Greater Manchester Buses South Ltd v Greater Manchester Combined Authority

The claimant bus operators sought judicial review of the Mayor of Greater Manchester’s decision (25 March 2021) to make the Greater Manchester Franchising Scheme for Buses 2021. The core legal questions were whether the franchising authority had to redo the statutory assessment and statutory audit required by ss 123B–123G of the Transport Act 2000 in light of the COVID-19 pandemic, whether the non-statutory COVID Impact Report and Grant Thornton assurance review were lawful bases for a renewed consultation, and whether the second consultation and the Mayor’s eventual decision were irrational.

The court granted permission to proceed but dismissed the challenges. It held that the GMCA had carried out the statutory assessment and statutory audit required pre-pandemic and that there was no legal obligation to treat the COVID Impact Report as a fresh s.123B assessment or to obtain a further s.123D statutory audit before consulting again. The court found the decision to carry out a second consultation and the methodology used (scenario analysis and the ‘what if’ rebasing tests) were within the range of reasonable judgment in circumstances of acute uncertainty. The court also held consultees had sufficient material to respond intelligently and that reliance on Grant Thornton’s non-statutory Assurance Review was lawful in context.

Background and parties. These are two rolled-up judicial review applications by Greater Manchester Buses South Limited (Stagecoach Manchester) and Rotala plc challenging the Mayor’s decision to make the Greater Manchester Franchising Scheme for Buses 2021. The Greater Manchester Combined Authority (GMCA) and Transport for Greater Manchester (TfGM) carried out a statutory assessment in 2019 and a statutory audit by Grant Thornton. After the COVID-19 pandemic began, TfGM produced a separate COVID-19 Impact on Bus Franchising Report (the COVID Impact Report) and Grant Thornton produced a limited Assurance Review of that report. The GMCA held a second public consultation in late 2020/early 2021 and the Mayor made the Scheme on 25 March 2021.

Nature of claim / relief sought. The claimants sought quashing orders overturning the GMCA’s recommendation and the Mayor’s decision to make the Franchising Scheme. Their legal complaints were principally that (i) the statutory process under ss 123B–123G of the Transport Act 2000 had not been lawfully followed after COVID-19; (ii) the COVID Impact Report and Grant Thornton’s Assurance Review did not meet the statutory standards required for a fresh decision; (iii) the second consultation was procedurally defective because consultees did not have adequate information; and (iv) the GMCA’s and Mayor’s decisions were irrational.

Issues the court framed. The court considered, principally:

• whether the GMCA had to prepare a fresh s.123B assessment and obtain a fresh statutory s.123D audit in light of COVID-19;
• whether a further (second) consultation was lawful and adequate;
• whether the COVID Impact Report and Grant Thornton’s limited Assurance Review were lawful and sufficient for decision-making; and
• whether the GMCA’s and Mayor’s conclusions were irrational (including consideration of appraisal period, scenario methodology, scaling of benefits and affordability).

Court’s reasoning and key findings.

• The court accepted that the subject-matter was of high public importance and granted permission to proceed to full review, but emphasised the wide margin of judgment afforded to political and technical decision-makers on complex socio-economic matters, particularly in uncertain circumstances.
• The statutory scheme in the Transport Act 2000 prescribes minimum steps (an assessment under s.123B, an auditor’s report under s.123D, consultation under s.123E and a report under s.123G) but does not prevent the authority from commissioning or taking into account subsequent non‑statutory analysis. The June 2019 Assessment and its statutory audit remained lawful foundations.
• The GMCA was entitled, in light of the pandemic, to commission the COVID Impact Report to test whether the Assessment’s conclusions remained robust and then to carry out a further consultation. There is no textual or principled basis to hold that a single statutory consultation cannot be followed by further consultation where fairness and context require it.
• The COVID Impact Report was not required to be, and did not purport to be, a fresh statutory assessment under s.123B; nor was the Assurance Review required to be a s.123D audit of that report. The court held it was lawful for the GMCA to rely on the COVID Impact Report together with the existing statutory audit of the Assessment and to consider Grant Thornton’s limited assurance as part of the decision-making chain.
• On the merits, the court rejected the submissions that the scenario method, the simplified rebasing and ‘what if’ steps, the choice of a 30‑year appraisal period, or the way partnership options were treated rendered the decision irrational. The court found these were matters of difficult technical judgment, that consultees (including the claimants) were given substantial material and opportunity to respond, and that the GMCA’s and Mayor’s conclusions were within the range of reasonable responses to the unprecedented uncertainty caused by the pandemic.

Practical note. The court emphasised that decisions of this kind attract deference: the challenge was not a merits appeal but a review whether the decision-maker had acted unlawfully or irrationally; neither limb was established here.

The claim is dismissed. The court held that the GMCA and Mayor acted lawfully and within a wide margin of judgement. The GMCA had properly relied on the 2019 assessment and audit, lawfully commissioned and considered the COVID Impact Report and Grant Thornton’s Assurance Review, and lawfully carried out a second consultation; the decision-making and methodology were not irrational in the exceptional and uncertain context of the COVID-19 pandemic.