United Trade Action Group Ltd v Transport for London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Sir Stephen Irwin |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWCA Civ 1197 |
| Docket Number | Case No: C1/2021/0227/QBACF |
| Court | Court of Appeal (Civil Division) |
The Queen on the Application of
[2021] EWCA Civ 1197
Lord Justice Bean
Sir Keith Lindblom, SENIOR PRESIDENT OF TRIBUNALS
and
Sir Stephen Irwin
Case No: C1/2021/0227/QBACF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
THE HON MRS JUSTICE LANG
C/2854 and 2995/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Ben Jaffey Q.C. and Celia Rooney (instructed by Public and Regulatory Law Team, Transport for London) for the Appellants (Defendants)
David Matthias Q.C. and Charles Streeten (instructed by Chiltern Law) for the Respondents (Claimants)
Hearing dates: 15 and 16 June 2021
Approved Judgment
Lord Justice Bean, the Senior President of Tribunals and
Introduction
This is the judgment of the court, to which we have all contributed.
In the early days of the COVID-19 pandemic, in May 2020, did Transport for London (“TfL”) and the Mayor of London (“the Mayor”) act unlawfully in preparing and publishing the London Streetspace Plan (“the Plan”) and the London Streetspace Plan – Interim Guidance to Boroughs (“the Guidance”), because when doing so they failed – it is said – properly to consider the interests of licensed taxi drivers? And did TfL, in making the A10 GLA Roads (Norton Folgate, Bishopsgate and Gracechurch Street, City of London) (Temporary Banned Turns and Prohibition of Traffic and Stopping) Order 2020 (“the A10 Order”) in July 2020, fall into error in the same way? These are the basic questions in this case.
The appellants are TfL and the Mayor; the respondents, United Trade Action Group Ltd. (“UTAG”) and Licensed Taxi Drivers Association Ltd. (“LTDA”), which are trade bodies representing licensed taxi drivers. The appeal is brought, with permission granted by Warby L.J. on 25 March 2021, against two orders of Lang J. dated 20 January 2021, by which she allowed two consolidated claims for judicial review bought by UTAG and LTDA – one challenging the Plan and the Guidance, the other the A10 Order – and also ruled inadmissible parts of the appellants' evidence.
In a judgment handed down on 20 January 2021 the judge concluded that in producing the Plan and the Guidance TfL and the Mayor had failed to distinguish London taxis – traditionally known as “Hackney carriages” or more colloquially as “black cabs” – from “general traffic”, and in doing so had neglected the role of taxis in providing accessible transport for those with impaired mobility (paragraph 278 of the judgment). When producing the Plan and the Guidance and when making the A10 Order, TfL had failed to discharge the public sector equality duty under section 149 of the Equality Act 2010 (paragraph 279). It had breached taxi drivers' legitimate expectation “to pass and repass on London's roads, and to use lanes reserved for buses” (paragraph 281). And it had acted irrationally (paragraph 282). The judge quashed the Plan and the Guidance in their entirety, and also the A10 Order, “because of the nature and extent of the unlawfulness”, which, she said, “affects not only taxi drivers, but also their passengers” (paragraph 283).
In a separate judgment, handed down on the same day, the judge considered the parties' objections to certain evidence being admitted. UTAG and LTDA had objected to the admission of parts of the evidence of Mr Sam Monck, TfL's Head of Network Sponsorship, in his two witness statements. With the parties' agreement, the judge received and considered this evidence “de bene esse”. Having done so, she held (in paragraphs 14 to 55) that several passages in Mr Monck's witness statements were either inadmissible or only partially admissible.
In their appeal to this court TfL and the Mayor contended that the judge made significant errors not only in her analysis of the merits of the two claims but also in her approach to the admissibility of evidence. UTAG and LTDA sought to sustain the judge's conclusions, essentially for the reasons she gave.
At the end of the hearing, having heard full argument on both sides, we announced our decision that the appeal would be allowed. We indicated the terms of the order we would make, and said that our reasons would be given later. We now give those reasons.
