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Local Transport Bill [HL]

My Lords, ours is a better test. Under the devolution settlement, it is of course up to Wales to frame the precise test that it wishes to apply. There would not be much point in devolution if we had to replicate the provisions that the Welsh put in place in every respect. The effect of our tests is to protect the public interest precisely as we would wish to ensure effective bus services, and to protect the legitimate commercial interests of bus operators. On my noble friend’s Amendment No. 69A, on appeals to the Transport Tribunal, under the amendments made in the House of Commons the grounds for appeal against a local authority’s decision to make a quality contracts scheme would depend on whether or not the QCS board had in effect given the final version of the scheme a clean bill of health. Where the QCS board, which will be independent of both central government and the local authorities, has given such a clean bill of health, having examined all the facts of the case and considered all the opinions expressed in the consultation, the Government consider that it is entirely appropriate for the onward right of appeal to the tribunal to be limited to points of law. That would enable an appeal to be brought, for example, on the grounds that the authority had acted unreasonably in deciding to make the scheme, had acted with bias, or had fettered its discretion. There would therefore be a clear safeguard in the most unlikely event of a QCS board failing to identify a major flaw in the authority’s proposal. It is not correct to say that an operator would, as a general rule, have no right of appeal against an authority whose case for a quality contract scheme was based on unreasonable assumptions. However, where the final version of the scheme had not received a clean bill of health from the QCS board, an appeal could be brought on either points of law or on questions of fact, enabling a full-case review. The Government consider that these proposals provide an entirely appropriate level of protection, while avoiding unnecessary stages in the process, which, after all, could delay the implementation of schemes that are manifestly in the public interest. My noble friend asked me specifically why local authorities should be able to issue invitations to tender for quality contracts while an appeal to the Transport Tribunal is in progress. There is no statutory bar to local authorities beginning a tendering process while a judicial review is under way. We see no reason why the position should be different here. Of course, no local authority will be in a position to actually sign quality contracts until any appeals are fully discharged. I emphasise that we are not saying that local authorities must begin tendering during an appeal. Far from it; it would be for the authority to judge whether it would be appropriate in the particular circumstances of the case, bearing in mind the costs that the authority and others are likely to incur during the tendering process. My noble friend Lord Rosser’s amendment to Commons Amendment No. 122 seeks to provide added flexibility to allow a local authority to continue providing services as operator of last resort, beyond the proposed 12-month period. Nine months should be more than adequate time for an authority to procure a replacement service under a new quality contract. Even so, however, as I set out earlier, our new clause leaves the option to apply to the traffic commissioner for an extension of up to three months in case this should prove necessary. The purpose of the amendment is to provide an emergency stop-gap measure for a local transport authority, not to re-establish local authorities as long-term providers of local bus services. The Government consider that a line needs to be drawn somewhere. If a local authority has been trying to find a replacement operator for a whole year and finds itself unable to do so, it is extremely hard to see what is going to change in month 13 or beyond. I therefore hope that my noble friend is persuaded that his amendment is unnecessary. We have given considerable powers and discretion to local authorities to act as operators of last resort where services have not proved viable, or have had to be terminated for any other reason.