. Capped fares for Taxicard journeys in black cabs are expected to come into effect from 1 January 2019. See paragraph 2.5.7 2.5.9 below for more information as to mitigation."
"2.5.33 This proposal may negatively impact PHV drivers, particularly those that operate regularly in the zone during charging hours as they find their costs increase and incomes reduce as they cover some or all of the cost of the charge. As the majority of PHV drivers (around 94 per cent) are from Black, Asian and minority ethnic backgrounds (BAME) and many are from deprived areas, there is a disproportionate impact on these groups. There will also be a very low impact on part-time female PHV drivers (although women make up less than two per cent of PHV drivers in London). The impact on BAME PHV drivers and female PHV drivers was assessed as minor adverse.
"2.5.34 The overall financial costs will be reduced if the payment constitutes a tax deductible expense, or drivers are able to spread the cost over multiple trips. It could be neutralised if vehicles qualify for other 100 per cent discounts or exemptions such as the CVD.
"2.5.35 Negative equality impacts on passengers are most likely to affect those on low incomes, female and disabled passengers who are more frequent users of PHVs and would be disproportionately impacted if fares increase or PHV availability declines. The impact is only relevant to those passengers who wish to travel within the CCZ during charging hours with the additional costs nil (if absorbed by the driver or operator) or minimal (if spread by the driver/ operator over several hires)."
The Individual Claimants
(1) In relation to section 19 of the 2010 Act, can the defendant demonstrate that the removal of the exemption from liability to the congestion charge from private hire vehicles other than designated wheelchair-accessible vehicles is a proportionate means of achieving a legitimate aim?
(2) In relation to Mr Ali and Mrs Minshull does the removal of the exemption involve:
(a) an interference with their right to respect for private and family life within the meaning of Article 8(1) ECHR and (b) if so, was it justified;
(b) a breach of A1P1 ECHR as it involved a deprivation of possessions and if so was it compatible with the requirements of A1P1?
(3) Does the removal of the exemption amount to unlawful discrimination contrary to Article 14 ECHR because it involves differential treatment on grounds of race, sex, or disability and if so, can the defendant demonstrate that the impacts of the removal of the exemption are objectively justified?
THE FIRST ISSUE- PROPORTIONALITY UNDER SECTION 19 OF THE 2010 ACT
"19 Indirect discrimination
"...1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
"(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
"(3) The relevant protected characteristics are
- gender reassignment;
- marriage and civil partnership;
- religion or belief;
- sexual orientation."
The Proper Approach
"10. The legal principles with regard to justification are not in dispute and can be summarised as follows:
(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways  IRLR 862 at .
(2) The classic test was set out in Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84)  IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must "correspond to a real need are appropriate with a view to achieving the objectives pursued and are necessary to that end" (para 36). This involves the application of the proportionality principle, which is the language used in regulation 3 itself. It has subsequently been emphasised that the reference to "necessary" means "reasonably necessary": see Rainey v Greater Glasgow Health Board (HL)  ICR 129 per Lord Keith of Kinkel at pp 142143.
(3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax  IRLR 726 per Pill LJ at paras 1934, Thomas LJ at 5455 and Gage LJ at 60.
(4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no 'range of reasonable response' test in this context: Hardys & Hansons plc v Lax  IRLR 726, CA."
THE SECOND ISSUE ARTICLE 8 ECHR
"Right to respect for private and family life
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public body with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, or for the protection of the rights of others."
"The cases indicate that a reduction in income may have consequences which are such as to engage article 8, as for example where non-payment of rent leads to the threat of eviction from one's home, but they do not indicate that the reduction in income itself within the ambit of article 8."
THE THIRD ISSUE A1P1
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in accordance in the public interest and subject to the conditions provided by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
THE FOURTH ISSUE ARTICLE 14 ECHR
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"is, however, discriminatory if it has no objective or reasonable justification; in other words, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised" (per the Grand Chamber in Carson v United Kingdom (2010) 51 EHRR at paragraph 61)."
THE ADDITIONAL ISSUE WHETHER THE MEASURE PUTS BAME DRIVERS AT A PARTICULAR DISADVANTAGE