007 Taxis Stratford Ltd v Stratford-On-Avon District Council [2010] EWHC 1344 (Admin)

Case No CO/6524/2009Neutral Citation Number: [2010] EWHC Admin 1344
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice CentreDate 9 th June 2010
Before
The Recorder of Birmingham(H.H. Judge Davis Q.C.)
Between
007 Taxis Stratford LimitedClaimantStratford-on-Avon District CouncilDefendant
James Findlay Q.C. and Ben Blakemore (instructed by Allansons LLP) for ClaimantDavid Lock (instructed by Legal Services, Stratford on Avon District Council) for DefendantHearing Hearing dates: 25 th to 27 th May 2010
JUDGMENT
[1]The Claimant is a company supplying hackney carriage services in Stratford upon Avon and the surrounding area of South Warwickshire. The Defendant is the licensing authority for hackney carriage licences in the area served by the Claimant. The claim is for judicial review of a decision by the Defendant in December 2008 to adopt a policy in respect of the grant of hackney carriage licences whereby all vehicles licensed by the Defendant as hackney carriages after 1st January 2010 were to be wheelchair accessible. The decision was made by the Cabinet of the Defendant by way of approval and adoption of a decision in November 2008 of the Defendant’s Licensing Committee.[2]On the 10th February 2010 Mrs. Justice Nicola Davies granted the Claimant permission in respect of the grounds of claim as put forward on the 24th June 2009. These can be summarised as follows:• Failure to carry out a proper consultation exercise.• Failure to take into account guidance from the Department of Transport, the European Union and the Disability Rights Commission.• Failure to consider issues of affordability and the economic impact on the Claimant.• Failure to consider in terms of health and safety issues the ability of local hackney carriage operators to adopt the proposed policy.[3]On the 26th May 2010 (the day before the commencement of the hearing of the claim for judicial review) the Claimant was granted permission to argue two further grounds, namely(a) the vires of the decision in the light of Section 13(2) of the Local Government Act 2000 and the Regulations made thereunder and(b) an alleged failure to comply with the duty under Section 49A of the Disability Discrimination Act 1995. The Claimant also applied to argue that the decision of the Cabinet was open to review on the basis that the Cabinet had not been provided with the material provided to the Licensing Committee or any or any proper report of the discussions before the Licensing Committee. Thus, the Claimant wished to argue that, whatever the merits of the process up to and including the meeting of the Licensing Committee, the Cabinet’s decision should be quashed on that basis alone. Permission on that ground was refused. It was first raised in recognisable terms in the week prior to the hearing in the Claimant’s skeleton argument. All of the evidence in the case related to events up to and including the meeting of the Licensing Committee. Those events were the entire thrust of the case put by the Claimant until very late in the day. The new argument (as such it was) was set out in the skeleton argument lodged for the purposes of the final hearing. The issue was raised too late to allow the Defendant properly to meet it.

The Facts

[4]Stratford-on-Avon District Council is a local authority within the county of Warwickshire. It covers a substantial area of South Warwickshire. There are four main towns within the district – Stratford-upon-Avon, Alcester, Southam and Shipston-on-Stour. By far the largest town is Stratford-upon-Avon. It is the most significant, if not the only, centre in the area for any provision of hackney carriage services (i.e. ply for hire vehicles as opposed to pre-booked private hire vehicles). In part that is due to the population size of the town. More significant is the fact that Stratford-upon-Avon has a very large number of visitors due to the town’s link to a well-known Elizabethan playwright.[5]For some time prior to 2008 the Defendant had been considering the issue of the accessibility to wheelchairs of hackney carriages licensed to operate within the district. The Defendant was concerned that there were insufficient numbers of wheelchair accessible vehicles so operating. In April 2003 the Defendant’s Licensing Committee considered ways of increasing the number of wheelchair accessible vehicles (WAVs) operating as hackney carriages. It resolved to seek an undertaking from the licence holders then in operation to increase the number of WAVs within the district by 5 within the following 12 months. In June 2003 it was reported to the Committee that the local taxi trade association had said that this undertaking would be met.[6]In January and February 2004 the Defendant held a substantial consultation exercise on a number of policy issues relating to hackney carriages and private hire vehicles. This exercise included the sending of a questionnaire to some 600 members of the public within the district. The issue that at the time created the most interest and controversy was a suggestion that all hackney carriages in the district should be of a standard livery. However, one matter raised with the public was whether all hackney carriages within the district should be wheelchair accessible. More than half of the respondents said that they should. Less than a quarter of those responding said that they should not. The balance of those responding had no particular view in either direction.[7]As well as this response to a public consultation the Defendant was notified in October 2003 by the Department of Transport that it was what was termed a “Phase 1” authority in relation to the introduction of a policy of 100% WAVs for hackney carriages within its district. The intention of the Department at that time was that regulations should be introduced to require such authorities to implement such a policy. The Defendant was deemed to be a “Phase 1” authority because of the high volume of visitors to the main town in the district.[8]By April 2004 no progress had been made in relation to an increase in the number of WAVs operating as hackney carriages within the district. The undertaking given by the trade association had not been met. This may not have been surprising given the lack of any real authority or sanction on the part of the association that could have required its members to introduce WAVs. The Licensing Committee met in April 2004. Its preliminary view was that it should introduce a policy of 100% WAVs for hackney carriages. This was opposed by the local trade association. Indeed, the view of the trade was that there was no need for any increase in the number of WAVs, let alone the introduction of a 100% WAV policy. The eventual decision was two-fold. First, it was decided to remove the existing restriction on the number of new licences. Thus, there was deregulation in relation to numbers of hackney carriages. Second, it was decided that any new hackney carriage licence only was to be issued in relation to a WAV. The practical effect of this policy was to protect existing licence holders. They could replace their vehicles with non-WAVs. They also could transfer their licences in that protected form.