Bus Services Bill [HL]
(7 years, 9 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Kennedy of Southwark
“(g) the extent to which not-for-profit bus operators can be integrated into a proposed scheme in order to contribute to the long term sustainability of the scheme.”
Lord Kennedy of Southwark (Lab)
My Lords, Amendment 34 is proposed by me and my noble friend Lady Jones of Whitchurch. It would require the franchising authority or authorities to give consideration when drawing up a scheme to how the not-for-profit sector could be involved, the purpose being to contribute to the long-term sustainability of the franchising scheme, which, one hopes, will give local people a better bus service than they enjoy at present. The not-for-profit sector is thriving in a variety of areas. Expanding this model in the delivery of bus services is one way to contribute to ending the decline in bus services and routes that we have seen over many years, especially outside London, and which has been the subject of discussion during consideration of this Bill. It can complement other providers and deliver on a smaller scale bus routes that really benefit local communities and that can boost the local economy, connecting people with jobs, shops, schools and other services that they may not have had access to in recent years. Our amendment would require any assessment to include such proposals.
I hope that the noble Lord, Lord Ahmad of Wimbledon, does not have “resist” in his notes against this amendment. He has been very responsive today and in our previous day in Committee, and I hope he continues in that vein. Perhaps he will say to us that the amendment is not necessary, or suggest that it might be included in guidance. Of course, it could be in guidance, but as I hope he can see, that would not have the weight of its being clearly in the Bill.
We all want to see better bus services, and this Bill is a very positive step forward, but we need to go a little further to strengthen the proposals in some areas, as this amendment would certainly do. It would make it easier for different models of service to come into play and give a better bus service for all. I beg to move.
Earl Attlee (Con)
My Lords, not-for-profit bus services, or community transport, cover a wide spectrum of services, including those operated by charities. I am the first to praise the extraordinary work the sector does for people who need a lot of support in their daily lives—drivers who walk users to their door to make sure they have not lost their keys and then carry their shopping into the hall are local heroes. The sector can also plug a few gaps in services for the general public where there are not enough passengers to make a route a commercial proposition and the hard-pushed local authority does not have sufficient resources to fund a standard bus service.
However, I urge my noble friend the Minister to resist the amendment. Community transport services are not subject to the same regulatory regime as local bus services. Their drivers are not subject to the same stringent training regime as those driving registered services, nor do they need to satisfy many of the other compliance requirements set down by the traffic commissioner.
Services operated under Section 19 of the Transport Act 1985—it is mainly this type of service we are talking about with this amendment—are exempt from many safety and fair competition rules so long as they are not provided to the general public. So how on earth can they contribute to the success or otherwise of a franchise?
The whole issue of services operated under Section 19 and indeed Section 22, permits has been a bone of contention for many years with the EU. If community transport operators were required to enter the local bus market and operate under the same rules as operators of registered services, it would be a different matter, but they are not. There is no level playing field and, at the moment, community transport operators are able to operate more cheaply but without the regulatory safeguards in place for other operators. I therefore urge my noble friend to resist the amendment as gently as he can.
Baroness Randerson (LD)
My Lords, in contrast, I support the noble Lord, Lord Kennedy, in his amendment, because I believe strongly that there is a valuable role for community transport and not-for-profit operators. That role is particularly important in rural areas. I take this opportunity to thank the Minister for the very useful letter that I received today, which gives great detail about the Government’s approach to rural areas. I regret that the information is not in the formal impact assessment; nevertheless, it is now publicly available and useful to us all.
It is important not just that not-for-profit operators work in rural areas but that we look at the widest possible range of community-based schemes in urban areas as well. I give as an example Hackney Community Transport, which operates commercial services for Transport for London, and Ealing Community Transport, which runs buses in Dorset with Go-Ahead. Those are urban examples that have spread out from the area where they started, but the point I am making is that community-based and not-for-profit transport services are part of a flexible mix. If we are truly to improve bus services, we must have more variety: we must have an alternative to the big five bus companies which effectively run the vast majority of bus services outside London. Although they compete, in most cases they do not do so on the ground—they rarely compete against each other service to service. We need an alternative to that if we are to have a flourishing bus service throughout Britain.
Baroness Scott of Needham Market (LD)
My Lords, I support the comments of my noble friend. I had not intended to speak, but the noble Earl, Lord Attlee, slightly provoked me into it when he commented that not-for-profit services “plug a few gaps”. I can tell him that in areas such as mine, in Suffolk, they are the service. Almost all rural areas in Suffolk now have no bus service.
I agree with the noble Earl that I would not want community transport schemes to be tied up in a whole plethora of red tape, but nor would I want emerging franchising models to ignore the opportunities provided, in the way that my noble friend Lady Randerson has described, or inadvertently to disadvantage smaller community services. It is easy to see how you could do that—by cherry picking parts of their routes and not linking with others, you can affect their viability. Whether it is an urban or a rural area, but particularly in the rural area I know, it is important to understand and get the ecology of the bus industry right: to understand that something you do to one part is going to impact on another.
Earl Attlee
My Lords, if I can stimulate a contribution from the noble Baroness, I have done the Committee a great service.
The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con)
My Lords, I thank the noble Lord, Lord Kennedy, for his amendment, which would require franchising authorities to consider, as part of the assessment of their proposed franchising scheme, the extent to which not-for-profit bus operators can be integrated into a franchising scheme to contribute to its sustainability. Let me say at the outset that I sympathise with the aims of his amendment. I recognise the good services that community bus service operators and other not-for-profit bus operators deliver to our communities across the country and know that they often provide flexible and bespoke services which act as a lifeline to many. The intervention from the noble Baroness, Lady Scott, underlined that element.
The Bill recognises the important role that community transport operators play in providing local public transport. Provisions have been included in the Bill to ensure that services operated under community bus permits will not be affected by the introduction of franchising or enhanced partnerships. This will enable them to continue to run their services unaffected by these schemes. I hope noble Lords will agree that these provisions are sensible and that they will help ensure that community bus providers can continue to deliver their valuable services to our local communities.
Even with these protective provisions in the Bill, I recognise the valid point the noble Lord, Lord Kennedy, raises, and agree that authorities looking to improve local bus services should consider how services provided by community transport operators can be best integrated to deliver a better overall network of services for passengers.
Let me assure noble Lords that the Bill does not preclude authorities, as they develop their franchising or enhanced partnership proposals, working with community transport and not-for-profit operators to determine how they can best be integrated into the wider network of services, but I agree with the noble Lord that this approach should be encouraged. I am, therefore, of the view that these issues are best covered through further guidance that will be published to complement the provisions of the Bill. I hope the assurances I have given in this contribution enable the noble Lord to withdraw his amendment.
Lord Kennedy of Southwark
Will the Minister say a little more about why he thinks that this should be in guidance? He says that authorities can do this, and that is all well and good. Why then is it not going to be in the Bill? Why should it be in guidance? My worry is that guidance is not legislation. Guidance is forgotten over time, things get moved on and revised, and all of a sudden it is not there and gets forgotten about. Why is guidance better than the Bill?
Lord Ahmad of Wimbledon
My Lords, I have already said that there are provisions within the Bill that protect that element of community transport and not-for-profit operators. While the noble Lord feels that the guidance is not sufficient, it forms part and parcel of the guidance in support of the Bill, on which these new proposals go forward.
Lord Kennedy of Southwark
I am not sure the Minister answered the point I was making there. I am thinking of organisations such as Hackney Community Transport. If it wants want to provide services elsewhere in the country, like it currently does for TfL, why should that not be in the Bill, rather than in guidance?
Lord Ahmad of Wimbledon
I do not think I can add any more. If the noble Lord feels that the strength of what the Government are presenting does not meet what he is suggesting, I suggest we discuss this issue. At the moment, we are minded that existing provisions within the Bill, with the assurance of including such provisions in the guidance, provide the necessary safeguards alluded to by the noble Lord. I hope, with this assurance and the continuing discussions we are having on various aspects of the Bill, that he will be minded to withdraw his amendment.
Lord Kennedy of Southwark
I thank the Minister for that contribution. I will take up his kind offer to have a discussion outside the House. He has been very generous with his contribution today and with his time. I appreciate that very much. I thank all noble Lords who have spoken in this short debate. I do not agree with the remarks of the noble Earl, Lord Attlee, as I want to see the not-for-profit sector being able to provide bus services, as elsewhere. I thank the noble Baronesses, Lady Randerson and Lady Scott, for their support. The noble Baroness, Lady Randerson, was spot on in speaking about the needs of rural areas and the widest range of schemes available to deliver those services. As she said, Hackney Community Transport delivers services for TfL, so why cannot it, or other providers in the not-for-profit sector, deliver bus routes elsewhere, in urban or rural areas? This Bill is about improving bus services and my amendment helps in that respect, improving the Bill further and giving further options for the provision of bus services. I will leave it there and look forward to talking it over outside the Chamber, but I may well bring the amendment back on Report. I beg leave to withdraw the amendment.
