The Battle For Bishopsgate
The Author of this article is Lee DaCosta
And finally...after weeks of anxiety in the run up to Christmas, the taxi trade has received an illusive gift from the magistrates, a rare court victory against Transport for London, that provides a very welcome boost at the start of the year. This landmark judgment is one of the finest, if not the finest hour in our trade’s history. The court finding that 'taxis are a form of public transport’ has the potential to reshape and reinvigorate our industry for a sustainable future. Such is the magnitude of this case that it has already been dubbed ‘The Battle of Bishopsgate’.
It has been a challenge to find the words to truly express how it felt to receive the email from UTAG's legal council, Darren Rogers, informing us that we had been victorious in both our legal challenge of the London Street Space Plan ("LSP") and the Bishopsgate A10 Order. In the weeks and months prior, like many small business owners, I feared the worst. The devastation of Covid-19 had swept through hospitals, lockdown had stunted the economy, the streets were barren and work was hard to come by. Our business in April was down 97% after a strong start to the year. Still, we had many customers, whose earnings had totally collapsed, telling me that London had never looked so beautiful such are the strange times we are living through.
As one might expect, I was euphoric when I finished reading the email from Darren - euphoria rolled into relief, confusion and anger in the space of a few minutes, such is my personal frustration with TfL and the stress that they unnecessarily cause. This was a fight that the trade had no option than to take on and UTAG lead the way, diligently supported by LTDA. The unchallenged execution of this radical and reckless plan literally removed the road from under our tyres, making the job untenable, and ignored our special status, a status that Justice Lang, to great relief, re-affirmed is protected by law.
I have attached the whole judgement (Click here to download) because it makes for very compelling reading such is the margin of victory. I especially enjoyed the parts where Justice Lang beats TfL up with their own evidence, it's really quite something (example para 253). The judgment is a whopping 110 pages and many of you reading this email would already be used to my efforts to provide summaries via Twitter from previous court actions, which I have again attempted herein (the numbering below is from the paragraphs in the judgment where you can find the direct quote).
82 "I am not aware of any evidence that TfL considered the Bus Lane policy.."
157 " I conclude that the Mayor acted unlawfully..."
186 "...it fell far short of the detail on which was required"
190 "this was an unacceptable omission"
191 "there was no rigorous consideration of the equality duty at all"
195 "...Mayor did not have proper regard to PSED in making the Plan, Guidance and A10 Order"
246 " has lead to a clear breach of taxi drivers legitimate expectations"
247 "....to exclude taxis, which was erroneous in both fact and law."
251 "the Defendant's submissions were severely undermined.."
255 "..measures were extreme and went beyond what was reasonably required"
256 ".. unfair and contrary to good administration to use pandemic to restrict taxis access.."
258 "...have not shown an overriding public interest"
265 - "the decision-making process was seriously flawed.."
266 "....symptomatic of ill conceived response which sought to take advantage of pandemic to push through radical changes without consultation.."
274 - "..both unfair and irrational to introduce such extreme measures"
275 "...decision making process were very seriously flawed and the decision was not a rational response to the issues which arose..."
To recap, UTAG and the LTDA challenged the A10 Order (Bishopsgate) and the LSP on five separate grounds:
Ground 1: It was made without regard to material considerations, namely the legal status of hackney carriages and also the role played by hackney carriages in providing accessible public transport for those with mobility impairments – “Material Considerations”
Ground 2: It fails to have proper regard to the Public Sector Equality Duty (“PSED”) pursuant to section 149 of the Equalities Act 2010 (“the 2010 Act”) – “Public Sector Equality Duty”
Ground 3: It results in a disproportionate interference with the rights of hackney carriage drivers, hackney carriage vehicle owners, and other industry stakeholders such as those who manufacture and supply taximeters and card payment terminals for hackney carriages, pursuant to Article 1 of the First Protocol (“A1P1”) of the European Convention on Human Rights (“ECHR”) – “A1P1 of ECHR”
Ground 4: It breaches a legitimate expectation on the part of hackney carriage drivers that they will be able to pass and repass and ply for hire along carriageways used by London buses – “Legitimate Expectation”
Ground 5: It is, in any event, irrational in the Wednesbury sense. In particular, the reasonableness of the Street Space Plan falls to be judged in the context of the extent to which it impacts adversely on disabled and elderly people, and/or infringes the rights of hackney carriage drivers and others under A1P1 of ECHR, and/or breaches a legitimate expectation on the part of hackney carriage drivers and/or in light of the fact that hackney carriages are very significantly safer than any other form of public transport. – “Irrationality"
The trade needed to win one of the five to be successful but actually won on four of five grounds, narrowly missing out on a clean sweep as we did not demonstrate a loss on grounds 3. None-the-less, the verdict was spectacular, Justice Lang found that 'the Mayor acted unlawfully in making the Plan and TfL acted unlawfully in issuing the Guidance.' Make no mistake, this language has given the Mayor and TfL very 'bloody noses'. The Judgment has unequivocally reaffirmed the trade’s special status and the rights that go with that, rights that drivers worked so hard to attain and to which TfL and the Mayor gave scant or very little regard when making their unlawful decisions. Consequently, Justice Lang was very critical of not only TfL but also the Mayor and heading into the new year, we find ourselves in a very strong position to regain access not just to Bishopsgate but all roads where grounds 1, 2, 4 and 5 have previously been ignored. UTAG and the LTDA shall now consider making legal challenges to Bank Junction and Tottenham Court Road based on this landmark judgment.
