Local Transport Bill [HL]

House of Commons

Session 2007 - 08
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Local Transport Bill [HL]

Local Transport Bill [HL]
Schedule 2 — Competition test: amendments of Schedule 10 to the Transport Act 2000
101

      (2)
Where the standard of services specified in a VMA or VBA
includes any requirement as to maximum fares (see section
153(3)), any provision of that agreement relating to the setting,
review or revision of the maximum fare is not to be regarded as
constituting a price-fixing agreement for the purposes of sub-
5
paragraph (1).
The prohibition
20    (1)
Any VMA, VBA or qualifying agreement to which this Part of this
Schedule applies is prohibited unless it is exempt in accordance
with the provisions of this Part of this Schedule.
10
      (2)
The prohibition in sub-paragraph (1) applies in place of the
Chapter 1 prohibition.
      (3)
The Chapter 1 prohibition is the prohibition imposed by section
2(1) of the Competition Act 1998.
Agreements and decisions void
15
21
Any agreement or decision which is prohibited by paragraph 20 is
void.
Exempt agreements
22    (1)
A VMA, VBA or qualifying agreement to which this Part of this
Schedule applies is exempt if—
20
(a)
it contributes to the attainment of one or more of the bus
improvement objectives,
(b)
it does not impose on the undertakings concerned
restrictions which are not indispensable to the attainment
of those objectives, and
25
(c)
it does not afford the undertakings concerned the
possibility of eliminating competition in respect of a
substantial part of the services in question.
      (2)
In any proceedings in which it is alleged that the prohibition in
paragraph 20 is being or has been infringed by a VMA, VBA or
30
qualifying agreement any undertaking or association of
undertakings claiming the benefit of sub-paragraph (1) shall bear
the burden of proving that the conditions of that sub-paragraph
are satisfied.
Application of provisions of Competition Act 1998
35
23    (1)
The provisions of Part 1 of the Competition Act 1998 (“the 1998
Act”) specified in sub-paragraph (2) apply in relation to the
prohibition in paragraph 20 (and a VMA, VBA or qualifying
agreement to which this Part of this Schedule applies) as those
provisions apply in relation to the Chapter 1 prohibition (and an
40
agreement to which the provisions of that Chapter apply).
      (2)
The provisions are—
(a)
in Chapter 1, sections 3, 6, 8, 10 and 11 (excluded
agreements and exemptions);

Local Transport Bill [HL]
Schedule 3 — Detention of certain PSVs used without PSV operators’ licences
102

(b)
Chapter 3 (investigations and enforcement), except
sections 36 to 39 (penalties);
(c)
in Chapter 4, sections 46 to 49 (appeals);
(d)
Chapter 5 (miscellaneous), except section 54 (regulators).
      (3)
The application, by virtue of sub-paragraph (2)(d), of Chapter 5
5
includes section 52(1) of the 1998 Act; but this is subject to the
following modifications—
(a)
the reference to the passing of the 1998 Act is to be read as
a reference to the passing of the Local Transport Act 2008;
(b)
the reference to the Director is to be read as a reference to
10
the OFT.
      (4)
The application, in accordance with sub-paragraph (1), of the
provisions mentioned in sub-paragraph (2) is to be subject to such
further modifications as the Secretary of State may by order
provide.”.
15
Schedule heading
16
In consequence of the amendments made by this Schedule, the heading to
Schedule 10 becomes—
“Competition test: functions and agreements relating to buses”.
Schedule 3
20
Section 42

Detention of certain PSVs used without PSV operators’ licences

The Schedule that is to be inserted as Schedule 2A to the PPVA 1981 is as
follows—
“SCHEDULE 2A
Detention of certain PSVs used without PSV operators’ licences
25
Interpretation
1     (1)
In this Schedule—
“authorised person” means—
(a)
an examiner appointed by the Secretary of State under
section 66A of the Road Traffic Act 1988, or
30
(b)
a person acting under the direction of such an examiner;
“contents”, in relation to a vehicle, means any goods carried by that
vehicle which are not personal effects;
“immobilisation device” means any device or appliance which is an
immobilisation device for the purposes of section 104 of the Road
35
Traffic Regulation Act 1984;
“nominated custodian” is to be construed in accordance with
paragraph 6(1) below;
“operator”, in relation to a public service vehicle, means—
(a)
the driver, if he owns the vehicle, or
40

