Court of Appeal: Sir Geoffrey Vos C, Singh and Simler LJJ, [2020] EWCA Civ 1046, 5 August 2020

The claimant unsuccessfully appealed against the rejection by Lewis J of its challenge to the decision to remove the exemption in the congestion charging regime which had previously applied to private hire vehicles (PHVs). The exemption remained applicable to black cabs and to the 1% of PHVs which were wheelchair accessible. The claimant argued that the removal of the exemption amounted to indirect discrimination against BAME and women PHV drivers, 94% of PHV drivers being from BAME backgrounds whereas 88% of black cab drivers were white. Since the introduction of the congestion charge the number of black cabs and black cab drivers had remained relatively stable but PHV drivers and vehicles had increased substantially. It was anticipated that the removal of the exemption would reduce PHVs in the zone by 6%, and traffic overall by at least 1%.

The measures under challenge was the Greater London (Central Zone) Congestion Charging (Variation) Order 2018, the Greater London (Central Zone) Congestion Charging (Variation) Order 2018 and the Greater London Low Emission Zone Charging (Variation) (No 2) Order 2018 Instrument of Confirmation 2018, made by the defendant under powers granted by the Greater London Authority Act 1999. There had been an extensive period of consideration, and analysis of the impact of the proposed changes on BAME and women drivers, the latter being disproportionately likely to work part-time (and therefore be less able to spread the cost of the congestion charge over a number of journeys), disabled passengers and those in economically deprived communities.

Lewis J had directed himself, in accordance with the decision of the Court of Appeal in Lockwood v Department of Work and Pensions [2013] EWCA Civ 1195, [2014] ICR 1257, that the burden of proof was on the respondent to establish justification; that (Bilka-Kaufhas GmbH v Weber Von Hartz (Case 170/84) [1986] ECR 1607, [1986] 2 CMLR 701 §36) the court must be satisfied that the measures must “correspond to a real need … [be] appropriate with a view to achieving the objectives pursued and [be reasonably] necessary to that end”; that the principle of proportionality required an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking; and that it was for the court 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. Lewis J had accepted that the removal of the exemption had a disproportionately negative impact on BAME and women drivers but ruled that the defendant’s aim of reducing traffic and congestion within the congestion charging zone without reducing the number of wheelchair-accessible minicabs available was legitimate and that the removal of the exemption corresponded to a real need to reduce traffic congestion, that it was appropriate and suitable to achieve that aim, that no other alternative measures that would realistically achieve the aim to the same extent had been shown, and that the removal of the exemption was a proportionate means of achieving the legitimate aim.

The claimant argued on appeal that Lewis J had erred in concluding that the aim pursued properly amounted to a legitimate aim for the purposes of the Equality Act 2010 (ground 3), and that the removal of the exemption was appropriate and reasonably necessary to achieve the aim (grounds 1 and 2). It also argued that the judge had erred in his approach to proportionality by not considering whether the measure itself, as opposed to its impact, was justified, also by failing to carry out a proper proportionality exercise and by giving improper weight to the fact the decision maker was the state (grounds 4, 6 and 7). Finally, the claimant argued that the judge had erred in his approach to the comparison between those with the relevant protected characteristic and those without it (ground 5).

The Court of Appeal rejected all grounds of appeal. The case demonstrates the importance of identifying with some precision the aim which is relied upon in relation to a disparately impacting decision, also the fact that even a policy which has a hugely disproportionate racial impact may be justified by reference to a suitably defined aim. The decision is also an important one because it sets out the proper approach to justification under the Equality Act 2010 where a policy or measure has a dramatically disparate racial impact, although the rigorous approach adopted by the Court of Appeal was not sufficient to overturn the conclusion of the court below that the threshold had been met in this case.

