Transport Act 1985 (Amendment) Regulations 2019

Lord Berkeley Excerpts

Monday 20th May 2019 Lords Chamber

I reiterate my regret that these regulations have been brought forward while the judicial review is still under way. It means that there is a yawning gap on the key issue of the definition of “non-commercial organisations”. However, we are where we are. I will not be pushing this to a vote this evening. My purpose is to seek greater clarity for the sector. I ask the Minister to provide us with assurances: first, that the Government will provide full guidance in the very near future, for example on the application of the 10-mile rule; and secondly, that they will ensure that urgent discussions are held with the transport commissioners to ensure that they cease to apply rules that are directly at variance with the specific interpretation issued by the Minister’s colleague at the Department for Transport. I beg to move.

[Lord Berkeley (Lab)]

My Lords, the noble Baroness outlined the problem with this piece of legislation extremely well. My first question for the Minister is: why are we doing this at all? As the noble Baroness suggested, we might have left the EU on 29 March without any agreement, so it is a bit odd that the Government should be bringing this regulation through your Lordships’ House two months later, still trying to comply with European Union legislation. Since we still do not know whether we will leave, and if so when, presumably another regulation will be coming shortly that will explain how this particular regulation will be amended or removed if we leave—perhaps the Minister can clarify this. Or do the Government think that this regulation is so wonderful that they will want to keep it?

I see nothing wonderful about this at all. As the noble Baroness said, it is just more bureaucracy in a sector which, by definition, cannot afford it—and sometimes cannot even afford to run the bus. I live in a little village in Cornwall which has a community bus once or twice a week. It takes people to the shops, other villages or the hospital and is run by a dedicated team of two drivers. Occasionally they have to put their hands into other people’s pockets for more money to upgrade the bus and so on. It is run on a shoestring. The people whom it carries on the whole cannot afford very much anyway, and here we are adding more bureaucracy—for no point at all that I can see.

If this is being pushed forward by the Government after pressure from the commercial bus operators, I would ask how many of the routes currently run by community services would ever be run commercially. The answer in most cases is that you either have a community bus service—if you are lucky—or no buses at all. Given the reduction in bus services that this Government and the previous one have “achieved”, it is a pretty depressing story. I cannot understand why the Government want to do this at all. I hope the Minister will be able to explain that to the House, as well as what will happen if we leave without an agreement at the end of October or whenever. Will the Government seek to bring in another regulation to remove this SI and go back to where we were?

It may be that the European Commission has been doing good things and requires this to be done, but, frankly, if it was so important, why has it taken until May 2019 to bring this forward? It will be a disaster for the community transport sector. As the noble Baroness suggested, the sooner we get some guidance to interpret what is in here, and a sensible, achievable objective so that the services can continue and maybe even grow, the better. It would be really good if that could happen, so I look forward to the Minister’s response.

[Lord Rosser (Lab)]

My Lords, we support the terms of the regret Motion moved by the noble Baroness, Lady Randerson. These regulations were the subject of a fairly lengthy report from the Secondary Legislation Scrutiny Committee at the beginning of April. The committee drew them to the special attention of the House on the grounds that, given their potential impact on community transport operators, they give rise to issues of public policy likely to be of interest to the House.

As the noble Baroness said, the regulations are being made to align fully, and clarify, the relationship between an EU regulation and the Transport Act 1985. That Act provides for exemptions which allow certain types of organisation to operate passenger transport services on a not-for-profit basis without holding a public service vehicle operator’s licence, following the issue of a permit.

There is also an EU regulation, which I think was implemented in 2011, setting the standards to be applied to public service vehicle licence holders. However, operators are exempt from the EU regulation requirements if they operate exclusively for non-commercial purposes or have a main occupation that is not as a road passenger transport operator, and if they only operate domestically and have a minor impact on the transport market because of short driving distances. The view of the Department for Transport has been that its permit holders automatically meet the “non-commercial” exemption from the EU regulation on the basis that “not-for-profit” equates to “non-commercial”. This has now been challenged on the basis that some organisations operating under the permit system are in fact operating for commercial purposes. At the end of last year, the Bus and Coach Association applied to the High Court for permission to judicially review the Department for Transport’s current position in respect of community transport, and in particular the approach to the non-commercial exemption.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, I thank the noble Baroness, Lady Randerson, for tabling her regret Motion today. It has given the House the opportunity to scrutinise these regulations in more detail, and also to raise some very important issues. Some issues raised, particularly by the noble Baroness, went into some detail and raised evidence I am not entirely sure my department has seen. I would be very grateful if she could share the evidence with us. Certainly, I will go through Hansard and make sure that if I am unable to cover issues today, I will write to her, and to all noble Lords who have taken part.

The Government always recognise the vital role of community transport in connecting people to their communities, employment, local services and each other. Most community transport operators provide a vital social care service to those who are elderly, isolated or disabled, and we know that particularly in rural areas, community transport services encourage growth and reduce isolation. However, in recent years, concerns have been raised about how the use of community transport permits fits with EU law on operator licensing. It became clear that the current interpretation of “not for profit” equating to “non-commercial” would be challenged, as noted by the noble Lord, Lord Rosser.