[9]The interest of the existing licence holders in maintaining their right to operate non-WAVs as hackney carriages essentially was economic. Their assessment was that as a broad rule of thumb the cost of obtaining a WAV would be greater than an ordinary saloon or estate car. That assessment probably was correct albeit that some WAVs could be obtained for a price competitive with any ordinary vehicle.[10]By 2007 there had been little improvement in the numbers of WAVs available as hackney carriages within the district. There had been no further guidance from the Department of Transport and no regulation had been introduced. One development was the issue in 2007 of a report by the European Conference of Ministers of Transport in which the provision of WAVs as taxis was considered. The report identified that cost issues were a genuine factor to be considered in any decision about taxi provision and that the non-wheelchair disabled as a group was a significant constituency amongst taxi users. The Conference suggested that a mixed fleet was desirable given that there was no vehicle available that was wholly suited to every type of taxi user. However, the Conference noted the two types of taxi use i.e. street work and telephone booking. It agreed that, where the dominant use or need was for taxis plying for hire in the street, there remained an argument for a 100% WAV requirement. In the previous year the Disability Rights Commission had published a report in which the term “accessible taxi” had been disapproved on the basis that there was no vehicle fully suited to every disabled person. The report emphasised the role of licensing authorities in relation to the relevant duties under the Disability Discrimination Act 1995.[11]That was the background when on the 18th May 2007 the Defendant published a draft document entitled Hackney Carriage and Private Hire Driver, Vehicle and Operator Handbook. It was a 64 page document dealing with every conceivable aspect of the licensing and operation of both hackney carriages and private hire vehicles. For the purposes of this case the vital part appeared on page 13 of the draft document. It read as follows: From 1st January 2008 existing vehicle licences(emphasis as per document published) for saloons and estate cars that need to be replaced by reason of age, mechanical failure or any other cause can only(emphasis as per document published) be granted to wheelchair accessible vehicles. (This is in line with the Government’s proposals for implementing the taxi provisions of the Disability Discrimination Act 1995. This allows the setting of standards for wheelchair access together with other features to enable less able persons to use taxis.) The effect of this was to remove the protection given hitherto to existing licence holders.[12]Under cover of a letter dated the 4th June 2007 a full copy of the draft document was sent to various public bodies, the local chamber of commerce and authorised garages in the district. In that letter it was indicated that the document was available in hard copy in four different locations throughout the district and electronically on the Defendant’s website. A further 600 or more copies of the letter were sent. Those circulated included the holders of existing hackney carriage licences and those known to have an interest in services to and for the disabled in the district. The letter contained this italicised sentence: There are a number of significant changes proposed which will affect all new and existing licence holders. Those receiving the letter were invited in writing to comment on or object to any of the changes during a period of consultation which was defined as being up to and including the 31st August 2007. It was said that comments or objections received after that date would not be considered.[13]Responses to the letter and the proposed changes were received from a variety of sources. One response in particular came from a Mr. Brian Roland, the General Secretary of the National Private Hire Association. He wrote on the 9th August 2007. His response was submitted on behalf of members of the association in the district. His letter suggested that the draft document did not amount to proper consultation. He provided a copy of the decision of Mr. Justice Wilkie in Sardar v Watford Borough Council [2006] EWHC 1590 which he asserted was relevant. [The decision in Sardar is not of any relevance to the facts of this case. In Sardar the local authority in effect had made its decision before seeking the views of others. That patently was not the position here.] Mr. Roland also provided a 23 page critique of the draft document in tabular form and 15 documentary annexes including the ECMT report of 2007 (as referred to above). The letter and the annexes were sent both to the relevant council officer and to the chairman of the licensing committee. Thus, the material was put into the hands of the committee membership.[14]Mr. Roland’s detailed comments on the proposed 100% WAV policy were as follows: This condition causes the most upset and worry amongst hackney carriage licence holders; it means that existing drivers will lose their grandfather rights – and in many cases, their livelihood. Main concerns: financial viability (initial costs of up to £35-40,000 including insurance) and sustainability; lack of customer comfort and choice; also emissions and green issues. He went to note that the policy went against guidance provided by (inter alia) the ECMT report, namely that mixed taxi fleets were to be preferred.[15]Individual hackney carriage licence holders responded to the draft document. Those responses generally mirrored what Mr. Roland had said. Other responses came from those who said they used taxi services in the district. Some favoured the retention of some non-WAV taxis (though the distinction between hackney carriages and private hire vehicles was not always clear). Others were keen to point out that there was a shortage of WAVs which needed to be addressed somehow. The proposal for a 100% WAV fleet of hackney carriages in the district received strong support from some respondents.[16]In September 2007 (after the due date for written responses as per the letter of the 4th June 2007) Mr. Harvey, the controlling mind of the Claimant company, met a Michelle Baird, the licensing officer of the Defendant and the officer responsible for the draft document. What occurred at that meeting ostensibly is a matter of some controversy and dispute. However, there is no dispute that(i) the Claimant company proposed to replace some or all of its vehicles in January 2008,(ii) Mr. Harvey was concerned that the terms of the draft document meant that he would have to replace his vehicles with WAVs and(iii) the draft document in fact would not be implemented in time for any changes to be in effect by January 2008, the delay being due to the extent of the responses received. This last matter is evidenced by the terms of a letter sent in October 2007 by the Defendant to those who provided written comments. Mr Harvey’s witness statement of the 9th October 2009 is in these terms: Because of the number of responses to the draft and particularly that of the NPHA, Michelle Baird stated that the draft would now be revisited next year (2008) so it remained a draft and not ratified. I asked what that meant for my car renewals in January 2008, to which she replied “well you have ‘grandfather rights’ anyway so carry on as normal.” This was the first time I had heard the term “grandfather rights”. The effect of that evidence is that Mr. Harvey was told that he would be able to proceed on the basis of the existing policy in relation to replacement of vehicles in January 2008. It goes no further than that. Nothing was said to provide any expectation to Mr. Harvey as to the longer term.