Simler LJ, with whom Singh LJ and the Chancellor agreed, accepted that an aim of reducing the number of PHVs as such (as distinct from in order to reduce congestion) would be problematic in view of the stark racial disparity between PHV and black taxi drivers, but ruled that the judge had been entitled to hold that the defendants’ dual aims were to reduce traffic and congestion while maintaining the number of wheelchair-accessible vehicles for hire. She relied on the decision of the ECJ in European Commission v Hungary C-286/12 to hold that dual aims which appear to pull in two different directions may nonetheless be legitimate, and was satisfied that the introduction of a disincentive for wheelchair accessible passenger vehicles in the form of liability to congestion charge would have run the risk of reducing the number of such vehicles for a group that was particularly dependent on the availability of them. Simler LJ was satisfied that the distinction drawn by the defendants between black cabs and PHVs was justified by the fact that black cabs were obliged to be wheelchair accessible and to provide a range of other accessibility features for disabled passengers, to accept any hire within a 6 mile radius of Charing Cross of up to 12 miles or one hour in duration or 12 miles long and to take the shortest, most direct route to fulfil a hire, and that they had no ability to set their own fares in order to recoup the charge from passengers. Singh LJ questioned whether the retention of disabled accessible vehicles could in this case properly be described as an aim, as distinct from “a design feature of the means by which the first aim was to be achieved” or “a non-negotiable way of achieving the first aim” but agreed with Simler LJ that there were legitimate reasons for distinguishing between PHVs and black cabs. Sir Geoffrey Vos, who agreed with both judgments, declared the case “troubling” in view of the fact that the measure appeared at first sight to have been “targeted at (mostly BAME) minicab drivers who are deprived of the exemption, leaving (mostly white) taxi drivers exempt from the congestion charge”, a distinction which would have required “stringent scrutiny”. “On careful analysis”, however, he was “persuaded that appearances were indeed deceptive” and “the Mayor’s overwhelming and legitimate aim was to reduce traffic and congestion in the zone”.

The claimant argued that Lewis J was required to, but had not, taken into account the fact that disabled people other than wheelchairs were, as disproportionate users of PHVs, particularly disadvantaged by the removal of the exemption in determining whether the measure was appropriate to the end pursued. Simler LJ disagreed, ruling that this was a matter to be taken into account in assessing the proportionality of the measure, rather than whether it was appropriate and therefore legitimate to the aims pursued. She concluded that the judge had not erred in finding that the measure was appropriate. She also accepted that he had been entitled to conclude that there were no other less intrusive measures that could realistically achieve the same aim. The claimant had sought to argue that a 1% reduction in traffic within the charging zone could be achieved by an increase in the congestion charge for all those presently liable to it (with PHVs remaining exempt). Lewis J had accepted that this would not have reduced the number of private hire vehicles in the zone, or the fact that a large number of such vehicles circulate without passengers, and that the evidence was that even a significant increase in the congestion charge would not have had this effect.

The claimant argued on appeal that it was for the defendants to establish that the measure adopted was a proportionate means of achieving a legitimate aim and not for the claimant to establish an obviously better alternative, and that Lewis J had erred in considering only the alternative measures suggested by the claimant, further that the judge had wrongly elided the aim of reducing traffic and congestion more generally with a need to reduce the number of minicabs. The Court ruled that the correct approach to consideration of alternative measures was set out by the Court of Appeal in R (The Friends of Antique Cultural Treasures Ltd) v Secretary of State for the Department of Environment, Food and Rural Affairs [2020] EWCA Civ 649., [2020] 1 WLR 3876. The Court there had at §80 emphasised the decision’s maker’s margin of appreciation or discretion, which was highly fact and context specific, and stated that a measure would be disproportionate if “it is clear that the desired level of protection could be attained equally well by measures which were less restrictive” (citing R (Lumsdon) v Legal Services Board [2015] UKSC 41, [2016] AC 697 §66). It had placed the burden of proof on the decision maker but made it clear that the latter was not under a duty to prove positively that no other measure could be as effective, and was not required “… to consider every possible alternative, including those that were never suggested by consultees”. Nor was the “mere assertion that some other measure is equivalent and less intrusive” sufficient to establish that the measure chosen was unnecessary, while the fact that a measure was “general, simple, easily understood and readily managed and supervised” would be relevant to whether it was reasonably necessary.

Simler LJ was satisfied that Lewis J had been entitled to conclude on the evidence that the overall traffic reduction and congestion reduction benefits were not likely to be achieved without reducing the number of PHVs entering the congestion charging zone. Singh LJ regarded it as “surprising that no consideration appears to have been given early on to the question whether the congestion charge should have been increased for all those presently liable to the charge (but with minicabs and taxis remaining exempt)”, which “seems to me that that was an obvious possible alternative solution to the perceived problems that the measure was intended to resolve”, though he agreed with Simler LJ that Lewis J was entitled to accept the evidence on this. Sir Geoffrey Vos agreed that “the only effective way” of reducing traffic and congestion in the CCZ would be to address the “exponential rise both in the absolute number of minicab drivers operating in London and in those entering the zone”, while “there was no purpose in interfering with the exemption accorded to taxis, because taxis provide unique advantages to Londoners” including by “allow[ing] wheelchair bound passengers to travel”.  He acknowledged that the 1% traffic reduction forecast was “seemingly slim” but stated that this was “a little misleading, since, if nothing were done to stem the growth of minicabs in the zone, overall future traffic increases were inevitable”.

