Saturday, October 29, 2011

Legal Requirements, Following correct procedure


Please see document below which defines the legal requirements for a Public Body. It clearly shows that the decisions have to
1/Follow correct procedure
2/ Be Rational and Evidence based
3/Have proper purpose
4/to comply with the European Convention for Human Rights
5/To be Proportionate
6/To be properly Reasoned

TFL fail on most of these points on most of their decisions.

It may be good to make this available to drivers along with a template letter of complaint for them to send to their local MPs or MEPs.

Legal Requirements
Following correct procedure
A decision maker will frequently be required to follow a set procedure for making its decisions. This may take the form of procedural requirements set out in statute, statutory instrument, guidance (whether statutory or non-statutory) or a procedure which the decision maker has set for itself. Any such procedure will usually have been drafted with the purpose not only of guaranteeing that the decision maker takes into account all relevant considerations but also to ensure procedural fairness for those affected by the decision it is required to make.
Departure from an established prescribed procedure in itself can give rise to a successful legal challenge, by way of judicial review for example, even if no unfairness results:
“… susceptibility to judicial review under this head [procedural impropriety] covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice” (per Lord Diplock, Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 411A-B).
Examples of prescribed procedures for decision makers include:
·        express duty to consult
·        express duty to serve notice
·        express duty to publish agenda
·        express duty to seek written representations
·        express duty to hold oral hearing if requested
·        express duty to give reasons for decision
·        express duty to be informed of right of appeal

