QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF|
|(1) ALMA LUNT|
|(2) ALLIED VEHICLES LIMITED||Claimants|
|LIVERPOOL CITY COUNCIL||Defendant|
|EQUALITIES AND HUMAN RIGHTS COMMISSION||Intervener|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 0207 404 1424
(Official Shorthand Writers to the Court)
Ms Francis Patterson QC and Mr David Hercock (instructed by Liverpool CC) appeared on behalf of the Defendant
Ms Yvette Genn (instructed by EHRC) appeared on behalf of the Intervener
Crown Copyright ©
MR JUSTICE BLAKE:
"Before a type of vehicle may be licensed as a hackney carriage it needs to be approved by the City Council as a suitable vehicle for use as a taxi cab in Liverpool. The Council has accepted that purpose-built taxis which comply with the conditions of fitness of the London Carriage Office are suitable for such use. Other types of vehicle are considered on their merits, but to date no vehicle which is unable to meet the conditions of fitness has been approved by the Council."
"lays down critical standards which vehicles must attain before being licensed as a hackney carriage. The Licensing Committee makes reference to those standards. If a vehicle falls short of those standards it will generally not be approved for use as a hackney carriage".
2. The impugned decision
"They are in favour of the E7. Not all TX vehicles are wheelchair accessible."
"A specific application for the approval of a Peugeot E7 vehicle to be used as a hackney carriage presents the potential for a dis-benefit to wheelchair users if the vehicle is not approved. Those wheelchair users who wish to be accompanied by several of their ambulant friends have move manoeuvrability and be able to travel in a forward as well as a rear facing position would not be able to do so by access to the current wheelchair accessible fleet. The Peugeot E7 is a larger vehicle and by virtue of its size creates more space for manoeuvre and placement of such wheelchairs.
However due to the vehicles size and the engineering considerations associated with the design, it can not conform to the minimum turning circle requirements associated with hackney carriages and is higher off the ground creating increased wheelchair ramp angles."
Under the section of the Equality Impact Template headed "Please list the actions taken to remove or remedy the above effect", Mr Edwards wrote:
"The Licensing Committee will consider any application on its merits submitted by any vehicle manufacturer who designs and builds a vehicle which is constructed to be used for public hire activity."
i. The report states that the "Merseyside Police has inspected Euro 7 and has indicated that they have reservations about the vehicle's use as a hackney carriage". It subsequently transpired that the police as a body do not have concerns and are neutral as to the merits of the matter, but it is undoubtedly the case that a Mr Gore, who was the Merseyside Force Vehicle Examiner, did inspect the E7 and made a statement identifying matters of concern to him.
ii. The report before the Council indicated that a previous version of the E7 had been inspected by the Council's senior vehicle inspector who raised concerns about the ramp angle. However, the ramp angle had been the subject of representations by the second claimant between Mr Edwards' first report and the second report, pointing out that the matter had been substantially altered since the earlier inspection, and the ramp that is now built-in to the version of the E7 for which authority was being sought is longer and consequently has a shallower angle than the London taxi. It was noted in the report that it also has the additional feature of lips to the edge of the ramp edge that wheelchair users considered was of assistance in bringing their chairs up the ramp into the vehicle.
iii.Mr Edwards' report noted the danger of sliding doors, which is a feature of the E7, and the fact that use by passengers of such doors when descending fail to warn oncoming traffic that passengers are exiting the vehicle, by contrast with the hinged doors of the London taxi. It is right that the second claimant also pointed out that that issue had been addressed by them by the insertion of a warning light visible to following traffic saying that the door was open.
"The Liverpool Wheelchair Users Group in conjunction with Merseyside Coalition of Inclusive Living has made representations in support of the E7 and has requested that the vehicle be approved as it provides more room and comfort for both wheelchair users and those ambulant friends who accompany them. The groups have expressed the view that the ramps associated with the E7 vehicle are more reassuring than normal TX ramps. The Wheelchair Users Group advised the Licensing Unit that some 12,000 wheelchair users would find the alternative choice of the E7 to be a positive benefit in terms of accessible transport."