Earl Attlee
“(g) whether the proposed scheme would be more efficient, effective and economic than any other option, taking into account any compensation payable to bus operators whose businesses would be wholly or partially expropriated by the scheme.”
Earl Attlee
My Lords, this amendment is all about compensation for loss of business, and its purpose is to make it a requirement on a franchising authority to factor in the cost of compensating bus operators as part of the assessment of a proposed franchise scheme.
I can anticipate the Minister’s response, but I would still like to explain my concerns. If the state needs to remove something from a person for the public good, then the state should compensate that person. It is quite simple: if land is purchased under compulsory purchase power, the owner of that land gets paid for it. I am fully aware that compensation would not have been payable under a quality contract scheme, although the days of quality contracts are severely numbered, and that when toes were dipped in that particular pool of water it ended rather badly, but it does not make it right, which is why my party was not keen on it.
The cost of compensating a bus operator who has to close his business, having failed to win a contract bid, could well run into millions of pounds, taking into account the physical assets—vehicles, depots and land—and the good will that the business enjoys. In one of our previous debates, the noble Lord, Lord Snape, asked what would happen to garage premises in the city centre, and would they be redeveloped and lost, and about all sorts of complications. I will speak about good will again when we reach Clause 5.
If that is not bad enough for the large plcs which would have to redeploy—hopefully—their staff and assets, we should consider the position of SME operators. These businesses will have been established on the back of solid hard work and with considerable financial risk and energy on the part of private individuals, who will have invested their life savings to see their company grow. They stand to lose all that not because they have performed badly, not because they are bad companies and not because their passengers have decided they no longer want to use their services. They stand to lose it all simply because they lost out on a bidding process for the franchise. Apparently, all their endeavours are worth nothing.
The Bill is currently silent on the matter of compensation, which I believe is wrong. I was really quite alarmed by the comments made by my noble friend Lord Young of Cookham at Second Reading, when he said that foreign owners of bus companies, but not British ones, might be entitled to compensation under the TTIP agreement, currently being negotiated at European level. I suggest that the whole issue of compensation needs to be revisited. Is it right that a foreign company could be paid millions of pounds of taxpayers’ money, because its local authority has decided to take control of its local bus services, while a British company is left high and dry with no business and no compensation? The Minister will have to answer this point. I hate to say it, but this all sounds rather unconservative.
It is vital that when a local authority pursues a bus franchising scheme, the process, including a detailed assessment of the scheme, must be as robust as possible. The assessment must look at every single aspect of the proposed scheme, including whether the franchise scheme stacks up financially and represents good value for money because whose money will it be? It will be local taxpayers’ money, so the compensation to bus operators who are put out of business must be an important part of the mix. I beg to move.
Lord Berkeley (Lab)
My Lords, I am interested in the noble Earl’s comments about the poor small investor who has put their life savings into a bus company which is then put out of business because exactly the same thing happens on the railways, where most passenger services are franchised. I suppose the difference is that it is usually large bus companies making the bid. Some of them are owned by foreign state-owned enterprises, which means that the Government allow foreign state-owned enterprises to bid and operate train franchises but they do not allow British state-owned franchises to do the same. However, that is a slightly different matter.
Surely this is a question of which end of the telescope you are looking at. If it is question of small shareholders running a bus company in an area, they may well be worthy of sympathy in a different way from what might be called the big multinationals, but either way, experience on the railways shows that while the top management does not usually remain when a franchise changes, everyone else generally retains their job if they want it. In some cases there may be TUPE arrangements in place, but they may not be appropriate here. However, I am not convinced that the arguments for and against franchises are particularly affected by this because in practical terms many members of the workforce of a franchise of, say, a small bus company might think that they are losing their jobs, but they might well be taken on by the people running the franchise because they have local knowledge, they live locally and so on.
Lord Snape (Lab)
I have great sympathy with the amendment moved by the noble Earl, Lord Attlee. I have also listened carefully to my noble friend Lord Berkeley. He commented when speaking to an earlier amendment that there is not a great deal of competition in the bus world. There was competition immediately after deregulation when there were lots of small companies, many of which were perfectly reputable but some not quite as much. My noble friend mentioned the difference between franchising on the railways and franchising for buses. The difference between them is quite simple: we are against one and in favour of the other. I am not quite sure why or how, but that is the situation we find ourselves in as a party.
Lord Berkeley
I think that my noble friend is speaking for himself; he is not speaking for me.
Lord Snape
I suspect that when we come to debate the future of the railway industry I will be speaking for my party, which is against franchising. And, as I currently understand it, the party wishes to see the railways back in some degree of public ownership. However, let us not get bogged down in the differences within our party between the two industries otherwise we could be on this amendment for a lot longer than we should be.
On the previous amendment, we talked about not-for-profit companies making a bid for franchises. The problem with that reflects directly on Amendment 35. If a successful franchise bid depends on a lower bid, and there is every chance it will given the shortage of cash in local government and the cutbacks that have been made so far as support for bus services is concerned, obviously some of the smaller and perhaps less reputable companies will start out with an advantage. If you are running a major operation that recognises trade unions, pays trade union rates, provides proper canteen facilities, uniforms and so on, you are not in a particularly advantageous position when bidding for a franchise against a smaller company that does none of those things.
Again I remind the Minister that over the years a lot of these companies have come and gone. The bus industry has rather settled down, and although we deplore the lack of competition, when we had lots of it, it was often denounced as wasteful and unnecessary. Speaking specifically to this amendment, if a company large or small loses its assets as a result of measures inherent in the Bill, surely it is only fair that it deserves to be properly compensated.
Baroness Randerson
My Lords, I say in response to the noble Lord, Lord Snape, that of course the arguments he makes about less reputable companies fortify my argument that a lot of these things need to be set out in the Bill, so that we can ensure that only the more reputable companies—those that observe those aspects important to passengers and indeed to our environment—are able to win a franchise.
I say in response to the noble Earl, Lord Attlee, that I cannot understand why bus companies should be immune to the usual rules of business in this country. Increasingly local government services are run through commercial companies in various forms. Many commercial organisations are involved in the provision of a range of local authority services right down, for example, to care for children, the elderly and so on. Local authorities franchise services or commission them and from time to time they will change the companies they are working with; someone loses the contract. There are well-known procedures throughout our public life which account for that to happen, thus enabling a service to be handed over from one organisation to another. I cannot see why bus companies should be exempt from that general run of business.
Lord Kennedy of Southwark
My Lords, Amendment 35, which has been proposed by the noble Earl, Lord Attlee, is not one that I can support today. As we have heard, the amendment puts a requirement into the Bill that would require the taking into account of any compensation payable to bus operators whose businesses are wholly or partly expropriated by the scheme. I do not think that there are any plans in the Bill to expropriate anyone’s business. The franchising model will work on similar terms to those which presently operate in London, where private bus operators happily deliver services on routes laid down by TfL. They make profits and the service works well.
I agree with the comments made by the noble Baroness, Lady Randerson, who asked why the bus industry cannot be aligned with the rest of the public sector in terms of contracts being tendered for and then won or lost. People move on and things change. That works in the whole of the rest of the public sector and is certainly the case in local government; I have said before that I am a councillor in Lewisham. I am sure that the noble Lord, Lord Ahmad, will advise the Committee, but I think I am correct in saying that the Government do not anticipate any compensation being required if a franchising authority follows the process as set out in the Bill. For me, the Bill is about improving bus services for passengers and increasing the number of bus journeys being taken by people, thus halting the decline in bus routes and journeys over recent years, and that should be embraced by bus operators. Indeed, they may find that they actually make more money if they increase their routes and more people use them.
I look forward to the Minister’s response and I hope that he will allay the concerns raised by the noble Earl and thus demonstrate to the Committee that the amendment is not necessary.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lord Attlee for his amendment, which would require franchising authorities to consider as part of the assessment of their franchising scheme whether it will be,
“more efficient, effective and economic than any other option, taking into account any compensation payable to bus operators whose businesses would be wholly or partially expropriated by the scheme”.
I recognise my noble friend’s desire to ensure that impacts on bus operators are fully considered as franchising schemes are developed. The Bill already addresses many of his concerns, and it may be useful at this point to provide a fuller explanation of proposed new Section 123B, which requires franchising authorities to conduct an assessment of their proposed franchising scheme. I fully acknowledge that moving to a model of franchising is a big decision that will impact on bus operators in the area. That is why the Bill requires authorities that are considering franchising to conduct a thorough assessment of their proposed scheme, including comparing their proposals with other options, which could include partnership proposals and the status quo.
