The High Court recently quashed the Mayor of London's Streetspace Plan and TfL’s Bishopsgate Traffic Management Order. David Matthias QC and Charles Streeten explain why the black cab drivers succeeded.
The High Court has handed down two judgments in R (UTAG & LTDA) v Transport for London & Mayor of London  EWHC 72 (Admin) and R (UTAG & LTDA) v Transport for London & Mayor of London  EWHC 73 (Admin), allowing the two conjoined claims for judicial review brought by two trade bodies representing the 'Black Cab' industry (the United Trade Action Group and the Licensed Taxi Drivers' Association) to challenge the Mayor of London's Streetspace Plan and Guidance, and a Traffic Management Order prohibiting the use of motorised vehicles, including Hackney Carriages, on Bishopsgate in the City of London.
On 6 May 2020 the Mayor of London announced a "bold new Streetspace Plan" to "overhaul London's Streets". The Plan, which was nominally produced in response to the Coronavirus Pandemic was introduced to "repurpose London's streets" with the intention of "rapidly transforming London's streets to accommodate a possible ten-fold increase in cycling and five-fold increase in walking". The Streetspace Guidance published by the Mayor and TfL indicated that this was to be achieved by a policy of "suppressing" motorised transport, including Hackney Carriages to which no specific reference was made.
One of the schemes introduced following the introduction of the Streetspace Plan and Guidance was a Traffic Management Order restricting the use of the A10 at Bishopsgate to Buses and cycles only ("the A10 Order"). This impacted upon hackney carriages and their customers in a number of ways. Not only is Bishopsgate a key arterial route running North/South through the City of London, such that prohibiting hackney carriages from using it makes many cab journeys in the City significantly longer and more expensive, but it is also the primary location for picking up and dropping off passengers at Liverpool St. Station. Access by cab to Bishopsgate is therefore of particular importance to groups with protected characteristics, such as those with certain disabilities and the elderly.
UTAG and the LTDA challenged both decisions on the same grounds which were: First, that in making and promulgating the Plan and Guidance and the A10 Order the Mayor and TfL had failed to distinguish taxis from general traffic and had therefore failed to have regard to relevant material considerations (Ground 1); Second, that in making the Plan and Guidance and the A10 Order, the Mayor and TfL had failed to have proper regard to the public sector equality duty ("PSED") pursuant to section 149 of the Equalities Act 2010 (Ground 2); Third, that the Plan, the Guidance and the A10 Order were a disproportionate interference with the property rights of taxi owners and drivers in breach of Article 1 of the First Protocol ("A1P1") of the European Convention on Human Rights ("ECHR") (Ground 3); Fourth, that the Plan, the Guidance and the A10 Order breached the legitimate expectation of the hackney carriage trade that hackney carriages would be able to pass and repass on London's roads and to use lanes reserved for busses (Ground 4); and finally that the treatment of taxis in the Plan and Guidance and under the A10 Order was irrational (Ground 5).
In support of their claim, the Claimants adduced factual evidence from a number of individuals with protected characteristics who explained the severe adverse impact of the decisions on them, as well as expert evidence from Martin Low which the court admitted pursuant to CPR 35.4, accepting the Claimants' submission that such evidence was relevant and admissible in light of the technical nature of the challenge and the need to consider the question of proportionality.
On the papers, Sir Ross Cranston granted both claims permission on Grounds 1 and 4 only, on 23 September 2019. He also made an order for expedition as requested by the Claimants. The Claimants renewed their applications for permission on Grounds 2, 3, and 5 and these applications were determined at the final hearing on a rolled-up basis, together with Grounds 1 and 4.
In seeking to resist the claim, the Mayor and TfL relied on extensive witness evidence produced by officers after the relevant decisions had been taken. Whilst some of this evidence was a factual explanation of the decision making process, other aspects of the evidence were attempts to justify the decisions with reasoning not reflected in the underlying contemporaneous documentation. The Claimants objected to the admissibility of that evidence on which Mrs Justice Lang DBE ruled in the judgment in R (UTAG & LTDA) v Mayor of London and TfL  EWHC 73 (Admin), finding that various passages in the evidence went beyond elucidation and strayed into an ex post facto attempt to bolster the Defendants' case (see para. 11).