"1.1.2 The present public hire taxi fleet is not inclusive for many wheelchair using residents and visitors. This is because the only existing vehicles ... make it awkward and time consuming to load wheelchair users and make it difficult to turn and secure the wheelchair and occupant correctly within the cab.
1.1.7. A survey of 100 journeys was undertaken by wheelchair users in London-style hackney cabs. This showed that, due to the lack of turning space to manoeuvre the wheelchair within the vehicle, only on four occasions was the wheelchair user turned into place in the correct direction for travel and on only one occasion were the wheelchair and passenger restraints correctly applied.
1.1.8. The Lowland Report therefore provides firm evidence that in 99 per cent of journeys wheelchair using passengers were left to travel in a manner which is clearly highly dangerous, with no seat belt for the passenger and not even anything to hold his/her seat to the vehicle.
1.1.12. The practice of carrying wheelchair passengers facing sideways, entirely unsecured and with no seat belt, places all such passengers using a publicly licensed service at grave risk of injury or death in the event of an accident. Disabled groups and Taxi Association representatives alike confirm that a key barrier giving rise to this appalling situation is the limited turning area available in the rear of a London-style taxi.
1.1.13. Numerous organisations have commented on the important contribution made by modern-style hackney taxis to improving accessibility for wheelchair users. In particular, organisations representing 12,000 wheelchair users in the report argue strongly against a one size fits all approach in specifying services or products to meet the needs of everyone in society. Having tested modern-style hackney taxis, wheelchair users recognise clear access and safety benefits for many wheelchair users compared with the existing Liverpool taxi fleet."
"• In only four of the 100 taxi journeys taken was the wheelchair turned to face rearwards in the correct direction of travel. In all cases this required a degree of bumping and shuffling in order to get the wheelchair turned, which was uncomfortable for the wheelchair occupant.
• In only one journey was the wheelchair both turned to face away from the direction of travel and also properly secured within the taxi.
• In only one journey was the seat belt and seat belt extension provided and correctly fitting.
• In all other journeys (96 per cent) the wheelchair either remained side on or at some other angle. In these situations neither the wheelchair nor the passenger could be safely secured and the passenger tended to feel uneasy at bends and when stopping.
• For those taxi drivers that did not turn the wheelchair to face away from the direction of travel they either made no comment regarding this or stated that the wheelchair was too large to turn inside the vehicle.
• In 94 per cent of the journeys taken the wheelchair passenger stated that they felt either fairly or very unsafe during the journey.
• The experience of a wheelchair user whilst travelling on a London-style taxi was, almost without exception, uncomfortable and, in particular, unsafe. The predominant issue contributing to this situation was the lack of space available in which to manoeuvre the wheelchair and occupant into a safe travelling position."
"I merely inform the Committee that I was unable to be seated correctly by Mr Kelsey and this would have necessitated me travelling sideways, un-tethered. I further stated that sideways travel was, in the experience of my peer group, very much the norm when using a London-style taxi."
3. The challenge
1. The decision amounted to unjustified discrimination contrary to section 21D and E of the Disability Discrimination Act 1995 (DDA), as amended with effect from 4 December 2006.
2. It failed to have due regard to its duty under section 49(1) of the DDA, introduced in June 2006, of the need to eliminate discrimination and promote equality of opportunity.
3. It exercised its public law discretion as to whether to license the E7 on the basis of a material and undisputed error of fact. Its judgment was thus based on a decisive error. There were also other grounds of unfairness argued.
4. In reaching the decision that it did, the City Council breached Article 28 of the European Union Treaty in that it imposed a product requirement (or similar requirement) that had equivalent effect to a quantative restriction on imports of material from an EU state without justification.