[17]On the 12th November 2007 Michelle Baird met the local organiser of the GMB union together with someone representing a body called the Stratford Station Taxi Drivers’ Association. That gentleman, a Mr. Day, voiced the opinion that the exercise thus far carried out did not amount to meaningful consultation. (I take this to be a rehearsal of the Sardar argument.) Miss Baird told him that the comments and objections had been taken into account and that the draft would not become a final document until after an open meeting of the licensing committee at which all interested parties would have the opportunity to make their views known. Mr. Day said that this also would not constitute proper consultation. Whatever the merits of Mr. Day’s views (which are not reflected in the arguments put by the Claimant in this claim) the meeting did alert interested parties to the prospect of an open session of the licensing committee at some point in the future.[18]At some point early in 2008 the Defendant (along with all other local licensing authorities) was written to by a Mr. Nigel Dotchin, the head of the disability unit at the Department for Transport. He said that the regulations anticipated in October 2003 had not been made. He wrote as follows: ...The Department has received a number of representations making the case for a broader range of disabled people’s needs to be met in any regulations, rather than restricting the requirements only to wheelchair users. We have been looking at how this could be achieved but it is a complex matter. As a result regulations have not been made. Ministers remain keen to make progress on taxi accessibility and therefore intend to develop a consultation package for summer 2008 to seek views on the way forward.... In the meantime accessible taxi policies remain a matter for individual local licensing authorities in line with previous guidance that has been issued by the Department. That letter enclosed the ECMT report and noted the suggestion that a mixed taxi fleet was the preferable option. The Defendant received this letter. It was a matter relevant to its consideration of the draft policy in relation to hackney carriages. However, the letter did leave WAV policy to individual authorities. In fact the consultation package was not issued until early 2009 i.e. after the decision relevant to this case.[19]On the 16th October 2008 Michelle Baird sent a letter to all those who had provided a written response to the draft document. It rehearsed events up to that point. It informed those receiving the letter that a hearing had been arranged for the 10th November 2008 at 10.00 a.m. at which the policy items within the draft document would be considered. The letter indicated how access to the agenda for the meeting could be obtained i.e. via the Defendant’s website or in hard copy at the Defendant’s offices in Stratford-upon-Avon.[20]On the 10th November 2008 the meeting took place. Prior to the meeting officers of the Defendant and at least one member of the Licensing Committee visited London Taxi International in Coventry, the leading manufacturer of purpose built taxis in the UK, in order to view the LTI vehicle built to accommodate the wheelchair user but also adapted to cater for other types of disability. The officers prepared a report for circulation to members prior to the meeting which included the proposed policy documents i.e. one relating to drivers of both hackney carriages and private hire vehicles, one relating to hackney carriage vehicles and one relating to private hire vehicles. At the meeting the members of the committee were provided with a summary of the comments and objections received. The materials upon which that summary was based were available for the members to consider as they thought fit. The meeting was attended by a Mr. Main (described as a representative of the NPHA) and a Miss Everett (representing Green’s Taxis, one of the firms which had put in written objections to various aspects of the proposed policy). A member of the public with a particular interest in disabled issues also was at the meeting.[21]There is some dispute between the Claimant’s witnesses and the Defendant’s witnesses about certain details of the meeting. Two people kept a note of the meeting. David Elliott is a solicitor employed by Wright Hassall LLP in Leamington. He was in attendance in an official advisory capacity. He now has little recollection of the meeting. It was one of many he attended in his official capacity and it took place some 18 months prior to his being asked to recall it in a statement. However, he took contemporaneous notes of the meeting. They are not a verbatim record but they are reasonably full. Within his file for the meeting is a typed summary document setting out the comments received by the Defendant. Oliver Hughes also is a solicitor. He is employed by the Defendant. He attended the meeting in order to observe it as part of his training process. He also took contemporaneous notes. These notes are not quite as full as those of Mr. Elliott but they reflect the course of the meeting in similar terms. These notes provide the best evidence of what occurred in the meeting. Where there is a dispute in recollection between others who were at the meeting it is to be resolved by reference to those notes. One particular dispute concerns the availability of the summary of the comments received. The material provided by Mr. Elliott in particular establishes that this summary certainly was at the meeting and, therefore, was available at least to the members of the committee.[22]The meeting lasted from 10.00 a.m. to 3.35 p.m. with a break of about 45 minutes for lunch. The notes of the meeting do not make it wholly clear how long was spent in discussing each aspect of policy under consideration. However, discussion of the topic of WAVs began before meeting adjourned for lunch at 12.30 p.m. and it took up the bulk of the time thereafter until the close of the meeting. The policy document as prepared by the officers for the meeting of the 10th November 2008 was amended from the draft as circulated in June 2007.[23]The relevant part of the document read as follows: Wheelchair Accessible Vehicles (WAVs) The Council is considering the best way to increase the number of WAVs. Currently the ratio is 20% and the recommended level for an authority like Stratford on Avon is between 50-75% WAV. There are several options to be considered and views are sought on these options, combination of options or any alternative option can be proposed. Members may also choose to reject all of these proposals.

