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You have a right to travel without discrimination
A template for you to steal from in your own fight against the rentier state
The administrative state likes to take your inalienable rights and sell them back to you as licenses, permits, and fees. The excuse is typically the need to protect the health and safety of others, but this is a facade for the substitution of free rights with paid privileges. It has created a kind of rentier class the likes of which even Marx failed to anticipate; “uncapitalists” — people not even risking their own capital for the purpose of achieving unearned rental income. One of the current fads for stealing freedom, without public benefit, is “clean air zones”.
In dropping off a friend at a train station, I recently entered into the Newcastle Clean Air Zone. Normally I am protective of my personal information, but for the edification of this audience, I am going to disclose that I own a classic 2001 Ford Escort van with a normally aspirated 1.8 litre diesel engine. Back in the 1990s I drove a Ford Mondeo ST24 with a 2.5 litre V6 engine, and nobody stopped me to admire it. The opposite is true of my van, with endless gaping older male onlookers saying “you don’t see many of those on the road these days”. I have even had someone stop in the street, wind down their window, and offer to buy it on the spot!
The Newcastle clean air zone has a policy of free passage for private cars, and only charges commercial vehicles. My van has been arbitrarily been classified as a commercial vehicle, when it is not. It is just as much my private car as any other, just it’s way cooler than most. As such, this charge is discriminatory, and must be resisted. I decided not to pay, and to wait for the inevitable Penalty Charge Notice in the post, so I can dispute it.
The text is below, and it highlights several important points:
Identify every single claim that they are possibly making, and force them to evidence it. The onus is on them to show the basis of their claim. Get them to do work!
Use their own rules against them first. They are rule followers, so never appeal to moral principles, as those have no meaning in the administrative cosmos. There is no mercy in their procedures, so appealing to that is pointless.
The most powerful arguments in law are located in the rules of equity, although there is subtlety in their application, and lower courts are prone to ignore them. Essentially it says that we are all equal under the law, and anything that upsets this is unlawful.
Equity is your bridge between the legal (statute) world and the lawful (common law) rights. Typically the former will be acknowledged (but work against you), whereas the latter will be ignored. Equity allows you to make principled arguments that also stand up in court and get results.
Courts are mindful of human rights matters, so cite the relevant international law. The International Covenant on Civil and Political Rights (ICCPR) is a little-known but powerful tool in fighting oppression.
Courts are less deferential to constitutional law, as that has gone out of fashion, but it is our job to remind them there are in theory limits on the government’s legislative power, even if commonly broken.
Offer them a face saving way out if possible, in this case me swearing an affidavit. This allows them to justify to themselves “letting me off” because it doesn’t directly sabotage their scheme.
If I try to drive into London then Transport for London wants to charge me £112.50 a day for the despised ULEZ, which is clearly a serious breach of my right to travel and unrelated to the harm I am causing. This is on the same basis that I operate a van, not a traditional saloon style car. I may file a preemptive affidavit to TfL, so that when they later attempt to penalise me for being the coolest traveller in town I can show they have acquiesced through silence to it being discriminatory — and hence unlawful. So this is also a trial to defeat that particular money-making scam.
The idea of a “Pigouvian tax” on activities with diffuse harm like pollution is not inherently unsound, in my opinion. It just has to be done in a way that does not enrich a privileged class, and is both non-discriminatory and constitutional. None of these things are true of the schemes currently being rolled out, their goal being not-so-covert social control, and impoverishment of the independent tradesman and small business classes. Thus it is our job to make them unworkable through overloading them with lawful objections that render them unprofitable.
The above Penalty Charge Notice (PCN) was received by me on 10th November 2023. I am making representation that my travel through the Clean Air Zone is exempt under your own rules. Your website clearly states that private cars are not chargeable: “You will not be charged if you are driving a private car”. Your PCN states “private cars and motorcycles are not charged”. This policy aligns to the common law right to travel without hindrance for non-commercial operation. By issuing this PCN, you are implicitly claiming my travel is either not private and/or not a car, although which combination is unclear.
My private conveyance is a 2001 Ford Escort van, which according to the DVLA registration is a “car derived van”, with a copy attached. (I hope you will excuse me avoiding the word “vehicle” henceforth, since according to some editions of Black’s Law Dictionary it can come with a loaded meaning of being operated in commerce for reward or hire, which is not the case here.) This conveyance has passed the standard MOT test including for emissions, a status which expires 13 April 2024.