1. The defendant through its officer, Mr Edwards, and consequently the chair, failed to understand that not all its licensed hackney carriage fleet was accessible to all wheelchair users, irrespective of their particular conditions and the size and characteristics of their wheelchairs.
2. The defendant misunderstood and therefore mis-stated the impact of the maintenance of the present practice as merely restricting the choice and the convenience of wheelchair users as opposed to the ability of some users, including Mrs Lunt, to use the present licensed taxis in Liverpool at all in the safe position. It could therefore reach no lawful judgment on the merits of the application and the extent to which it constituted discrimination, and the comparative safety benefits when considering the matter more generally.
3. Insofar as in its response to the DDA point and the Community law claims the Council sought to base a justification of its decision on safety considerations, the material upon which it relied was inadequate, and it failed to obtain relevant evidence from a competent source to advise it on the question.
1. The section 21 challenge is unsuitable for determination by judicial review, and a damages claim by the first claimant in the County Court is the appropriate venue for the first of the four challenges made.
2. Although the section 49 duty is a public law duty that can be enforced by judicial review, the Council was aware of its duty and came to a decision on the merits that it was entitled to reach.
3. Even if it misunderstood the degree of difficulty Mrs Lunt faced in gaining access to a London-style taxi, it was entitled to conclude that all its taxi fleet was wheelchair accessible in general terms, and accordingly there was no duty to modify in accordance with section 21E of the DDA.
4. The claim fell outside the reach of Article 28 as it was not a sufficiently substantial interference with use.
5. In any event the Council was entitled to refuse the licence on safety grounds, even if other local authorities took a different view. In particular, the Council was entitled to use its local knowledge of what it would consider was appropriate for Liverpool to make the decision it came to.
4. Suitability for Judicial Review
"(1) Except as provided by section 25 no civil or criminal proceedings may be brought against any
person in respect of an act merely because the act is unlawful under Part III.
(2) Sub-paragraph (1) does not prevent the making of an application for judicial review."
(i) There was sufficient documentary evidence before the Committee that some wheelchair users could not access the London taxi for space reasons, and that was not a question of either driver error or mere convenience or preference of wheelchair users.
(ii) Since it is now an agreed fact that Mrs Lunt cannot access a London taxi in her wheelchair, save with the difficulty and in the unsafe sideways manner that has been demonstrated, and that there has been no material change of circumstances since October 2007 and today, then at the least Mr Edwards must have seriously misunderstood what was being said to him. If he did not understand what was being said to him, in my judgment he was required to explore the basis of the physical difficulties with manoeuvring the taxi to a safe position that was being described to him.
"61. As the passage cited by Lord Slynn shows, the editors of the current edition of De Smith (unlike Wade and Forsyth) are somewhat tentative as to whether this is a separate ground of review:
"The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration or the failure to provide reasons that are adequate or intelligible or the failure to base the decision upon any evidence." (para 5/-094).
62. We are doubtful, however, whether those traditional grounds provide an adequate explanation of the cases. We take them in turn.
(i) Failure to take account of a material consideration is only a ground for setting aside a decision, if the statute expressly or impliedly requires it to be taken into account (Re Findlay  AC 318, 333-4, per Lord Scarman). That may be an accurate way of characterising some mistakes; for example, a mistake about the development plan allocation, where there is a specific statutory requirement to take the development plan into account (as in Hollis). But it is difficult to give such status to other mistakes which cause unfairness; for example whether a building can be seen (Jagendorff), or whether the authority has carried out a particular form of study (Simplex).
(ii) Reasons are no less "adequate and intelligible", because they reveal that the decision-maker fell into error; indeed that is one of the purposes of requiring reasons.
(iii) Finally, it may impossible, or at least artificial, to say that there was a failure to base the decision on "any evidence", or even that it had "no justifiable basis" (in the words of Lord Nolan: see above). In most of these cases there is some evidential basis for the decision, even if part of the reasoning is flawed by mistake or misunderstanding.
