Minicabs and the Congestion Charge

The Court of Appeal has upheld the imposition of the congestion charge for minicabs. Marie Demetriou QC, Malcolm Birdling and David Heaton explain why.

In Independent Workers Union of Great Britain v The Mayor of London [2020] EWCA Civ 1046 the Court of Appeal dismissed an appeal by the Independent Workers Union of Great Britain ("IWGB") against the decision of Lewis J upholding the decision of the Mayor of London (the "Mayor"), on the recommendation of Transport for London ("TfL"), to remove the exemption to the London Central Zone congestion charge for non-wheelchair-accessible private hire vehicles ("PHVs" or "minicabs"). The Court held that, although a rigorous standard of scrutiny applied, the removal of the exemption pursued the legitimate aims of reducing traffic in the Central London congestion charging zone ("CCZ") while maintaining wheelchair-accessible passenger transport, there were no less burdensome alternatives, and the measure was proportionate.

Under the Central London congestion charge, any vehicle that enters or is kept in the CCZ must pay a daily charge. At the relevant time, the charge was generally £10.50 and applied between 7am and 6:30pm from Monday to Friday. Various exemptions existed. Prior to the decision challenged, both taxis and PHVs were exempt. With a view to reducing traffic in the CCZ, the exemption for non-wheelchair-accessible PHVs was removed. The exemption for wheelchair-accessible PHVs and taxis was maintained for reasons including that they represent the only means of transport for some wheelchair users, in particular, those who need or wish to travel in their wheelchairs.

At first instance, IWGB argued that the Mayor had failed to satisfy the public sector equality duty under s 149 of the Equality Act 2010 and that the decision constituted unjustified indirect discrimination under ss 19 and 29 of the Equality Act, or was a disproportionate interference with rights under Article 8 ECHR and A1P1, alone or taken with Article 14 ECHR. The discrimination claims arose, on IWGB's case, from a comparison of taxis, whose drivers are (according to diversity data) predominantly from white backgrounds and which remained exempt, with PHVs, whose drivers are as to 96 per cent from black and minority ethnic ("BAME") backgrounds. Lewis J dismissed the challenge on all grounds: R (Independent Workers Union of Great Britain) v Mayor of London [2019] EWHC 1997 (Admin), [2019] 4 WLR 118. Only the claim of indirect discrimination under the Equality Act was pursued on appeal.

In dismissing IWGB's appeal, the Court of Appeal (Vos C, Singh and Simler LJJ) assumed, as had Lewis J, that the "pool" for comparison was PHV and taxi drivers, as IWGB contended. On this basis, it held that a rigorous standard applied in scrutinising the Mayor's justification, due to the "stark" statistical imbalance in the two affected driver groups, although the Mayor retained some margin of discretion. The Court rejected arguments that Lewis J failed properly to consider the effects of the measure, held that he was correct to take into account various mitigations, and concluded that his finding that the measure was proportionate was open and justified. It rejected an argument that, because the measure benefited some persons with disabilities but might work to the detriment of others, the aim in relation to wheelchair users was not a legitimate one. It also held there were no less burdensome alternatives. In those circumstances, the Court of Appeal did not need to address the Mayor and TfL's argument by Respondent's Notice that the pool for comparison was limited to PHV drivers or, alternatively, was all drivers entering the CCZ.

Marie Demetriou QC, Malcolm Birdling and David Heaton are barristers at Brick Court Chambers. They appeared for the Mayor and TfL. Malcolm and David also appeared for the Mayor and TfL before Lewis J.