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The Court of Appeal has handed down its decision in a claim for judicial review brought by two trade bodies representing licensed taxi drivers against Transport for London (“TfL”) and the Mayor of London, concerning the legality of measures adopted to ensure the safe operation of London’s roads in response to the pandemic. The Court of Appeal overturned the decision of Lang J below, which had found the emergency measures to be unlawful, instead finding in TfL’s favour on all grounds. The decision is an example, post-Dolan, of the proper approach to review of emergency pandemic decisions and also contains a useful summary of the law governing “ex post facto” evidence.

The challenge was to the London Streetspace Plan (the “Guidance”) – a guidance document issued by TfL and the Mayor to London’s boroughs in the early months of the pandemic, which sought to give guidance on how to ensure proper social distancing on London’s roads if and when Londoners started to return to work. The Claimants also challenged a specific order – the ‘A10 Order’ – which was made by TfL itself, pursuant to the Guidance, in respect of the Bishopsgate Corridor. 

In her decision below, Lang J held that TfL had failed to have regard to the distinct status of taxis as a form of public transport and to the needs of people with mobility difficulties when preparing the Guidance. The Judge also held that (i) TfL had failed to have regard to the public sector equality duty (“PSED”), (ii) had breached an alleged legitimate expectation of taxi drivers that they would be permitted to drive in all TfL bus lanes except where to do so would cause significant delay to buses or materially worsen the safety of road users, and (iii) that the Guidance and A10 order were irrational. In reaching those decisions, Lang J excluded significant parts of TfL’s evidence, which were said to constitute an ex post facto rationalisation of its decisions. 

The Court of Appeal overturned the decision of Lang J on all grounds. 

  • Dismissing the material consideration challenge, the Court of Appeal held that the Guidance was addressed to London’s borough councils who were “well-aware of the different functions and characteristics of taxis, private hire vehicles and buses”, and that TfL had not failed to take into account any material consideration (Judgment, §62).
  • The Court also recognised the “difficult balancing exercise” that policy-makers at TfL had to conduct when deciding what weight to give to the mobility of the disabled and frail against what they saw as the imperative demands of maintaining a regular but socially distanced bus service, and the danger to the health of bus users from being exposed to COVID during bus journeys in congested traffic (Judgment, §64). That was a decision which was for TfL alone.
  • The Court dismissed the suggestion that TfL had breached the PSED. While the PSED was given relatively brief consideration in the Guidance, it was a “high-level document”. As interim guidance, which was addressed at down-stream decision makers, there was also “no more that could sensibly be done” (Judgment, §71), where the Guidance could only be given “real effect, with tangible consequences, if translated into specific traffic management decisions…” (Judgment, §72). The PSED challenge in respect of the A10 Order also failed where there was no basis for the Judge’s criticism that the equality impact assessment constituted “window-dressing” (§116).
  • The alleged legitimate expectation did not exist, absent a sufficiently clear, unambiguous and unqualified statement or any promise from TfL or the Mayor (Judgment, §75). In any event, absent any evidence of bad faith, the limited exclusions from bus lanes on the Bishopsgate corridor were justified by TfL’s concerns about future traffic levels when Londoners returned to work.
  • As to the rationality challenge, the Court of Appeal endorsed TfL’s submission that the decisions were not merely rational, but represented a “sensible compromise to achieve proper results, in an unprecedented and unpredictable emergency” (Judgment, §106). In that respect, the Court of Appeal recognised that the decisions were motivated by the rational concerns of “experienced professional officers as to a future rise in car journeys, in the anticipated event that lockdown would be loosened and travel to work resumed on a large scale” (Judgment, §109).
  • Finally, the Court of Appeal’s decision contains a helpful summary of the case law governing the admissibility of ex post facto evidence in proceedings for judicial review (Judgment, §125ff). The Court recommended against the “line by line” approach which the Judge had adopted, and in particular emphasised the importance of permitting any “genuine and legitimate elucidation or explanation…”, particularly in the context of emergency decision making.

The decision of the Court of Appeal is available here.

 Ben Jaffey QC and Celia Rooney represented TfL and the Mayor of London.

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