63. In our view, the CICB case points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between "ignorance of fact" and "unfairness" as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that "objectively" there was unfairness. On analysis, the "unfairness" arose from the combination of five factors:
(i) An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case);
(ii) The fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence;
(iii) The claimant could not fairly be held responsible for the error;
(iv) Although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result;
(v) The mistaken impression played a material part in the reasoning.
64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis. Similarly, in Tameside, the Council and the Secretary of State, notwithstanding their policy differences, had a shared interest in decisions being made on correct information as to practicalities. The same thinking can be applied to asylum cases. Although the Secretary of State has no general duty to assist the appellant by providing information about conditions in other countries (see Abdi and Gawe v Secretary of State  1 WLR 298, he has a shared interest with the appellant and the Tribunal in ensuring that decisions are reached on the best information. It is in the interest of all parties that decisions should be made on the best available information (see the comments of Sedley LJ in Batayav, quoted above).
(We have also taken account of the judgment of Maurice Kay J in R (Cindo) v Secretary of State  EWHC 246 para 8-11, drawn to our attention since the hearing by Mr Gill, in which some of these issues were discussed.)"
5. Error of fundamental fact
1. all its existing fleet of 1400 London-style taxis were accessible to wheelchair users generally, and that must mean to all wheelchair users;
2. problems as to the safe position and strapping of wheelchairs were the result of driver error rather than the result of constrictions of space;
3. it was dealing merely with a wish by wheelchair users to greater choice rather than something that restricted their ability to access the benefits provided by the licensing regime at all.
Although this report covers only the experiences of the six wheelchair users a range of wheelchairs were included - both manual and electric. It emerged very clearly that there are three major difficulties to be taken into account when designing vehicles to meet the needs of wheelchair users: (a) differences in the individual's size and weight; (b) differences in the nature of the disability; and (c) differences in the wheelchair design. These difficulties were compounded by the fact that the individual's size and the nature of their disability may require the wheelchair to be set up differently to meet the individual's needs. So, even though the wheelchair design may be standard, if (for example) the occupant requires the foot rests to be raised this can make it difficult or impossible for the passenger to get into or turn around in the vehicle. Another passenger with the same wheelchair would not have such difficulties.
It should also be noted that two of the wheelchairs used in this study were large electric wheelchairs. These were of the same design but set up very differently. While these large, electric wheelchairs may not be as widely used as smaller, manual wheelchairs, they are increasing in popularity. It is also likely that for people wishing to travel independently on public transport they represent a greater proportion of wheelchairs in use than for the general disabled population. It is essential, therefore, that any future vehicle designs are able to accommodate large, electric wheelchairs.
Previous research conducted by Surface Transport has shown that a major issue for disabled passengers on public transport is the desire to travel with their partner, friends and to be able to carry on and store shopping, luggage and/or medical supplies and aids. It should be recognised also that for many wheelchair users their friends or partners are also wheelchair users. Therefore, a taxi that can only accommodate one wheelchair is not acceptable. Fully accessible taxis need to be evaluated not simply as to whether the vehicle is accessible and comfortable for the wheelchair user but also whether it meets all their travel wishes and requirements.
3.2. In the taxi
Once the wheelchair user had managed to get into the taxi they were then faced with the problem of turning the chair around to use the safety harness. This was impossible in the two standard, London taxis even for the manual wheelchairs (and the electric wheelchairs could not be accommodated at all). The occupant, therefore, was forced to ride sideways to the direction of travel and without a safety harness. During this study no vehicle was allowed to move off where it was felt that the occupant was unsafe or the seating arrangement illegal.
The drivers said, however, that on the street they would be prepared to carry a wheelchair user in a sideways position without a safety harness if the passenger was prepared to take the risk. Consideration should be given, not only to the safety and legal issues, but also the validity of insurance under these circumstances."