The Bill also requires franchising authorities to think about the effects of the proposed scheme and whether it represents value for money. This will include, of course, consideration of the impacts of the proposal on passengers and bus operators, together with any wider impacts. I hope my noble friend agrees that the provisions in the Bill will require authorities to think carefully about their franchising proposals, compare them to other options and then take a well-reasoned and well-evidenced decision.
I turn to the issue of compensation payable to bus operators that my noble friend referred to. I fully recognise the years of hard work that many bus operators have put into growing and operating their businesses and their concerns about the future. As I have said, the Bill requires authorities to consider both the benefits that franchising could bring for local people, as well as the potential impacts, including those on bus operators. If franchising authorities follow the processes set out in the Bill, local bus operators will have plenty of notice that a franchising scheme is being considered, will be aware of a decision to introduce franchising, and will have more than six months’ notice that services are to be provided under local service contracts. This will enable operators to take any action they think appropriate and to plan ahead in the light of the decision to make a franchising scheme. Incumbent operators will, of course, be able to bid for contracts in any area that decides to move to franchising, and I should reflect that those operators’ knowledge of the local area and local customers is likely to stand them in good stead. In addition, the Bill does not provide franchising authorities with the power to take over the property of any bus operator if a scheme is made—a point made in an earlier debate.
In summary, I am therefore of the view that the Bill already addresses many of my noble friend’s concerns regarding the assessment of the franchising scheme and the need to compare it with other options. He raised the issue of compensation being available to those who do not win contracts, and referred to other schemes, not just franchising. While he makes a valid point, I note that authorities have been able to introduce quality contracts since 2000. This potential risk and impact on bus operators has been around for a significant period. I hope that he has been assured and reassured by some of my comments on the existing provisions in the Bill. I disagree that consideration of compensation should form part of franchising assessments—a point made by other noble Lords—but I hope that this debate has assured him that the Bill includes a thorough and comprehensive assessment process, and that he can withdraw the amendment.
Lord Kennedy of Southwark
Can the Minister say more about something I find hard to understand about the amendment? I am a councillor in a London borough and services are tendered for all the time, whether in relation to road repairs, street lighting, refuse collection and so on. People bid for contracts, win them and lose them. If they lose them, the new company takes them on and we do not have debates about paying companies compensation because they have lost their contract. They bid for a price, the council assesses it and a number of factors and makes what it believes is the best decision. I do not see why we are having this dispute or debate. If a company loses a bus route, I do not see why it should be paid compensation. It must have tendered for that route but has lost out in the process to another company that has been deemed to offer better value for money. This is a strange debate.
Lord Ahmad of Wimbledon
My noble friend tabled an amendment and it is right that we have a discussion in Committee. I hope that through the provisions in the Bill that I have highlighted—for example, the requirement to give ample notice—his fears are allayed as regards compensating a business franchise that goes out of operation. The Bill contains proper provisions in relation to, for example, giving notice. The noble Lord, Lord Kennedy, and I are on the same page on this.
Earl Attlee
My Lords, if I have brought both Front Benches together, I have achieved something. Some noble Lords talked about disreputable operators. If, as a result of a franchising scheme, a disreputable operator goes out of business, no one would be happier than me.
The noble Baroness, Lady Randerson, and the noble Lord, Lord Kennedy, picked up on the fact that local authorities are currently putting services out for bid and that operators are either successful or unsuccessful. Noble Lords are right but the difference here is that an operator can be sure that, so long as he has a good commercial model and keeps his customers happy, he can stay in business. However, if he gets hit by franchising, he will be out of business through no fault of his own.
The noble Lord, Lord Berkeley, made an interesting comparison with the railway industry, but he will know that that is on a different scale and people in the railway industry know that that is the name of the game. They will bid for the franchise and amortise all the costs of their investment over the length of the franchise, whereas the operators that I am concerned about at the moment have no risk of being put out of business by franchising because that simply cannot be done. It is therefore a new situation that they could not have planned for.
No noble Lord has explained away my TTIP problem. Regarding facilities for operators, franchising may well provide efficiencies because perhaps fewer workshops and garages are needed. The problem is that someone ends up holding redundant facilities that they used to have a commercial use for. I am not convinced by the response of my noble friend but I will read Hansard carefully and, subject to the usual caveats, I will come back on this. Oh, the Minister wants to have another go at me.
Lord Ahmad of Wimbledon
I would never dream of having a go at my noble friend; I am merely thankful that he has given way. It was remiss of me not to mention the TTIP issue. I understand that investor-state dispute settlement does not prevent a current or future Government who act in accordance with due process changing their laws or policies. My noble friends Lord Attlee and Lord Young referred to this point and it is my understanding that this element is still being negotiated between the European Union and the US.
Earl Attlee
I thank my noble friend for that response and I beg leave to withdraw the amendment, subject to the usual caveats.
Baroness Scott of Needham Market
My Lords, the amendment stands in my name and those of my noble friends Lady Randerson and Lord Shipley.
It really does not matter which side of the great debate noble Lords are on—whether they favour franchising, as I do, or whether they are fundamentally opposed to it, as we have heard. Both sides agree that the proposal represents a significant risk of a transfer of risk from the bus operators to the local authority. That risk will be carried by local council taxpayers and, in the new regime, local business ratepayers. I should say from the outset that I am perfectly confident in the ability of local government to manage these processes. The noble Lord, Lord Snape, is right to say that this will not come cheap. Local authorities will need sufficient expertise in order to carry out the proposals, and I think that they will be able to, should they choose to invest that expertise. My concerns are about the mayoral model in this regard. It seems to me that what the Government see as the strengths of the mayoral model—a single point of centralised decision-making and a single point of accountability—can also very quickly turn into a disadvantage. Strong leadership can very quickly turn into headstrong leadership. Therefore, it seems to me that robust oversight is key.
In the past few years the LGA—I declare an interest as a vice-president—the Institute for Government and the Centre for Public Scrutiny have all done quite a lot of work on this. The amendment is in line with that sentiment and seeks to ensure that there is independence in terms of the information that is given out and against which a local mayor can be accountable.
I would be the first to admit that I am a bit of a governance geek. That probably comes back to having served on the Audit Commission. However, just to make it clear that this is not just some odd preoccupation of mine, on Friday the Public Accounts Committee in another place published its document about cities and local growth. It is going through these devolution proposals and its intention is to contribute to the public debate and to government thinking at this early stage. Its report raises many of the same concerns that I have just raised. I shall read out a few lines from one of the recommendations because they are important. It states:
“We are not confident that existing arrangements for scrutiny at local level of devolved functions are either robust enough or well supported. Robust and independent scrutiny of the value for money of devolved activities is essential to safeguarding taxpayers’ money, particularly given the abolition of the Audit Commission. Local scrutiny committees are an important mechanism; however, given resource constraints and the absence of independent support”,
there is a limit to what they can do. It then goes on to talk about the absence of “independent institutional scrutiny”, and recommends that by November 2016 the Government should come forward with plans to ensure that local scrutiny of devolved functions will take place and will be robust.
While I confidently expect the Minister to resist this amendment, I hope that he will commit at least to making sure that this report of the Public Accounts Committee is read, understood, and, more importantly, taken into account as this Bill progresses. It is always easier to get it right at the beginning that to retrofit these things into something once it is passed into law. I beg to move.
Lord Snape
I rise to speak to Amendment 43 in this group, which seems to do something similar to the amendment so ably moved by the noble Baroness, Lady Scott.
Like the noble Baroness, I am not quite as sanguine about a local authority deciding to set up a franchise scheme, appointing someone to look at it, and then having the ability, regardless of what he says, to go ahead. That smacks a bit of the people’s courts in Germany towards the end of the Second World War. Surely we ought to have something more democratic than that on these somewhat controversial matters. The traffic commissioners, who are widely regarded throughout the transport industry—although under successive Governments, they have been sadly underresourced—ought to be the people who appoint a proper independent arbiter to look at any such proposal. It seems to me to offend natural justice for a local authority wishing to have a franchise scheme to appoint a referee to decide on the merits of that scheme and, regardless of his or her conclusion, to go ahead anyway. I hope that the Minister will look carefully at these amendments and think about toughening up the Bill considerably.
Lord Bradley (Lab)
My Lords, I shall speak briefly to Amendment 42 in my name and that of my noble friend Lord Berkeley. I understand that the amendment may not be perfectly drafted—it may be more appropriate to have “of” rather than “and to”, but we can deal with that when the Minister gives me comfort that he accepts its basic direction of travel.
