London Congestion Charge is unlawful?

[milneg]

Hi,

 

I received a PCN the other day for failing to pay the London Congestion Charge in time (within 24 hours).

 

 

I decided to look into the legality of the whole scheme and have come to the conclusion

(1) that the PCN issued to me is void (of no legal effect) and

(2) that elements of the scheme are unlawful and, in fact, void.

 

 

This means that many, if not all, congestion charge fines will have to be refunded.

 

 

My logic is as follows, but I will be grateful for comments (I might have got it wrong):

 

1. With regard to the PCN itself, the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001, 'Penalty charge notices', 12(3)(h) states that a PCN must state 'the effect of regulation 16'. Regulation 16 covers adjudication by an adjudicator. The PCN issued to me does not state the effect of regulation 16, as required by law, and it us therefore void. In other words, in law the document sent to me is not a PCN at all (it can't be because it doesn't fulfil the requirements for a valid PCN as stated in the regulations). If other PCNs are the same (do not explain the effect of regulation 16) then any fines paid on the basis of them were paid on the basis of an unlawful demand (being the PCN in question).

 

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2. With regard to the legality of the overall scheme, parliament is presumed to legislate in accordance with the principle of legality. In short, this means that, while Parliament can remove a fundamental legal right, it is presumed not to intend to do so unless it says so in a statute (Act of Parliament) in express terms (clear words) which allow no other interpretation. Of course, while Parliament can expressly remove a fundamental legal right in such a way (by express words), it is certain that no other body can do so (by means of secondary legislation for example) without the express authority of Parliament (and, even then, I doubt that the courts would allow such a delegation of power). This has been stated by courts at the highest level. For example, Lord Steyn in Secretary of State for the Home Department, Ex Parte Pierson, R. v. [1997] UKHL 37 said:

 

'For at least a century it has been "thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness . . .": see the 4th ed. of Maxwell on the Interpretation of Statutes, (1905) at 121, and the 12th ed. of the same book, (1969), at 116. The idea is even older. In 1855 Sir John Romilly observed that ". . . the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched . . .": Minet v. Leman (1855) 20 Beav. 269, at 278. This observation has been applied in decisions of high authority: National Assistance Board v. Wilkinson [1952] 2 All E.R. 255, at 259, per Lord Goddard, C.J.; Mixnam's Properties Ltd. v. Chertsey U.D.C. [1963] 2 All E.R. 787, at 798, per Diplock L.J. In his Introduction to the Study of the Law of the Constitution; 10th ed., London, (1968), Dicey explained the context in which Parliament legislates as follows (at 414): "By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality."'

 

just about the most fundamental of all legal rights is a person's right not to be punished for a crime/offence that he did not commit (Can you see where I am heading with this one?). Of course, Parliament, being supreme, can pass a law which punishes a person for a crime/offence that he did not commit, BUT IT CAN ONLY DO SO BY EXPRESS WORDS IN A STATUTE WORDS WHICH ALLOW NO OTHER INTERPRETATION. Apologies, for the use of capitals.

 

PCNs are issued to the registered keeper of the vehicle on the basis that the registered keeper is liable in law to pay it (with certain exceptions) and, in most cases, the registered keeper will be the person who was driving the relevant vehicle at the relevant time. But does the law make the registered keeper liable, in accordance with the principle of legality explained above, if he was not driving the relevant vehicle at the relevant time - and, in fact, may not have given his permission for the car to be driven in the congestion charge zone?

 

To comply with the principle of legality in such a case, the relevant Act of Parliament MUST make the registered keeper liable WITH NO POSSIBILITY THAT ANY OTHER PERSON (THE ACTUAL OFFENDER) COULD BE HELD LIABLE. This is because, as quoted above, if an altenative interpretation of the words in the statute in accordance with the principle of legality is possible, then that alternative interpretation MUST be adopted. In the context of the congestion charge, therefore, it is clear that, where the registered keeper was not actually driving the relevant vehicle at the relevant time (or is otherwise repsonsible), the registered keeper can only be made liable if the words of the relevant Act of Parliament make him liable TO THE EXCLUSION OF ANYONE ELSE. In other words, the registered keeper can only be made liable where he is the only person who can be made liable (under the Act of Parliament).

 

Does the Act of Parliament actually do this (make the registered keeper liable to the exclusion of anyone else)? No, s.163(2) Transport Act 2000 states:

 

'(2) Charges imposed in respect of any motor vehicle by a charging scheme under this Part shall be paid —

 

(a) by the registered keeper of the motor vehicle, or

 

(b) in circumstances specified in regulations made by the appropriate national authority, by such person as is so specified.'

 

Now this is quite clear. s.163 allows some person other than the registered keeper to be held liable for a charge. It follows that where the registered keeper did not commit the 'offence' (and it is an offence, since it incurs a penalty), he cannot be held liable (in accordance with the principle of legality as explained above) because it is possible to hold someone else liable (the person who committed the offence) and so this must be done. In short, the registered keeper cannot he held liable for an offence he did not commit because the Act does not expressly say he must be.

