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Court of Appeal pulls apart High Court judge’s rejection of London’s Streetspace programme and other active travel measures

No foundation in judge’s claim that steps taken by TfL and Sadiq Khan in response to pandemic were “seriously flawed”

Three Court of Appeal judges have said that a High Court judge’s ruling earlier this year that emergency measures undertaken by Transport for London (TfL) in response to the coronavirus pandemic were “seriously flawed” and “irrational” had no foundation, their criticisms contained in their full decision explaining why they last month upheld TfL’s appeal against the original judgment.

> Transport for London wins appeal over Streetspace active travel programme

In January, Mrs Justice Lang found in favour of The United Trades Action Group (UTAG) and the Licensed Taxi Drivers Association (LTDA), which had sought a judicial review claiming that TfL’s Streetspace for London programme under which increased road space was given to cyclists and pedestrians, TfL guidance to boroughs including on low traffic neighbourhoods, and the closure of Bishopsgate were all unlawful.

> Blow for active travel in London as High Court judge rules Sadiq Khan’s Streetspace initiative unlawful

In her decision, the judge said that TfL and the Mayor “took advantage of the pandemic” to enforce “radical changes” to London’s streets and that they “failed to distinguish taxis from ‘general traffic’,” disregarding “the distinct status of taxis as a form of public transport, reflected both in law and policy” and “the role played by taxis in facilitating accessible public transport for those with mobility impairments.”

She also said that the changes went “beyond what was reasonably required to meet the temporary challenges created by the pandemic.”

However, the Court of Appeal’s full decision, which has now been published, pulls her ruling apart, with the three judges saying that it was “extraordinary and not right” that the steps taken by TfL and the Mayor be described as “extreme or ill considered,” nor were there grounds to view them as “irrational.”

They said that Mrs Justice Lang “seems to have given no or almost no weight to the fact that the [decisions taken by TfL] were made on or by 15 May 2020 at a time when the duration and future course of the pandemic were wholly unpredictable.”

The judges also pointed out that each of the measures introduced “was in accordance with the policy not only of the Mayor and TfL but also of the Secretary of State for Transport of encouraging walking and cycling rather than other means of travel.

“They were not universally popular, but we think it would be extraordinary and not right for a court to condemn them as extreme or ill-considered, especially during the pandemic,” they said.

UTAG and the LTDA have been refused permission to appeal against the ruling, and have also been ordered to pay TfL’s costs, including paying £50,000 within 14 days.

Simon joined road.cc as news editor in 2009 and is now the site’s community editor, acting as a link between the team producing the content and our readers. A law and languages graduate, published translator and former retail analyst, he has reported on issues as diverse as cycling-related court cases, anti-doping investigations, the latest developments in the bike industry and the sport’s biggest races. Now back in London full-time after 15 years living in Oxford and Cambridge, he loves cycling along the Thames but misses having his former riding buddy, Elodie the miniature schnauzer, in the basket in front of him.

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47 comments

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Sriracha | 2 years ago
6 likes

I am left bewildered that there seems to be so little objective truth or agreement about the law amongst those at the very pinnacle of the profession. A layman might be left believing it is an extremely well remunerated cabal of soothsayers.

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Captain Badger replied to Sriracha | 2 years ago
6 likes

Sriracha wrote:

I am left bewildered that there seems to be so little objective truth or agreement about the law amongst those at the very pinnacle of the profession. A layman might be left believing it is an extremely well remunerated cabal of soothsayers.

That could be one way of looking at it. 

The other way is that errant decisions may be appealed, in this case was, and the checks and balances were proved to be effective.

If it was thought that all judgements were correct, there would be no need for an appeals process. Currently, there is one, and whilst not perfect is established and broadly effective.

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Sriracha replied to Captain Badger | 2 years ago
1 like

But it's not really a system of "checks and balances". That would imply a separation of powers between different bodies, such that no single body held ultimate power. Whereas the judicial system is a hierarchy, where the top court holds ultimate authority. We just have to accept that they know best.

What stands out in this case is the starkness of the disagreement. If it were just a finessing of an abstruse point of law which swayed the balance of a finely hung decision, well then fine. But for two top tiers of the legal system to hold such opposed understanding strikes me as odd.

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Captain Badger replied to Sriracha | 2 years ago
1 like

Sriracha wrote:

But it's not really a system of "checks and balances". That would imply a separation of powers between different bodies, such that no single body held ultimate power. Whereas the judicial system is a hierarchy, where the top court holds ultimate authority. We just have to accept that they know best.

Well, no we don't have to accept. There was an appeal, and it won.

Sriracha wrote:

What stands out in this case is the starkness of the disagreement. If it were just a finessing of an abstruse point of law which swayed the balance of a finely hung decision, well then fine. But for two top tiers of the legal system to hold such opposed understanding strikes me as odd.

I agree that the disagreement was staggering. That doesn't amount to both being wrong though. The fact it was staggering demonstrated in my mind how rare this kind of occurrence is - it's a standout case. I commented below that they were so opposed, and the summing up so harsh (in legal terms), perhaps indicates some initial favour in the first judgement.