Wheelchair Accessible Vehicles (WAVs)

[1][policy in same terms as 2007 draft document but with commencement date of 01/01/09][2]Existing protected rights for vehicle licences for vehicle licences for saloon and estate cars may not be transferred to another proprietor. Existing proprietors can continue to use the entitlement to provide a saloon or estate car until they no longer require a hackney vehicle licence. This will not affect the proprietor of a WAV Hackney Carriage Vehicle from transferring his interest to another party.[3]From 01/01/09 existing and new purpose built WAVs can benefit from an exception to the age policy by nature of the robust construction. All purpose built taxis can benefit from an increase in the maximum age for a vehicle to 12 years. Members are respectfully advised that an appropriate way to steadily increase the number of WAVs would be the implementation of option 2. This enables those persons who were holders of a Hackney Carriage vehicle licence to maintain their “Grandfather rights”. These rights should only be maintained by the original owner who is therefore not prejudiced in any way as a result of the new policy. Furthermore increasing the age policy for WAVs (option 3) will not unfairly prejudice those proprietors who purchase this type of vehicle. It is recommended as a result that Members choose to implement option 2 and option 3 as outlined.[24]In the course of the discussion of these options Mr. Main referred inter alia to the fact that not all disabled people used wheelchairs so that any hackney carriage needed to cater for these people and to the loss of the value of a hackney carriage licence that would follow in the event of option 2 being implemented. Miss Everett referred to the Disability Discrimination Act and the lack of any Government regulation made thereunder, to the lack of a “one size fits all” vehicle and to the additional cost of any WAV. These matters appear in the contemporaneous notes of the meeting. The most recent evidence of the relevant decision maker, Michael Brain, reflects that. Criticism has been made of some of Mr. Brain’s assertions as to what he considered at the time of the decision. It is said that they have come late and should be rejected. Reliance is placed on the passage in the judgment in Nash v Chelsea College of Art and Design [2001] EWHC Admin 538 where the court was considering the impact of late reasons given for decisions in the context of a tribunal or similar body. The relevant passage is as follows: Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) “the adequacy of the reasons is itself made a condition of the legality of the decision”, only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons. In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap: (a). Whether the new reasons are consistent with the original reasons. (b). Whether it is clear that the new reasons are indeed the original reasons of the whole committee. (c). Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal’s decision, or are a retrospective justification of the original decision. This consideration is really an aspect of 0. (d). The delay before the later reasons were put forward. (e). The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly. To these I add two further considerations. The first is based on general principles of administrative law. The degree of scrutiny and caution to be applied by the Court to subsequent reasons should depend on the subject matter of the administrative decision in question. Where important human rights are concerned, as in asylum cases, anxious scrutiny is required; where the subject matter is less important, the Court may be less demanding, and readier to accept subsequent reasons. Secondly, the Court should bear in mind the qualifications and experience of the persons involved. It is one thing to require comprehensiveness and clarity from lawyers and those who regularly sit on administrative tribunals; it is another to require those qualities of occasional non-lawyer tribunal chairmen and members. This passage is not of great assistance in the context of this case, namely a local councillor making a decision after discussion. In fact, the contemporaneous documents largely support the evidence of Mr. Brain as it now is given. Trenchant criticism is made by the Claimant of the reliability of his evidence. Such criticism is not justified on consideration of all of the available material.[25]The final discussion about the policy to be adopted was conducted by the council members in the absence of the interested parties and in the absence of the Defendant’s officers. The notes record that the members determined that they had to balance the interests of the public against the interests of the taxi companies. One councillor (a Mr. Mills) was clear in his view. He wanted all hackney carriages to be WAVs. He did not consider that the existing licence holders should be given any significant time to move to WAVs. The other two members of the committee accepted the need for WAVS particularly in view of the tourist element of hackney carriage use. However, they considered a more gradual approach was appropriate so as to alleviate the problems for existing licence holders and to allow the policy to be reviewed if appropriate. These discussions were held in the context of the matters considered in the open hearing and the materials provided to the councillors in advance of or at the meeting.[26]The final decision was that from the 1st January 2010 all Hackney Carriage licence applications must be for WAVs with the entire fleet becoming WAVs by the 1st January 2016. It was decided further that purpose built WAVs would be permitted to operate for 12 years (rather than 6 years for a saloon or estate car under the previous policy). Once the decision had been taken it was announced to those present at the open meeting. It also was recorded in the minutes of the meeting that were published approximately 2 weeks thereafter.[27]The policy determined by the Licensing Committee on the 10th November 2008 was approved and adopted by the Cabinet of the Council on the 15th December 2008, the policy appearing as an agenda item on the agenda for that meeting. That is the point at which it became the official policy. The minutes of that meeting were published shortly thereafter.

Was the decision made by the Cabinet ultra vires?

[28]The Claimant’s case is that the Cabinet was acting unlawfully when it decided to approve and adopt the relevant policy. It is said that the Cabinet – an executive of the Defendant authority as defined by the Local Government Act 2000 – was not permitted to exercise the power it purported to exercise.[29]Sections 13(2) and 13(3) of the Local Government Act 2000 are in these terms: (2). Subject to any provision made by this Act or by any enactment which is passed or made after the day on which this Act is passed, any function of a local authority which is not specified in regulations under subsection (3) is to be the responsibility of an executive of the authority under executive arrangements. (3)The Secretary of State may by regulations make provision for any function of a local authority specified in the regulations– (a). to be a function which is not to be the responsibility of an executive of the authority under executive arrangements, (b). to be a function which may be the responsibility of such an executive under such arrangements, or (c). to be a function which– (i). to the extent provided by the regulations is to be the responsibility of such an executive under such arrangements, and (ii). to the extent provided by the regulations is not to be the responsibility of such an executive under such arrangements. The Regulations made under Section 13(3) of the 2000 Act are the Local Authorities (Functions and Responsibilities)(England) Regulations 2000. Regulation 2(1) provides as follows: The functions of a local authority specified in column(1) of Schedule 1 to these Regulations by reference to the enactments, directions and circulars specified in relation to those functions in column(2) are not to be the responsibility of an executive of the authority. 