Rational and evidence based
Whether a public body has a duty or discretion to exercise in making its decision, that decision must be rational. 
An irrational or unreasonable decision is one that was not reasonably open to it, as expounded by Lord Green MR in theAssociated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223.
Meaning of irrationality
“Unreasonableness can include anything which can objectively be adjudged to be unreasonable.  It is not confined to culpability or callous indifference.  It can include, where carried to excess, sentimentality, romanticism, bigotry, wild prejudice, caprice, fatuousness or excessive lack of common sense” In Re W (An Infant) [1971] AC 682, per Lord Hailsham at 699H
“a decision which does not add up” (
R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1)
“a decision which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt” (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, per Lord Diplock at 1064 E-F)
Decisions makers are given a degree of latitude by the courts when challenged by way of judicial review on grounds of unreasonableness. The Courts recognise that the decision was for All relevant considerations
An aspect of reaching a rational and evidence-based decision is taking all relevant factors or considerations into account.  This was made clear by the House of Lords in Anisminic v Foreign Compensation Commission [1969] AC 147, but the principle is more simply enunciated by Lightman J in R v Director General of Telecommunications, ex parte Cellcom Ltd [1999] COD 105:
“The Court may interfere if the Director has taken into account an irrelevant consideration or has failed to take into account a relevant consideration”.
This does not mean that a decision maker must consider all extraneous material, but it should have before it as much information as possible that is relevant to the decision that it is about to make. Deciding what is relevant and what is not depends on the subject matter of the decision, but examples include:
·        the proposal
·        responses to consultation or written representations received
·        guidance on parameters for decision
·        cost of decision
·        effects of decision on others
·        advice from officers
Examples of irrelevant considerations include:
·        the need to get business finished quickly
·        assumptions not based on evidence
·        personal experience of a different situation
·        dislike for the person affected by the decision or what they represent
Proper Purpose
A public body must not act in bad faith, which is akin to dishonesty (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at 229).
It must act for a proper purpose. Those making public decisions must not have ulterior motives and must apply their minds when making decisions for the correct statutory objective (Padfield v Minister of Agriculture, Fisheries & Food [1968] AC 997).
Examples of Improper Motive
·        exercising local authority powers for the electoral advantage of a particular political party (Magill v Porter [2001] UKHL 67)
·        land acquisition for re-sale at a profit
·        to protect an unborn child from the mother’s right to refuse medical intervention
·        delaying a process so that a challenge to it became time-barred
ECHR-Compliant
It is unlawful for any public body to act contrary to one of the rights contained in the European Convention on Human Rights (“ECHR”) that has been incorporated into domestic law by the Human Rights Act 1998 (“HRA”)(section 6(1) HRA).
“Public bodies” for this purpose are defined in section 6(3) of the HRA as follows:
“6(3) In this section “public authority” includes:
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.”
Schedule 1 to the Freedom of Information Act contains a list of public bodies for the purposes of that Act. This provides a useful starting point for checking whether a particular decision maker is likely to fall within the definition contained in section 6(3) HRA. However, it is only a starting point; what matters in deciding whether a decision maker falls within the definition is whether the body in question is exercising public functions.
A variety of cases have considered the question of what amounts to a functional public authority for the purposes of section 6(3)(b) of the HRA: see here.
A review of this case law provides a private body is likely to be held to be performing public functions under section 6(3)(b) if:
·        its structures and work are closely linked with the delegating of power or contracting out from a State body; or
·        it is exercising powers of a public nature directly assigned to it by statute; or
·        it is exercising coercive powers devolved from the State.
Other factors such as the following may all be taken into consideration, perhaps cumulatively, in determining whether a function has sufficiently public “flavour”:
·        the fact of delegation from a State body,
·        the fact of supervision by a State regulatory body,
·        public funding,
·        the public interest in the functions being performed, or
·        motivation of serving the public interest, rather than profit
The ECHR contains the following articles that have been incorporated into domestic law that may be relevant to public bodies making decisions.
Article 6 is likely to be of particular relevance to decision makers sitting in a quasi judicial capacity and holding hearings. It provides as follows:
Article 6 Right to a fair trial
1.    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2.    Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3.    Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Breach of an ECHR right by a decision maker may render its decision not only unlawful but subject to an action for damages: see section 8(3) HRA (and R (Bernard) v Enfield Borough Council [2003] HRLR 111 for an example).
Proportionate
Public decision makers should act in a way that is proportionate.  While the common law does not necessarily accept proportionality as a freestanding ground for judicial review, it is a principle embedded in  both EU and ECHR law and consequently touches upon most of the decisions taken by public bodies:
“[Proportionality] is one of the fundamental principles of Community law, standing alongside such other principles as those of equal treatment and legitimate expectation. it has not so far (perhaps unfortunately) found any very promising seedbed in English domestic law. It is not anywhere vouchsafed in the EC Treaty; rather it is part of what may perhaps be called the common law, or the internal law, of the Community, having been developed by the Court of Justice as an integral part of the legal discipline applied by that court to the Community institutions in relation to their implementation of the Community legal order. When member states also act to implement Community law, or to take measures necessarily relying on exemptions from Treaty obligations provided by Community law, they too will be subject to this internal law” (R v Secretary of State for the Environment, ex parte Oldham Metropolitan Borough Council [1998] ICR 367, per Laws J at 384H to 385A)
“Reference to the Human Rights Act 1998 … makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied” (R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, per Lord Slynn at [51]).
A decision that is proportionate, is also likely to be rational, evidence-based and reasonable (see R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696, per Lord Lowry at 766D-E): “reliance on proportionality is simply a way of approaching the Wednesbury formula: was the administrative act or decision so much out of proportion to the needs of the situation as to be “unreasonable” in the Wednesbury sense”.
Properly Reasoned
Procedural requirements may specify that a public body must give reasons for its decisions. It should do so in any event, not only because the common law may require it to do so, but because a well reasoned decision will inform those affected fully about the decision the body has taken. Reasoned decisions also enable those affected to consider whether to subject it to legal challenge, and on what grounds and well reasoned decisions help public bodies withstand legal challenge by explaining their thought processes.
The process of setting out written reasons for a decision also improves the decision making process by making the decision maker focus on the logic lying behind his decision (R v Brent LBC, ex parte Baruwa (1996) 28 HLR 361).
Reasons do not need to be excessively detailed, but do need to be adequate. Adequate reasons are reasons that:
·        deal with all the substantial points that have been raised
·        are sufficient for the parties to know whether the decision maker has made an error of law
·        set out and explain key aspects of the decision maker’s reasoning in coming to its conclusion
·        include all aspects of reasoning that were material to the decision made
·        but do not need to set out in detail all the evidence and arguments referred to the decision maker
Decision makers should record the reasons for their decisions at the time they are made.  In the event of a subsequent appeal or other legal challenge, it will not usually lie open to them to elucidate, correct or add to their reasons at a later stage (see e.g. R v Secretary of State for the Home Department, ex parte Lillycrop (unrep 27.11.96)).

he public body to make, not the court, and so they are reluctant to interfere where they might disagree with a decision but it is objectively rationally made. 