The noble Lord, Lord Rosser, also asked, “Why now?”. While the UK remains a full member of the European Union, all the rights and obligations of EU membership remain in force, and for the duration of the withdrawal agreement, we are also bound to implement these rules. The EU has an outstanding case against the UK in respect of them. This SI implements the short distance exemption, which we could not implement after leaving the EU or during the period of the withdrawal agreement without primary legislation. If this SI had not happened, we would not have had this exemption. In the broader context, this issue is coming before your Lordships now because there has been quite a significant amount of consultation around this issue—necessarily, because it is very important indeed. The Government have taken as many steps as they can to provide as much certainty as possible to community transport operators, given the current constraints.

As I have said, the Government recognise the importance of the sector. However, we also need to ensure that where community transport operators compete for contracts with small, family-run commercial operators, competition is fair. That includes considering how operator licensing rules affect both these groups. That is why it is important that we do this: we need a level playing field. At the same time, we must ensure that we exempt those that can be exempted. It is clear that the previous position of a blanket exemption for the sector from EU law is not legally sustainable.

In this context, the Government consulted in 2018 on how to revise the guidance. We wanted community transport operators to understand whether they were exempt from the EU regulation on operator licensing and could carry on using community transport permits or whether they needed to apply for commercial operators’ licences, so they have been aware of this issue for a while. We received almost 500 responses to the consultation and were in contact with 550 stakeholders at stakeholder events. These were people and organisations from across Great Britain. The responses to the consultation highlighted that we have to strike a delicate balance, and we have worked very hard to try to deliver that balance on the feedback that we received. But it must be pointed out that there was no consensus on this issue, which I suppose is where we are today.

My ministerial colleague Jesse Norman MP and officials from the department met members of the Bus and Coach Association during May 2018. Despite this, the association decided to launch a judicial review a few months later. The legal proceedings should eventually result in a definitive judicial interpretation of “exclusively non-commercial”, which will resolve the long-running debate about what it means and provide a way forward on this issue.

[Lord Berkeley]

Would the Minister be able to provide us with some numbers for the consultation? How many community transport operators were there, and how many small commercial ones? How many operators were trying to compete with a community one, and so on? It is easy to run a campaign by the small commercial operators who might run one minibus or coach and say, “We got 300 responses”, while the community people might not have had time to respond. It would be good to have those numbers and if she does not have them tonight, perhaps she could write to me.

[Baroness Vere of Norbiton]

I thank the noble Lord, Lord Berkeley, for asking that question. I will certainly have to write, as I do not have those numbers in front of me, but he makes an important and valid point and I will write to him.

There are three exemptions in EU law which can be used. The Section 19 and Section 22 permits guidance explain how two of them can be applied to the community transport sector. The first is the “main occupation exemption”. The guidance that we published explains how this exemption can be used by organisations whose primary activity is not transport; for example, schools, community groups or local authorities. We believe that this represents around half of the community transport organisations, which will fall into this group.

The second exemption is the short-distance exemption. This allows organisations which have a minor impact on the transport market, due to the short distances they travel, to be exempt. In defining 10 miles as a short distance, as noted by the noble Baroness, Lady Randerson, the Government believed that it was important to consider how these bus services work across the country. What is a short distance in a rural area may be a very long way in a big city, and rural areas are of specific concern when it comes to community transport. Where community transport operators provide bus services in rural areas, they have the flexibility to make the case that a short distance is longer than the automatic 10-mile distance. The noble Baroness noted some discrepancies in the application of the guidance. I would be grateful if she could share the specific pieces of evidence with me, then we will be able to review them and perhaps get to the bottom of what is going on.

Finally, the third exemption relates to the services which are non-commercial. The Government are not able to provide guidance on this exemption, as there is an ongoing judicial review in respect of it. However, as noted by the noble Baroness, Lady Randerson, the Government are clear that it would be premature for any local authority to end or withhold community transport contracts while this legal action is ongoing. The High Court has not yet given us a date for the hearing but we hope that it will be soon. Once the High Court has reached a decision, the Government will revise their guidance to give effect to it.

[Baroness Vere of Norbiton]

Without having seen the evidence, I obviously cannot make that commitment right now but I should imagine that if we can give any further guidance, we will certainly do so.

The Transport Select Committee acknowledged that this uncertainty has already impacted some community transport operators—there has been lots of concern about it in Parliament. There are real costs from uncertainty and implications from doing nothing at all, so the Government are able to provide clarity on two of the three exemptions. Where community transport operators can use either the main or the short-distance exemption, they do not need to wait for a High Court judgment. They can plan for the future and deliver important transport services with confidence.

We recognise that in certain circumstances, according to the impact assessment, there will be an impact on some operators. We believe that 50% of the operators will fall under the main occupation exemption, but there is the extent to which the remaining 50% will be able to take advantage of the new short-distance exemption. We hope that many of them will really consider that option, and that we will therefore be able to reduce the number of operators impacted.

[Lord Berkeley]

Following this exemption and the guidance to the traffic commissioners, surely the Minister is able to commit to advising the traffic commissioners on the two issues that are not subject to a JR to ensure that they understand what is going on. They can always have more guidance later, but they should have the present one now.