44. The relevant paragraph of Schedule 1 is: 3. Power to license hackney carriages and private hire vehicles. (a) as to hackney carriages, the Town Police Clauses Act 1847 (10 & 11 Vict. c. 89), as extended by section 171 of the Public Health Act 1875 (38 & 39 Vict. c. 55), and section 15 of the Transport Act 1985 (c. 67); and sections 47, 57, 58, 60 and 79 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57);(b) as to private hire vehicles, sections 48, 57, 58, 60 and 79 of the Local Government (Miscellaneous Provisions) Act 1976. Thus, the Claimant argues that the Cabinet was purporting the exercise a power to license hackney carriages whereas that is a function expressed in terms not to be a function exercisable by the executive of the authority.[30]The Defendant’s response is that the decision made in December 2008 was not the exercise of a power to license hackney carriages. It was the creation of a policy which is something open to an executive of the authority. Reliance was placed on the decision in Regina v Luton Borough Council ex parte Mirza an unreported decision of the Court of Appeal in 1995. Proper analysis shows that that decision cannot be of any help in consideration of the import of the effect of the 2000 Regulations, not least since the Regulations post-dated the decision by some 5 years.[31]The author of Button on Taxis, the standard (if not the only) academic work in the field of taxi licensing, offers this view: What is perhaps less clear is, who has the responsibility for adopting any general or specific policy on licensing? The adoption of such a policy is not a function expressly named in the Regulations. However, as, arguably, policy and day to day casework are so closely linked, it certainly makes a great deal of sense, if it is arguably not a legal requirement, for the council, not the executive, to adopt the overall policy as well as to determine casework matters. Arguably (to use the author’s favoured term) this is not particularly helpful.[32]The answer to the question as to the vires of the decision made is to be found in the terms of the policy itself. The function identified in the Schedule to the 2000 Regulations as cited above is the licensing of an individual hackney carriage, any such licence being considered on the basis of an individual application. The policy adopted by the Defendant in this instance contained the following preamble: Every application will be considered against the policy. Any person may ask for an exception to the policy but the applicant must be able to demonstrate sound and compelling reasons as to why the Committee (considering the application) should depart from this policy. It follows that, though every application was to be considered in the light of the policy adopted by the executive of the authority, the policy did not purport to apply a condition to every licence irrespective of the individual application. Therefore, the Cabinet was not exercising the function set out in the relevant part of the 2000 Regulations and it was not acting ultra vires.[33]A supplementary argument is put by the Claimant to the effect that the making of a policy (rather than imposition of conditions) unfairly deprives the Claimant (and any other applicant for a hackney carriage licence) of the right of an appeal to the Magistrates’ Court. Such an appeal would lie if the Claimant (or some other applicant) could show sound and compelling reasons to depart from the policy which the Defendant ignored. Plainly that is a different route to that ordinarily open to an applicant for a licence but the practical effect would be the same. In any event, such a deprivation of a right to an appeal is not something that can affect the fairness or legitimacy of the Defendant’s decision on the facts of this case.

Was the decision in December 2008 flawed due to inadequate consultation?

[34]The appropriate test to be applied to a consultation process undertaken by a public body is set out in Regina v North and East Devon Health Authority ex parte Coughlan [2001] Q.B. 213. It is expressed as follows at paragraphs 108 and 112 of the judgment: It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC ex parte Gunning [1986] 84 LGR 168). .....It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.[35]The Claimant asserts that the consultation process did not include sufficient reasons for the proposal for a 100% WAV requirement to allow intelligent consideration of the proposal by those consulted or to permit an intelligent response to be given. It is said further that the product of the consultation was not taken into account when the ultimate decision was taken.[36]Those assertions must be considered in the light of the guidance given in Regina on the application of Greenpeace Limited v Secretary of State for Trade and Industry. In that case Mr. Justice Sullivan (as he then was) encapsulated the appropriate test of a consultation process in these terms: A consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful. With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test. It must also be recognised that a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out. This applies with particular force to a consultation with the whole of the adult population of the United Kingdom. The defendant had a very broad discretion as to how best to carry out such a far-reaching consultation exercise. In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went "clearly and radically" wrong.• . The failure to consult the general public in the way that was done in 2004.• . The failure to consult with any particular group, body or institution that could present views on behalf of the ambulatory disabled as a group (as opposed to wheelchair users).• . The failure to re-consult given the long delay between June 2007 and the convening of the meeting in November 2008, such failure being accentuated by the letter sent early in 2008 by Nigel Dotchin.• . The failure to consult further after the meeting in September 2007 between Michelle Baird and Mr. Harvey, that meeting giving rise to a legitimate expectation on the part of Mr. Harvey that the rights of existing licence holders would not be affected by any policy change.• . The failure to invite the Claimant to the meeting in November 2008.• . The failure to invite anyone to the Cabinet meeting in December 2008.[37]Insofar as these failures can be made out they do not individually or cumulatively demonstrate that “clearly and radically” something went wrong with the consultation process. Dealing with the criticisms in turn:• Though the consultation process did not mirror the exercise carried out in January and February 2004, there was wide consultation on the proposed policy. Though the response to the consultation was not significant in terms of numbers, the range of those who responded shows that it reached a wide range of the community. The way in which the 2007 exercise was conducted was within the proper range of the discretion of the Defendant.• The Defendant sent the consultation letter to a local organisation providing transport training for disabled people, to Shopmobility and to various disabled individuals with whom it had had contact in the past. No group of the kind suggested by the Claimant was obviously identifiable. In the event the consultation exercise did provide some response from those who contended that WAVs were not necessarily suitable for other disabled people.• The consultation period ended on the 31st August 2007. There were further meetings in the later part of 2007 at which views were expressed on the Defendant’s proposals. The invitation to the relevant hearing was issued in October 2008. In the context of the policy under consideration and in the light of the history of the issue since 2003, further consultation was not required. The letter from Mr. Dotchin said in terms that accessibility issues remained a matter for individual authorities to consider. It did nothing to suggest that the 2007 consultation exercise had been rendered redundant.