When referring to the judgment, it would be remiss of me if I did not mention the stellar work of our legal team—Darren Rogers UTAG's solicitor, David Matthias QC and Charles Streeten Junior Council—who have been quite magnificent. Special praise must be given to the lead, Mr Matthias, because from the outset, he was very robust in his views that these road changes were unlawful and "were indeed very challengeable". When this Judicial Review ("JR") was initially accepted, it was on two grounds, with three grounds being rejected and one withdrawn. On a personal level, I was happy with any acceptance as simply gaining a JR hearing is very hard won. Mr Matthias, however, was determined to reintroduce the other three grounds that had been initially refused (much to the dismay of TfL) and he was vindicated when we won four out of five.
Those with an interest in the taxi-trade are familiar with Trevor Merralls and Angela Clarkson of UTAG and Steve McNamara of LTDA, whose dedication to our cause has been commendable, but not everyone is familiar with Karen Proctor of UTAG Steering Committee and Richard Massett of LTDA, both of whom have provided granular evidence that I believe made Justice Lang's decisions and justifications all the easier, such was the quality of evidence provided.
To give you some idea of the case, the volume of evidence consisted of over 2000 pages (more than Britain’s post-Brexit trade deal with the EU). Nothing was left to chance, the LTDA even introduced an expert witness in Martin Low, formerly of Westminster Council to rebut TfL's evidence and give credence to ours. Karen and Richard's contributions to the case were immeasurable and this victory is a fitting send off for Richard, who I understand has now retired after many many years of service. Karen's evidence was referred to on multiple occasions throughout the judgement and Justice Lang fittingly attached some of Karen's evidence to the final judgment, immortalising it as 'The Proctor Plan'.
Through UTAG, the trade came together, worked diligently, professionally and collaboratively to receive a landmark judgement. I’m very proud to have been able to play a part. Everybody who has made financial contributions to UTAG has also played their part and I take this opportunity to thank you for having faith in the project, it couldn't have succeeded without your financial support.
That said, we need you to keep the contributions coming. There are likely to be further legal challenges in the weeks and months ahead. Due to the recent onslaught of challenges, which are both time consuming and costly, funding is absolutely essential to deliver professional representation. Please do re-commence or set-up a weekly direct debit www.utag.london to provide UTAG with a fighting fund to ensure that the trade’s rights are always considered when significant road changes are being contemplated. In relation to legal costs, UTAG and LTDA are hopeful that they shall recover the vast majority of their costs from TfL such is the margin of victory.
So what next? Make no mistake, this judgment will offer serious relief to the trade. We will no longer be the Mayor and TfL's 'whipping boys and girls’. This ruling has put us on firm ground, recognised as a part of London's Integrated Transport Network.
Whilst we fully intend to advance our position to the max (regarding road access), I'm respectfully calling for restraint from all associated with the trade on how you represent the industry when you engage with TfL and the public, especially on social media, as not everyone will be as thrilled as we are about the verdict.
It is now, more than ever, that we need for everyone associated with our trade to maintain their professionalism. We will be in the spotlight moving forward, let's not play up to the tropes that we are too often tarnished by. Let's demonstrate why the knowledge is as much a character test as it is a memory test and show the watching world what our industry has to offer.
This is a brilliant victory for our trade and persons with protected characteristics. Let us be gracious in an effort to increase our customer base and use the competitive advantages for rights earned (in completing the Knowledge) by agreeing to work under very strict guidance.
Happy New Year, I hope you have enjoyed reading this news as much as I have enjoyed delivering it.