The amendment’s purpose is to look at the role of the auditor. It would ensure that that role is restricted to areas that are both within the auditor’s competence and entirely focused on the matters set out in proposed new Section 123D(2)(a) and (b), which states:
“The auditor’s report must state whether, in the opinion of the auditor … the information relied on by the authority or authorities in considering”,
whether the authority or authorities would be able to afford, make and operate the scheme and whether the proposed scheme would represent value for money, is of sufficient quality and that the analysis of the information is also of sufficient quality.
Without this amendment, proposed new Section 123D(2) could be interpreted as giving the auditor a wider remit, given that, as drafted, the auditor must give an opinion on whether the authority,
“had due regard to guidance under Section 123B”.
This guidance covers a much wider range of topics than those set out in proposed new Section 123D(2)(a) and (b), including the effects of the scheme, comparison of the proposed scheme to one or more courses of action and the scheme’s contribution to the implementation of wider plans and policies. As such, the current drafting risks giving the auditor a role which is beyond their professional expertise as well as creating conditions whereby a third party is second-guessing a locally accountable authority’s assessment. This in turn could introduce the kind of hurdle that led to the failure of the 2000 and 2008 Acts in creating a simpler route to franchising for those authorities that wish to pursue—I stress those that wish to pursue—this option.
The Government have committed to introducing a practical and efficient method of introducing bus franchising and this amendment, as redrafted, looks to assist them in that process.
Lord Shipley (LD)
My Lords, I should first declare my vice-presidency of the Local Government Association. In principle, I am in favour of the right of local authorities to franchise bus services. However, I expressed concern at Second Reading that the audit and scrutiny of proposed franchises needed to be tightened up, and I remain of that view.
I also said at Second Reading that the Cities and Local Government Devolution Bill required substantial amendment to improve the effectiveness of audit and scrutiny to ensure public confidence in the financial robustness of franchising arrangements. Now, as the noble Baroness, Lady Scott of Needham Market, has pointed out, on Friday the Public Accounts Committee in its sixth report of this Session expressed some serious concerns about the extent to which consideration by central government of the local scrutiny arrangements had been adequate.
I quote, in particular, from its summary, which states:
“There has been insufficient consideration by central government of local scrutiny arrangements, of accountability to the taxpayer and of the capacity and capability needs of local and central government as a result of devolution”.
I have absolutely no doubt that local government may have the required capacity and capability—certainly in a number of places with which I am familiar. That is not to say that it cannot gain the capacity and capability to undertake successful franchising. However, I subscribe to the view that there has been insufficient consideration of this issue by central government and it really does matter.
In consideration of previous amendments, I noted that the Minister said that mayoral combined authorities were appropriate for taking forward the policies in this Bill and would have the necessary checks and balances in place. These amendments improve the checks and balances that the Government seek. If the Government listen very carefully to what is being said across your Lordships’ House, it is much more likely that franchising will succeed, and I am very keen that it should do so.
There are three amendments in this group. The one to which my name is attached tries simply to make it clear that the auditor should be independent of a local authority or a combination of local authorities. The other two amendments are in the same area, but address issues around affordability, value for money and the role of traffic commissioners. There are various ways in which that could be progressed. The Minister may say that this can all be addressed in regulation. However that is done, I hope that the Minister will be able to come back on Report—if he is not able to do so now—to explain that there is an understanding of the issue that the auditors’ scrutiny function in this case must be robust and seen to be robust and how the Government plan to take this forward to ensure that the public can have confidence in franchising arrangements.
Lord Berkeley
My Lords, on the amendments that we have discussed in Committee, many noble Lords have said how important it is for devolution to happen and for local authorities around the country to be able to operate franchises without too many controls from central government. Whether that happens or not, the importance of independence in the audit is vital, as other noble Lords have said. It would be so easy for some local authorities in the future to get it wrong and then for a rather nasty article to appear in Private Eye, suggesting that the leader’s brother-in-law was the auditor. I am sure that would never happen, but we do need independent checks. My noble friend Lord Snape’s suggestion of traffic commissioners appointing the auditor has enormous merit. The two issues in Amendment 42 in the name of the noble Lord, Lord Bradley, and myself, about the affordability of the scheme and whether it represents value for money, are the two most important ones that should be focused on by the auditor. Then we would all feel comfortable that it would probably work very well.
Baroness Jones of Whitchurch
My Lords, we very much support the intent of the first amendment introduced by the noble Baroness, Lady Scott, and of Amendment 42, which was introduced by my noble friend Lord Bradley. It is important that the audit process is properly independent and provides a trustworthy external scrutiny—that makes perfect sense. It also makes perfect sense to ensure that the proposals are properly costed and that we can have confidence that they are affordable.
However, regrettably, we do not feel able to support the amendment of my noble friend Lord Snape—we seem to be making a habit of that. We believe that his amendment is too specific and restraining and we hope that, on reflection, he will feel able to support Amendments 41 and 42, which we believe would achieve the additional reassurance he seeks and ensure that a fair, independent assessment process takes place. I hope that my noble friend will reconsider and that the Minister will feel able to support the first two amendments.
Lord Snape
Before my noble friend sits down—I am sorry that she finds herself unable to support what is, in my view, a well-intentioned and well-meaning amendment—perhaps she can tell us why she objects to the traffic commissioner and why that is too specific. After all, by the very nature of his or her job, the traffic commissioner knows the business inside out and is widely trusted by all sides in the industry. Surely to have someone like that appointing an auditor is a very sensible way forward.
Baroness Jones of Whitchurch
Without wishing to get into a dialogue, I think that we felt that as long the role was prescribed to be independent, different authorities will have different arrangements for appointing independent auditors. We do not feel that we need to be that prescriptive in this piece of legislation. I would not go any further than that.
Lord Ahmad of Wimbledon
My Lords, there are a number of amendments in this group, all related to the audit function required as part of the franchising provisions. The noble Baroness, Lady Scott, proposes an amendment to state explicitly that the auditor, whose role is to issue a report to the franchising authority on certain aspects of the assessment of the proposed franchising scheme, must be independent. The noble Lord, Lord Snape, proposes an amendment that would require the auditor to be appointed by a traffic commissioner. The noble Lord, Lord Bradley, proposes an amendment that would require the auditor to consider matters relating to an authority’s consideration of affordability and value for money. I thank all noble Lords for their amendments, and will turn to each one.
Before I go into those details, the noble Baroness rightly talked about the Public Accounts Committee’s report on local scrutiny, and I thank her for bringing that to the Committee’s deliberations. We are of course ensuring that we consider its recommendations very carefully as the Bill moves through Parliament, and we will respond during the course of the Bill.
Turning to the amendments, I recognise the importance of ensuring that decisions to move to a model of franchising are taken on the back of quality information and robust analysis. As I have explained previously, in developing this Bill we have been keen to move away from the quality contract scheme processes set out in the Transport Act 2000, which, in particular, included the need for independent scrutiny by a “Quality Contract Scheme Board”. While I agree entirely that there is a need for a level of independent assurance, I do not think that devolved decisions should be second-guessed by an independent panel. We introduced the role of the auditor to ensure that an independent third party provides assurance that certain information used in the assessment is of sufficient quality, that the analysis of that information is robust and that relevant guidance has been followed. It is not the auditor’s role to take a view on the decisions taken by the franchising authority. As I am sure that noble Lords agree, its role is to provide a quality check.
The Bill requires any auditor to have a “recognised professional qualification” and to be eligible to act as the local auditor of the authority’s accounts. As such, we would expect any auditor to be suitably qualified and able to provide independent assurance.
Baroness Randerson
Does the noble Lord accept that it is not just a case of qualifications but of perceptions? It is only too easy for a situation to arise within a public body where an auditor’s assurance has been given but is not seen as good enough or independent enough by critics of the scheme. Therefore, the arm’s-length rule is the safe way of going forward.
Lord Ahmad of Wimbledon
I agree with the noble Baroness inasmuch as it is important that it is not just the process, but the perception—and the perception in the mind of the public, too—that there is scrutiny, and effective independence in the auditor role. However, I believe that any auditor, on the basis of what we have suggested of having professional capacity, would be able to show that level of competence and, indeed, address the issues of perception. As such, it would be reasonable for the franchising authority to appoint such an auditor. That applies as much to the suggestion by the noble Lord, Lord Snape, that it should be the auditor rather than the traffic commissioner, particularly as it would be the franchising authority that paid for the services of the auditor.