 

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3. Further, it appears to me the requirement to pay the charge within 24 hours is also unlawful. The Greater London Authority Act 1999, Schedule 23 (Scheme to conform with Mayor’s transport strategy), Section 5 states:

 

'A charging scheme must [note use of the word 'must] be in conformity with the Mayor’s transport strategy.'

 

The Mayor’s Transport Strategy states (p. 37) that the strategy includes an objective to 'enhance the quality of life for all [note the use of the word 'all] Londoners', including 'improving journey experience' and 'improving road user satisfaction (drivers, pedestrians, cyclists)'.

 

So the question is whether the requirement to pay the charge within 24 hours complies with these objectives. Does imposing a 24-hour time limit improve the 'journey experience' and the 'road user satisfaction' of ALL Londoners, including those who incur the penalty charge because they failed to pay the congestion charge within 24 hours? If not then the requirement fails to conform with the Mayor's transport strategy and so is unlawful under Sch. 23. Furthermore, the question has to be asked whether such a short time limit is either necessary or just. If the 24-hour time limit is not necessary for the purpose of collecting the original charge (as opposed to a penalty) then the requirement is merely an exercise in extortion. Can it be part of the Mayor's transport strategy to extort money from Londoners - and how does such extortion improve the 'journey experience' and the 'road user satisfaction' of ALL Londoners? Such an exercise in extrortion must, in any event, be ultra vires; that is, the Mayor has no legal power to extort money from people - it is beyond his lawful authority.

Edited April 21, 2016 by milneg

[Raykay]

1. With regard to the PCN itself, the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001, 'Penalty charge notices', 12(3)(h) states that a PCN must state 'the effect of regulation 16'.

Does your PCN mention making representation and adjudication, (which covers reg. 16)?

========================= =========================

 

2. Does the Act of Parliament actually do this (make the registered keeper liable to the exclusion of anyone else)? No, s.163(2) Transport Act 2000 states:

 

'(2) Charges imposed in respect of any motor vehicle by a charging scheme under this Part shall be paid —

 

(a) by the registered keeper of the motor vehicle, or

 

(b) in circumstances specified in regulations made by the appropriate national authority, by such person as is so specified.'

 

Now this is quite clear. s.163 allows some person other than the registered keeper to be held liable for a charge.

S163 only allows another person to be liable in regulations made by a national authority, if there are no such regulations, the registered keeper is liable.

========================== =========================

3. Further, it appears to me the requirement to pay the charge within 24 hours is also unlawful. The Greater London Authority Act 1999, Schedule 23 (Scheme to conform with Mayor’s transport strategy), Section 5 states:

'A charging scheme must [note use of the word 'must] be in conformity with the Mayor’s transport strategy.

Is there any mention in the Mayor’s Transport Strategy in respect of a time limit for paying the charge?

[milneg]

1. There is a difference between making representations and adjudication.* (Do you think they are the same thing?) The PCN does not explain adjudication therefore it does not comply with the requirement in 12(3)(h). Simple. The issue of making representations is a red herring in this context.

*You make representations TO TFL whereas adjudication involves a third party adjudicating BETWEEN you and TFL

2. If the registered keeper did not commit the offence then liability can only be imposed on the him if it CANNOT be imposed on the person who did commit the offence. The section allows liability to be imposed on the person who did commit the offence (by regulations) and therefore it cannot be imposed on the registered keeper in such circumstances. The question is 'Does the law allow no alternative to making the registered keeper liable if he did not commit the offence?' The answer is 'No'.

3. The law does not allow any time limit that contravenes the mayor's strategy, since the scheme has to comply with the strategy. Therefore the answer to your question is that the matter is covered indirectly.

Edited April 21, 2016 by milneg

[Raykay]

If the registered keeper did not commit the offence then liability can only be imposed on the him if it CANNOT be imposed on the person who did commit the offence. The section allows liability to be imposed on the person who did commit the offence (by regulations) and therefore it cannot be imposed on the registered keeper in such circumstances. The question is 'Does the law allow no alternative to making the registered keeper liable if he did not commit the offence?' The answer is 'No'.

 

 

There would need to be regulations made by a national authority that any person could be liable for the charge. In the absence of any such regulations, the registered keeper is liable for the charge - even if someone else was was driving at the time.

[milneg]

No, the law simply asks whether there is no alternative; it is not concerned with how that alternative is carried out (by means of regulations or otherwise). You are trying to introduce a requirement that is not there.

 

The authority I cited says that the conclusion must be unavoidable ('irresistible'); this is not the case if there is some other means by which transgressing the principle of legality can be avoided. If some other means is possible then that other possible means must be used; it effectively imposes an obligation to introduce regulations that allow the fundamental legal right not to be transgressed.