Friday, October 21, 2011

Charing Cross Road Marshalled Taxi Rank

A new taxi rank has been appointed in Charing Cross Road.

The taxi rank operates between 20:00 and 03:00, 7 days a week, and is split into two portions. The first portion is located on the west side of Charing Cross Road, near Bear Street. The second portion acts as a feeder rank and is on the east side of Charing Cross Road.

The new taxi rank will be marshalled on Friday and Saturday evenings, between 22:00 and 03:00 and will operate as a normal taxi rank, i.e. the first taxi takes the first passenger and the fares are on the meter. TfL has worked together with the taxi trade and local authority to appoint this new taxi rank and drivers are encouraged to use the rank and support the marshalled taxi rank scheme.

The fixed-fare marshalled taxi rank scheme in Coventry Street has now stopped as this was only being marshalled temporarily by TfL marshals whilst Westminster City Council seek long term funding for the scheme.

Transport for London – London Taxi and Private Hire
For enquiries email PCO.enquiries@tfl.gov.uk
For licensing information visit the TfL website or try TfL’s Taxi Common Questions Section

Wednesday, October 19, 2011

Improving Air Quality in London

Dear Stakeholder,

Improving Air Quality in London

The Mayor wants London to be one of the cleanest, greenest cities in the world and meet challenging European Union air quality targets. As part of wider work to improve air quality outlined in the Mayor’s Air Quality Strategy, Transport for London (TfL) is implementing a range of measures to tackle PM10 levels at some of the busiest roads in central London.These initiatives, being delivered by the London Clean Air Fund (CAF), which is financed by the Department for Transport at the Mayor's request, could reduce local pollution levels of PM10 - a pollutant arising mostly from traffic emissions - by between 10 and 20 per cent where applied. To date, the Clean Air Fund has achieved the following progress:

· Cleaning and Application of Air Dust Suppressants (CADS) – Expansion of CADS with Calcium Magnesium Acetate (CMA) at priority locations with two additional converted vehicles enabling further testing and monitoring of CADS to optimise its application, and wider use at both industrial and construction sites across London.

· No Engine Idling campaign – Eco marshals have been deployed at taxi ranks outside 10 mainline stations in Central London and other on street ranks where air quality is particularly poor. The purpose of the Eco marshals is to provide guidance to taxi drivers and encourage eco driving and discourage engine idling at taxi ranks. Industry (Bus, Coach and Freight) support has been pledged and targeted engagement has been undertaken. We are currently also developing a campaign to raise awareness and educate all drivers about turning off their engines.

· Green infrastructure programme – The start of a greening programme to trap PM10 pollution – a row of 50 green towers (six foot tall planters) have been installed along Lower Thames Street, one of London’s most polluted roads. The green towers are also an attractive addition to the local area.

· Working with businesses – TfL has called upon businesses to cut their emissions following the launch of best practice guides – these will encourage walking and cycling, especially for organisations within central London, and includes a CAF financed trial of electric pool bikes designed to give staff extra pedal power and cut down on unnecessary car journeys; and working in partnership with Central YMCA to deliver free workplace activator training. Further action on the horizon includes:

· Green Wall to be installed at Edgware Road (Bakerloo Line) Tube station in November 2011 and plans for around 500 new street trees and new shrubs to planted in the next few months, subject to suitable planting conditions.

· CADS trial will be expanded in October at Marylebone Road, Victoria Embankment and Park Lane.

· No Engine Idling awareness raising campaign will be launched in November.

· Retrofitting diesel particulate filters to buses travelling through priority locations. These buses are already compliant with the forthcoming LEZ (Low Emission Zone) standards from January 2012, and the DPFs will significantly reduce emissions of PM10.

Delivering these short term local measures and providing a lasting legacy from the work requires the continuous support of organisations and individuals who operate, work or live in London. TfL will be collaborating with a wide range of stakeholders to deliver this work over the coming months.

We would be grateful for pledges of support and advocacy for this work. Please do get in touch if you are happy to support all or any of the specific work programmes outlined in this email, or if you simply want to be kept informed of progress.

Please contact the team by emailing STEngagement@tfl.gov.uk. Yours sincerely

Keith Gardner Director of Strategy (interim)

Surface Transport – Transport for London



Return to Anderson Shelter article here

Tuesday, October 18, 2011

Hepworth-V-Westminster City Council, PATAS Rulling

Dear Mr Large
I write to you to draw your attention to the recent ruling at PATAS, case ref: 2110348237(please see link below).

