ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE HONOURABLE MR JUSTICE LEWIS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SINGH
LADY JUSTICE SIMLER
| INDEPENDENT WORKERS UNION OF GREAT BRITAIN
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|THE MAYOR OF LONDON
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|TRANSPORT FOR LONDON
Ms Marie Demetriou QC, Mr Malcolm Birdling and Mr David Heaton (instructed by TfL Legal) for the Respondent and Interested Party
Hearing dates: 30 June and 1 July 2020
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10.30am on 5 August 2020.
Lady Justice Simler:
The legal and factual background
I. The legal framework
"The Mayor shall develop and implement policies for the promotion and encouragement of safe, integrated, efficient and economic transport facilities and services to, from and within Greater London."
By s.141(3) the transport facilities and services include "those required to meet the needs of persons living or working in, or visiting, Greater London".
"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."
II. The consultation process leading to the measure
"the proportion of vehicles in the zone that are subject to the charge continues to reduce as falling numbers of private cars are counterbalanced by increasing numbers of licensed PHVs which are exempt from the charge."
Central London had seen a substantial increase in the number of minicabs with more than 18,000 minicabs entering the CCZ during charging hours each day. It noted the importance of keeping the Scheme under review to ensure that it tackled the congestion in Central London in order to deliver the policies and proposals of the transport strategy. One of those policies (policy 14) was to enhance London's streets and public transport network to make them more accessible and inclusive for disabled people.
"24. …to remove the exemption from the congestion charge previously enjoyed by private hire vehicles save for those which were wheelchair-accessible. Secondly, the underlying aim also appears clearly from the documentation leading to the making of the Order and its subsequent confirmation by the defendant. The aim was to reduce traffic and congestion within central London. Those benefits were to be achieved without reducing the number of wheelchair-accessible private hire vehicles which were considered to provide a means of transport for certain disabled passengers (those whose disability necessitated the use of a wheelchair). The request for a decision noted that although the purpose of the Scheme was to reduce traffic and congestion, there were consequential benefits in air quality resulting from the reduction in the number of vehicles in the CCZ.
25. The request for a decision recorded that the "primary objective of the Congestion Scheme was to reduce traffic and congestion in the CCZ". It noted that the Scheme had initially been very effective in achieving its objective as there had been a marked reduction (30%) on traffic congestion and in circulating traffic (15%). Over time, traffic within the CCZ had increased to levels not seen since before the introduction of the Scheme. One reason for the increase in congestion was the composition in traffic. Another factor was the allocation of road space from traffic use to other uses such as use for cycling or bus lanes.
26. The request noted (footnotes omitted) that:
"London's streets are some of the most congested in the world contributing to poor air quality, delaying vital services and making walking and cycling less attractive options. Without further action, average traffic speeds are forecast to fall across London, with Central London particularly affected. Excess traffic is estimated to be responsible for around 75% of congestion in London so managing demand for road space is crucial.
In addition to inconvenience to the road user, and annual cost of congestion in London is assessed at around £5.5 billion. By 2041, if action is not taken, it will take more than an hour to travel 10km by road in Central London, 15 minutes longer than today. A reduction in traffic of about 10-15% (six million vehicle kilometres per day) is required by 2041 to keep congestion in check, whilst also achieving the aims of the Mayor's Transport Strategy".
27. The request noted that the number of private hire vehicles, and drivers, had increased substantially since the introduction of the Scheme. In 2008/2009, there were around 55,000 licensed private hire drivers and 50,000 licensed vehicles in London and in 2017/2018, there were over 113,000 licensed drivers and over 87,000 licensed vehicles. By contrast, the number of licensed hackney carriages (taxi) drivers and vehicles had remained relatively stable with 24,800 licensed taxi drivers, and 22,300 licensed taxis in 2008/09 compared with 23,826 licensed drivers and 21,026 in 2017/18.
28. At the time that it was decided in 2002 to recommend the exemption of private hire vehicles from the congestion charge, it was estimated that there were around 4,000 private hire vehicles in the CCZ each day during charging hours. By 2017, on an average chargeable day, 18,248 private hire vehicles were seen in the CCZ".
III. The expert reports
"29. The CEPA report forecast that the removal of the exemption from private hire vehicles (other than wheelchair-accessible vehicles) could result in a 45% reduction in the number of private hire vehicles entering the CCZ each day (although those which entered the CCZ may remain there and carry out more journeys within the CCZ). It forecast that there could be a 6% reduction in the number of private hire vehicles in the CCZ overall. That amounted to a forecast reduction of 1% of traffic in the CCZ overall (i.e. private hire vehicles and other vehicles).
