“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019. This was judicially reviewed by the Independent Workers Union of Great Britain (“IWUGB”) and two individuals. They argued that removal of the exemption had a discriminatory effect and/or infringed the individuals’ human rights. The court rejected these claims and found the measure to be lawful.
Transport for London (“TfL”) developed proposals to change the Congestion Charging scheme. The most significant changes included removing the exemption to the Congestion Charge for most PHVs, although designated wheelchair accessible PHVs would retain the exemption. A twelve week public consultation on the proposals was undertaken between 6 July 2018 and 28 September 2018, in order to provide further information to inform the Mayor’s decision whether to confirm the proposals, with or without modification.
In a 205 pages report (together with another 250+ pages of annexes) it was recommended to the Mayor that he confirm the proposals. As is often the case with proposals of this type, an extensive impact assessment was produced with the assistance of an external consultancy. Alongside health and environmental impacts, an equalities impact assessment was undertaken. It was noted that as the majority of PHV drivers (around 94 per cent) are from Black, Asian and minority ethnic backgrounds (“BAME”), there would be a disproportionate impact on these groups.
The Mayor made the decision to, among other things, remove the PHV exemption on 18 December 2018 (the “Decision”).
The IWUGB, together with two individuals affected by the decision, subsequently challenged the Decision by judicial review. The case was heard in the High Court between 10 and 11 July 2019. Judgment was handed down by Mr Justice Lewis on 24 July 2019.
Given the grounds of claim, four issues fell to be determined by Lewis J (see paragraph  of the judgment). These were:
Turning to the First Ground, section 19 of the Equality Act 2010 deals with indirect discrimination – i.e. where a measure expressed in neutral terms has a disproportionate impact on certain groups – but it does not apply where the measure is a proportionate means of achieving a legitimate aim. In paragraphs  and  of the judgment Lewis J set out the principles to be applied when determining whether a measure satisfies this test, drawing on case law from the employment context.
These were: (a) the burden of proof is on the defendant to establish justification; (b) the measures must correspond to a real need, must be appropriate to achieve the objective and be reasonably necessary; (c) the principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking – the more serious the impact, the more cogent the justification must be for it; and (d) it is for the court to make its own, objective, assessment of the matter while affording the decision-maker a margin of appreciation.
On the facts, he held that that the Mayor had satisfied the necessary requirements. He determined that the measure did correspond to a real need, which was to reduce traffic in the CCZ (see paragraph ). In addition, he found that the removal of the PHV exemption was an appropriate and suitable means of reducing traffic and there were no other less intrusive measures which could be adopted (see paragraphs  and ). It was noted on this point that the Claimants had not advanced arguments about the viability of any alternative measure in their submissions. In assessing proportionality, the court’s approach was to look at the maximum financial impact of the measure (e.g. paying the charge for 5 days a week, which represented a loss of approximately 10% of income) and then examine the various ways in which that impact might be mitigated. For example, the court observed that only 1/3rd of registered PHV actually go into the CCZ and that operators may allow some of these costs to be mitigated - e.g. through the imposition of a passenger surcharge or through allowing drivers to indicate they do not wish to go into the CCZ. Finally, it was noted that the Mayor had considered these impacts when reaching his decision (see paragraphs  to ).
The Second and Third Grounds were dealt with relatively summarily in the judgment (see paragraphs  to ) and were rejected by the court. On the Second Ground, it was argued that the individual claimants needed to work longer hours in order to compensate for the lost income which had an impact on the amount of time they could spend with their families. While sympathetic to this, Lewis J held this did not amount to interference for the purposes of Article 8 ECHR or that even if it did, this was justified. Similarly, Lewis J was doubtful that there was any interference for the purposes of A1P1 but held that if there was any interference it was justified.
The Fourth Ground, of discrimination contrary to Article 14 ECHR, also relied on Article 8 and A1P1 but could still succeed even where the Second and Third Grounds failed. The court proceeded on the basis that A1P1 was engaged (see paragraph ) and then, in light of the concession on differential impact made by the Mayor, went on to consider objective justification. The court noted that in assessing one aspect of that objective justification assessment – of fair balance – it should respect the democratic legitimacy of the decision-maker and give significant weight to its assessment provided that there is a reasonable foundation for the measure (see paragraph ). On the facts the court held that there was such a reasonable foundation.
This case demonstrates the difficulties in mounting a successful judicial review challenge which goes to the substance of the measure, rather than the process followed in reaching it. While arguments based on substantive discrimination will enable a more intense review by the courts of the substance of the decision of the public authority, there remain significant limitations on this. Where the public authority has turned its mind to the relevant issue – as it did here given the manner in which it highlighted the impact on BAME drivers in the impact assessment – and provided that the decision maker had considered the issue carefully, the courts will be slow to intervene in the judgment reached.
The IWUGB have indicated following the judgment that they intend to appeal to the Court of Appeal. One area that may need to be developed further in any such appeal is whether, in fact, the measures did place BAME drivers at a particular disadvantage as compared to non-BAME drivers. This was dealt with very briefly in the judgment. It was noted that this disadvantage arose as PHV drivers are from predominantly BAME backgrounds while taxi driver are more likely to be from non-BAME backgrounds. The court did not however decide whether PHVs and taxis were in fact comparable (see paragraphs  to ).
Should you have any questions about the issues covered in this blog, please contact a member of our Public Law team.
Attempts to narrow the scope of judicial review have long been on the Conservative Party’s political agenda. Following the Independent Review of Administrative Law (‘IRAL’) and the subsequent government consultation on reform of judicial review, the then Lord Chancellor, Robert Buckland, introduced the Judicial Review and Courts Bill (‘the Bill’) to the House of Commons on 21 July 2021. The Bill is making its way through Parliament and is currently at the committee stage.
As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
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