BCA: Talk needed to avoid the ‘nuclear option’

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The Bus and Coach Association remains committed to a legal solution to the scandal surrounding EU Regulation 1071/2009. But it is also willing to compromise on some things, says its leader Martin Allen

In the row surrounding section 19 and section 22 permit use, much has been said by community transport organisations (CTOs) and their supporters. But what of the other side of the fence?

The Bus and Coach Association (BCA) instigated the action to bring community transport in line with EU Regulation 1071/2009. The BCA will seek a Judicial Review if it is not enforced. That much is clear.

BCA leader Martin Allen reaffirms that its actions are solely to protect the interests of its members. One, he says, lost £500,000 worth of contracts to a CTO. Another was forced to lay off 20 staff.

A number of matters involving the BCA have not yet been reported. It held a meeting with Under-Secretary of State Jesse Norman on 16 May, and at the EU’s request, it and the Department for Transport (DfT) are working on a set of proposed exemptions from the Regulation.

But Martin has some significant concerns about how the DfT’s consultation has been handled. He also suggests that Lilian Greenwood, Chair of the Transport Select Committee (TSC), has been less than impartial in her dealings with the affair.

Minister ‘in shock’

The meeting was called following a TSC hearing where concerns were raised that the DfT was unwilling to listen to the BCA. “The minister wants to understand our argument. Myself and three other operators explained how it has affected us,” says Martin.The extent of that came as a shock to the minister, he adds, accusing the DfT of having not properly briefed Mr Norman.

“I have evidence that in September 2014, the DfT was told by a barrister that its interpretation of the Regulation was wrong. It paid for that legal opinion. Much of the blame for the current situation should be with the DfT.” That extends to how the consultation has been handled. Martin alleges that responses have been accepted from the CT sector outwith the formal portal.

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BCA alleges that consultation responses accepted outside formal portal

miniplus has seen an email from Mobility Matters Chair Anna Whitty detailing a private survey of CTOs that was to be submitted to the DfT. In it, she describes how CTOs’ responses otherwise made via the consultation portal would be visible to “the sector’s opponents.”

“It is wrong that the DfT has agreed to that survey forming part of the consultation. It could be construed that there is something to hide,” says Martin.

Where to next?

The BCA takes issue with those promoting an ‘end of the world’ scenario should the Regulation be enforced. Martin says that they are not painting a true picture, and that reality may not be an unmitigated disaster.

“Early in our campaign, the EU told us that, in its words, it would not let the BCA destroy the voluntary sector, ” says Martin

“It would only proceed with enforcement if we submitted proposals for the continuation of essential services in isolated areas. We are happy to do that. We do not want to see those services cease.”

The BCA has presented various ideas to the DfT. They are not set in stone and it is open to negotiation. But if they are not agreed upon within a certain timeframe, then the BCA is committed to seeking a wholly legal resolution. That would be much to the detriment of community transport.

Under the BCA’s proposals, essential services in rural areas could be provided by permit holders when directly funded by local authorities, although they would also be open to commercial operators. Drivers would be unpaid volunteers with a DCPC. In less rural areas, the BCA claims that commercial operators have the off-peak capacity to undertake essential services.

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If agreement on compromise is not reached soon, end will be nigh for CT

“A lot of details remain to be finalised, but there has to be a legal structure to this. We hear MPs and other parties claiming that people will be left housebound. That is not true. They use emotive language, but the only solution is a legal one.”

Legal option open

The BCA concedes that if agreement with the DfT is not reached soon, and the Regulation is enforced to the letter, it will spell the end for community transport.

“Our proposals will help to save some of the sector. We would sooner work with the DfT than against it, but if it continues on its current trajectory of ill-advised policy then we will take the legal option.”

To some CTOs that may sound like a hammer to crack a nut. But Martin and the BCA reaffirm that they bear no ill will to the small, rural CTOs that the DfT now has the chance to save.

“It is not those organisations that have damaged commercial operators. It is CTOs with multi-million pound turnovers and highly-paid managers.

“That cannot be allowed to continue. The law is clear; a definition of non-commercial has already been issued. The BCA is not going to back down. We are not going to go away,” he adds. The BCA also has the funds to pursue a legal solution, Martin continues.

The message to the DfT is clearer than ever before. Stop wasting time, stop prevaricating, and set to working out a solution.