30. Reading the CEPA Report, and the request for a decision, it seems that the forecast was based on a certain number of assumptions. It seems that a reduction in congestion and traffic will result only if either fewer journeys are made into the CCZ or if a smaller number of vehicles carry out more journeys in the CCZ. If, for example, passengers are required to bear all or part of the cost of the congestion charge but considered that to be too expensive, they might switch to (cheaper) public transport or decline to travel into the CCZ. In relation to the second possibility, if, to use a theoretical and very simplified example, there were 20 private hire vehicles each completing one journey into the CCZ prior the congestion charge, but changes in behaviour mean that 10 no longer travel into the CCZ and the work into, within and out of the CCZ is carried out by the other 10 vehicles, there may be a similar amount of journeys made but the number of vehicles involved in making those journeys is reduced. That may result in fewer vehicles in the CCZ. Consequently, there could in theory be a reduction in congestion within the CCZ.
31. On the first possibility, the response of passengers to increases in price due to part or all of the congestion charge being passed on to the passenger, CEPA forecast that customers were likely to be fairly price sensitive although this was likely to be less so in the case of small operators with localised markets and more loyal customers. CEPA forecast, however, that some customers would switch from one private hire vehicle operator to an alternative operator in order to find a lower price. They also considered that some of the customers who switched would change from private hire vehicles to taxis. They did not forecast that most passengers who did change their behaviour would switch away from private vehicles or taxis to public transport such as buses or the tube. Rather, CEPA said that it would "assume most customers would remain in the PHV/taxi sector with 'switching' customers allocated to operators with low fares and a large existing CCZ presence". That meant that some journeys would not be made by private hire vehicle (or taxi) and would either be made by public transport or not made at all. That would result in fewer vehicles, i.e. those that would otherwise have been used for such journeys, in the CCZ.
32. CEPA then considered changes in behaviour by private hire vehicle operators and the extent to which changes in behaviour could reduce traffic and congestion. CEPA noted that specialisation could occur when journeys were undertaken with fewer vehicles entering the CCZ, for example, by designating certain private hire vehicles for work within the CCZ or allocating work to private hire vehicles already within the CCZ. CEPA assumed that only the largest operators (in effect, two of the current operators) would be able to specialise in that way. Furthermore, drivers could also choose to spend more time within the CCZ, having paid the congestion charge.
33. Given all the assumptions made, CEPA forecast that private hire vehicle traffic within the CCZ could reduce by 6%. That could amount to a decrease in 1% in the overall traffic, i.e. the number of vehicles, in the CCZ in a year. It is not possible from the report to determine what proportion of the 6% forecast decline in traffic resulted from the reduction in demand from passengers for private hire vehicle and what proportion resulted from specialisation, that is the same number of journeys being undertaken in the CCZ by a lower number of private hire vehicles than was previously the case.
34. The report noted that the greatest impact of the change would be on small operators as they would be likely to be less able to accommodate the increased charge".
"35. The Oxera Report commissioned by Addison Lee took issue with the CEPA assessment and the assumption that there would be specialisation in the use of private hire vehicles within the CCZ. CEPA considered the matter again. In their reply, they set out the rationale for the specialisation assumption and their belief that there was some scope for specialisation. They indicated that the major driver, by which I understand they mean cause, of the predicted reduction in traffic would be the reduction in demand for private hire vehicles.
36. In other words, it seems that the bulk of the anticipated reduction of 6% private hire vehicles would result from a reduction in the amount of passenger journeys. That is, there will be less work available for private hire vehicles. In addition, some of the journeys still undertaken by vehicles will be undertaken by taxis, not private hire vehicles as some passengers will switch to taxis.
37. The issue is dealt with in the request for a decision in the following terms:
"2.15 The CEPA Report forecasts that the removal of the PHV exemption would reduce traffic and congestion in the zone. In summary, they forecast that during charging hours in the Congestion Charging zone there would likely be:
45% reduction in unique PHV entries;
6% reduction in PHV traffic; and
1% reduction in traffic overall.