The issues in the appeal
The five grounds of appeal are these: that the judge's ruling on admissibility of parts of TfL's witness evidence was erroneous (ground 1); that she was wrong to hold that the respondents had failed to have regard to the distinct status of taxis as a form of public transport or to the needs of people with mobility difficulties when preparing the Guidance (ground 2); that she was wrong to find that the appellants failed to have due regard to the public sector equality duty (ground 3); that she was wrong to find that the appellants breached the respondents' legitimate expectation that taxis would be allowed to drive in all TfL bus lanes except where to do so would cause significant delay to buses or materially worsen the safety of road users (ground 4); and that she was wrong in law to apply an “anxious scrutiny” test on the question of rationality, and her conclusion that the Plan, the Guidance and the A10 Order were all irrational was in any event plainly wrong (ground 5).
It is logical, and convenient, to deal first with the issues arising from grounds 2, 3, 4 and 5 in the light of the judge's conclusions on the Plan and the Guidance, before turning to her conclusions on the A10 Order. Ground 1, which concerns the admissibility of evidence, was not addressed separately by Mr Ben Jaffey Q.C. on behalf of the appellants. In countering the respondents' contention that the appellants had failed to have regard to material considerations, he relied almost entirely on the primary documents. In our view, however, it is appropriate to consider that ground separately, having dealt with the others on their merits.
So the three main issues for us are these, and in this order. First, did the judge err in concluding that the Plan and the Guidance are unlawful because the decision to produce them was irrational, and also because TfL and the Mayor failed to take into account material considerations, failed to comply with the public sector equality duty, and acted in breach of a legitimate expectation? Second, was the judge wrong to conclude that the A10 Order was also vitiated by irrationality, a failure to comply with the public sector equality duty and breach of legitimate expectation? And third, was she at fault in the approach she took to the admissibility of evidence and the conclusions she reached on that question?
We should add here that, in tackling those three main issues, we have had well in mind that this court is exercising an appellate jurisdiction in proceedings for judicial review, not sitting at first instance to determine the claims. Our approach to the exercise of that jurisdiction has been entirely conventional, and consistent with familiar principles (see the judgment of May L.J. in Dupont de Nemours (EI) & Co. v S.T. Dupont (note) [2003] EWCA Civ 1368; [2006] 1 W.L.R. 2793, C.A., and the note to CPR r. 52.21 in the White Book (2021)).
GLA roads and bus lanes
Section 14A(1) of the Highways Act 1980 gives the Secretary of State the power to designate highways or proposed highways as “GLA roads”. Mr Monck (in paragraph 13 of his first witness statement) describes GLA roads – some 580 kilometres of road and 124 kilometres of bus lanes – as “… the most important and busiest roads in Greater London, carrying around a third of London's traffic despite comprising only 5% of its road network length”. TfL is the traffic authority for GLA roads (under section 121A(1A) of the Road Traffic Regulation Act 1984), as well as being the highway authority (under section 1(2A) of the Highways Act). It is the duty of TfL to manage the GLA roads network, otherwise known as the Transport for London Road Network (“TLRN”), with a view to securing “the expeditious movement of traffic” (under section 16(1) of the Traffic Management Act 2004). Responsibility for roads other than GLA roads in London and Greater London, including any bus lanes on these routes, rests with individual borough councils.
Bus lanes are created by traffic management orders under the Traffic Management Act. Under section 14(1) of the Road Traffic Regulation Act, traffic management orders can be temporary – as is the A10 Order in this case. Under regulation 3 of the Road Traffic (Temporary Restrictions) Procedure Regulations 1992, as amended by the Traffic Orders Procedure (Coronavirus) (Amendment) (England) Regulations 2020, a number of procedural requirements must be complied with before a traffic management order can come into force. Broadly, the regulations require the publication of an intention to make the traffic management order; within 14 days of making the order, the publication of a notice of the order in a newspaper; the placing of copies of that notice on the affected parts of the relevant road if it would be desirable in the interests of giving adequate publicity to the order; and the placing of appropriate signs on the affected road before the order comes into force.
The special status and role of taxis
Because of their status as public transport, London taxis and their drivers are subject to a different legislative scheme from private hire vehicles, generally known as “minicabs”, which are not a form of public transport and are not authorised to ply for hire – to be hailed on the street or at taxi ranks.
As the judge said (in paragraph 114 of her judgment):
“114. The legislation subjects hackney carriages and their drivers to onerous regulatory requirements and restrictions, including...
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