"2.8.8. If it is was shown that the TRC was unequivocally unsafe, we would recommend a licensing condition that forbids the use of U-turn manoeuvres by taxis. However we agree with the PCO conclusions that there is no over-riding evidence either way regarding the safety risks of U-turns against 3 point turns. Nevertheless, unlike the PCO, we do not consider this a reason to retain the TCR.
2.8.9. In any case, all vehicles used as taxis must meet the appropriate standards for European Whole Vehicle Type approval. This includes vehicles used as taxis that do not have the TTC property. Although very useful, the results from our surveys our consultation exercise and the details and arguments from the PCO report reviewed above have not persuaded us that the TCR is essential to the taxi trade in terms of providing a safe working environment. Given that its inclusion may be
detrimental to the broader interests of the trade, especially in the longer term, we adhere to our original recommendation that Condition 181 should be removed from The City of Edinburgh Council's taxi licensing conditions."
6. Relevant class under section 21(B) and (E)
1. Did the Council have a practice policy or procedure?
2. Did that practice policy or procedure make it impossible or unreasonably difficult for disabled persons to receive any benefit that is, or may be, conferred by the Council?
3. If so, is it under a duty to take such steps as is reasonable in all the circumstances of the case for it to change that practice policy and procedure so it no longer has that effect?
4. Has the Council failed to comply with its duty to take such steps?
5. If so, is the effect of that failure such as to make it unreasonably difficult for Mrs Lunt to access such benefit?
6. If so, can the Council show that its failure to comply is justified in that either-
(a) it reasonably holds an opinion that the non-compliance is necessary in order not to endanger the health or safety of any other person; or
(b) its failure is justified as a proportionate means of achieving another legitimate aim?
"11. It is desirable first to say something about the cross-appeal. Manifestly no single feature of premises will obstruct access for all disabled persons or - in most cases - for disabled persons generally. In the present case, for instance, the footbridge is not likely to present an insuperable problem for blind people. The phrase 'disabled persons' in section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability: here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual claimant is that section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability - impaired vision, impaired mobility and so on. Thus the practical way of applying section 21 in discrimination proceedings will usually be to focus the question and the answer on people with the same kind of disability as the claimant.
12. The personal right created by section 19 of the DDA operates by fastening a cause of action on to the section 21 duty if the effect of a breach of the duty is "to make it impossible or unreasonably difficult for the disabled person to make use" of the service in question. Thus there is a double test, albeit both limbs use the same phraseology: first (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the claimant?
26. ... I do accept, however, that it is not necessary, in order to trigger the section 21(2) duty, for the feature in question to cause unreasonable difficulty for all or most disabled persons: any significant impact on, say, wheelchair users as a class will in my judgment suffice. The question may often have to be answered without reference to direct evidence from which some kind of statistical analysis can be made: indeed the assembly of such evidence, whether pro or con, may well be invidious or arbitrary and therefore an inappropriate exercise to attempt. Judges are likelier to be assisted by their own appraisal and, where necessary, expert evidence."
"6.4. The policy of the Act is not a minimalist policy of simply ensuring that some access is available to disabled people; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. Accordingly, the purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large.
6.36. However, when considering whether services are unreasonably difficult for disabled people to use or whether disabled people's experiences are
unreasonably adverse, service providers should
take account of whether the time, inconvenience
effort, discomfort, anxiety or loss of dignity
entailed in using the service would be considered
unreasonable by other people if they had to
endure similar difficulties ..."
I note that paragraphs 7.11 and 11.40 of the Code reflect a similar approach.
"Where there is only one practicable solution, it may have to be treated as reasonable even if it is demeaning or onerous for disabled people to use it. If on the other hand there is a range of solutions, the fact that one of them, if it stood alone, would satisfy section 21(2)(d) may not be enough to afford a defence. This is because the policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore  Fam 1, §105: "to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large". While, therefore, the Act does not require the court to make nice choices between comparably reasonable solutions, it makes comparison inescapable where a proffered solution is said not to be reasonable precisely because a better one, in terms of practicality or of the legislative policy, is available. That was this case.