Coming back to the point raised by the noble Baroness and also by the noble Lord, Lord Shipley, I do understand that an auditor could be perceived as more independent if they are appointed by a third party—indeed, the noble Lord, Lord Snape, used the example of a traffic commissioner—or if the Bill specifically stated that they must be independent. However, I would argue, again, that any auditor with an established reputation would be mindful to protect their own role and independence in any report they provided.
Baroness Scott of Needham Market
I am grateful to all noble Lords who have taken part in the debate on this set of amendments, and to the Minister for his customary care and courtesy. However, I am afraid that I am not entirely reassured, as I think that there is a fundamental misunderstanding about what constitutes being independent. I recognise that you would, of course, go to a reputable firm of auditors. However, the person who sets the contract and pays the bill for the audit retains ultimate control. That is always the way. Anyone who has worked in this area knows that there are all sorts of ways in which the process can be subverted. This is a very important issue and involves great risk for the taxpayer, particularly in these mayoral models, where we know that the oversight of the mayoral function is not as strong as it used to be in the old days when people like me had committees which spent a lot of time going through these things. Given particularly the concerns expressed in the Public Accounts Committee report published on Friday, I think there is a need to return to this question, at least informally.
Lord Ahmad of Wimbledon
The noble Baroness again raises a very valid point. Once we have established our full response to the concerns of the Public Accounts Committee, we will be in a better position. As I said, I welcome further discussions in this respect, because I do not think that we disagree; to use the words of the noble Baroness, Lady Randerson, this is a matter of perception which can be addressed. Once we have responded more formally, I am happy to have those discussions with the noble Baroness.
Baroness Scott of Needham Market
It is certainly an issue of our time that perception is pretty much everything.
With that, I look forward to future discussions and beg leave to withdraw the amendment.
Lord Whitty
Lord Whitty (Lab)
My Lords, this is a slightly odd group, although all the amendments in it deal with consultation after a franchising notice has been agreed. The first amendment deals with an issue which the Minister may feel we have flogged to death at early stages, and relates to the engagement of representatives of users of the services. That is referred to in the relevant new paragraph (c), although I agree with the earlier comment of the noble Baroness, Lady Randerson, that the term “as they think fit” somewhat prejudices the possibility of effective consumer representation in this field if the authority is rather resistant to any organisation purporting to represent the users.
The additional point in this amendment is that not only would I expect authorities and operators in the new franchising situation to encourage, engage with and help develop organisations representing users in the area covered by the new franchise, and go on to develop that further during the course of the franchise, but there is also an issue of how—at least in the initial stages—these franchises develop in different parts of the country and how they relate to passenger concerns across the country. Across England we have an organisation—Transport Focus—which is based in statute and has recently enlarged its role in relation to road users of all sorts as a result of the Infrastructure Bill which passed through this House a few months ago. With Highways England it is responsible for looking after all the interests—commercial and individual—of road users; that is, cars, buses, freight, et cetera. It also has a national perspective. In the railway sector it compares the performance of franchises in the different railway franchise areas, and has done so a number of times. It conducts surveys and gathers feedback. There is a crossover of things that are appreciated by passengers in one area into other areas of rail provision. The same must apply in relation to buses. As we are just starting a new system in relation to buses, the first two or three franchises will set the tone for the way in which the system will operate. It will be important for a national passenger organisation to have at least the ability to comment on those developments and on what passengers find good or negative about them and where they would like to see improvements. As the system develops, the franchising system in large parts of England would benefit from having an overall view from Transport Focus on how a new franchise is perceived by passengers using the system.
When setting the franchise, the authorities will wish to look at the way it has operated in areas where they have already established a franchising system. As time goes on, cross-comparison is important. The organisation, already in place, which would give this perspective is Transport Focus. There is no mention of Transport Focus in the Bill. Therefore, I hope that a role is given in the Bill to that organisation in providing a cross-reference of how the system is working for those who ultimately will be the beneficiaries of what I hope will be an improved service. I beg to move.
Baroness Scott of Needham Market
My Lords, I have four minor amendments in this group and wish to say a word or two about each of them. My Amendment 45 would include the Competition and Markets Authority in the list of consultees. This goes back to a point I made on Second Reading and in the private meeting organised with the Minister from another place.
In the days when I had much more to do with transport, the Competition and Markets Authority writ large across the operation of the bus industry, to the extent that, when I tried to deal with buses in Suffolk, I could not get two operators to sit in the same room with me because they had been told by their lawyers that that could be regarded as collusion and therefore anti-competitive. As noble Lords can imagine, that made trying to run a coherent bus network in Suffolk very difficult. We have dealt with that very effectively now—because we have very few buses. We need to really think about the point at which the Competition and Markets Authority is involved with this. The last thing we want is a very lengthy and expensive process of tendering, consultation and agreement, only to find at that point that the authority has a problem with it.
Amendment 49 tidies up the question of modification. At the moment, it is not at all clear what a modification means. You would not need to re-consult for a relatively minor one, but it is possible to imagine fairly major modifications to a franchising scheme where reconsulting would be a good idea. Amendment 52 comes back to the question of oversight. The Bill mentions “a summary of” the consultations. Given the questions about oversight and robustness, it is really important that we have all the information required. It is not going to be favoured reading among large sectors of the general public, but it is important that those involved in oversight have full information. The same goes for Amendment 53, which is about publishing all the responses so that everyone can see what everyone else has said. That is an important part of good governance and robust oversight.
Earl Attlee
My Lords, it is very difficult to find anything to argue about with these amendments on consultation, particularly Amendment 48. As noble Lords have said, they are very much in the vein of ensuring that all those likely to be affected by either a franchise scheme or enhanced partnership scheme are consulted in a timely fashion and that the documentation—which I am sure will be quite lengthy—will be in accessible formats. It stands to reason that there is no point in consulting if you do not allow adequate time, or provide the material in a way that people can easily access it.
We have already debated similar amendments about passenger representation at an earlier stage. However, I can see one potential problem, which is how long the timescale should be for people to comment. I suspect it is impossible to answer: as human beings we always tend to leave things to the last minute—just look at the mad rush to register to vote in the recent referendum. No matter how much time you give people to do something, it will never be enough. I suspect that, like me, many noble Lords get briefings for Committee on the day it takes place, long after we have drafted our notes and determined our position.
Can my noble friend assure the Committee that there are strict guidelines that public authorities have to follow when it comes to the format et cetera of consultation documents? These amendments may not be necessary—although the point is desirable—and the issues that they seek to address may already be an established and well-known requirement, but it does no harm to reinforce the point.
I turn to Amendment 51. The bus industry was shocked and, quite frankly, appalled when the Chancellor first gave oxygen to the idea of local bus franchising some 18 months ago. Bus operators, from the large plcs to small family-run businesses, feared for their livelihoods. Time has moved on and the industry has, of course, regrouped—dare I even say, calmed down?—and engaged constructively and helpfully with the Government in developing the policy that we now see enshrined in this Bill. I sympathise with all bus operators and recognise their very real concerns. The large plcs have much to lose and need their eyes on market share and their corporate standing. They will be battered and bruised by the franchising process and we must not underestimate the effect this will have. However, small and medium-sized operators are in a different position. As I have already explained, if they lose a franchise, assuming they have the resources to bid in the first place, their business is gone. They will not be able to tread water for a few years and be in a position to bid when the franchise comes up for renewal. Their business will no longer exist, their depots and vehicles will be sold and their staff quite possibly lost to the industry or to competitors.
I know that the plight of SME operators has weighed heavily on the minds of Ministers. More than once I have heard the Secretary of State commend the work of the SME operators and say how he is keen to help protect their enterprises, so this amendment may well find favour with my noble friend. “Fairness” and “level playing field” are terms I hear used frequently in our deliberations and I am in no doubt that I will use them again before we send the Bill on its way. The processes put in place by the Bill must be fair to all operators regardless of their size.
Baroness Jones of Whitchurch
My Lords, I will speak to Amendments 48 and 51 in my name. I very much support the amendment tabled by my noble friend Lord Whitty. Amendment 48 takes a similar position—that as part of the consultation process, passenger organisations and trade union and employee organisations must be involved. We believe that proper time should be allocated to make this a meaningful consultation and an effort made to explain the changes in a clear and accessible form to those who may be affected. As my noble friend said, we have debated these issues in relation to previous amendments and received a positive response from the Minister. I hope a similar response will be forthcoming today.
