What made the ULEZ consultation lawful?

This is Blog No 37

Mostly much ado about nothing, but the Court signals a high bar for findings of insufficient information.

R (London Boroughs of Hillingdon, Bewxley, Bromley, Harrow and Surrey CC) v Mayor of London & Transport for London

[2023] EWHC 1972 (Admin)

In the event. the Councils that challenged Sadiq Khan’s ULEX expansion had a pretty thin case, and Mr Justice Swift dismissed it … ….  swiftly!

It 'fuels' (!)  the suspicion that this was never about the law anyway. This was politics, pure and simple, and we  discussed simlar situations at length in The Politics of Consultation.

But it did allow a Court to explore the extent to which those designing a consultation have to make clear information available for consultees and the role that consultation plays in controversial decisions like this.

Firstly, the Councils tried to show that the Mayor of London lacked to power to proceed with the expansion of the Ultra-high Emissions Zone (ULEZ) to cover the whole of the Greater London area by amending the existing scheme. They argued that it needed a brand new scheme. Not so, said the Judge. Their remaining case therefore relied upon the 2022 consultation being flawed to the extent that made it unlawful.

Their case was that Impact Assessments made assertions and quoted figures that could not be supported by the evidence. They were undeniably right to complain that they were obscure, complex and probably incomprehensible to anyone without a PhD in transport modelling. But did this make it unlawful? The Judge did not think so, and it is probably fair to say that understanding the underlying arithmetic would not have had a bearing upon many consultee responses.

Successful Gunning Two cases (sufficient information as enables the consultee to give 'intelligent consideration') seem to me to have been when the information presented – or omitted – might have made a significant difference. The truth is that the thrust of Transport for London (TfL)’s consultation was on the principle of ULEZ and less about marginal costs and benefits.

The other argument was that the consultation should have covered the vexed issue of the scope and coverage of the proposed scrappage scheme. Many people had complained that the 2023 version was noticeably less generous than the scheme introduced when the original ULEZ boundary was drawn. This time around, the consultation merely asked how important consultees felt the scrappage scheme was, and this may not have encouraged the kind of debate that needed to be held. But it was not unlawful for TfL to have designed a consultation that happened to omit a question that was on many people’s minds.

To my knowledge, only in the Derbyshire v Sheffield Combined Authority case in 2016 was an omission of a single question fatal to the lawfulness of a consultation. However, that was because in the matter of whether or not Chesterfield should join the new super-Council, the key question that was omitted went to the heart of the consultation’s raison d’etre. In contrast, the ULEZ consultation was not really about the scrappage scheme, and in any case, this was essentially a political decision.

The Judge pointed out that

“the Mayor was not subject to any legal obligation to make provision to meet adverse impacts of charging schemes at all, let alone in their entirety.”

Also, in the words of Mr J Swift,

“the scope of the consultation was a matter within the discretion of TfL….. While the form of Q8 might be described as superficial, it was not unlawful for TfL to approach the matter in this way.”

Whether the Councils might have done better to test compliance with the Public Sector Equality Duty (PSED) might be another matter.

HOWEVER, the real significance of this judgment lies in the pointers it gives us towards future consultations on controversial policies relating to net zero as well as air quality.

1. As the political aftermath to the Uxbridge by-election shows, politicians will now be more cautious and wary of initiatives which will fall foul of public opinion, or which they deem unaffordable.
2. Equally important is the growing support for just transition. Organisations should learn from this case that consultations that appear not to cover the intrinsic ‘fairness’ of proposals may face challenge in the courts.
3. It’s now broadly accepted that ‘carrying the people with us’ is the mantra for net zero policymaking and the ULEZ legal challenge shows why it is always best to proceed on the basis of the widest possible consensus. 

Anyone who has read Sadiq Khan’s book, Breathe will recognise how much ULEZ is part of a personal crusade by the London Mayor. No doubt he will feel vindicated and relieved by the High Court decision. However, he has not exactly won a stunning political victory; even his own party has criticism both of his tactics and his timescale.

He can thank the consultation team at TfL for having given him a sufficiently robust defence to the legal challenge. Like us, they will have listened and heeded the need to communicate technical information better in Impact Assessments and would have noted that the Royal Statistical Society criticised some of the public statements made about the numbers of households potentially impacted. This week we have heard confirmation that there is a high bar before a consultation becomes unlawful. Still, it would be reckless for consultors to take a chance with inadequately researched or poorly explained data.

It is just unfortunate that large amounts of time and treasure is spent pursuing and awaiting judicial decisions. All of that might be so much better spent on public education and cleaning up our damaged environment.

Rhion H Jones LL.B