(CEPA who forecasted these figures have stated that they represent broad estimates only but given the conservative approach they adopted, CEPA consider the 1% figure is at "the lower end of the range" (see page 5 of CEPA's further response dated 9 November 2018 (Appendix E to the Report to the Mayor which is attached at Appendix 2)).
2.16 CEPA's forecast of a 45% reduction in the number of unique entries by PHVs into the zone during charging hours is based on the assumption that operators with larger fleets will distribute their bookings to minimise the number of PHVs needing to enter the CCZ. Doing so would mean that a smaller number of vehicles specialise in taking bookings within the zone, potentially undertaking more trips in the zone than they would have previously. The greatest impact on congestion will result from the expected lower demand for PHVs in the CCZ during charging hours as a consequence of the price per journey increasing to reflect the cost of the Congestion Charge.
2.17 Some have criticised CEPA's forecasts, in particular the Addison Lee Group who have submitted an independent report by Oxera, which contended that specialisation was a flawed concept and therefore the predicted traffic reduction of 1% was also unlikely to be realised. In response, TfL commissioned further work from CEPA to consider Oxera's report. The further work by CEPA (Appendix E to the Report to the Mayor at Appendix 2) states that their view remains that some specialisation is likely to occur as a response to competitive pressure. It also clearly acknowledges that there are uncertainties with regard to the scale of specialisation; however, the impact on traffic is not dependent on their judgement of specialisation. CEPA also explained that the 1% reduction in traffic is a conservative estimate. TfL support CEPA's analysis and note that the reduction in traffic is more closely tied to the demand response than specialisation. TfL also note that a 1% reduction in traffic in the zone is not an insignificant benefit where the potential for more radical change (during charging hours) is very limited, but congestion is still very high.
2.18 Although the purpose of the Congestion Charging Scheme is to reduce traffic and congestion, there have always been consequential improvements in air quality from doing so. Removing the exemption for PHVs should reduce the number of vehicles in the zone and, therefore, help to improve air quality. The introduction of the CVD may further incentivise PHV drivers continuing to drive in the CCZ to do so in the cleanest possible vehicle. These will complement other initiatives including the introduction of the ULEZ Scheme in April 2019.""
"BAME PHV drivers
• Around 94% of all PHV drivers are from a BAME background so they will be disproportionately impacted by the removal of the exemption;
• Increased professional costs as a consequence of having to pay the Congestion Charge will be incurred. Those PHV drivers who enter the CCZ every day during charging hours could expect to pay around £230 a month (assuming a 22-working day month and use of Auto Pay). In cases where a driver would need to absorb all costs, and travel in the zone every day, the impact would be at its greatest. This scenario is unlikely to be typical, except in cases of specialisation (which itself implies that the business model is set up to absorb the costs beyond just the driver);
• Overall, the impact is assessed as a minor adverse one because the distribution and scale of the impact is considered to be low. Not all drivers will regularly enter the CCZ in charging hours. The taxi and private hire driver diary survey undertaken by Steer Davies Gleave in 2017 indicates 33% of the sampled PHV drivers made journeys into the CCZ in charging hours, while 23% of trips involved travel to, from or within the CCZ. This data would suggest that there is a fairly large number of PHVs which do not regularly enter the CCZ and so would not see a substantial increase in operating costs through paying the Charge. As suggested in the CEPA Report, some operators may take on the costs themselves or choose to pass the cost on to passengers; and
• Sensitivity to the impact was assessed as low because the overall financial costs will be reduced if the payment constitutes a tax deductible expense, drivers qualify for a 100% discount such as the CVD or they are able to spread the cost over multiple trips.
Part-time female PHV drivers
• A higher proportion of women across all industries tend to work part-time as compared to men (42% of women versus 13% of men). Part-time PHV drivers will be less able to spread the cost of the Congestion Charge across a number of journeys. As women can be assumed to be more likely to work as part-time PHV drivers, they will be disproportionately affected.
• However, this impact was assessed as being "very low" as women make up less than 2% of PHV drivers in London, of which not all will work part-time, or in the CCZ during charging hours. Notwithstanding the scale of the impact, for those women who fall within the 2% and work day time weekday shifts in the CCZ, sensitivity to increased professional costs may be high.
Drivers from deprived communities
- Within London, 71% of PHV drivers live in areas which are within the most deprived and second most deprived quintiles, as defined by the index of multiple deprivation … The reduction in income that may be faced by drivers who are required to pay the congestion charge may be prohibitive in terms of some PHV drivers staying within the profession or entering it. Given that this trade offers an employment stream for communities in deprived areas, it can be expected that the increased costs as a result of paying the congestion charge may impact disproportionately on communities in London where there are areas of high deprivation.