Local Transport Bill [HL]
Schedule 3 — Detention of certain PSVs used without PSV operators’ licences
103

(b)
in any other case, the person for whom the driver works
(whether under a contract of employment or any other
description of contract personally to do the work),
but this is subject to any regulations that may be made under sub-
paragraph (2)(a) below;
5
“personal effects” means—
(a)
any personal effects of any individual, and
(b)
any articles being carried by a vehicle for the purpose of their
delivery from one person to another.
      (2)
Regulations may make provision for any purpose of this Schedule or
10
regulations under it as to—
(a)
the person who is to be regarded as the “operator” of a public service
vehicle in such circumstances as may be specified or described in the
regulations;
(b)
the meaning of “owner” as regards a public service vehicle.
15
      (3)
Regulations made by virtue of sub-paragraph (2)(b) above may, in
particular, provide that the owner of a motor vehicle at a particular time is
to be taken to be any person in whose name the vehicle is then registered by
virtue of the Vehicle Excise and Registration Act 1994.
Detention of property
20
2     (1)
Regulations may provide that where an authorised person has reason to
believe that a public service vehicle adapted to carry more than 8 passengers
is being, or has been, used on a road in contravention of section 12(1) of this
Act, the person may detain the vehicle and its contents.
      (2)
Regulations made by virtue of sub-paragraph (1) above may not authorise a
25
person other than a constable in uniform to stop a vehicle on any road.
The vehicle and any other property detained, the passengers, and any personal effects
3     (1)
Regulations may, in connection with the detaining of a vehicle by virtue of
paragraph 2 above, make provision with respect to any of the following—
(a)
the vehicle;
30
(b)
any other property detained or to be detained by virtue of paragraph
2 above;
(c)
any passengers who have been travelling on the vehicle;
(d)
any personal effects remaining on the vehicle.
      (2)
Regulations under this paragraph must include provision requiring
35
passengers who have been travelling on the vehicle to be transported in
safety to their destination or to a suitable place from which to continue their
journey.
Immobilisation of vehicle
4     (1)
Regulations may provide that, before a vehicle is removed by virtue of
40
paragraph 6 below, an authorised person may—
(a)
fix an immobilisation device to the vehicle in the place where the
vehicle has been detained, or

Local Transport Bill [HL]
Schedule 3 — Detention of certain PSVs used without PSV operators’ licences
104

(b)
move the vehicle, or require it to be moved, to a more convenient
place and fix an immobilisation device to the vehicle in that other
place.
      (2)
Regulations may also provide—
(a)
that, on any occasion when an immobilisation device is fixed to a
5
vehicle, the person fixing the device must also fix to the vehicle an
immobilisation notice (see sub-paragraph (3) below);
(b)
that a vehicle to which an immobilisation device has been fixed may
only be released from the device by or under the direction of an
authorised person; and
10
(c)
that an immobilisation notice must not be removed or interfered
with except by or on the authority of an authorised person.
      (3)
In this paragraph “immobilisation notice” means a notice—
(a)
indicating that an immobilisation device has been fixed to the
vehicle,
15
(b)
warning that no attempt should be made to drive the vehicle or
otherwise put it in motion, and
(c)
giving such other information as may be prescribed.
Offences relating to immobilisation
5     (1)
Regulations may provide that a person—
20
(a)
who removes or attempts to remove an immobilisation device fixed
to a vehicle under regulations made by virtue of paragraph 4(1)
above, but
(b)
who is not authorised to do so in accordance with paragraph 4(2)(b)
above,
25

is guilty of an offence and liable on summary conviction to a fine not
exceeding level 3 on the standard scale.
      (2)
Regulations may provide that a person who removes or interferes with an
immobilisation notice in contravention of regulations made by virtue of
paragraph 4(2)(c) above is guilty of an offence and liable on summary
30
conviction to a fine not exceeding level 2 on the standard scale.
Removal and delivery of property into custody of nominated custodian
6     (1)
Regulations may make provision for an authorised person to direct that any
property—
(a)
detained by virtue of paragraph 2 above, or
35
(b)
consisting of personal effects remaining on a vehicle so detained,

be removed and delivered into the custody of a person (the “nominated
custodian”) specified in the direction.
      (2)
Regulations may provide that the nominated custodian must be a person
who—
40
(a)
is identified in accordance with prescribed rules,
(b)
has made arrangements with the Secretary of State, and
(c)
has agreed to accept delivery of the property in accordance with
those arrangements.