On the substantive grounds, in a carefully reasoned judgment running to more than 270 paragraphs (R (UTAG & LTDA) v Mayor of London and TfL  EWHC 72 (Admin), Lang J. allowed the claims on Grounds 1, 2, 4, and 5.
In relation to Ground 1, Lang J. held that the Mayor and TfL had failed to have regard to the status and unique role of London taxis in formulating the Streetspace Plan and Guidance and on this basis alone she held both to be unlawful. She distinguished this from the situation in relation to the A10 Order, where although she agreed that the status and role of taxis was obviously material and required consideration, she held that some regard had been had to it by TfL in determining to make the Order.
On Ground 2 the judge considered first the Streetspace Plan and the associated Guidance, which referred to the PSED, but was not informed by any sort of equalities impact assessment. She found on the facts that prior to issuing the Guidance there was no investigation or consideration of the adverse impacts that restricting road use by taxis could cause to those with protected characteristics, and that (contrary to the Mayor and TfL's submission) such investigation was required at the point of formulating the Plan and associated Guidance, because those documents set the trajectory for future decision making and would be important material considerations when future decisions on individual road schemes were being taken throughout London. On this basis she held that in formulating the Streetspace Plan/Guidance the Mayor and TfL had breached the PSED. Turning to the A10 Order, the Judge found that even though TfL had conducted an Equalities Impact Assessment in relation to the Order, in reaching that decision TfL had acted in breach of the PSED. On close consideration the Judge found that the EqIA produced by TfL did not meet the required standard of a "rigorous" and "conscientious" assessment conducted with an open mind. Rather, it was "inconsistent and irrationally underrated the risk". As the Judge said, "Most worryingly of all, the EqIA read as if its purpose was to justify the decision already taken". All three decisions were thus found to be unlawful on this ground.
As to the arguments on A1P1 under Ground 3, the Judge accepted that both taxi drivers and vehicle proprietors hold a "possession" in the form of a licence which has concomitant economic benefits. She did not accept, however, that on the basis of the specific case before her, the measures adopted by the Mayor and TfL amounted to a control of the use of that possession. She made clear in obiter remarks, however, that if a downturn in customers and income could be demonstrated to result from restrictions imposed by or as a result of the Mayor/TfL's policies then that would be likely to amount to a control on use. For that reason the judge went on to consider the question of the proportionally of the measures introduced and to explain that, were A1P1 fully engaged, the Mayor and TfL's decisions would have been disproportionate.
In relation to legitimate exception, Lang J. accepted the submission that as a result of TfL’s bus lanes policy (permitting taxis to use lanes reserved for buses in all but the most exceptional cases) and other relevant policies, the Claimants had a legitimate expectation that they would be distinguished from general traffic and that a policy presumption permitting taxis to use carriageways otherwise reserved for buses would pertain. She rejected the submission, made on behalf of TfL and the Mayor, that any departure from such policies was proportionate in light of the coronavirus pandemic. In particular, she noted that the Defendants’ submission that they were entitled to frustrate the Claimants’ legitimate expectation was "severely undermined" by the fact that the policies relied upon remained in full force. There was no reasoning reflected in the underlying contemporaneous documentation explaining why a departure from those policies was justified.
Finally Lang J. agreed with the Claimants that the Mayor/TfL's decisions, both in respect of the Plan and associated Guidance and in making the A10 Order, were irrational. She held that the justification for the measures imposed was "not evidence based" and was "mere conjecture, which was not a rational basis upon which to transform London's roads". The measures proposed and implemented "far exceeded what was reasonably required to meet any temporary challenges created by the pandemic" such that "the decision-making processes for the Plan, Guidance, and A10 Order were seriously flawed, and the decisions were not a rational response to the issues which arose as a result of the COVID-19 pandemic".
The Judge has ordered that the Plan, the associated Guidance and the A10 Order should accordingly be quashed.