As to the question of proportionality, the Court agreed with the claimant that a rigorous standard should be applied (relying on R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1WLR 3213 §161) in view of the “stark” racial imbalance between PHV and black cab drivers. Public bodies generally had a wide margin of discretion in determining whether decisions in the field of social or economic policies are proportionate to a legitimate aim, however, and in making the rigorous objective assessment for itself the court was required to accord an appropriate margin of discretion to the decision maker having regard to the circumstances of the particular case” (§72, citing McCloud v Lord Chancellor [2018] EWCA Civ 2844, [2020] 1 All ER 304 §§143 to 145). Singh LJ expressly agreed, stating that the Court should reject the approach in Lumsdon and adopt the “stringent scrutiny” approach in Elias “particularly because the impact on drivers from …BAME … communities as compared with white drivers is striking… Whatever may be the position generally when reviewing the acts of public authorities in the context of social and economic policy, in my view, a more stringent scrutiny is required when the alleged ground of discrimination is race”. He went on to declare himself:

“unimpressed in the present context with the reliance which has been placed on the fact that the Respondent is democratically elected … the premise of equality law is that every person is entitled to be treated in an equal way irrespective of whether they are part of the majority or in a minority. In a democracy there is a danger that the majority (perhaps unconsciously) will override the interests of the minority because the price of a measure will be paid not generally by the community but only, or substantially, by a minority”. Direct race discrimination was incapable of justification under the EqA and, while indirect race discrimination was “in principle … capable of justification … the court should be alert to the need to prevent the danger of unconscious bias by subjecting the justification which is put forward to appropriate scrutiny”.

The claimant argued that Lewis J had incorrectly considered whether the defendant could justify the differential impact of the measure, as distinct from the measure itself (citing Baroness Hale in R (UNISON v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409 §126). Simler LJ declared that the measure itself had to be a proportionate means of achieving a legitimate aim in order to justify what would otherwise be unlawful indirect discrimination but that, once the aim pursued had been accepted as legitimate, the  test of proportionality required a balance to be struck between the discriminatory effect of the measure on the disadvantaged group, and the needs of (or benefit to be achieved by) the putative discriminator. She rejected the argument that Lewis J had failed actually to weigh the measure against the benefits to be achieved by it, and had afforded the defendant too wide a measure of discretion, remarking that both the defendant and the judge had been led by the “the stark statistical imbalance in th[e] case …to confront this concerning feature of the measure adopted, and to scrutinise with particular care the nature and significance of the impact on the disadvantaged groups when balancing that against the aims and objects to be achieved”.

Lewis J had identified the maximum cost of the change to PHV drivers as £52.50 per week but found that this was mitigated by the fact that two thirds of London PHVs never entered the congestion charge zone; that operators could be expected to make changes enabling drivers to recover some of the cost of the congestion charge thereby reducing its impact (Uber, the largest PHV operator, had already done so); and that some operators had modified their practices to allow drivers to avoid going into the congestion charge zone if they wished. Simler LJ was satisfied that Lewis J had carefully considered the impact of the measure on the individual claimants and on disabled PHV users, and had not deferred to the defendant’s assessment of proportionality. He had identified the relevant and legitimate factors features of the case that led him to conclude that some weight was to be accorded to the democratically accountable decision maker who determined the appropriate balance to be struck between the competing interests in this case, but had conducted his own proportionality assessment. Although the judge had not expressly weighed the benefits of the aim against the significant disadvantages caused by the means used to achieve it, his overall analysis had concluded that the not-insignificant benefits forecast (for traffic reduction, congestion and air pollution) for Londoners outweighed the likely adverse impact on a relatively small proportion of minority ethnic and female drivers, and disabled passengers.

Finally, Simler LJ rejected the claim that Lewis J had wrongly considered the position of black and minority ethnic PHV drivers (and female drivers) relative to all other PHV drivers, as distinct from considering their position against that of all PHV and taxi drivers. This being the case, she preferred to express no view on a point which she described as being “not without difficulty”.

Claimant: Ben Collins QC, Nadia Motraghi, Nicola Newbegin and Tara O’Halloran, instructed by TMP Solicitors LLP

Defendant and interested party: Marie Demetriou QC, Malcolm Birdling and David Heaton, instructed by TfL Legal

post modified 15 January 2022