• The import of the meeting of September 2007 as confirmed by the evidence of Mr. Harvey himself (as to which see above at paragraph 16 above) means that there was no legitimate expectation of the kind asserted by the Claimant.• Specific invitations were extended to all those who had responded in writing to the consultation process. It is right to suggest that to invite Mr. Harvey (given the meeting in September 2007) might have been the better course. But that is not the Greenpeace test. The failure to invite Mr. Harvey cannot vitiate the whole consultation process, particularly given the identity of those who were invited and those who in fact attended the hearing.• At the end of the hearing in November 2008 all those present knew what the position was. The meeting of the Cabinet on the 15th December 2008 was a public meeting and was given publicity in the usual way. Proper consultation did not require any particular person to be invited to that meeting, particularly in view of the lengthy discussions at the hearing in November 2008.[38]The Claimant says that, even if the consultation process up to the point of the hearing on the 10th November 2008 is not susceptible to legitimate criticism, the product of that consultation (and/or what should have been the product of the consultation) was not given proper consideration by the decision makers i.e. the members of the Licensing Committee and thereafter the Cabinet. The following matters are highlighted:• No reference to the potential difficulties of the ambulatory disabled.• No reference to non-disabled members of the public.• The misleading view given by the officers of the Government’s position as at November 2008.• No reference to the EUTM report.• No proper analysis of the results of the consultation exercise e.g. cost implications for hackney carriage licence holders.[39]The assertion that the decision makers gave no consideration to these issues must be judged in the context of the hearing of the 10th November 2008. That is, if the issues highlighted were considered prior to or in the course of that meeting, the proposition that consultation is not akin to litigation assumes significance.• The difficulties of the ambulatory disabled had been given specific consideration. The visit to the LTI premises in Coventry demonstrates that fact.• That same visit had considered the interests of those who, though not disabled, might have difficulty in negotiating a step up into a WAV.• The paragraph in the report relating to the Government’s position was inaccurate. It reflected the position as it had been when the policy was drafted. It may be that it had not been amended because the officers’ recommendation was not for that option. The failure to amend the paragraph was an error. However, the evidence of Mr. Brain is that he was made aware in outline of the true position, namely that no regulations had been made, the government was proposing to undertake further consultation and it was a matter for the time being for local decision.• The EUTM report apparently was not brought specifically to the decision makers’ attention (though it was sent by Mr. Roland to the then chairman of the committee). However, the report does no more than rehearse the very issues that were considered by the Committee. Plainly the considerations of an EU Ministers’ Conference would have been of some significance. Equally, the report did not and does not provide an unequivocal view. The needs of Stratford-upon-Avon in relation to WAVs plainly are unusual and local considerations always will be paramount.• The cost implications of a 100% WAV policy were at the forefront of the discussions of the committee. They were highlighted in the course of the public hearing. They were the principal reason for the terms of the policy as finally determined.[40]The criticisms made of the report provided to the committee are similar to those sometimes made in the context of planning decisions where a report by the planning officer is under consideration. This requires consideration of the test in the unreported decision of the Court of Appeal in the Oxton Farms case where this was said:
"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury. From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgement an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."
In this case, the report must be considered in the overall circumstances as they were known the committee. This was not an instance of the decision makers coming to the situation without any background knowledge. Further, whatever deficiencies there may have been in the matters reported to the committee, these were substantially cured by the time that the decision was taken.[41]Looked at in the round, the decision to adopt a policy of 100% WAVs for hackney carriages in the Defendant’s district was taken after a significant consultation exercise in the context of a substantial history of debate about the provision of such vehicles in the district and by members who were informed about the relevant issues both prior to and at the meeting at which the decision was taken. Looking back now it is possible to identify improvements that could have been made to the initial process. Defects in the process cannot serve to impugn the decision when those being consulted were able to give intelligent consideration to the relevant issues and to give an intelligent response to them. The history of this consultation demonstrates that the consultees were able to do just that. It also is possible to argue that the decision makers could have been provided with the detailed product of the consultation in a better form. But the evidence is that the issues raised in the consultation were taken into account by the decision makers. Was there a failure to comply with the duty under Section 49A of the Disability Discrimination Act 1995? Section 49A of the 1995 Act was inserted by the Disability Discrimination Act 2005. It is as follows: (1). Every public authority shall in carrying out its functions have due regard to— (a). the need to eliminate discrimination that is unlawful under this Act; (b). the need to eliminate harassment of disabled persons that is related to their disabilities; (c). the need to promote equality of opportunity between disabled persons and other persons; (d). the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons; (e). the need to promote positive attitudes towards disabled persons; and (f). the need to encourage participation by disabled persons in public life. (2). Subsection (1) is without prejudice to any obligation of a public authority to comply with any other provision of this Act. The Claimant’s case is that the Defendant failed to comply with its duty under sub-sections (c) and (d) of Section 49A, in particular sub-section (d). The argument is that the ambulatory disabled was a group of the disabled whose disabilities were not taken account of because of the failure to have due regard to the need to take steps in respect of that group.[42]The proper approach to the “due regard” duty in Section 49A was considered in Regina (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at paragraphs 79 to 96:79. There is no dispute that the aim of the 2005 amendments to the DDA is to make public authorities place disability equality for all at the centre of their organisation, policy making and functions, so as to further the important goal of the elimination of discrimination and harassment of disabled people and the promotion of equality of opportunity for them in society in general.