7. Duty to give due consideration under section 49
"Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life."
"90. Subject to these qualifications, how, in practice, does the public authority fulfil its duty to have "due regard" to the identified goals that are set out in section 49A(1)? An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have "due regard" to the identified goals: compare, in a race relations context R(Watkins - Singh) v Governing Body of Aberdare Girls' High School  EWHC 1865 at paragraph 114 per Silber J. Thus, an incomplete or erroneous appreciation of the duties will mean that "due regard" has not been given to them: see, in a race relations case, the remarks of Moses LJ in R (Kaur and Shah) v London Borough of Ealing  EWHC 2062 (Admin) at paragraph 45.
91. Secondly, the "due regard" duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind. On this compare, in the context of race relations: R(Elias) v Secretary of State for Defence  1 WLR 3213 at para 274 per Arden LJ. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not enough to discharge the duty: compare, in the race relations context, the remarks of Buxton LJ in R(C) v Secretary of State for Justice  EWCA Civ 882 at paragraph 49.
92. Thirdly, the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of "ticking boxes". Compare, in a race relations case the remarks of Moses LJ in R(Kaur and Shah) v London Borough of Ealing  EWHC 2062 (Admin) at paragraphs 24-25.
93. However, the fact that the public authority has not mentioned specifically section 49A(1) in carrying out the particular function where it has to have "due regard" to the needs set out in the section is not determinative of whether the duty under the statute has been performed: see the judgment of Dyson LJ in Baker at paragraph 36. But it is good practice for the policy or decision maker to make reference to the provision and any code or other non - statutory guidance in all cases where section 49A(1) is in play. "In that way the [policy or] decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced": Baker at paragraph 38.
94. Fourthly, the duty imposed on public authorities that are subject to the section 49A(1) duty is a non - delegable duty. The duty will always remain on the public authority charged with it. In practice another body may actually carry out practical steps to fulfil a policy stated by a public authority that is charged with the section 49A(1) duty. In those circumstances the duty to have "due regard" to the needs identified will only be fulfilled by the relevant public authority if (1) it appoints a third party that is capable of fulfilling the "due regard" duty and is willing to do so; and (2) the public authority maintains a proper supervision over the third party to ensure it carries out its "due regard" duty. Compare the remarks of Dobbs J in R (Eisai Limited) v National Instituted for Health and Clinical Excellence  EWHC 1941 (Admin) at paragraphs 92 and 95.
95. Fifthly, (and obviously), the duty is a continuing one.
96. Sixthly, it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions. Proper record - keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by section 49A(1): see the remarks of Stanley Burnton J in R(Bapio Action Limited) v Secretary of State for the Home Department  EWHC 199 (Admin) at paragraph 69, those of Dobbs J in R(Eisai Ltd) v NICE (supra) at 92 and 94, and those of Moses LJ in Kaur and Shah (supra) at paragraph 25."
8. Is Article 28 of the EC Treaty engaged?
"26. Even if the national regulations at issue do not have the aim or effect of treating goods coming from other Member States less favourably, which is for the national court to ascertain, the restriction which they impose on the use of a product in the territory of a Member State may, depending on its scope, have a considerable influence on the behaviour of consumers, which may, in turn, affect the access of that product to the market of that Member State (see to that effect, Commission v Italy, paragraph 56).
27. Consumers, knowing that the use permitted by such regulations is very limited, have only a limited interest in buying that product (see to that effect, Commission v Italy, paragraph 57)."
"6.1.2 ... Protection of health and life of humans, animals and plants is the most popular justification under which Member States usually try to justify obstacles to the free movement of goods. While the Court's case law is very extensive in this area, there are some principal rules that have to be observed: the protection of health cannot be invoked if the real purpose of the measure is to protect the domestic market, even though in the absence of harmonisation it is for a Member State to decide on the level of protection; the measures adopted have to be proportionate, i.e. restricted to what is necessary to attain the legitimate aim of protecting public health. Furthermore, measures at issue have to be well-founded - providing relevant evidence, data (technical, scientific, statistical, nutritional) and all other relevant information.