I hope that Amendment 51 is an area where the noble Earl, Lord Attlee, and I are able to agree for once; I am pleased that some commonality is coming out of this debate. One of the problems with bus provision in this country is that the market is dominated by a small number of large bus operators. This makes the procurement process more difficult for local authorities and does not always result in the best passenger experience. It is difficult for new entrants to enter the sector, even though they often provide more responsive, quality services with high customer satisfaction. Reference has previously been made to the social enterprise company HCT, which runs highly successful services in parts of London, Yorkshire and Bristol. It also has the contract for providing bus services in Jersey. Since it took over that service, passenger usage has increased by 32%, the level of subsidy has reduced by £800,000 a year and customer satisfaction has increased by 5%. Somewhat uniquely, the contract also has a profit-sharing element and it is now giving money back to the local authority.
We need opportunities for innovative providers like HCT to enter the market and win new contracts, but the rules are stacked against them and the regulatory burden is far too onerous for the small providers to navigate. There is a danger that the proposals in the Bill will entrench local monopolies, at best replacing an unresponsive private sector monopoly with a publicly commissioned one. When it comes to enhanced partnerships, we need to be clearer about the process for opening up partnership lists to competition to allow new entrants to join. As it stands, the Bill acknowledges this problem in new Section 123F (1)(i). It requires the consultation document for authorities going down the franchising route to include a statement on how they propose to facilitate the involvement of small and medium-sized operators. We obviously welcome that.
Our amendment takes this one step further and requires the consultation document to consider how the franchise could be divided into smaller units. This would help to break down the local monopolies and encourage new entrants into the market. I hope the Minister understands and shares these objectives: I look forward to hearing his response.
Lord Ahmad of Wimbledon
My Lords, this group contains a number of amendments to the consultation process that a franchising authority must complete before it can implement a franchising scheme. Before going any further, my noble friend Lord Attlee asked about “small and medium-sized operators” and whether in the context of the Bill that meant small and medium-sized companies. The short answer is yes. It is judged by the size of the company rather than the nature of its operation. In the interests of clarity, which is always important, I will write to him formally in that respect.
Turning to the amendments which relate to the persons or bodies to be consulted and the form the consultation should take, Amendment 44, in the name of the noble Lord, Lord Whitty, would require franchising authorities to consult Transport Focus when consulting on their proposed franchising schemes. Once again, I am delighted to say that I agree with the noble Lord that it is important that organisations that represent passenger needs have an opportunity to respond to a consultation on a proposed franchising scheme. Transport Focus already works closely with local authorities and bus operators with a view to securing improvements to bus services for passengers, and I will consider how best to ensure that the Bill gives Transport Focus an opportunity to express views on franchising scheme proposals. I hope that this provides assurance to the noble Lord, Lord Whitty, in that respect.
Amendment 45, in the name of the noble Baroness, Lady Scott, would require franchising authorities to consult the Competition and Markets Authority on their proposed franchising schemes. As I said at Second Reading, competition does not disappear when franchising is introduced; it merely moves from “on the road”, where bus operators compete at bus stops for passengers, to “off the road”, where bus operators compete for contracts to operate services. Franchising authorities will be able to design a franchising system which suits their local area and local needs, whether that be through gross-cost or net-cost contracts, or with large or small bundles of routes, bearing in mind the need to involve small and medium-sized bus operators.
However, I agree that any fundamental change to the bus market that is being considered by a local area should take account of the potential effects on competition and the benefits or impacts this could have for bus operators and local people. I further agree that it may be helpful for franchising authorities to work with the Competition and Markets Authority as they develop their proposals, and for the authority to be consulted. I hope I have reassured the noble Baroness that I am with her in ensuring that we look at how to fit that into the Bill.
Amendment 48, in the name of the noble Baroness, Lady Jones, would add some additional requirements to the consultation provisions in relation to franchising, including requiring passenger interest groups to be consulted on franchising proposals. I thank the noble Baroness for her amendment, and agree that it is vital that passenger groups and others that may be affected are consulted fully on proposals to improve local bus services. I recognise that many noble Lords spoke about passenger representation and accessibility of bus services at Second Reading and in earlier Committee debates, and I fully understand that there is a wide spectrum of views and needs to be considered when planning local bus services.
The franchising provisions already include requirements for the authority to consult organisations that represent users of local bus services. Therefore, I encourage any authorities thinking of using the new tools in the Bill to engage fully with interested parties as proposals are developed. I hope this goes some way to addressing the noble Baroness’s concerns about the interests of passenger groups and reassures her that the Bill requires authorities to consult fully with those groups on franchising proposals.
Turning to the form that consultations on franchising and enhanced partnership proposals should take, the noble Baroness, Lady Jones, raised an important issue about accessibility and the need for consultations to be conducted in a manner and over a time period that is accessible to all. I agree that any consultation must give local people due time to consider and respond, particularly as proposals about local bus services are likely to have a large impact on local communities. I will therefore give further consideration to how best to ensure that consultation exercises relating to franchising proposals are accessible to all.
Turning to the amendments on the consultation materials that franchising authorities must prepare, Amendment 51, in the name of the noble Lord, Lord Kennedy, would reinforce the need for authorities considering franchising to give due consideration to small and medium-sized operators, given the important role they play in the delivery of local bus services. I sympathise with the aims of the amendment and I think we can all agree that small and medium-sized bus operators across the country deliver vital services to our local communities. Many of these smaller operators deliver tailored and bespoke services to suit local needs, and we want to see these small businesses continue to thrive, regardless of the model of bus service delivery that is employed.
The Bill requires franchising authorities, both as part of their consultation exercise and in issuing their response to that consultation, to set out how, in conducting the procurement process, they intend to facilitate the involvement of small and medium-sized operators in the provision of local bus services once franchising has been introduced. I agree entirely with the principle in the amendment that in reality, this provision will require the authority to consider in practical terms how it intends to facilitate the involvement of small and medium-sized operators, which may well include the division of local service contracts into smaller lots. However, there may be other ways to achieve that aim—for example, through subcontracting—and I do not want to prejudge the procurement strategy that an authority may employ. I hope I have reassured noble Lords that the Government are committed to ensuring that small and medium-sized operators continue to have a place in the market regardless of the model of delivery, and that the provisions in the Bill already address this issue.
Amendment 52, in the name of the noble Baroness, Lady Scott, would require franchising authorities to include in their consultation document their assessment of their proposed franchising scheme, conducted under new Section 123B, rather than a summary of their assessment. I hope I can reassure the noble Baroness that franchising authorities are already required to publish their assessment of their proposed scheme. The Bill also requires that a summary of the assessment of the proposed franchising scheme should be included in the consultation document itself, with the aim of ensuring that the consultation document contains sufficient information for the lay person to consider, without necessarily having to refer to the full assessment. I hope the noble Baroness agrees that these proposals are sensible and that the Bill as drafted already achieves her aims.
Amendment 53 would require franchising authorities to publish all the responses to their consultation on their proposed franchising scheme. I agree that it is important for those reading the response to the consultation to be informed of the views that have been expressed in responses to that consultation. I fully expect any authority to set out in its response to the consultation the views expressed by those consulted, subject to any disclosure issues, and the authority’s response to those views.
However, I do not want to be too prescriptive about how the authority should respond to the consultation and the exact form the response should take. For example, the authority may receive many responses on the same issue and may choose to summarise those responses and list the number of responses received. Again, that is common practice in local government. But I will consider how best to ensure that franchising authorities set out a summary of the responses they receive to their consultation, and hope that I have reassured the noble Baroness in this respect.
Government Amendment 50 removes the requirement for the franchising consultation document to include a description of how it is proposed persons are to be invited to tender for the provision of services. The Government believe that it is proper to remove this reference as the Bill does not make provisions anywhere else as to how the procurement process will work. This will be a decision of the authorities involved, in the context of procurement law, and guidance will be provided on procurement approaches.
Finally, Amendment 49, also in the name of the noble Baroness, Lady Scott, would require franchising authorities to have an auditor reassess their proposed franchising scheme if it is modified following consultation. I sympathise with the aims of this amendment, and agree it is vital that franchising authorities have the assurance of an auditor in relation to certain aspects of their assessment. We have already spoken about the audit function at length today so I do not want to go into further detail. I have agreed to sit down with noble Lords to discuss this further.
The section of the Bill to which the noble Baroness refers ensures that authorities are able to take account of the views expressed in the consultation and modify their franchising scheme appropriately. I also expect authorities to use their good sense and judgment. If the consultation unearths new data or causes the authority to radically rethink its approach, then of course I would expect the authority to take a view on whether it should choose to seek the auditor’s opinion on the new data or the revised analysis, and whether it should consult again on the revised scheme. I do not, however, want to force authorities to go through these processes again when a franchising scheme is modified. It may be that an authority makes a small tweak to its proposed scheme which does not materially affect it, when it would seem unreasonable for the authority to have another assessment by the auditor.