[32] This new aim[33] focusing on public authorities, is to be achieved through two key sections in the new statutory provisions. First, the new section 21B of the DDA, which makes it unlawful for a public authority to discriminate against a disabled person in carrying out its functions. Secondly, by imposing on public authorities the duties set out in section 49A(1).80. The section 49A(1) duties are mandatory, as is clear from the opening words of the section; public authorities "shall", in carrying out their functions (as public authorities), "have due regard" to six "needs" which are identified in the paragraphs (a) to (f) of section 49A(1). Each "need" identifies a particular goal, which, if achieved, would further the overall goal of the legislation dealing with disability discrimination.81. However, it is important to appreciate, as Dyson LJ held in relation to analogous provisions in section 71(1) of the Race Relations Act 1975, that the imposition of a duty to have "due regard" to the various identified "needs" does not impose a duty to achieve results. It is a duty to have "due regard" to the "need" to achieve the identified goals. This is a vital distinction: see R(Baker) v Sec of State for Communities and Local Government [2008] LGR 239 at paragraph 31.82. What is meant by "due regard"? Dyson LJ stated, in the same paragraph in Baker, that "due regard" in the Race Relations Act provision meant the regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The same principle applies here. There must, therefore, be a proper regard for all the goals that are set out in section 49A(1) paragraphs (a) to (f), in the context of the function that is being exercised at the time by the public authority. At the same time, the public authority must also pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. What the relevant countervailing factors are will depend on the function being exercised and all the circumstances that impinge upon it. Clearly, economic and practical factors will often be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather than the court, unless the assessment by the public authority is unreasonable or irrational: see Dyson LJ's judgment in Baker at paragraph 34.83. What about the six "needs" to which public authorities must have due regard when carrying out their functions? The "needs" identified in paragraphs (a) to (c), (e) and (f) are goals, such as the elimination of discrimination that is unlawful under the DDA, or the encouragement of participation by disabled persons in public life. So public authorities have to have a proper regard for the need to achieve those goals.84. Paragraph (d) is different, however. That paragraph places on public authorities a duty to have proper regard for the need "to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons". The phraseology is convoluted. It does not identify a goal which is an end in itself. However, in our view the paragraph imposes a duty on public authorities to pay "due regard" to the need to take steps to do two things which are means which will assist in achieving the goals identified in the other paragraphs in section 49A(1). First, public authorities must have "due regard" to the need to take account of the fact of disabled persons' disabilities in the context of "carrying out their functions". Secondly, public authorities must have "due regard" to the need to recognise that this may involve treating disabled persons more favourably than others. But we emphasise that, in both cases, no duty is imposed to take steps themselves, or to achieve results. The duty is only to have "due regard to…the need to take…" the two steps we have identified. The court will only interfere if the public authority has acted outwith the scope of any reasonable public authority in the circumstances.85. To do both of these things, the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration. We emphasise once again, however, that the duty is to have due, ie. proper, regard, to "the need to take steps".86. Mr Goudie relied on comments by the Court of Appeal in R(C) v Secretary of State for Justice [2008] EWCA Civ 882. That case concerned, amongst other things, the failure of the Secretary of State for Justice to make a Race Equality Impact Assessment before bringing in changes to rules (which were laid before Parliament) for the use of physical restraint in Secure Training Centres, or "STCs". These centres accommodate young persons who have been sentenced to custody or are remanded in custody by a court. At paragraph 39 of his judgment, Buxton LJ stated that "it was accepted that the effect of section 71(1) of the Race Relations Act 1976[34] was to require a race equality impact assessment (REIA) where it was proposed to change policy on a matter that might raise issues about racial equality". The duties imposed by section 71(1) of the 1976 Act are in identical terms to those imposed by section 49A(1)(a) and (c) of the 1995 Act, as amended. Unfortunately, Buxton LJ's judgment does not elaborate the basis for this "acceptance". 87. In the Divisional Court, at [2008] EWHC 171 (Admin), Maurice Kay LJ had pointed out, at paragraph 38, that the Home Office and the Department of Constitutional Affairs had both published Race Equality Schemes. The Home Office document stated that "each new policy is the subject of a race equality impact assessment, unless the policy has no relevance to equality". The DCA document had similar wording. Paragraph 39 of Maurice Kay LJ's judgment continues:
"In the present case it is common ground that, when policy changes, or at least when it changes significantly, it is incumbent upon the Secretary of State to ensure that the potential discriminating impact has been assessed and considered. It is also common ground that there was no such assessment or consideration in advance of the Amendment Rules. The case for the Secretary of State is that none was required because there was no change, a fortiori no significant change of policy. We have rejected this submission when dealing with the first ground of challenge.[35] In our judgment there plainly was a significant change of policy (see para 35 above). For this reason, we are satisfied that the failure to carry out a race equality impact assessment in advance of such changes (Elias at 274)[36] involves a breach of duty on the part of the Secretary of State. This ground of challenge is substantiated…". 88. We note several things about that paragraph. First, it appears to have been common ground in that case that the proper way to assess and consider the impact of the proposed change in the rules on race equality was by the use of a formal race equality impact assessment, as contemplated in the Race Equality Schemes of the two departments. Secondly, it was common ground that no such assessment, nor indeed any race equality assessment, had been undertaken before the new rules were introduced. Thirdly, the reference to paragraph 274 of Elias is to provide authority for the proposition that consideration of issues of race discrimination must be made before policy decisions are made. Arden LJ does not state in that paragraph that section 71(1) of the 1976 Act imposes, directly or indirectly, a duty on a public authority to undertake a formal race equality impact assessment in a form set out in a Race Equality Scheme. 89. Accordingly, we do not accept that either section 49A(1) in general, or section 49A(1)(d) in particular, imposes a statutory duty on public authorities requiring them to carry out a formal Disability Equality Impact Assessment when carrying out their functions. At the most it imposes a duty on a public authority to consider undertaking a DEIA, along with other means of gathering information, and to consider whether it is appropriate to have one in relation to the function or policy at issue, when it will or might have an impact on disabled persons and disability. To paraphrase the words of WB Yeats in An Irish Airman Foresees his Death, the public authority must balance all, and bring all to mind before it makes its decision on what it is going to do in carrying out the particular function or policy in question. 90. Subject to these qualifications, how, in practice, does the public authority fulfil its duty to have "due regard" to the identified goals that are set out in section 49A(1)? An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have "due regard" to the identified goals: compare, in a race relations context R(Watkins – Singh) v Governing Body of Aberdare Girls' High School [2008] EWHC 1865at paragraph 114 per Silber J. Thus, an incomplete or erroneous appreciation of the duties will mean that "due regard" has not been given to them: see, in a race relations case, the remarks of Moses LJ in R (Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin)at paragraph 45. 91. Secondly, the "due regard" duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind. On this compare, in the context of race relations: R(Elias) v Secretary of State for Defence [2006] 1 WLR 3213at para 274 per Arden LJ.Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not enough to discharge the duty: compare, in the race relations context, the remarks of Buxton LJ in R(C) v Secretary of State for Justice [2008] EWCA Civ 882at paragraph 49. 92. Thirdly, the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of "ticking boxes"