6.4 ... An important element in the analysis of the justification provided by a Member State will
therefore be the existence of alternative measures hindering trade less. The Member State has an obligation to opt for the "less restrictive alternative" and failure to do so will constitute a
breach of the proportionality principle."
i. It is unclear what expertise Mr Gore, the force vehicle examiner, had to speak of the safety implications of turning circles and sliding doors. Examining a vehicle for road worthiness or compliance with the regulations is not the same as a comprehensive consideration of the merits or demerits of a particular design on safety grounds.
ii. There is a distinction between convenience and lack of familiarity with a sliding door and real concerns of safety. The new is not to be deprecated simply because it is a feature that may be unfamiliar to some. I have great difficulty in seeing how descent from a commercial vehicle designed to carry people which has a sliding door can be said to represent a safety issue given the scale of the use of such vehicles in London and elsewhere as private hire vehicles precisely for that purpose.
iii. The fact that the E7 is used as a public hire taxi extensively in the UK without reported incident is a compelling source of relevant evidence that would have to be addressed. It is particularly notable that no concerns have been reported in Liverpool itself resulting from the dropping off of passengers by E7 vehicles licensed in neighbouring authorities. Of course the turning circle is useful for the avoidance of three point turns in narrow streets where someone seeks to specifically hail a passing taxi. However, where a particular assessment has been made as to the safety consideration of this issue, as it has in the Edinburgh study, the Liverpool Council would have to consider whether it has a cogent basis for disagreeing with such evidence and why.
iv. Local knowledge is a well recognised virtue of local democracy, where decision-makers reach decisions on matters of broad policy: generally a political decision. It is not to be equated with expertise in a specialist area of assessment. The fact that other Councils have different policies as to which vehicles types are authorised does not by itself suggest that Liverpool is wrong in maintaining its policy. If, however, the issue is safety, then the practice and experience of other authorities over a reasonable period of time cannot be ignored. It is impermissible to speculate if the answer to the relevant inquiry can be ascertained by demonstrated experience.
v. What should weigh in the balance on any discussion of justification on safety grounds is the clear safety benefits for secure travel for all wheelchair users, irrespective of the dimensions of their chairs, that can be apparently accommodated in the E7. It is common ground that travelling unsecured sideways in a cab is unacceptable. The introduction of the E7 alongside but not in replacement of the TX is likely to make a substantial contribution to eliminating such practices.
MR FACENNA: My Lord, taking notice of the time, can I hand up something very short which is a draft order, and a very short draft submission on one aspect of that order. The first page is the draft order. Immediately following that is a very short submission going to the second paragraph of that draft order which relates to a request by the claimants that this is made part of your Lordship's order: that the chair of the Licensing Committee, Mr Kelly, should play no part in the reconsideration exercise.
MR JUSTICE BLAKE: He is the chair of the Committee?
MR FACENNA: He is the chair of the Committee.
MR JUSTICE BLAKE: I am sure that local democracy has some vibrant views and he will have to reconsider the matter in light of this decision.
MR FACENNA: My Lord, can I invite you to look very briefly at the submission which immediately follows the order because there is authority on this point. The reasons why we ask are set out there, and we accept obviously the appropriate relief is a re-determination. In his witness statement in these proceedings Mr Kelly expressed very strong and forceful views about the nature of the claim, and did seem to take some personal offence at the way in which the evidence was presented. You will see there that he describes himself in his witness statement as being staggered --
MR JUSTICE BLAKE: I think I have the gist of this. Do you want me to flick my way through this? I will try and do this quickly.
MR FACENNA: That might be sensible, my Lord. I have summarised the two authorities in the submissions so you may not need to go to them. (Pause)
MR JUSTICE BLAKE: Yes, well, apart from that, I am not sure I am going to have time to read the authority before 1 o'clock.