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wycombewheeler replied to Captain Badger | 2 years ago
0 likes

Captain Badger wrote:

Sriracha wrote:

But it's not really a system of "checks and balances". That would imply a separation of powers between different bodies, such that no single body held ultimate power. Whereas the judicial system is a hierarchy, where the top court holds ultimate authority. We just have to accept that they know best.

Well, no we don't have to accept. There was an appeal, and it won.

Sriracha wrote:

What stands out in this case is the starkness of the disagreement. If it were just a finessing of an abstruse point of law which swayed the balance of a finely hung decision, well then fine. But for two top tiers of the legal system to hold such opposed understanding strikes me as odd.

I agree that the disagreement was staggering. That doesn't amount to both being wrong though. The fact it was staggering demonstrated in my mind how rare this kind of occurrence is - it's a standout case. I commented below that they were so opposed, and the summing up so harsh (in legal terms), perhaps indicates some initial favour in the first judgement.

but the lower court made a different conclusion, we have to accept the appeal court is correct as their deciion cannot be appealled.

But part of this is that there are 3 judges on the appeal court panel, not a single judge with ultimate power.

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eburtthebike replied to Captain Badger | 2 years ago
0 likes

Captain Badger wrote:

The fact it was staggering demonstrated in my mind how rare this kind of occurrence is - it's a standout case.

One of the best books I've ever read was "Arthur and George" by Julian Barnes, which deals with the case that caused the court of appeal to be set up, the Arthur being Sir Arthur Conan Doyle of Sherlock Holmes fame.  Must read it again soon.

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David9694 replied to Sriracha | 2 years ago
0 likes

"Half of legal advice given is wrong" quipped my lecturer on on my unaccredited Law in Society minor, regarding litigation. 

Although leave to appeal wasn't granted, I believe the loser can apply to have that set aside. But I hope they now drop this nonsense.

Cabbie Twitter remains quiet on this AFAIK and is sticking to the occasional "under this crazy rule introduced by Khan, I can't drop off my one-legged war veteran passenger",  "oh gosh, aren't there lots of cyclists around" or "there are no cyclists around". 

Still, the LTDA have got its members' backs should anyone by a weird combination of circumstances find themselves accused of assault.. 
 

 

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AlsoSomniloquism replied to David9694 | 2 years ago
0 likes

Wasn't there another thing stating something like a Judge makes their personal decision and then looks for the legal arguments to back it up rather then the reverse? This is especially noticable with the more Political backed systems like in the USA when the politics of the Judge is known in advance (they were nominated by Dems or Republicans). 
 

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eburtthebike replied to Sriracha | 2 years ago
1 like

Sriracha wrote:

I am left bewildered that there seems to be so little objective truth......

Dangerous concept, objective truth; your truth or my truth?

There is no such thing as truth, just proven facts.  Nothing Mrs Lang said could be proven true, while everything the appeal court judges is provably true.

Unless you're a Trump or Boris supporter of course; in which case you're beyond redemption.

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Captain Badger | 2 years ago
1 like

Has anybody found a good Twitter thread on this yet? maybe they could share the best bits?

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Zjtm231 | 2 years ago
15 likes

This has absolutely made my week:

"UTAG and the LTDA have been refused permission to appeal against the ruling, and have also been ordered to pay TfL’s costs, including paying £50,000 within 14 days."

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Legin | 2 years ago
17 likes

My preferred method of travel in London, when working, was taxi; black taxi only as I don't do private hire (or is that criminal hire). That was until 3 years ago when the LTDA and UTAG campaigns started to target cyclists much more aggressively.

They are an odd bunch. Many of them could not see the irony of them moaning about "immigration" and the "EU" dictatorship; whilst they commuted from their homes in Spain to their/their relatives socially provided housing in London, to work every other week (Cash would be better Sir).

The final nails were the constant assumptions that this "white" 50+ business person (64 actually, you are so kind) would support their tirades about cyclist, imigrants and the EU. I mean how were they to know that I've ridden bikes from the age of 5, my wife most definately has a brown hue, and I'm looking for the barstewards who stole my citizenship?

Not all Taxi drivers are bigots; only the ones that have their mouths open! That second sentence is untrue there. I now walk, use the bus or if unavoidable the tube/train. Feck Black Cabs!

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geomannie 531 replied to Legin | 2 years ago
2 likes

Hi Legin,

Been that cab many times & have the tee shirt. I, however, am 65 but clearly don't look it.

B

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wycombewheeler replied to Legin | 2 years ago
4 likes

Legin wrote:

My preferred method of travel in London, when working, was taxi; black taxi only as I don't do private hire (or is that criminal hire).

Seems a strange decision to make if you had ever cycled on london streets, at an early age I learned enever to trust cab drivers as they could spot potential fares with eagle eye vision, but the cylists between them and the fare, was much harder to see.

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Legin replied to wycombewheeler | 2 years ago
0 likes

I cycled on London Streets 6 times between 1974 and 2016, so rare I can actually remember them.  