I and the NoToMob request that in light of this ruling by the adjudicator, your council should write to every individual who has been issued a Penalty Charge Notice (PCN) via fixed CCTV for parking since February 2010, inviting them to apply for a refund. This would appear to be the fair and proportionate thing to do.
If Westminster City Council does not undertake this course of action, the District Auditor will be asked to apply to the court under section 17 of the Audit commission Act 1998 for a declaration that the income from these PCNs is illegally derived. I would also like to know how many PCNs for parking have been issued via fixed CCTV since February 2010.
We also ask that your council suspend the use of your fixed CCTV cameras for parking enforcement until such time as Westminster City Council has obtained an approved device certificate for your fixed CCTV cameras.
Yours sincerely
Steve Baker

Sent from my iPhone

Thursday, October 13, 2011

Law Commission CV's...by Semtex



Here's the first one and the man in charge.

The Rt. Hon. Lord Justice Sir James Munby QC.

It sounds more like a fairy tale than the kind of behaviour expected in high society.

But the story of Earl Spencer, two judges and seven little piggies is unlikely to have a happy ending.
One of the country’s leading lawyers told the Earl that he had named his sow’s piglets after the character traits of a High Court judge – including ‘self-regarding’, ‘pompous’ and ‘pillock’.


Costly divorce: Earl Spencer, with his former wife Caroline, claims that settling with her out of court cost him an extra £1 million
The insults were revealed by Princess Diana’s brother as he prepared to sue the lawyer over the handling of his divorce.

After the Earl handed £5.65million to his ex-wife last year, Sir Nicholas Mostyn emailed him about Lord Justice Munby, who heard the case.
The keen farmer, now a High Court judge himself, said his sow had given birth, adding: ‘The piglets will be named: James, Munby, self-regarding, pompous, publicity, seeking, and pillock...’

The insults were included in a writ Earl Spencer issued last month in the High Court.

He is seeking £1million damages from Sir Nicholas, solicitors Fladgate and barrister Elizabeth Clarke because, he says, they failed to warn him that changes to the law meant his divorce hearing would not be in private.

He had expected to pay £4million-£4.5million to Caroline Hutton, his second wife and mother of two of his children. But to avoid the public gaze, he settled out of court and paid her an extra £1million.
Insult: Sir Nicholas told how he had given his new litter of piglets names including Pompous, Pillock and Self-Regarding as a private slight to the Lord Justice Munby
He says that if he had been told about the law change earlier, he would have changed his negotiating strategy.
The Earl’s new solicitor said Sir Nicholas’s ‘clear dissatisfaction’ with the judge meant the legal team should have recommended an appeal, which they allegedly did not.

But Sir Nicholas’s solicitor John Bennett dismissed the claim as having ‘no merit’ and the email as ‘irrelevant’.

A source close to Sir Nicholas said: ‘James is one of Sir Nicholas’s closest friends. It’s the sort of thing a barrister might say, if you lost a case, to make your client feel better.’

But the Earl’s solicitor Patrick Pennal said last night: ‘It is not a “private” email communication because the relationship between Earl Spencer and Sir Nicholas Mostyn was entirely professional i.e. he was acting for remuneration.’
Target: Lord Justice Munby and right, keen farmer Sir Nicholas Mostyn



Next up.

Ex City Banker John Saunders.

John Saunders OBE, Chief Executive

John Saunders is an experienced Chief Executive with a considerable record of success in complex and substantial public and private sector organisations. He was awarded an OBE in 1998 for services to British Business.

After a 20 year career in Corporate Banking, John moved to the public sector in various Chief Executive, Chair and Board Member roles. Most recently John has held Chief Executive roles during the start-up phase at the Security Industry Authority and at CIPFA. John brings strong leadership, business acumen and a thorough understanding of working in challenging and politically sensitive arenas under close public scrutiny.

Another Peter Hendy in disguise ! Looking great isnt it ?



Heres another one.

Elizabeth Cooke. Solicitor and specialising in pre nuptials and Divorce.

Professor Elizabeth Cooke (Law Commissioner)

Professor Cooke began her legal career as a trainee solicitor at Withers, from 1986 to 1989 and went on to work as an assistant solicitor at Barrett and Thompson from 1989 to 1991. After completing her Masters in Property Law at the University of Reading she joined the university's School of Law as a Lecturer and then went on to become a Reader in 2001 and a professor in 2003.

