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You wait so long for a bus (consultation case) then two turn up at once- Manchester bus franchising back in court

You may remember back on April 1st, in what was decidedly not an April fools gag, we reported the first case brought against a bus franchising decision made by a combined authority. Greater Manchester was the first such body to make such a decision, though others are known to be examining the issue too which made the case an important first look at how courts will handle legal challenges.

The key question in the case was “is an authority looking to franchise out bus services restricted to only conducting one consultation on the issue?”. In Manchester the GMCA had conducted one consultation and independent audit, but decided after Covid hit to do a second to take into account changing patterns in public transport usage, again accompanied by an independent audit.

The claimants, a bus company, challenged the decision on two grounds, firstly that it had been unlawful to undertake a second consultation as the first consultation report had marked the end of the statutory process, and mandated a decision being made then, rather than after a second consultation. Secondly they argued that the second consultation had been irrational and manifestly unreasonable.

In court their arguments faltered. Examining the text of the Transport Act 2000, as amended by the Bus Services Act 2017, the judge determined that the statutory end point of the process (at which further consideration would no longer be appropriate) was the production of a final report including both the consultation response, and the Mayor’s decision. The Act did not mandate that only one consultation should be done, and further consultation so long as it was before that statutory endpoint was legitimate. Neither was it deemed to be irrational- Covid had been a clear change of circumstance and it was a reasonable conclusion to draw that further consultation might be necessary.

That would have seemed to be that, but it seems bus companies are fierce defenders of their territory, and they appealed the judgment. The appeal judgment has been published this week and though it revolved a little more around the audits undertaken, rather than the consultation, was no more successful for the bus companies than the first instance one. Lady Justice Andrews, speaking for the court, rejected both their grounds of appeal and pointed out that the court would not effectively attempt to insert new words into a statute that would change its meaning.

The judgment also reiterated two key points from its predecessor. Firstly, that the independent audit was intended to take place prior to the consultation, and “provide consultees with some independent quality assurance of the underlying information and the methodology used by the authority to assess it”. The appellants also attempted to argue that if an authority received a negative independent audit report, it would be necessarily precluded from proceeding with the consultation or implementation of the scheme. Again, this was rejected, with an appropriate note of caution. In the words of Lady Justice Andrews “The face that it would probably be a recipe for litigation is the authority were to [proceed] in the teeth of serious criticisms in the audit report, is no justification for reading into the statute words that are not there.”

Given that several local authorities are looking at their own franchising arrangements, these two judgments together provide important clarity on how consultations, independent audits and other documents should be handled when making your own assessments. Having this authority helps the Institute to refine our own advice and ensure that we can help you. We’re also glad to see the place and value of independent audits being acknowledged- as many will know, we do our own independent audits of consultation processes in the form of our QA process, and we know that many people find them absolutely vital to assure both consultees and decision-makers of proper process.

If you’d like an informal discussion about transport and travel consultations, feel free to contact Karen Fourie at kfourie@consultationinstitute.org, or call the Institute on 01767 318 350

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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