- The impact is considered to be a minor adverse one for the same reasons stated in respect of BAME drivers: not all drivers will regularly enter the CCZ in charging hours and some operators may take on the costs or will pass the cost onto passengers…
It is, therefore, likely that a high proportion of PHV drivers would continue within the profession."
2.5.13 This proposal may put pressure on earnings for PHV operators and drivers. This could result in negative health outcomes for individuals. It may be difficult for some individuals to cover these costs and as such the removal of the exemption may lead to stress related and mental health issues for PHV drivers. It may also impact on physical health as a result of potential longer working hours.
How sensitive PHV drivers are to this impact will depend upon whether they meet the criteria for alternative discounts and exemptions, whether they are able to pass all or some of the cost onto passengers, whether they can share all or some of the cost with operators and whether they can adapt their behaviour to operate in the CCZ outside charging hours or outside the CCZ. Additionally, the IIA notes that the cost of the Congestion Charge may be tax deductible as a business cost (for drivers and/or operators). In cases where a driver would need to absorb all costs, and travel in the zone every day, the impact would be at its greatest (around £230 a month assuming a 22-working day month and use of Auto Pay).
This scenario is unlikely to be typical, except in cases of specialisation (which itself implies that the business model is set up to absorb the costs beyond just the driver). And as stated at the beginning of this chapter, the proposal may only affect a relatively small proportion of PHV drivers as two thirds of PHV drivers do not enter the CCZ in charging hours. The overall impact was assessed as minor adverse.
2.5.14 This proposal may lead to some smaller PHV operators experiencing a rise in price per trip and potentially a reduction in demand for their services. This may lead to poor health and wellbeing outcomes for operators. The sensitivity of operators to this impact will depend on a number of scenarios including whether drivers will absorb some or all of the cost, if drivers are eligible for alternative discounts, whether drivers frequently enter the CCZ and the ability to spread costs over multiple trips. This was assessed as a minor adverse effect.
2.5.15 The removal of the PHV exemption may also limit the ability of older or disabled passengers to access essential services related to their health and wellbeing. Although designated wheelchair accessible PHVs will remain exempt, disabled passengers who do not use a wheelchair could see an increase in fares of around £1-2 for trips in the CCZ, depending on how the cost is passed on, unless they are eligible for another discount or exemption (e.g. the Blue Badge discount). This was assessed as a minor adverse effect.
2.5.16 It is recognised that any increase in fares may not be an insubstantial sum for these categories of people. However, there may be opportunities to avoid increased fares or minimise the impact of them. Older and disabled passengers may also be eligible to use Taxicard services to access essential services related to their health and wellbeing. Black cabs are used to carry out around 90 per cent of Taxicard journeys. Capped fares for Taxicard journeys in black cabs are expected to come into effect from 1 January 2019. See paragraph 2.5.7 – 2.5.9 below for more information as to mitigation."
2.5.33 This proposal may negatively impact PHV drivers, particularly those that operate regularly in the zone during charging hours as they find their costs increase and incomes reduce as they cover some or all of the cost of the charge. As the majority of PHV drivers (around 94 per cent) are from Black, Asian and minority ethnic backgrounds (BAME) and many are from deprived areas, there is a disproportionate impact on these groups. There will also be a very low impact on part-time female PHV drivers (although women make up less than two per cent of PHV drivers in London). The impact on BAME PHV drivers and female PHV drivers was assessed as minor adverse.
2.5.34 The overall financial costs will be reduced if the payment constitutes a tax-deductible expense, or drivers are able to spread the cost over multiple trips. It could be neutralised if vehicles qualify for other 100 per cent discounts or exemptions such as the CVD.
2.5.35 Negative equality impacts on passengers are most likely to affect those on low incomes, female and disabled passengers who are more frequent users of PHVs and would be disproportionately impacted if fares increase or PHV availability declines. The impact is only relevant to those passengers who wish to travel within the CCZ during charging hours with the additional costs nil (if absorbed by the driver or operator) or minimal (if spread by the driver/ operator over several hires)."
