On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019. This was judicially reviewed by the Independent Workers Union of Great Britain (“IWUGB”) and two individuals. They argued that removal of the exemption had a discriminatory effect and/or infringed the individuals’ human rights. The court rejected these claims and found the measure to be lawful.
Transport for London (“TfL”) developed proposals to change the Congestion Charging scheme. The most significant changes included removing the exemption to the Congestion Charge for most PHVs, although designated wheelchair accessible PHVs would retain the exemption. A twelve week public consultation on the proposals was undertaken between 6 July 2018 and 28 September 2018, in order to provide further information to inform the Mayor’s decision whether to confirm the proposals, with or without modification.
In a 205 pages report (together with another 250+ pages of annexes) it was recommended to the Mayor that he confirm the proposals. As is often the case with proposals of this type, an extensive impact assessment was produced with the assistance of an external consultancy. Alongside health and environmental impacts, an equalities impact assessment was undertaken. It was noted that as the majority of PHV drivers (around 94 per cent) are from Black, Asian and minority ethnic backgrounds (“BAME”), there would be a disproportionate impact on these groups.
The Mayor made the decision to, among other things, remove the PHV exemption on 18 December 2018 (the “Decision”).
The IWUGB, together with two individuals affected by the decision, subsequently challenged the Decision by judicial review. The case was heard in the High Court between 10 and 11 July 2019. Judgment was handed down by Mr Justice Lewis on 24 July 2019.
Given the grounds of claim, four issues fell to be determined by Lewis J (see paragraph  of the judgment). These were:
- Given the indirect discrimination resulting from it, could the Mayor demonstrate that the removal of the PHV exemption was a proportionate means of achieving a legitimate aim in relation to section 19 of the Equality Act 2010? (“First Ground”)
- Did the removal of the PHV exemption involve, in relation to the individual claimants, an interference with their right to respect for private and family life within the meaning of Article 8(1) of the European Convention on Human Rights (“ECHR”) and if so, was it justified? (“Second Ground”)
- Did the removal of the PHV exemption involve, in relation to the individual claimants, a breach of Article 1 of Protocol 1 of the ECHR (“A1P1”) which provides a right to peaceful enjoyment of possessions? (“Third Ground”)
- Did the removal of exemption amount to unlawful discrimination contrary to Article 14 of the ECHR because it involved differential treatment on the grounds of race and if so could the Defendant demonstrate an objective justification. (“Fourth Ground”)
Turning to the First Ground, section 19 of the Equality Act 2010 deals with indirect discrimination – i.e. where a measure expressed in neutral terms has a disproportionate impact on certain groups – but it does not apply where the measure is a proportionate means of achieving a legitimate aim. In paragraphs  and  of the judgment Lewis J set out the principles to be applied when determining whether a measure satisfies this test, drawing on case law from the employment context.
These were: (a) the burden of proof is on the defendant to establish justification; (b) the measures must correspond to a real need, must be appropriate to achieve the objective and be reasonably necessary; (c) 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 impact, the more cogent the justification must be for it; and (d) it is for the court to make its own, objective, assessment of the matter while affording the decision-maker a margin of appreciation.
On the facts, he held that that the Mayor had satisfied the necessary requirements. He determined that the measure did correspond to a real need, which was to reduce traffic in the CCZ (see paragraph ). In addition, he found that the removal of the PHV exemption was an appropriate and suitable means of reducing traffic and there were no other less intrusive measures which could be adopted (see paragraphs  and ). It was noted on this point that the Claimants had not advanced arguments about the viability of any alternative measure in their submissions. In assessing proportionality, the court’s approach was to look at the maximum financial impact of the measure (e.g. paying the charge for 5 days a week, which represented a loss of approximately 10% of income) and then examine the various ways in which that impact might be mitigated. For example, the court observed that only 1/3rd of registered PHV actually go into the CCZ and that operators may allow some of these costs to be mitigated - e.g. through the imposition of a passenger surcharge or through allowing drivers to indicate they do not wish to go into the CCZ. Finally, it was noted that the Mayor had considered these impacts when reaching his decision (see paragraphs  to ).
The Second and Third Grounds were dealt with relatively summarily in the judgment (see paragraphs  to ) and were rejected by the court. On the Second Ground, it was argued that the individual claimants needed to work longer hours in order to compensate for the lost income which had an impact on the amount of time they could spend with their families. While sympathetic to this, Lewis J held this did not amount to interference for the purposes of Article 8 ECHR or that even if it did, this was justified. Similarly, Lewis J was doubtful that there was any interference for the purposes of A1P1 but held that if there was any interference it was justified.
The Fourth Ground, of discrimination contrary to Article 14 ECHR, also relied on Article 8 and A1P1 but could still succeed even where the Second and Third Grounds failed. The court proceeded on the basis that A1P1 was engaged (see paragraph ) and then, in light of the concession on differential impact made by the Mayor, went on to consider objective justification. The court noted that in assessing one aspect of that objective justification assessment – of fair balance – it should respect the democratic legitimacy of the decision-maker and give significant weight to its assessment provided that there is a reasonable foundation for the measure (see paragraph ). On the facts the court held that there was such a reasonable foundation.
This case demonstrates the difficulties in mounting a successful judicial review challenge which goes to the substance of the measure, rather than the process followed in reaching it. While arguments based on substantive discrimination will enable a more intense review by the courts of the substance of the decision of the public authority, there remain significant limitations on this. Where the public authority has turned its mind to the relevant issue – as it did here given the manner in which it highlighted the impact on BAME drivers in the impact assessment – and provided that the decision maker had considered the issue carefully, the courts will be slow to intervene in the judgment reached.
The IWUGB have indicated following the judgment that they intend to appeal to the Court of Appeal. One area that may need to be developed further in any such appeal is whether, in fact, the measures did place BAME drivers at a particular disadvantage as compared to non-BAME drivers. This was dealt with very briefly in the judgment. It was noted that this disadvantage arose as PHV drivers are from predominantly BAME backgrounds while taxi driver are more likely to be from non-BAME backgrounds. The court did not however decide whether PHVs and taxis were in fact comparable (see paragraphs  to ).