Elizabeth was a member of the sub-law panel for the UK Universities'2008 Research Assessment Exercise; from 2006 to 2008 she was Chair of the University of Reading Research Ethics Committee. She has also chaired a research team funded by the Nuffield Foundation which published in 2007 a study of community of property regimes: Community of property: a regime for England and Wales.

Professor Cooke has written extensively on family law and property law.

She is currently a Law Commissioner and oversees property, family and trust law projects. The Law Commission's consultation paper, Marital Property Agreements, was published in January 2011.

As you can see folks, my CV search is once again unveilling a wealth of knowledge and expertise in our profession.

I have got more CV's to check, but is anybody else worried about Oliver Cromwells army of the best Cab Service in the globe being discussed and killed off by a bunch of academics with ABSOLUTEY NO KNOWLEDGE of our industry ?

This folks is a professionally aimed killer blow targetting our Great London Taxi Trade.

What knowledgable input or tangible expertise can come from a City Banker and a Divorce Specialist Lawyer ?

Exactly ! Diddly squat mate !

My radar is going nuts here !

Perhaps Miss Cooke wants to Divorce us from our badges eh ?

It's a bloody ruse folks, you watch.



Another one of the team sent to kill us.

Frances Patterson QC. Expert in Social Care and Human Rights.

Frances was appointed the Law Commissioner for a period of five years in December 2009. She is head of Kings Chambers in Manchester and Leeds also head of the Public Law department within those chambers. Amongst many other things, Frances is also a leading practitioner in Community Care law.

The talk outlined the project and areas of law reform before looking towards the future and the publication of the Law Commission's final report on adult social care in May 2011.

It was explained that the overarching aim of the reforms is to promote or contribute to the wellbeing of individuals and the duty to access will be at the heart of the new system.

"We are suggesting that assessments are portable and that there is a clear divide between health and social care but also that there is an integration between the two" said Patterson.

Consultation for the reform showed overwhelming support for retaining a number of key legal rights and strong backing for maintaining duties to co-operate between social services and other agencies and for the proposal to introduce a duty to investigate in adult protection cases.

Frances explained that the scheme will be reviewed as a whole to make sure it can accommodate policies such as personalisation, self-directed support, prevention and the universal services, while also maintaining the strong legal rights that have been overwhelmingly supported by consultees.

What do you mean, should we crap ourselves ? Of course we should !



This guy is no mug, and if anyone on the panel may be the one to have some empathy with our trade, I predict it will be this guy.

He is well taught, well practised, genuine and extremely capable.

Prof David Ormerod

David Ormerod

Professor of Criminal Justice, Queen Mary University, London

David Ormerod joined Queen Mary in April 2007. He is the author of numerous journal articles and book chapters, and several hundred case commentaries.

David holds a number of Editorial positions. He is the Cases Editor of the Criminal Law Review and serves on the Editorial Boards of the International Journal of Evidence & Proof, Covert Policing Review and the Journal of Investigative Psychology and Offender Profiling.

In addition, he lectures regularly for the Judicial Studies Board on Criminal Law, Serious Sexual Offences and the Law of Evidence. He recently assisted the JSB in updating the Judicial Studies Board Specimen Directions. He has acted as a consultant to the Law Commission, Home Office and the Commonwealth Secretariat. David is also a member of the national Criminal Justice Council.
He is a Barrister in the Chambers of David Etherington QC, 18 Red Lion Court.

David is a guest speaker for these webinars



And of course, every panel needs an accountant !

David Hertzell. A posh and high ranking one, but an accountant at the end of it all !

David Hertzell is one of the five Law Commissioners of England and Wales, and is responsible for commercial and common law projects including those to reform the law of insurance and sale of goods. He started his legal career with solicitors Davies Arnold Cooper in 1981 and became a partner in 1989 specialising in insurance, reinsurance and regulatory law. He was Managing Partner from 1992 – 1996 and from 2000 – 2006. He was appointed a Law Commissioner in 2007. He is an acknowledged expert on captive insurance and chaired the AIRMIC Captive Focus Group until he joined the Law Commission. David is a member of the CII, and was a member of the BSI drafting committee on risk management.