"For these same reasons, the proposals safeguard the exemption for the small number of PHVs which are designated wheelchair accessible."
i) The judge erred in finding that removal of the congestion charge exemption from over 99% of minicab drivers was "appropriate" with regard to the legitimate aim relied upon, by failing to carry out a proper evaluation of the effectiveness of the measure.
ii) The judge erred in concluding that the aim properly amounted to a legitimate aim for the purposes of the Equality Act 2010.
iii) The judge erred in finding that removal of the exemption from over 99% of licensed minicab drivers was reasonably necessary to achieve the aim sought.
iv) The judge erred in his approach to proportionality by not considering whether the measure itself (the provision, criterion or practice, or "PCP") as opposed to its impact, was justified.
v) The judge erred in his approach to s.19(2)(b) Equality Act 2010 and the nature of the comparison between those with the relevant protected characteristic and those without it.
vi) The judge failed to carry out a proper proportionality exercise.
vii) The judge erred in law in giving improper weight to the fact the decision maker was the state.
"(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
(3) The relevant protected characteristics are –
…. disability; … race; …sex; …."
"10. The legal principles with regard to justification are not in dispute and can be summarised as follows:
(1) The burden of proof is on the respondent to establish justification: see Starmer v British Airways  IRLR 862 at .
(2) The classic test was set out in Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84)  IRLR 317 in the context of indirect sex discrimination. The ECJ said that the court or tribunal must be satisfied that the measures must "correspond to a real need … are appropriate with a view to achieving the objectives pursued and are necessary to that end" (para 36). This involves the application of the proportionality principle, which is the language used in regulation 3 itself. It has subsequently been emphasised that the reference to "necessary" means "reasonably necessary": see Rainey v Greater Glasgow Health Board (HL)  ICR 129 per Lord Keith of Kinkel at pp 142–143.
(3) 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 disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax  IRLR 726 per Pill LJ at paras 19–34, Thomas LJ at 54–55 and Gage LJ at 60.
(4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no "range of reasonable response" test in this context: Hardys & Hansons plc v Lax  IRLR 726, CA."
Grounds 1 and 2: Appropriateness and 'no reduction'
"74. The measure adopted by the defendant does correspond to a real need. The need is to reduce the number of vehicles within the CCZ. The removal of the exemption from the congestion charge for private hire vehicles does reflect, or correspond, to a real need. The number of private hire vehicles had increased substantially since the Scheme was introduced in 2003. The number of private hire vehicles had increased from around 50,000 to over 87,000 and the number of licensed private hire vehicle drivers has more than doubled from around 55,000 to over 113,000 between 2008/2009 and 2017/2018. There was no similar increase in taxis or taxi drivers. The forecast was that the removal of the exemption could lead to a reduction of 6% in the number of private hire vehicles in the CCZ (which would amount to a reduction of 1% in traffic overall). The measure would, therefore, address the need to reduce the number of vehicles in the CCZ. Furthermore, where a measure is intended to operate, at least in part, by seeking to change the behaviour of individuals (here operators and drivers of private hire vehicles, and passengers) it is reasonable to rely on forecasts of the likely change. At the time that the measure was adopted, the forecast was of a reduction. The defendant was entitled to rely on those forecasts. It is also permissible to have regard to subsequent events to determine whether the forecast changes have materialised. As it happens, in the relatively short time since the amendments to the Scheme came into force, and bearing in mind there may be other factors at play, the evidence is that the reduction in traffic is broadly in line with the forecast. The evidence of Ms Calderato, in her second witness statement, is that private hire vehicles are making between approximately 3,000 and 6,800 fewer entries into the CCZ.
75. The removal of the exemption from private hire vehicles (other than the small number of wheelchair-accessible vehicles) was an appropriate and suitable method of reducing the number of vehicles in the CCZ. It could result either in fewer journeys into the CCZ or a more rational use of the road space within the CCZ with a smaller number of private hire vehicles performing the number of journeys previously undertaken by a larger number of such vehicles (and reducing the number of vehicles travelling empty within the CCZ). The method adopted was reasonably necessary for that end. Unless steps were taken to reduce the number of private hire vehicles in the CCZ there would remain a real problem of a large number of private hire vehicles driving into the CCZ. Taking steps by removing the exemption from congestion charge would have an impact on that as it was forecast to result in fewer trips into, and better use of private hire vehicles within, the CCZ."