MR FACENNA: It is a very simple point, which is there is authority that the Administrative Court will in appropriate circumstances --
MR JUSTICE BLAKE: I think I see the point. Since this is a case in which I am sure that Liverpool will reconsider with a fresh mind in the light of the very different picture in this judgment, and that the more one puts the past aside and gets on with the future the better, I am not proposing to make the order that you seek in terms of Mr Kelly. It will be for the Liverpool Council to decide how it best goes about its task, but I am not prepared to exclude him from the considerations. I will not need to hear you on that.
MR FACENNA: That is understood. Thank you, my Lord. The second point is of course the claimants apply for their costs of this claim.
MR HERCOCK: I cannot resist that.
MR JUSTICE BLAKE: No, then you will get them.
MR HERCOCK: Could I raise one very brief point, if possible, and it will be brief? My Lord's judgment raises matters of importance to the City Council, and they would wish to have time to reflect on them, both in terms of the issues of disability discrimination and also the Article 28 point. It is with that in mind and the fact that the Council wishes properly to reflect, and I anticipate that that will mean the Licensing Committee being convened to consider my Lord's judgment, whether in terms of any application for permission to appeal my Lord would be prepared to extend the time period for any such application to, say, two weeks from receipt of the approved judgment.
MR JUSTICE BLAKE: Yes, there is not going to be anyone around to approve it for the next 28 days, I can tell you that.
MR FACENNA: My Lord, just on the point, the short-hand typist has indicated that the transcript will be available either at the end of today or on Monday --
MR JUSTICE BLAKE: I will not be, but I am delighted to hear that.
MR FACENNA: You are not around early next week?
MR JUSTICE BLAKE: No, I will not be in an E7 Peugeot vehicle but I might he be headed to where the vehicle came from.
MR FACENNA: Leaving the transcript aside -- we obviously all want to see it as quickly as possible -- but we understand where we are in terms of dates, in terms of the applications being made, they do not need the approved judgment to consider whether they want permission to appeal. They have your Lordship's judgment this morning, and the sooner that we have certainty for both claimants the better.
MR JUSTICE BLAKE: There is a problem about timing since we are about to hit August, so do I bite the bullet now and address your application for permission to appeal?
MR HERCOCK: I am not in a position to make the application at this stage, my Lord. My instructions are that the Council would obviously like time to reflect on the judgment given that the matter has been dealt with effectively extempore, and then to make the application in writing, if that could be done, say, within a particular timescale.
MR JUSTICE BLAKE: I think in the circumstances I will consider any application for permission to appeal in writing if it is before me by 7 September.
MR HERCOCK: I am grateful. Thank you.
MR JUSTICE BLAKE: I recognise of course that there are some broader issues of policy here, but there is equally quite a solid core to the reasons I have reached for why the decision should be set aside.
MR FACENNA: My Lord, of course, if such an application is made, we would want a short opportunity, maybe only two or three days, in order to --
MR JUSTICE BLAKE: You will have to sort out between yourselves sequencing. If you are both going to be around in August and the early part of September, so much before then, but I will probably approve the transcript and consider the permission to appeal at the same time.
MR FACENNA: Which will be, sorry, at the end of August?
MR JUSTICE BLAKE: No, from the week beginning 7 September when I know I am back on vacation duty in the Administrative Court.
MR FACENNA: My Lord, one final comment, which is that both my clients have asked me to express their thanks to your Lordship for the thorough and speedy way with which you dealt with this, and Mrs Lunt and Mrs Price in particular are grateful to you and your clerk for the arrangements made in terms of getting an accessible court room.
MR JUSTICE BLAKE: Thank you for that. I am sorry things did not get off to a brilliant start given the subject matter of the claim when we started to hear this case in court 2 to which wheelchair users had difficulty in securing access. But there we are. Thank you to all counsel, and my thanks to both your leaders and you, Ms Genn.