Lord Whitty
My Lords, I congratulate the Department for Transport on being so forthcoming on this group of amendments, both mine and those of other noble Lords. In opposition and in government I have found previous manifestations of the Department for Transport to be slightly more resistant to the good sense of amendments put forward in this House. I am glad that a culture change seems to have taken place, epitomised in the Minister. Of course, the Bill does have a further, Report stage, when I certainly hope we will have amendments reflecting at least some of the positions taken in this group. The noble Lord agreed the other night on the one part of my noble friend’s amendment he did not refer to—on trade unions and employee representatives. He has already committed on that front so I hope that, before Report, we will see many of the principles embodied in the amendments in this group in government amendments. If not, I shall be disappointed but at the moment I am feeling pretty pleased with the department.
My point about Transport Focus being referred to in the Bill is an important and newish one, and I am very glad that the Minister responded positively to it. I thank him and the department—keep up the good work. In the meantime, I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
Viscount Younger of Leckie (Con)
My Lords, I will speak to a group of amendments to Clause 4 and Schedule 2. Amendments 54 to 64 and Amendment 75 relate to the period which must expire before services can be provided under local service contracts. The Bill as introduced provides that at least six months must expire between a contract being awarded and provision of the relevant service, with the aim of providing a suitable period of transition for bus operators. These amendments do not change the policy but merely tidy up the Bill to ensure that this provision is clear.
Amendment 65 makes it clear that where a franchising scheme is varied to add an area which relates to another local authority, that authority must play an active part in the variation processes. This corrects the drafting of the Bill but does not change the policy intention. It has always been the Government’s intention that authorities that will have a franchising scheme covering the whole or part of their combined area should play a part in making or varying the scheme.
Amendment 76 amends the Local Transport Act 2008 to remove provisions relating to quality contract schemes for areas in England which were inserted into the Transport Act 2000. My noble friend Lord Ahmad wrote to noble Lords on 16 June providing notice of the government amendments he would be bringing forward in Committee. That note provides a fuller explanation of the precise changes to the Bill. My noble friend and I are of course happy to discuss these amendments further with colleagues if there are any concerns. I beg to move Amendment 54.
Lord Kennedy of Southwark
My Lords, I have no problem with the amendment but I want some further clarification. As I said in our previous discussion on our first day in Committee, we have a whole raft of government amendments and I do not understand why this issue was not sorted out before the Bill came to your Lordships’ House. Yes, the amendment adds the word “minimum”—Amendment 55 is similar—but these are tidying-up amendments and we are at the start of the Bill, not the end. It has been nowhere other than with the department and in this House. I am sure that the noble Lord listens to what all noble Lords say in this House, but it seems that a bit more work should have been done with Ministers before the Bill ever appeared here. Why we are getting these Bills so early, and why was this issue not sorted out before the Bill arrived here?
Viscount Younger of Leckie
That is a very reasonable comment. My noble friend Lord Ahmad was asked a similar question during consideration of a previous amendment, and I recall his answer. I will give the same answer, which I hope will be accepted: this Bill has been work in progress. A lot of the time, Bills are not absolutely perfect when they are presented. I will be quite open and honest in saying that it is simply a tidying-up process. I hope the noble Lord will accept that explanation.
Lord Kennedy of Southwark
I accept that it is a tidying-up exercise, but my point is that I am surprised that this could not have been sorted out in advance, given that, as we have heard, this Bill has been a long time coming and in preparation in the department. These are not major issues that have been found during our debates: it is just a question of missing words, for example. I could go through the whole raft of government amendments—none is anything major. So I do not understand why we are finding within a matter of days that odd words and phrases that should have been included in the first place are missing from a Bill that, we are told, has been months in preparation, and was due last year.
Viscount Younger of Leckie
I am not sure that my follow-up is going to give any further clarity. I simply point out that the Bill as introduced was not sufficiently clear on these points, and these amendments help to bring clarity. It is more fine-tuning and tweaking than anything particularly major.
Lord Kennedy of Southwark
That is fine. I will not pursue the point further, but for the Minister to come to the Dispatch Box and say that the Bill was not sufficiently clear, when it has been at least months in preparation, is not the best way to introduce legislation. I will leave it there.
“(3A) A scheme may not specify under subsection (2)(d) or (3)(c) a period of less than six months.”
“(4A) If the franchising scheme relates to an area to which a relevant scheme or plan also relates, the franchising scheme must include—(a) in a case where the relevant scheme or plan relates only to the area to which the franchising scheme relates or a part of that area, provision revoking the relevant scheme or plan, or(b) in any other case, provision varying the relevant scheme or plan so that it ceases to relate to any part of the area to which the franchising scheme relates.(4B) A franchising scheme may not otherwise vary a relevant scheme or plan.(4C) In subsections (4A) and (4B)—“relevant plan” means an enhanced partnership plan, and “relevant scheme” means an advanced quality partnership scheme or an enhanced partnership scheme.”
“(4D) If provision is made under subsection (4A)(b) to vary an enhanced partnership plan or scheme so that it ceases to relate to an area, the local transport authority or authorities to whose area or combined area the plan or, in the case of a scheme, the related plan continues to relate may vary the plan or, as the case may be, the scheme in such manner as they consider appropriate in consequence of the provision made under subsection (4A)(b).(4E) Section 138K(3) applies, and section 138K(4), (5) and (8) do not apply, to a variation under subsection (4D).”
“(8) The scheme must specify whether consideration has been given to the wider social, economic and environmental benefits of the scheme, in accordance with the Public Services (Social Value) Act 2012.”
Baroness Jones of Whitchurch
My Lords, Amendments 58A and 99ZA call upon commissioners of bus services under franchise, and those developing enhanced partnership schemes, to apply the principles of the social value Act 2012 in specifying the service required.
The social value Act, brought in by this Government, recognises that many public services can have a wider role than a simple cost-benefit analysis would identify. It requires those procuring services to consider the economic, social and environmental benefits of each bid. It allows local authorities to think about public services in a more coherent way with wider benefits and encourages those bidding for contracts to be more imaginative about the community benefits their service could bring. Often this can result in better-designed services, with other benefits and efficiencies.
In the case of bus services, it could include, for example, a commitment to train and employ a number of long-term unemployed people to work on a contract. It could include a number of apprenticeships and work experience places for young people. It could include a commitment to support an existing community bus service—perhaps with some shared facilities. It could include an environmental plan with targets for green energy and reduced CO2.
These are just examples, but the point of social value is to encourage providers to commit to their own added-value measures without costing any more money. It is essentially supplier neutral, in that it can apply to all operators, whether commercial, social enterprise or municipal. It allows local authorities to be as specific as they choose—either specifying the expected wider benefits at the outset of the bidding scheme or encouraging bids to offer up more creative service solutions at a later stage of the process.
Implementing the social value Act would appear to be an excellent tool for achieving many of the community benefits which we have been seeking in other amendments to the Bill so far. I am sure the Minister is aware that the operation of the social value Act was reviewed last year by the noble Lord, Lord Young. He concluded that, where it was used effectively, it resulted in commissioners being much more innovative and delivering much more responsive public services. However, the noble Lord also concluded that the opportunities and advantages were simply not widely enough understood and therefore take-up of the model was low.
This is the Minister’s opportunity to put this matter right by embracing this model as it applies to bus services in the future and putting social value at the heart of the Bill. I beg to move.
Baroness Scott of Needham Market
My Lords, I am very pleased to see that the noble Baroness has tabled this amendment. I raised the question of the social value Act in a group of amendments when the Committee met last week. In doing so, I was trying to get at the point that the noble Baroness has made, which is really about extending the ambition of the Bill in terms of understanding the broader context, whether it is environmental or social. Because the inspiration of using the social value Act only came to me very late in the day, when it was too late to table an amendment, I raised it in debate rather than tabling an amendment. I am pleased to see that the noble Baroness has rather more ingenuity than I have and has found another place in which to put it.
Lord Berkeley
My Lords, I support this amendment, and will also speak to the others in the group—Amendments 58B, 99ZA and 99B. The noble Baroness, Lady Scott, hit the nail on the head when she talked about extended ambitions, and my noble friend Lady Jones gave a really inspirational description of what one might be looking for. All these amendments basically cover the same thing, which is to do with creativity. When people are looking at whether it is right to have a franchise, partnerships or whatever, I hope that the Government will, through these amendments or something similar, realise the benefits from bidders having more freedom to be creative—whether in terms of different types of bus, different types of service, frequency and timetables, fitting in with other services such as railways or opening times for hospitals and doctors’ surgeries, and things like that.