Ground 3: No Other Less Intrusive Means
"76. … Various suggestions of alternative measures had been raised by the claimants in their claim form but were not pursued in their written or oral submissions. I am satisfied by the evidence of Ms Calderato that those measures were not available measures. There was a suggestion that the congestion charge could be increased for all those presently liable to the charge (but private hire vehicles remaining exempt) and that might result in a reduction in traffic of 1% overall. First, that would not, in fact, address the increase in the number of private hire vehicles in the CCZ, nor the fact that a large number circulate without passengers. The aim is to reduce the number of such vehicles in the CCZ, by making changes which will either encourage fewer journeys into the CCZ or which will result in more efficient and better utilisation of private hire vehicles within the CCZ (fewer vehicles undertaking the journeys required, and fewer vehicles present in the CCZ without passengers). Measures aimed at producing a 1% reduction in traffic overall would not, of themselves, address the particular problems of the increase in the number of private hire vehicles in the CCZ. Furthermore, the evidence of Ms Calderato is that even a large increase in the congestion charge for those currently liable to pay it is unlikely to yield substantial reductions in the number of vehicles in the CCZ. Ms Calderato points out that an increase from £5 to £8 (more than 50%) in 2005 did not lead to any discernible reduction in traffic."
"80. … This is an area where the respondent's margin of appreciation or discretion is relevant. The main points arising from case law can be summarised as follows:
(i) The decision maker has a margin of appreciation or discretion which is highly fact and context specific: Lumsdon paragraphs  and . The evaluation will take account of all relevant circumstances including the conditions prevailing in the relevant market, the circumstances leading up to adoption of the challenged measure, and the reasons given why less restrictive measures were rejected.
(ii) A measure will be disproportionate if "it is clear that the desired level of protection could be attained equally well by measures which were less restrictive": Lumsdon paragraph ; EU Lotto paragraph .
(iii) The burden of proof lies with the decision maker. It is not however to be applied mechanically. There is no duty on the decision maker to prove positively that no other measure could be as effective: Lumsdon paragraph ; Scotch Whisky paragraph ; BAT (ibid) paragraph .
(iv) The decision maker is not required "… to consider every possible alternative, including those that were never suggested by consultees": TfL paragraph ; EU Lotto paragraph .
(v) The mere assertion that some other measure is equivalent and less intrusive is not sufficient: BAT (ibid) at paragraph ; and equally the fact that some other measure can be envisaged is not enough: BAT (ibid) paragraphs  – .
(vi) It is relevant that a measure is "general, simple, easily understood and readily managed and supervised": BAT paragraph ."
"(1) … the number of PHVs in the CCZ has grown significantly in a sustained manner, whereas other exempt vehicles have not.… TfL's 2017 surveys suggested that 26% of PHVs circulate without passengers in the CCZ. Prior to the [measure] being implemented, PHVs were all exempt from the congestion charge. There was therefore no disincentive to them from entering the CCZ, and they were often in the CCZ while not carrying passengers. In consequence, it is possible in principle to reduce traffic in the CCZ by imposing the congestion charge on PHVs, and CEPA has estimated in detail by how far.
(2) … ITPL observed in their 2017 report that reductions in personal motor vehicles in London appeared to have been offset by increases in PHVs and other vehicles. More generally, ITPL explained that common experience in congestion management around the world is that the creation of new road capacity tends to induce further demand.…
As ITPL summarised… policies that cause "increased road capacity" will "generate traffic". ITPL further explained that interventions of this kind, which lead to an overall increase in traffic, would themselves often lead to future interventions being needed.…
ITPL said that "best practice in scheme design would point to there being as few exemptions as possible" in the congestion charging scheme… TfL agrees with ITPL's analysis.
(3) … the number of PHVs in the CCZ has steadily increased… and there is a large number of PHVs in London that have has also been increasing until recently… Applying the principles just explained, I consider it very unlikely that increasing the congestion charge on other vehicles already subject to it but maintaining the discounts and exemptions in place before 8 April (in particular the exemption for PHVs) would, overall, achieve the same traffic/congestion benefit as removing the exemption from a large class of exempt vehicles, namely, non-wheelchair accessible PHVs. ITPL's analysis and the circumstances I have mentioned indicate that any road capacity freed up by increasing the congestion charge for other vehicles … would very likely be offset by additional PHVs entering the CCZ."
Ground 4, 6 and 7: Proportionality
"a stringent standard of scrutiny of the claim to justification is appropriate because the discrimination, though indirect in form, is so closely related in substance to the direct form of discrimination on grounds of national origins, which can never be justified."