. Compare, in a race relations case the remarks of Moses LJ in R(Kaur and Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin)at paragraphs 24 - 25. 93. However, the fact that the public authority has not mentioned specifically section 49A(1) in carrying out the particular function where it has to have "due regard" to the needs set out in the section is not determinative of whether the duty under the statute has been performed: see the judgment of Dyson LJ in Baker at paragraph 36.But it is good practice for the policy or decision maker to make reference to the provision and any code or other non – statutory guidance in all cases where section 49A(1) is in play. "In that way the [policy or] decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced": Baker at paragraph 38. 94. Fourthly, the duty imposed on public authorities that are subject to the section 49A(1) duty is a non – delegable duty. The duty will always remain on the public authority charged with it. In practice another body may actually carry out practical steps to fulfil a policy stated by a public authority that is charged with the section 49A(1) duty. In those circumstances the duty to have "due regard" to the needs identified will only be fulfilled by the relevant public authority if (1) it appoints a third party that is capable of fulfilling the "due regard" duty and is willing to do so; and (2) the public authority maintains a proper supervision over the third party to ensure it carries out its "due regard" duty. Compare the remarks of Dobbs J in R (Eisai Limited) v National Instituted for Health and Clinical Excellence [2007] EWHC 1941 (Admin)at paragraphs 92 and 95. 95. Fifthly, (and obviously), the duty is a continuing one.[96]Sixthly, it is good practice for those exercising public functions in public authorities to keep an adequate record showing that they had actually considered their disability equality duties and pondered relevant questions. Proper record - keeping encourages transparency and will discipline those carrying out the relevant function to undertake their disability equality duties conscientiously. If records are not kept it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by section 49A(1): see the remarks of Stanley Burnton J in R(Bapio Action Limited) v Secretary of State for the Home Department [2007] EWHC 199 (Admin)at paragraph 69, those of Dobbs J in R(Eisai Ltd) v NICE (supra) at 92 and 94, and those of Moses LJ in Kaur and Shah (supra) at paragraph 25.[43]The Court of Appeal approved this analysis in Domb v London Borough of Hammersmith and Fulham [2009] EWCA Civ 941 at paragraph 52: Our attention has been drawn to a number of authorities on the need to have due regard to equality duties, in particular R (Elias) v. Secretary of State for Defence [2005] EWHC 1435 (Admin) (Elias J), [2006] EWCA Civ 1293, [2006] 1 WLR 3213, R (Chavda) v. London Borough of Harrow [2007] EWHC 3064 (Admin) (HHJ Mackie QC), R (Baker) v. Secretary of State for Communities and Local Government [2008] EWCA Civ 141, [2008] LGR 239, R (Brown) v. Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), and R (Meany, Glynn and Sanders) v. Harlow District Council [2009] EWHC 559 (Admin) (Davis J). I find the greatest help in the judgments of Dyson LJ in Baker (dealing with the RRA) at paras 30ff and of Scott Baker LJ in Brown (dealing with the DDA) at paras 89/96, where each of them summarises what is involved in the duty to have "due regard". For present purposes I take from those summaries in particular the observations that there is no statutory duty to carry out a formal impact assessment; that the duty is to have due regard, not to achieve results or to refer in terms to the duty; that due regard does not exclude paying regard to countervailing factors, but is "the regard that is appropriate in all the circumstances"; that the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and that the duty must be performed with vigour and with an open mind; and that it is a non-delegable duty.[44]Thus, the statutory duty does not require that a formal impact assessment be carried out – in this case it would have been an assessment of the impact of WAVs upon non-wheelchair using disabled people. Rather, the statute required the Defendant to pay “due regard” to the needs of the non-wheelchair bound disabled person where “due regard” is “the regard that is appropriate in all the circumstances”. The evidence of the Defendant – from the officer (Miss Baird) and the decision maker (Mr. Brain) – is that substantive regard was given to the needs of all sections of the disabled community – and indeed the able bodied. The contemporaneous notes of the meeting indicate that this issue was raised in terms by more than one contributor. There is no basis for a finding that it was ignored. As indicated in Brown it is important to recognise that the duty is not a duty to achieve results and that allowance has to be made for different countervailing factors. In the context of this case the Defendant was faced with the following set of circumstances: an attempt in 2003/4 to increase the availability of WAVs in the district; an apparent failure of that attempt; the continuing need for greater WAV availability given the profile of the district being served by hackney carriages; the apparent impracticability of achieving a balance of WAVs and non WAVs. The conclusion was reached that a 100% WAV fleet of hackney carriages was the only practicable course, that conclusion being informed inter alia by an assessment of how WAVs would impact on non wheelchair users. The fact that a result was achieved that may be less advantageous to that group does not mean that the duty to have due regard was not satisfied.

Conclusion

[45]It follows that none of the challenges to the decision made by the Defendant in respect of hackney carriage policy is made out. It is axiomatic that this conclusion does not amount to an approval of the substance of the decision. As Mr. Justice Maurice Kay (as he then was) said in the case of The Mayor of London [2002] EWHC 2440 when considering the decision to introduce congestion charging: 77. It is not for me to be influenced in any way by whether I consider the Scheme to be good or bad. Whether or not Central London should have a congestion charging scheme is a matter for the GLA, TfL and, ultimately, the Mayor, whose confirmation is a prerequisite. As Lord Hutton said in the Alconbury case (para 189):
“…..a court does not decide whether an administrative decision was well-founded in substance. ”
The court’s function is simply to consider the lawfulness of the decision, judged against established public law criteria and, where applicable, the human rights set out in the Convention and now enshrined in domestic law by the Human Rights Act 1998. Whether it is a good idea or a bad idea for the Defendant to impose a 100% WAV policy for hackney carriages in its district is not for this court to say. It has not been suggested that it was a decision that no reasonable authority in the Defendant’s position could have made. Given that there are more than 60 local authorities across the country that have such a policy, the absence of such a suggestion is not surprising. The issue is whether the decision process was carried out in such a way as to make it unlawful. It was not. The claim for judicial review is dismissed.

Cited in 1 later judgment