Earl Attlee
My Lords, I am sure that these are sensible and valuable amendments for the Committee to consider. However, they are “Supplementary to the Second Marshalled List”. That means that they must have been tabled on Friday, which means that there is no time for officials to consider a response for the Minister and no time for the Minister to consider the advice of officials. It is a little bit rich for the Opposition Front Bench to tease the Ministers for tabling their late government amendments when it tabled its amendments on Friday.
Lord Kennedy of Southwark
The point I was making was the government amendments that were tabled seemed to be making little drafting corrections, inserting odd words. For a Bill that has been in the planning for nearly a year, that seems to me to be remiss.
Lord Judd (Lab)
My Lords, late or not, one has to look at the potential and the value of the particular amendment. I am greatly cheered by this amendment. It seems to me that we are in danger of totally losing sight of the ideal of community and the rest. A well co-ordinated, integrated bus service can play a tremendous part in furthering community activity. We just compound the problem of our individualistic society in which community is breaking down because people resort to their cars, go and do their shopping, go back home and watch the television, put on their computer or whatever it is. The fact is that, if we are to have a life worth living, we have got to have community. The bus can potentially be central to that community. I applaud the amendment.
Lord Bradley
My Lords, very briefly, I also strongly support these amendments—late or not. We hear under the devolution deal a lot about the integration of health and social care and the integration of physical and mental health. Part of that is the integration of the transport system to enable people, particularly in the conurbations and city of Manchester—a poor and often elderly population who rely exclusively on public transport. We are developing a very effective integrated public transport system—buses, light rail, heavy rail—but we need to ensure that it benefits all the communities across Greater Manchester. This amendment enables that consideration effectively to be brought to the table to ensure that we have the best services possible to meet the real needs of local people.
Lord Ahmad of Wimbledon
My Lords, just to pick up on a couple of points, whenever you see something that can be improved, at whatever time, improve it. It is as simple as that, and better early than late, as long as time lines are met. We have heard about the inspiration of the noble Baroness, Lady Scott, and the ingenuity of the noble Baroness, Lady Jones. Indeed, this issue came up during the previous discussion. I am not sure whether the noble Baronesses received my letter in that respect—
Baroness Scott of Needham Market
Yes, I received a letter on the questions about rural public transport, which I raised at Second Reading, and a positive response on this issue. I did not mention it because I thought I would leave the noble Lord to take the glory.
Lord Berkeley
I received a lovely letter from the Minister, but only this morning.
Lord Ahmad of Wimbledon
As long as it was lovely, that is the important point to bear in mind. I thank all noble Lords, particularly the noble Baroness, Lady Jones, and the noble Lord, Lord Berkeley, for tabling their amendments, and acknowledge the noble Baroness, Lady Scott, for bringing this issue to the fore. The amendments aim to ensure that authorities think about the wider social, economic and environmental benefits of establishing a franchising or enhanced partnership scheme and remind authorities of their obligations relating to educational and socially necessary bus services.
Amendments 58A and 99ZA, tabled by the noble Baroness, refer to the Public Services (Social Value) Act 2012, which the noble Baroness, Lady Scott of Needham Market, mentioned in a previous Committee debate. As I have already indicated, and as the noble Baroness has acknowledged, I have written to her on this matter. My understanding is that the Public Services (Social Value) Act 2012 requires authorities which commission certain public services to think about matters relating to securing wider social, economic and environmental benefits in the context of procurement.
I believe that it would be useful to use the guidance that will accompany the Bus Services Bill to remind local authorities of the duty that the Public Services (Social Value) Act 2012 places on them in certain circumstances and to give some guidance on the approach to be taken in relation to procurement activities not covered by the Act. I assure noble Lords that, on the contribution of the noble Baroness, I immediately set the ball in motion. Work is in hand in the Department for Transport to consider how best we achieve this and it is getting some accolades. The noble Lord, Lord Whitty, is not in his place, but it is becoming a fast favourite of the noble Lord.
I also agree that any authority looking to establish a franchising scheme or an enhanced partnership scheme should think carefully about the wider social, economic and environmental benefits that such a scheme could bring. The Bill includes requirements for authorities looking to establish a franchising scheme or an enhanced partnership to think about whether the proposed scheme would contribute to the achievement of relevant policies and to consider the impacts of such a scheme. I hope this has reassured noble Lords that the social, environmental and economic issues will be considered as schemes are developed and that references will be made quite specifically in the guidance that accompanies the Bill to ensure authorities are aware of their obligations under the Public Services (Social Values) Act 2012.
Amendments 58B and 99B, tabled by the noble Lord, Lord Berkeley, relate to educational and socially necessary services. Authorities have certain duties to consider whether to provide socially necessary services, and they also have certain duties with respect to providing home-to-school transport. I agree entirely that authorities should consider these obligations as they develop franchising or enhanced partnership schemes as co-ordinated commissioning of public transport for the whole area can lead to real efficiencies. This is one of the core principles of total transport, and I support it wholeheartedly.
The obligations on local authorities with respect to socially necessary and home-to-school services remain in place regardless of whether franchising, enhanced partnerships, or any other model is employed and I do not think it is necessary to restate these requirements in the Bill. I do however recognise that we can continue to do more to ensure that authorities are reminded of their obligations through the guidance that I have mentioned already.
The other issue raised by the noble Lord’s amendment is that of an authority subsidising certain services which would not otherwise be provided. Authorities already have the ability to do this, and the Bill does not change that. I fully expect that authorities will subsidise certain services in a franchised model for example and confirm that this will be possible under any of the new models proposed through the Bill. The noble Lord, Lord Berkeley, talked about ferries. There is nothing to stop local authorities working with local operators to integrate ferries locally. Merseytravel’s multi-operator ticket already does this. It is unlikely that including a reference to ferries and the 2012 Act in this Bill would fall within the permitted scope, but I will consider the point and will write to the noble Lord if I am not correct in this respect. I hope that the assurances I have given have gone some way to addressing the issues that noble Lords have raised and that the noble Baroness will withdraw the amendment.
Lord Kennedy of Southwark
I know the Minister is trying to be very helpful today and we are very grateful to him for that. He has asked my noble friend Lady Jones of Whitchurch to withdraw the amendment. Is he saying that he is going to go away and think about this? I am not clear whether he said that. The amendment that my noble friend moved is important. I am not quite clear what he is saying in asking her to withdraw the amendment.
Lord Ahmad of Wimbledon
In the interests of time, if the noble Baroness, Lady Scott, does not mind I shall share the letter I wrote to her with all noble Lords. That should have been done as a matter of course. It will perhaps highlight the Government’s position, but to be clear, the Government are considering the provisions raised in the amendment, but within the guidance which will be in support of the Bill.
Lord Kennedy of Southwark
I think I got the letter, but I am afraid I not have actually read it yet. It arrived this morning in my email inbox. I just wanted to be clear what the Minister meant.
Lord Berkeley
On that point, has the Minister told the Committee when the guidance might be published in draft form? Will we be able to see it before Report, for example?
Lord Kennedy of Southwark
Apparently I did not get the letter after all. I certainly got a letter from the Minister this morning, but it may not be the one that we are talking about.
Lord Ahmad of Wimbledon
As I have reflected on before, while we are in the holy month of Ramadan, noble Lords should be thankful that they are not getting emails from me because they would be arriving at about 3 am. If I am writing them, I hope noble Lords are reading them. I will of course confirm when the guidance is due to be published, but I hope I have provided clarity and that the noble Baroness will withdraw her amendment.
Baroness Jones of Whitchurch
I think the Minister for his response and I thank all noble Lords who contributed. For a little while there, we had a sense of what is possible in the Bill. If we were not careful, we were going to get bogged down in the technical detail of franchising but, as my noble friend Lord Judd said, it is about building community and using the real advantages that you get with a Bill like this that comes along only once every 20 or 30 years. This is a chance to build in that ambition and to have some excitement about the possibility that bus services can provide in terms of community assets. We have had a glimmer today of some of those opportunities.
My noble friend Lord Berkeley showed not only that you can have some innovation and excitement but that you can actually save money by pooling all those services. It seems foolish that social services pay for one set of transport while education pays for another, and no one ever thinks that they could pull that together into one complicated yet coherent grid.
I am pleased that the Minister spoke positively in response. I am slightly sad that he thinks this should go in guidance. I know we debate this over and over again, but guidance does not have the same weight as legislation. From our perspective, the social value Act is worth specifying in the Bill because it brings very specific requirements. I look forward to receiving the letter, when it eventually comes to us, but we need to explore how much more we can enforce this within the Bill rather than leaving it within the guidance. Perhaps that can be part of the wider discussion for us to have outside. In the meantime, I beg leave to withdraw the amendment.