So too here given the statistical imbalance in the ethnic composition of the two groups (taxi drivers and minicab drivers). This is stark: the measure has no impact on the predominantly white taxi driver group and an adverse impact on the group of minicab drivers from predominantly black and minority ethnic backgrounds.
"The issue here is whether the defendant can demonstrate that the impacts on BAME and female drivers and disabled passengers are justified as a proportionate means of achieving the aim. It is the impact on those groups that has to be justified not the measure. The starting point is to consider the likely impacts on those affected".
a) the Mayor (and Transport for London) plainly recognised the adverse impact on minicab drivers, 71% of whom live in the most deprived areas of London, with mean annual earnings less than £23,000 per annum net; and 2% of whom are women. The judge considered the impact on these drivers together. He identified the maximum financial consequence that could arise as a result of removal of the exemption from the congestion charge (assuming the driver paid the charge, and used Auto Pay) as £52.50 a week, or approximately £230 a month, in congestion charges (in other words, a loss of about 10% of net income).
b) However, this impact was mitigated by three principal matters.
c) First, the evidence showed that two thirds of London region minicabs never enter the small (but significant) central area of London that is the CCZ. They work, and undertake journeys, in the significantly bigger area outside the CCZ, constituting Greater London and so would not see a substantial increase in operating costs through paying the congestion charge. The judge did not ignore the fact that one third of drivers would remain, in principle, affected and I accept, as Mr Collins submitted, that this is not an insignificant group. However, it is significantly smaller than the London region minicab drivers as a whole and it was legitimate to have regard to this factor.
d) Secondly, it was reasonable to expect (as the respondent did) that operators would make changes enabling drivers to recover some of the cost of the congestion charge thereby reducing its impact (and in fact, Uber, the largest PHV operator, had done so, and now levies a charge of £1 on all journeys passing through the CCZ, whether made during charging hours or not, and passes the levy to drivers). The judge recognised that the extent to which such a levy reduces the impact on a driver depends on the number of times the driver carries a passenger within the CCZ. There was also evidence that another large operator (Addison Lee) with a different operating model, pays the charge as registered keeper of their vehicles but has introduced an increased rental fee of £15 a week charged to its drivers for leasing the vehicle. The reduced impact on those drivers will be about £15 a week (rather than £52.50).
e) Thirdly, there was evidence of some operators modifying their operating practices so as to enable drivers to avoid going into the CCZ if they wish and thereby to avoid having to pay the congestion charge. For example, there was evidence that ViaVan allows drivers to indicate willingness to drive into the CCZ, and those choosing not to are not affected by the congestion charge. There was evidence that the provision by Uber of postcodes for the destination enables drivers to decide if they wish to accept the fare and, if the postcode is known to be within the CCZ, they can decide not to accept it. Again, and accepting that it may take time for postcodes to be recognised by minicab drivers as within or outside the CCZ, this was a legitimate factor to consider. The judge also recognised that some drivers may continue to go into the CCZ because, some at least, will calculate that they can do enough journeys in the CCZ with the levy to cover the cost, or a sufficient part of the cost, of the congestion charge to make it worthwhile.
f) For those who remain likely to be economically adversely affected to some degree by the withdrawal of the exemption from the congestion charge, the judge accepted that their income would reduce or they would have to work longer hours to meet their basic costs including payment of the congestion charge if they enter the CCZ. He set out the particular impact this was having on the individual claimants, Mr Ali and Mrs Minshull, and their respective families.
g) The position of disabled passengers was separately addressed both by the Mayor and the judge. The evidence anticipated an increase in the cost for them of journeys into the CCZ (where, for example, all or part of the congestion charge is passed on to customers) or there might be a reduction in the availability of PHVs willing to travel into the CCZ. The likely increase was thought to be £1 to £2 a journey. The Request recognised that an increase of even £1 or £2 would not be an insubstantial amount for some disabled people. The contemporaneous material suggested some of the impact could be mitigated by schemes offering subsidised taxi and PHV journeys. However, for disabled people whose disabilities do not include mobility issues (or disability issues relating to transport), they may be forced to use less convenient but cheaper public transport. There was a likely adverse impact on disabled people in consequence.
Ground 5: The comparator pool
"Democracy values everyone equally even if the majority does not."
Sir Geoffrey Vos, Chancellor of the High Court: