Opposition to introducing new road-user charging schemes in London, both real and made-up, is habitually loud, angry and expressed in the form of legal challenges. This has been very much the case with Sadiq Khan’s plan to enlarge the capital’s Ultra-Low Emission Zone (ULEZ) from inner London to cover the whole of Greater London from 29 August this year.
The air quality science and the politics of this initiative will be explored here another day. For now, let’s look at the laws relating to it and action being taken through the courts.
The Daily Telegraph and the Daily Mail have reported that the Labour Mayor’s move “could be blocked” by the Conservative national government. They cite section 143 of the Greater London Authority Act (1999) – the legislation which brought the London mayoralty into existence – as providing grounds for doing so.
Section 143 gives the Secretary of State for Transport, currently Mark Harper, the power to “direct” – that is, order – the Mayor of London to make changes to his transport strategy if he considers it or any part of it “inconsistent with national policies relating to transport” and regards the claimed inconsistency “detrimental to any area outside Greater London”.
Minister for London Paul Scully, an MP for an outer London constituency, has been quoted, saying a Londonwide ULEZ would affect “a whole load of people in Surrey, Kent and Hertfordshire who didn’t get a say on it. It is taxation without representation”.
Could the government really use the law as it stands to stop the Mayor’s further expansion of the ULEZ? It looks unlikely. City AM has reported that the government itself has played down the idea, and seemingly with good reason.
The Mayor’s transport strategy was published in 2018. It contains numerous mentions of the ULEZ. They include (proposal 24) introducing it to central London in 2019 – implementing more quickly a policy originally adopted by Boris Johnson when he was Mayor – and then expanding it to cover inner London in 2021. Both changes apply to motorists based outside the areas affected. Both have been made without the national government trying to stop them.
Khan’s proposed further expansion to the whole of Greater London was not in the original transport strategy but has been added to it in the form of an amendment (proposal 24.1), approved by the London Assembly.
City Hall has responded bluntly to suggestions the government could block Khan’s plan with a statement the Mail included at the bottom of its coverage: ‘The Secretary of State could only use this power after changing national policy to prevent all cities charging drivers based on their emissions. Ministers have directed numerous UK cities to introduce clean air zones, and the government is under clear legal obligations to tackle air pollution.”
There are clean air zones in Bath, Birmingham, Bradford, Bristol, Portsmouth and Tyneside (Newcastle and Gateshead). The government’s website links to the specific rules operating in London.
What is the strength of Scully’s “taxation without representation” argument in relation to Home Counties motorists with vehicles that fail the ULEZ test?
It echoes what the then transport secretary Grant Shapps said in February 2021 after TfL suggested introducing a £3.50 per day boundary charge for vehicles not registered in London to enter the capital as one possible way of raising an extra £500 million a year. Offering such suggestions was a condition of TfL receiving emergency funding during the pandemic.
Shapps seemed to have forgotten that, for example, non-London registered vehicles had been paying the central London congestion charge since 2003 and that London-registered drivers pay road tolls outside London. Perhaps the minister for London forgot those things too.
The challenge to the Mayor’s scheme from four Conservative boroughs – Bromley, Bexley, Hillingdon and Harrow along with Surrey County Council (also Tory) – looks more substantial, albeit the bar is low. They are seeking a judicial review of the Mayor’s decision on five grounds, claiming:
- He failed to comply with “relevant statutory requirements”.
- He failed to “consider expected compliance rates in outer London”.
- His scrappage scheme was “not consulted on”.
- He didn’t carry out the cost benefit analysis to should have.
- His consultation about the scheme was “inadequate” and/or marred by “apparent predetermination arising from the conduct of the consultation”.
Bromley Council’s website provides helpful summaries of each of these arguments. The first maintains that the latest expansion has been wrongly treated as a simple variation on the previous one. The second says the Mayor didn’t provide any “meaningful information” about how he expected compliance rates to rise and that the consultation documents were “unclear and confusing”. The third contends that the scrappage scheme for helping some people and organisations meet the cost of upgrading their vehicles should have been consulted on outside London but wasn’t (that’s Surrey’s beef). The fourth refers to Treasury guidance relating to “significant new” public money being involved. And the fifth relates to Tory London Assembly group allegations that consultation responses were doctored.
On all of that we shall have to wait and see.
Finally, On London contributor Daniel Moylan, a Conservative member of the House of Lords, has proposed an amendment to the Levelling Up Bill (page 83) currently going through parliament. Essentially, he wants to make it impossible for a Mayor of London to introduce a scheme like the ULEZ unless the councils of every borough that has roads within the area affected agree to it. The amendment has the backing of Boris Johnson. Again, time will tell.
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