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Jetmans Dad | 2 years ago
20 likes

Quote:

They were not universally popular ...

And therein lies the crux of the whole argument against cycle lanes/LTNs across the country ... there appears to be this notion that they should only be introduced if they are "universally popular" rather than being "the right thing to do". 

We cannot deal with the climate crisis without cutting the number of cars on the road, and we can't cut the number of cars on the road without making it both more convenient and more attractive to people to use alternate forms of transport. 

There will inevitably be some short term pain for some people as that adjustment is made, but councils giving up as soon as someone bleats about the slightest inconvenience means we are moving much more slowly than we need to. 

The other problem is that as a society we are buying bigger and bigger "cars", which use up more space, do more damage to the roads, and cause more serious injuries to vulnerable road users in a collision. This is perfectly exemplified by Ford's decision to discontinue the Mondeo as everyone is apparently now buying SUVs rater than family cars. 

Unless we take on board the lessons we could learn from The Netherlands, Denmark and Paris, in how to proceed, we really are doomed. 

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HarrogateSpa replied to Jetmans Dad | 2 years ago
7 likes

I agree with all that.

To revive an old argument in a totally unnecessary way, I'll point out that Tao Geoghegan Hart and his colleagues should stop marketing the awful Grenadier 4x4.

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wycombewheeler replied to Jetmans Dad | 2 years ago
3 likes

Jetmans Dad wrote:

We cannot deal with the climate crisis without cutting the number of cars on the road, and we can't cut the number of cars on the road without making it both more convenient and more attractive to people to use alternate forms of transport. 

less convenient and less attractive to use motor transport

Jetmans Dad wrote:

There will inevitably be some short term pain for some people as that adjustment is made, but councils giving up as soon as someone bleats about the slightest inconvenience means we are moving much more slowly than we need to

Not making any detectable progress at all.

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Rendel Harris | 2 years ago
15 likes

The amount of crowing from the LTDA and UTAG after the first judgement makes this all the sweeter.

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wtjs | 2 years ago
18 likes

Hurrah! Judge Lang has been given a real pasting in the measured legalese of the Appeal Court- stating that 'she made a logical error' is tantamount to describing her as a thickhead. Are there any consequences for a judge criticised like this?...anyone on here with legal expertise?

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bobbinogs replied to wtjs | 2 years ago
6 likes

Promotion?

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bikeman01 replied to wtjs | 2 years ago
2 likes

Amazing result considering how judges are as thick as theives when it comes to sticking together. I would bet that the 3 appeal judges were all men who might not want Judge Lang in their 'club'.

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wycombewheeler replied to wtjs | 2 years ago
1 like

wtjs wrote:

Hurrah! Judge Lang has been given a real pasting in the measured legalese of the Appeal Court- stating that 'she made a logical error' is tantamount to describing her as a thickhead. Are there any consequences for a judge criticised like this?...anyone on here with legal expertise?

But it's also a way of avoiding saying the original judge acted with bias in favour of taxis/against cyclists.

When the appeal court judges agree the decision was very wrong there are only two possibilities - incompetance or corruption. It wouldn't do to suggest the latter.

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Steve K | 2 years ago
1 like

Apparently LTDA and UTAG are planning to go to the Supreme Court to get leave to appeal.  So this isn't over yet; or they may just be throwing good money after bad.

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Zebulebu replied to Steve K | 2 years ago
5 likes

The judgement specifically refuses them the right to appeal...

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Hirsute replied to Zebulebu | 2 years ago
0 likes

Might be based on "Steve McNamara, general secretary of the LTDA, said: “We are currently in the process of reviewing the Court of Appeal’s full judgement with our lawyers and considering next steps. We will keep the trade and other interested parties updated.”

I suppose the question is if the CoA did not follow due process is there a mechanism for reviewing that?  A sort of super-judicial review.

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HarrogateSpa replied to Zebulebu | 2 years ago
3 likes

True, but you can get permission to appeal from a higher court.

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Steve K replied to Zebulebu | 2 years ago
2 likes
Zebulebu wrote:

The judgement specifically refuses them the right to appeal...

Which is why they are considering going to the Supreme Court, I think. https://www.supremecourt.uk/procedures/how-to-appeal.html

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eburtthebike | 2 years ago
13 likes

Please will someone in London buy those three appeal court judges a drink?  Or five?

With such a damning, unanimous verdict against her, surely Mrs Justice Lang should be considering her position; anyone who gets it so wrong has no place deciding other people's future.

"UTAG and LTDA have been refused permission to appeal against the ruling, and have also been ordered to pay TfL's costs, including paying £50,000 withing 14 days."

Cherry, hop on that cake.

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Captain Badger replied to eburtthebike | 2 years ago
13 likes

eburtthebike wrote:

Please will someone in London buy those three appeal court judges a drink?  Or five?

With such a damning, unanimous verdict against her, surely Mrs Justice Lang should be considering her position; anyone who gets it so wrong has no place deciding other people's future.

The language used by Mrs Lang was not the measured language we are used to hearing - it's almost as if there was some kind of bias in her original judgement....

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