If you are claiming that my travel is non-private, i.e. I am operating in commerce, please provide evidence for this claim. If this is not the basis of your claim for a penalty charge, then please clarify.
If you are claiming a “car derived van” is a van rather than a car, please provide evidence for this claim, as relates to the goal of clean air. If this is not the basis of your claim for a penalty charge, then please clarify.
If you claim that the standard MOT emissions test is insufficient for a “car derived van” to be fit to drive into the city on parity with any other private car, please provide evidence for this claim and the relevant alternative standard. If this is not the basis of your claim for a penalty charge, then please clarify.
If you are claiming that I am liable to pay due to the shape of my conveyance and the configuration of its cargo space, then this is unlawful, since this is a purely private matter. There is nothing in law that allows you to penalise me for the shape of my car in a way unrelated to public health or safety.
Firstly, it is a “car derived van”, i.e. fundamentally it is a car, having the chassis and engine of a Ford Escort. It is not a Transit or similar, which is a different category. I have no markings on it that indicate that I am operating in commerce, such as company logos or sales details. Objectively it fits your definition of a car, being an aesthetic variation on the estate model. Therefore, it is exempt by your own rules when in private non-commercial use.
Secondly, the rules of equity (which take precedence over common law and statute when in conflict) prefer substance over form. The stated goal of your scheme is the mitigation of harmful pollution, and you understandably claim a right to regulate commercial vehicles. My private conveyance has identical pollution (i.e. the substance) to any other exempt Ford Escort. The only difference is that it lacks rear seats and has doors at the reverse rather than a boot lid, which are solely issues of form. There is no discretion for you to override or waive the rules of equity.
Thirdly, equity is founded on equal treatment under the law. I am being treated differently to other travellers in a way unrelated to the stated goals of your scheme. This is unlawful discrimination, akin to penalising someone because of their furry dice or having a Manchester United sticker. I am entitled to pick an old car derived van as my private carriage, even if formerly used in commerce. It is a style choice that I am free to make, as much as I am at liberty to make other (possibly unwise) lifestyle choices. (For the avoidance of doubt, I don’t have furry dice, and have no football club stickers, especially not Man Utd.)
Fourthly, equity aims to prevent unjust enrichment. I assert that charging my car derived van as a commercial vehicle, when it does not contribute to pollution at a higher rate, is inequitable and unjust. This leads to unjust enrichment for public authorities, thus being unlawful.
Fifthly, equity requires parties to come to the court with "clean hands." In the case of this PCN, I am seeking equitable treatment and fairness, while the classification of my car derived van as a commercial vehicle does not align with principles of fairness. By adopting regulations that are inherently discriminatory for car derived vans in private use, you unfairly infringe my right to participate in social activities in a manner others are not subjected to. As such, the Council is not in line with equity principles. This might be viewed by a court as having "unclean hands" in this matter.
Sixthly, equity seeks to balance the interests of different parties. Charging my car derived van as a commercial vehicle like a bus does not strike a fair balance between environmental protection and individual rights, especially when the emissions are on par with all other private cars.
Seventhly, by imposing a penalty attached to the shape of my private carriage under statute law, this PCN is in violation of the Bill of Rights 1689 Article 10 that forbids excessive fines. The Cabinet Office has confirmed in writing that this remains in force.
Eighthly, if claimed under contract law, this PCN fails to reflect any genuine pre-estimate of loss, since the harm of functionally identical conveyances has been set at or close to zero.
Ninthly, I happen to be single and in my 50s with grown-up children, and have little use for rear seats, but enjoy the extra volume and ease of loading of a car derived van. This PCN may arguably also be a violation of the Equalities Act 2010 prohibition on age discrimination and my right to choose a car derived van as a personal conveyance, it being fit for my time of life, ability to lift any heavy items, and marital status.
