Row over Greater Manchester bus franchising breaks down in court
The Bus Services Act 2017 amended the Transport Act 2000 to give some types of local authority power to make bus franchising schemes, where bus operators provide services under contract to the local transport authority. One of these local authorities is Greater Manchester where, in 2017, the Combined Authority decided to assess a proposed franchising scheme and delegated the authority to do so to the Chief Executive of Transport for Greater Manchester.
For two years this assessment proceeded, until June 2019, when the initial assessment was completed, and in line with the statutory requirements, Grant Thornton were appointed to produce a statutory audit of the process. This audit was published on 26th September 2019, and generally approved the assessment. GMCA then agreed to a public consultation on the proposals under the TA 2000, which ran from 14th October 2019 to 8th January 2020, and received over 8000 responses.
By the beginning of 2020 however, the world was in the early phases of the COVID pandemic, and by March the country was put into lockdown. The report on the consultation was published in June 2020, with an accompanying update identifying the change in bus usage, and the impact of the pandemic. This update also proposed that an additional report would be compiled examining the impacts of COVID on the market and making recommendations about appropriate next steps.
This second report was published in November 2020 and laid out four potential scenarios in light of the pandemic which could be used to test the ley conclusions of the assessment. It recommended that the proposed franchising amendment still represented a robust framework which had the best chance of meeting the stated objectives. GMCA commissioned a second review from Grant Thornton of the COVID impact report, which approved its process.
These reports were presented to GMCA, who approved a second consultation on the franchising scheme, which ran from 2nd December 2020 to 29th January 2021, which received over 4000 responses and a response was presented on 23rd March 2021. The report noted objections from some bus operators (two of whom were the claimants) that the timing was not right to make a decision on bus franchising but recommended that the Mayor proceed with the plan.
The claimants’ challenge was founded on two issues, unlawfulness and irrationality, with several arguments related to consultation. The first consultation argument made related to the first consultation. The claimants argued that the first consultation report had marked the end of the statutory process and precluded further consultation. The decision to make a decision only after a second consultation was therefore unlawful. They also argued, as an alternative, that the second consultation was in any case unlawful as it had provided insufficient information on the scenarios used to model COVID impact (Gunning 2).
The second and third consultation arguments related to the second consultation. One of them was a Gunning 4 argument, that TfGM had failed to take into account a report by the Oxera economics consultancy in their response. The second, that the second consultation was in and of itself irrational or manifestly unreasonable.
The Judge dealt with the unlawfulness issue first. On the subject of the status of the consultation report, he ruled that this did not necessarily mark a firm end to the statutory process, and that it was still open to the authority to conduct further consultation without starting the whole process again. The statutory endpoint of the process was a final report including both the consultation response, and the Mayor’s decision. As the Mayor had yet to make a decision in this case, that clearly had not happened. Drawing from Moseley and others he rejected the (as he identified) somewhat unusual argument that too much consultation had been done. The wording of the statute did not mandate only one consultation, nor did any other identifiable principles of law, or fairness.
The Gunning 2 argument similarly failed. The GMCA had provided a large quantity of material and had been responsive to requests for further information. Despite their arguments that there was insufficient information to respond intelligently to the modelling, the court ruled that these were expert judgments made by TfGM, who identified in the later report that some of these assumptions had proved to be inaccurate, providing more detail about how, before the second consultation. In light of this, the Judge concluded that sufficient information had been provided.
To continue with Gunning, the court also rejected the argument that insufficient regard had been given to the Oxera report. They had addressed all substantive points, and in any case, the claim made by the claimants essentially argued not that they hadn’t given ‘conscientious consideration’ to the report, but that they hadn’t given it sufficient weight. Although ‘conscientious consideration’ can be a strong argument for unlawfulness, arguments that insufficient weight was given to evidence do not alone raise an actionable legal point. That is a judgment best left to a consultor.
Essentially an extension of the earlier point about the first consultation being the end of the statutory process, the final argument that the second consultation had been irrational was also rejected by the court. There had been a clear change of circumstance, which had been identified and assessed in the COVID report, and it was not an irrational view to consider that further consultation was necessary. A subsidiary point to this one was that the consultation was irrational because it failed to consider the option of retaining the existing arrangements. Again, the Judge gave this short shrift. It had clearly done so and was open enough that arguments could be made if desired.
This case has been closely watched, as multiple other local authorities are looking at their own franchising arrangements, and represents a setback for operators keen to defend the old, deregulated environment. It provides us with key guidance on the processes allowable to make franchising work, and although much of the context is very COVID specific, it does give useful information on the frameworks by which such things should be consulted on.