Greater Manchester Buses South Ltd v Greater Manchester Combined Authority

A franchising authority may take account of substantial further, non-statutory analysis after preparing and auditing an assessment under the Transport Act 2000. A supervening event does not automatically require the statutory process to begin again. The authority may instead test whether the original assessment remains reliable, consult further, and decide what weight to give the additional material.

A statutory consultation may be reopened or conducted in phases where fairness and the circumstances require it. In reviewing complex socio-economic and policy judgments, the court should afford substantial weight to the democratically accountable decision-maker. The availability of Convention rights does not automatically require heightened scrutiny.

Two bus operators challenged the Mayor of Greater Manchester’s decision to make the Greater Manchester Franchising Scheme for Buses 2021. The challenges concerned the effect of the COVID-19 pandemic on the statutory assessment, audit and consultation process under the Transport Act 2000.

The operators argued that a new statutory assessment and audit were required, that further consultation was unlawful or irrational, that consultees lacked sufficient information, and that the economic, financial and scenario analysis was irrational. They also challenged the decision to proceed during continuing uncertainty and before further partnership proposals or government guidance were available.

1. Applications dismissed. The statutory assessment had been prepared, independently audited and consulted upon as required by the Transport Act 2000. The Act prescribed a minimum floor, not a ceiling, and did not restrict the information that could subsequently be considered.
2. The pandemic did not make a fresh assessment under section 123 B or a fresh audit under section 123 D legally mandatory. It was open to the GMCA to test the original assessment by further analysis, including the COVID Impact Report, and to decide whether to restart the process, proceed to further consultation, or abandon franchising. The further material did not itself need to satisfy the statutory requirements applicable to the original assessment and audit.
3. The June 2020 reports were not reports under section 123 G because they did not contain the GMCA’s response to consultation or the Mayor’s decision. The GMCA was not barred from holding a second consultation. Part II of the Act contained no such prohibition, section 12(1) of the Interpretation Act 1978 supported the ability to perform the statutory duty from time to time, and fairness could require consultation on the pandemic’s effects.
4. The second consultation was lawful. Consultees received extensive material, could obtain further information, were given additional time where requested, and made detailed responses. The consultation therefore enabled intelligent consideration and response.
5. The use of four scenarios and simplified “What If?” analysis was a matter of technical and policy judgment. The decision-makers explained the methodology, recognised its limitations and considered criticisms raised by consultees. The court was not conducting a merits review, and the conclusions were reasonably open to the GMCA and TfGM.
6. The choice of a 30-year appraisal period, the treatment of partnerships, the assessment of affordability and value for money, and the decision not to await further Department for Transport guidance or a new partnership proposal were all matters on which reasonable views could differ. They were considered and were not irrational.
7. The possible engagement of Article 1 of Protocol 1 did not require heightened scrutiny. The decision concerned broad socio-economic regulation and a multi-factorial evaluative judgment, requiring substantial weight to be given to the democratically accountable decision-makers.
8. The Mayor was entitled to conclude that franchising remained preferable, affordable and in the public interest notwithstanding uncertainty and potential effects on operators. The claims were dismissed.

This was a first-instance judicial review decision. An earlier application for interim relief by Rotala plc had been refused by His Honour Judge Davies, sitting as a High Court judge, on 24 March 2021.