Tenthly, this PCN is an interference with my rights under the Union with Scotland Act 1706 c. 11 Article IIII, which remains foundational English law in force to this day, as confirmed in Thoburn v Sunderland City Council. This states:
“That all the Subjects of the United Kingdom of Great Britain shall from and after the Union have full freedom and Intercourse of Trade and Navigation to and from any port or place within the said United Kingdom and the Dominions and Plantations thereunto belonging And that there be a Communication of all other Rights Privileges and Advantages which do or may belong to the Subjects of either Kingdom except where it is otherwise expressly agreed in these Articles.”
By imposing an unequal burden on my private travel that is unrelated to the public interest goal of clean air, my inalienable right to travel (perpetually asserted in this statute) is being violated. This takes also precedence over the Transport Act 2000, as this statute is regarded as “constitutional”, to the extent that any Act limits subsequent legislative power.
To overcome this hurdle and impose a charge (and later penalty), you would have to demonstrate that a “car derived van” was such a present and immediate severe risk to public health that it must be classified as a (commercial) “van” and not a (private) “car”, and subject to loss of basic and constitutionally protected navigation rights on the public highway.
Eleventhly, this unequal treatment is a violation of my right to freedom of movement as protected under Article 2 of Protocol 4 to the European Convention on Human Rights (ECHR). This right is incorporated into UK law through the Human Rights Act 1998. This states:
“No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The regulation of the shape of my private carriage is not a characteristic that fits any of these permitted restrictions. (Maybe the furry dice and Man Utd stickers would count under the protection of morals? But definitely not just having a boring Ford Escort van.) Article 14 of the Convention prohibits discrimination in the enjoyment of other Convention rights. That means you have no choice but to classify my (private) “car derived van” as the car it is.
Twelfthly, the International Covenant on Civil and Political Rights (ICCPR) addresses the right to freedom of movement and the principle of non-discrimination. Specifically:
Freedom of Movement (Article 12): Article 12(1) of the ICCPR states that "Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."
Non-Discrimination (Article 2): Article 2(1) of the ICCPR states that each State Party to the Covenant undertakes to respect and ensure the rights recognized in the Covenant without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
The combination of these provisions protects the right of individuals to move freely within the territory of a state and prohibits discrimination on various grounds, ensuring that everyone enjoys these rights without unjust distinctions. The ICCPR is superior to UK statute law, and by discriminating against my choice of a car derived van as my private carriage, this PCN is unlawful.
As you can tell, the weight of the law is very clear that you are not entitled to discriminate on the basis of form, only that of substance related to the goal of public health. It is simple: every Ford Escort, including mine, is a car — just a few are also car derived vans, including mine. My Ford Escort is physically incapable of greater load carrying than any other Ford Escort, or worse emissions as a result. The only possible conclusion is that this is a private car, and therefore exempt. If it were a Ford Transit, the story might be different.
I am not seeking to exploit a loophole or receive special treatment. I am demanding (as is my right) equal treatment with all other private travellers in their personal carriage. The configuration of the doors of my conveyance, or its looks, are matters unrelated to clean air. Penalising me because of its form is unfair as well as unlawful. By issuing me with this PCN, you are causing me an actionable harm or loss, by knowingly forcing me to engage with a process that imposes an undue levy on my private right to travel.
It is understandable that you seek administrative convenience, however this cannot come at the expense of individual rights protected by constitutional and international law. Operational simplicity is not a valid reason to override basic rights to travel and receive equal treatment, burdening the innocent. To resolve this, my suggestion is that you revise your scheme to presume that car derived vans are private conveyances (absent evidence to the contrary), even if some are being used in commerce.
The revenue impact of such a policy change is likely to be negligible, as this is a rare corner case for you — while being my everyday reality. It is not reasonable to expect me to locate a different conveyance because of infrequent trips to central Newcastle that risk an unfair, discriminatory, and unlawful penalty. By respecting both fairness and the law you give your scheme legitimacy in the eyes of the public. Acting equitably and lawfully leads to no loss of face; quite the opposite.
I am willing to submit an affidavit to you of my private status as a traveller for this particular conveyance, so that it can stay on record, and any further incidents dealt with promptly. This would put an honourable end to the controversy for both parties, at no loss to the public, nor impairment of your environmental scheme. I had another entry into the Clean Air Zone after this date, on 30th October, and plan another tomorrow, so you may wish to pre-emptively deal with those on the same basis.
The above is without prejudice to any other representations that can be made on the lawfulness of this PCN.
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