 

The authority can avoid transgressing the principle of legality, therefore it must do so.

Edited April 22, 2016 by honeybee13
Paras.

[king12345]

I hope one day someone with balls (and money) would challenge these money making schemes in the high court so to set a precedent.

My main anger is against all restrictions like resident parking, parking restrictions, time limits and restricted access to public roads.

My argument is: If I have paid road tax, insured and MOTed my car, why should I be charged again to be on a public road maintained with my contributions?

I feel taxed twice.

[Raykay]

No, the law simply asks whether there is no alternative; it is not concerned with how that alternative is carried out (by means of regulations or otherwise).

 

 

What 'Law' are you referring to (the congestion charge is not a crime or an offence)?

It is the regulations that are relevant. The registered keeper is liable for paying the congestion charge, unless there are regulations that pass the liability to another person.

[milneg]

No (again), it is how the statute and any regulations are interpreted by the courts that matter.

 

 

How the courts do this is determined by case law.

That is the 'law' that I am referring to; the case law that I cited.

 

 

I suggest that we just agree to disagree;

I am not running a law course for your benefit.

 

 

Others can make their own minds up on the basis of what I have said

- which is, essentially, that the courts will not allow a person's fundamental legal rights to be violated if this can be avoided. s.163(2)(b) is that means in this case so it must be used.

 

 

It cannot be argued

 

 

'We didn't want to not violate fundamental legal rights so we just adopted the easy expedient of not having any regulations at all.'

[dx100uk]

urm..wonder why no other law expert has spotted this then..urm....

 

 

dx

[Raykay]

No (again), it is how the statute and any regulations are interpreted by the courts that matter. How the courts do this is determined by case law. That is the 'law' that I am referring to; the case law that I cited. I suggest that we just agree to disagree; I am not running a law course for your benefit. Others can make their own minds up on the basis of what I have said - which is, essentially, that the courts will not allow a person's fundamental legal rights to be violated if this can be avoided. s.163(2)(b) is that means in this case so it must be used. It cannot be argued 'We didn't want to not violate fundamental legal rights so we just adopted the easy expedient of not having any regulations at all.'

 

There is no violation of anyone's legal rights, the legislation makes it quite clear who is liable for payment of the congestion charge (it is not an offence involving courts) - the registered keeper (if they were the driver at the time or not) or, by regulations, another person.

[milneg]

The law does make it clear. It allows two options; one involves violating a fundamental legal right, the other does not. On the basis of the authority I have cited, the courts will not allow the first option if the second is available. When you say that 'there is no violation of anyone's legal rights', do you accept that you are asserting (1) that a person (the registered keeper) can be held liable for an offence he did not commit and (2) that it is fundamental legal right not to be punished for an offence you did not commit? Over to you.

Edited April 22, 2016 by milneg

[milneg]

The moon causes the tides. I wonder why no-one worked that out for thousands of years. It's sort of obvious.

[Raykay]

When you say that 'there is no violation of anyone's legal rights', do you accept that you are asserting (1) that a person (the registered keeper) can be held liable for an offence he did not commit and (2) that it is fundamental legal right not to be punished for an offence you did not commit?.

 

The non-payment of the congestion charge is not an offence, it is a liability which lies with the registered keeper, or if other regulations apply, another person.

 

 

Of course a registered keeper, or anyone else, should not be punished for an offence they did not commit.

[milneg]

The non-payment of the congestion charge is not an offence, it is a liability which lies with the registered keeper, or if other regulations apply, another person.

 

 

Of course a registered keeper, or anyone else, should not be punished for an offence they did not commit.

 

So we have a penalty (which it undoubtedly is) without an offence? It gets worse.

[Raykay]

So we have a penalty (which it undoubtedly is) without an offence?

 

 

Yes, in a similar way to penalty charges for parking contraventions which are not offences.

[milneg]

Wrong again. A penalty for not paying the congestion charge is a penalty for NOT PAYING. You are confusing an original liability to pay with a penalty for not paying a liability. This is basic stuff.

[BazzaS]

Wrong again. A penalty for not paying the congestion charge is a penalty for NOT PAYING. You are confusing an original liability to pay with a penalty for not paying a liability. This is basic stuff.

 

So, I park on a council meter space and fail to pay.

 

How is the PCN I receive not a penalty for failing to pay?

How does this differ from failing to pay the congestion charge??

 

Or (since you are claiming there is no liability to pay the congestion charge penalty) are you also claiming that all those council PCN's (for not paying for metered parking) are also invalid?

 

It is a penalty for a contravention (and, technically, not an offence).

[Raykay]

That is why I said 'in a similar way'. The liability for not paying the congestion charge, and penalty charge for parking contraventions are not offences.

 

 

The liability for paying the congestion charge, and the penalty for not paying the congestion charge, both lie with the registered keeper, or if other regulations apply, another person.

[renegadeimp]

Fotl.........

[dx100uk]

yep