Local Transport Bill [HL]

moved Amendment No. 8: 8: Clause 18, page 17, line 23, leave out ““proposed”” The noble Lord said: My Lords, these amendments seek to simplify the procedure for the adoption of a quality contract scheme by removing the involvement of the approvals board to which reference has already been made, and the transport tribunal but instead allowing for a quality contract to be determined by local transport authorities. Quality contracts are in effect the franchising of a network of services, similar to the way in which the majority of public transport in Britain is provided, such as bus services in London and the national rail network. The Government have pledged on a number of occasions to make quality contracts a more realistic option as is the case at present under the Transport Act 2000. That requires a local transport authority to demonstrate to the Secretary of State that a quality contract scheme is the ““only practicable way”” to achieve its bus strategy. I suspect that my noble friend would be happy to agree that that wording helped to ensure that no quality contracts have been proposed since the Act was passed. The Bill proposes a different but difficult and convoluted process whereby a Local Transport Authority proposal for a quality contract scheme is determined by an approvals board, which would be chaired by a traffic commissioner. That decision can then be appealed to the transport tribunal. If neither the approvals board nor the transport tribunals decision went their way, whoever felt aggrieved would, I presume, be free to approve the decision to the Court of Appeal. The operators certainly would and in certain circumstances the local transport authority would as well. The net effect of that process would be to increase the already significant risks and uncertainties that the local transport authorities would face in a transition from the current unregulated situation to a regulated market. It would also prolong the timescale for introducing a quality contract and potentially give the approvals board and the transport tribunal a veto on the wider transport strategy of a city or region, and this Bill places a duty on the relevant transport authorities to prepare and implement that. It has been pointed out already in Committee that there is a contrast with the road-user charging proposals in the Bill, whereby a decision on such schemes is devolved to local authorities with no tiered process of external adjudication by unelected bodies. We know that the traffic commissioners and the transport tribunal have considerable expertise in areas such as vehicle safety and operational issues, but they do not have expertise, remit or accountability to determine whether a region’s transport strategy should go ahead or not—and I do not think that my noble friend is suggesting that. In Committee, my noble friend on behalf of the Government argued that the process set out in the Bill would not interfere with democratic accountability, because the approvals board would deal with how policy might be carried out rather than the policy itself; but a franchising system is the only guaranteed way to achieve the policy objective of a fully integrated public transport service. I believe that the Mayor of London has maintained on a number of occasions that he would not have been able to carry out the transport policies on which he considers he was elected without the powers to specify and regulate bus services. Also in Committee, the Government argued, rightly, that the legislation should be fully compatible with the European Convention on Human Rights and suggested that independent adjudication of a quality contract application would ensure that compliance. I have to say that counsel’s advice to the Passenger Transport Executive Group is that the ability to judicially review a local transport authority-determined quality contract scheme makes a locally determined quality contract process equally and fully ECHR-compliant. On that there may be a difference between the view of the Government and passenger transport executives, but, no doubt, my noble friend will comment on that when he replies. My noble friend also argued that if the Transport Tribunal were to be removed from the process, there would be a likelihood of judicial review from operators and that although any Transport Tribunal decision could be appealed against at the Court of Appeal, it could be done only on points of law. The Government have argued on a number of occasions that the process set out in the Bill provides greater protection for local transport authorities from court action by operators than does local determination of quality contracts. However, the view of the local transport authority that the legal risks of a locally determined process are different, but no worse, than that of the process set out in the Bill and that the risks certainly do not outweigh the disadvantages of the delay, unaccountability and risk inherent in the determination of quality contract schemes by two layers of outside bodies. That is because the process set out in the Bill does not prevent operators going to the courts, because they will be able to go to the Court of Appeal to challenge the decision of the transport tribunal. Such a challenge could consider all matters other than questions of fact or of standing. The grounds for judicial review of local transport authority quality contract scheme determination under the amendment would not differ to any appreciable degree from those that the Court of Appeal could consider in a challenge to the transport tribunal decision under the process set out in the Bill. Judicial review applies to many local authority decisions—housing, planning and transport in particular. For example, the determination of a local transport plan is subject to judicial review, as is the implementation of a quality partnership scheme or road-user charging scheme. Surely, there is no reason why a quality contract scheme should be an exception to that general rule, because judicial review would provide ample scope for operators to challenge the making of a quality contract scheme on the basis, for example, that consultation was inadequate, that the scale of the contract scheme area was far larger than necessary to achieve the authority’s aims, that the aim of the quality contract scheme was not permitted by legislation or, more generally, that on the evidence available no reasonable local transport authority could have taken the decision to approve the scheme. Without local determination, the concern that would be felt by many is that this new process could mean that the Bill repeats the mistake of the Transport Act 2000, with the franchising legislation being similarly underutilised against a backdrop of continuing decline in fare-paying bus usage. That would be a further wasted opportunity and let us remember that passengers would be the ultimate losers. I beg to move.