Independent Workers' Union of Great Britain v The Mayor of London

Hearing dates: 10th and 11th July 2019

Approved Judgment

INTRODUCTION

This is a claim for judicial review of a decision removing the exemption from liability to pay the congestion charge in Central London from private hire vehicles save for those designated as wheelchair-accessible vehicles. The decision was given effect to by the Greater London (Central Zone) Congestion Charging (Variation) Order 2018 (“the Order”) made by the interested party, Transport for London, on 29 June 2018 and confirmed by the defendant, the Mayor of London, on 19 December 2018 by an Instrument of Confirmation 2018 (“the Confirmation Order”). The change came into effect on 8 April 2019.

There are three claimants. The first is the Independent Workers' Union of Great Britain which is a trade union representing low paid workers in the United Kingdom. It has a United Private Hire Drivers Branch representing such drivers. The second claimant is Muhumed Ali. He is a Dutch national born in Somalia. The third claimant is Catherine Minshull who works part-time as a private hire vehicle driver.

The claimants contend, in essence, first that the withdrawal of the exemption from private hire vehicles save for those which are wheelchair-accessible contravenes sections 19 and 29(6) of the Equality Act 2010 (“the 2010 Act”) as they say it is discriminatory in relation to drivers from a black or ethnic minority background (referred to in this judgment as BAME drivers), female drivers and disabled passengers. They contend the majority of private hire vehicle drivers are from a BAME background and women are more likely to be part-time drivers. They claim that the changes given effect to by the Confirmation Order put them at a particular disadvantage as compared with non-BAME or male drivers, and also places disabled passengers at a particular disadvantage, and the defendant cannot show the measure to be a proportionate means of achieving a legitimate aim.

The second and third claimants also contend that the changes given effect to by the Confirmation Order involve an interference with the right to respect for their, and their families', private and family life within the meaning of Article 8(1) of the European Convention on Human Rights (“ECHR”) which the defendant cannot show is justified under Article 8(2) ECHR. They also contend that the Order results in an interference with the peaceful enjoyment of their possessions within the meaning of Article 1 of the First Protocol (“A1P1) to the ECHR which the defendant cannot show is justified.

Finally, they contend that the changes given effect to by the Confirmation Order involve unlawful discrimination contrary to Article 14 ECHR. They contend that the Order involves differential treatment on grounds of race, ethnicity, sex, or disability in respect of matters which fall in any event within the ambit of either or both of Article 8 and A1P1 ECHR (even if it does not involve a breach of those Articles). They contend that the defendant cannot show that the effect on BAME or female drivers, or disabled persons, is objectively justifiable.

The defendant accepted initially that the amendments given effect to by the Confirmation Order put BAME and female drivers and disabled passengers at a disadvantage within the meaning of section 19 of the 2010 Act but contended that the measure is a proportionate means of achieving a legitimate aim, namely reducing traffic and congestion in the central London charging zone without reducing the number of wheelchair-accessible vehicles. The defendant contends that the measure, involving as it does the application of the congestion charge, does not involve an interference with the right to respect for private or family life, or an interference with the peaceful enjoyment of possessions but, if it did, it is justified as a proportionate means of achieving a legitimate aim. The defendant contends that the matter does not fall within the ambit of either Article 8 or A1P1 ECHR but, if it does, the impact on the claimants, and BAME and female drivers and disabled passengers generally, is justified.

THE LEGAL FRAMEWORK GOVERNING THE CONGESTION CHARGE

The Greater London Authority Act 1999 (“the 1999 Act”)

The 1999 Act provides for a Mayor of London and a London Assembly. Section 141(1) of the 1999 Act provides that:

“(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”.

Those policies are to be included in a transport strategy which the Mayor is under a duty to prepare and publish: see section 142 of the 1999 Act.

Section 295 of the 1999 Act provides for the making of schemes for charging road users and, so far as material, is in the following terms:

“(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.”

Paragraph 3 of Schedule 23 to the 1999 Act provides that:

“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 is to be contained in an order made by the body making the scheme and submitted to and confirmed by the Mayor (see paragraph 4 of Schedule 23 to the 1999 Act). A charging scheme must be consistent with the Mayor's transport strategy and, as provided for by paragraph 8:

“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.”

There is provision requiring a charging scheme to specify or describe the events giving rise to a charge and providing that different charges, or no charges, may be imposed for different days, times of day, parts of a charging area, distances travelled or classes of motor vehicles (see paragraph 10 of Schedule 23 to the 1999 Act). There are further detailed provisions concerning charging schemes contained in Schedule 23 to the 1999 Act.

The Charging Scheme

A congestion charging scheme was first introduced in central London with effect from 17 February 2003. The current charging scheme is set out in the Schedule to the Greater London (Central Zone) Congestion Charging Order 2004 (“the Scheme”). The Scheme imposes a charge in respect of an area within Central London as shown on specified maps. That is the area referred to in this judgment as the Central Congestion Zone or CCZ. Article 4 of the Scheme provides for a charge (known as the congestion charge) to be imposed in respect of each charging day on which a vehicle uses a designated road, i.e. one in the CCZ, during charging hours. The charge is specified as £10.50 if a particular payment method (known as Auto Pay) is used, or £11.50 if any other payment method is used. The charges are payable for a vehicle which uses or is kept on a road within the CCZ between 7 a.m. and 6 p.m. on any day except Saturday or Sunday or certain designated public holidays.

Certain vehicles are non-chargeable, that is, they are exempt from paying the congestion charge. Initially, vehicles exempt from paying the congestion charge included both hackney carriages (i.e. vehicles licensed to ply for hire and known colloquially as taxis or black cabs, by reason of the traditional colour of the vehicle) and private hire vehicles. Article 5 of the scheme gave effect to Annex 2. Paragraph 2 of Annex 2 provided as follows:

“ 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”

The conditions that private hire vehicles had to meet were, essentially, that the vehicle had been hired to carry one or more passengers, and was being used lawfully for that purpose, that the booking had been accepted by a person with a relevant operator's licence and that details of the vehicle, the driver and the booking were properly recorded.

The effect of the change to the Scheme was to remove the exemption from liability to pay the congestion charge from private hire vehicles save for those designated as wheelchair-accessible. Hackney carriages (i.e. taxis) continued to be exempt (all hackney carriages are required to be wheelchair-accessible). That change was brought about by the amendment made by the Order which amended the heading of the relevant paragraph by substituting “designated wheelchair-accessible private hire vehicles” for “licenced private hire vehicles” and,...