Lynne Townley and Tony Ostrin

The taxi or black cab has from time immemorial has been part of the London transport scene.  They are permitted to use all available road space, including bus lanes.  The current pandemic has motivated the Mayor of London and Transport for London (TfL) to create a policy resulting in traffic plan and traffic orders limiting the amount of road space available for vehicles.  The result of these orders has been to restrict taxis from using road space (including bus lanes) in two areas of central London that were previously available to them.

In R (on the application of United Trade Action Group Ltd and another) v Transport for London and another [2021] EWHC 72 (Admin), the issue of whether these orders were lawful came before Mrs Justice Lang in the High Court.

The first issue was whether TfL had failed to consider taxis when creating the orders – leaving them within the category of ‘general traffic’.  As indicated, taxis have been part of the transport scheme in London for centuries and have provided an essential service in the public interest.  The judge found that the impact of the orders upon taxis had not been taken into account, stating ‘in my view the status and role of taxis was of such importance to the viability of the proposals and their impact on taxi drivers and the public that if these considerations had been taken into account they would have been mentioned in the Guidance’.

The second issue was whether the orders were in breach of the Equality Act 2010.  The applicant submitted that the orders discriminated against those who are infirm or disabled because taxis must be able to pick up and put down passengers at the places where they could no longer drive due to the change in the traffic arrangements.  The judge agreed that this amounted to discrimination against that group: ‘There was no investigation or consideration of the adverse impacts that restricting road use by taxis could cause to those with the relevant protected characteristics.  Therefore, TfL did not pay due regard to the equality duties…’.

The third issue was whether taxi drivers (and the general public) had a legitimate expectation that they would always be able to use all available road space and have the use of bus lanes.  Additionally, the public would also have the same expectation.  The judge ruled that there was such a legitimate expectation.

The fourth issue was whether the orders were irrational. In holding that the orders were irrational and unlawful, the judge held ‘It was both unfair and irrational to introduce such extreme measures, if it was not necessary to do so, when they impacted so adversely on certain sections of the public’.  On this basis also the judge found the Orders to be unlawful.

A further point that was submitted in relation to whether the orders interfered with the taxi drivers’ right to provide a service under the terms of their licences (for financial benefit).  The judge said that there was insufficient evidence in front of her to make a ruling, but indicated that she would have ruled in favour of the applicant’s on the point had they provided evidence in support of their claim.

While the judgment has been stayed pending a possible appeal by TfL, one wonders whether TfL should now take the traffic orders back to the drawing board and make adjustments to them.  If, for example, they were to make taxis exempt from these orders perhaps that could be said to be the end of the matter.  While this case involved only taxis, the principle could nevertheless be extended to similar orders being made nationally by other authorities.  It should also be noted that the case only involved two orders affecting basically central London and not other parts of the Metropolis.

Lynne Townley, Lecturer, City Law School

Tony Ostrin, Solicitor and Tribunal Judge (Retired)