Local Transport Bill [HL]
Schedule 3 — Detention of certain PSVs used without PSV operators’ licences
105

      (3)
Arrangements falling within sub-paragraph (2) above may include
provision for the payment of a sum to a person into whose custody any
property is delivered.
      (4)
Regulations may also provide that an authorised person who has given a
direction by virtue of sub-paragraph (1) above in respect of a vehicle may
5
allow the driver of the vehicle to deliver persons or property falling within
sub-paragraph (5) below to their destination or some other suitable place,
before delivering the vehicle into the custody of the nominated custodian.
      (5)
The persons and property are—
(a)
any passengers who have been travelling on the vehicle,
10
(b)
any contents of the vehicle,
(c)
any personal effects remaining on the vehicle.
Informing persons that their property has been detained etc
7     (1)
This paragraph applies in relation to any property—
(a)
which is detained by virtue of paragraph 2 above, or
15
(b)
which consists of personal effects that remained on a vehicle so
detained.
      (2)
Regulations may make provision for informing persons who may be entitled
to any such property that it has been so detained or, as the case may be, that
it remained on a vehicle so detained.
20
      (3)
The provision that may be made by virtue of sub-paragraph (2) above
includes provision requiring—
(a)
the publication by an authorised person of such notices as may be
prescribed, and
(b)
the giving of notice by an authorised person to such persons as may
25
be prescribed.
Return of vehicle
8
Regulations may make provision authorising a vehicle detained by virtue of
paragraph 2 above to be returned to the owner, in prescribed circumstances,
without the need for any application under paragraph 9 below.
30
Application to traffic commissioner for return of vehicle
9     (1)
Regulations must make provision enabling the owner of a vehicle which has
been detained by virtue of paragraph 2 above to apply to the traffic
commissioner for the area in which the vehicle was detained for the return
of the vehicle.
35
      (2)
Regulations may, in particular,—
(a)
require notice of an application to be given to the traffic
commissioner within such period as may be determined in
accordance with the regulations;
(b)
require notice of an application to be made in such form as may be
40
prescribed.
      (3)
Regulations must prescribe the grounds upon which the owner may apply
for the return of the vehicle.

Local Transport Bill [HL]
Schedule 3 — Detention of certain PSVs used without PSV operators’ licences
106

      (4)
The grounds prescribed under sub-paragraph (3) above must include each
of the following—
(a)
that, at the time the vehicle was detained, the person using the
vehicle held a PSV operator's licence (whether or not authorising the
use of the vehicle);
5
(b)
that, at the time the vehicle was detained, the vehicle was not being,
and had not been, used in contravention of section 12(1) of this Act;
(c)
that, although at the time the vehicle was detained it was being, or
had been, used in contravention of section 12(1) of this Act, the
owner did not know that it was being, or had been, so used;
10
(d)
that, although knowing at the time the vehicle was detained that it
was being, or had been, used in contravention of section 12(1) of this
Act, the owner—
(i)
had taken steps with a view to preventing that use, and
(ii)
has taken steps with a view to preventing any further such
15
use.
Hearings by traffic commissioner
10    (1)
Regulations must make provision—
(a)
enabling the traffic commissioner to hold a hearing before
determining an application by virtue of paragraph 9 above;
20
(b)
requiring the traffic commissioner to hold a hearing, if requested by
a person who claims to be the owner;
(c)
as to the time within which the hearing must be held; and
(d)
subject to such provision as may be made by the regulations, for the
hearing to be held in public.
25
      (2)
Regulations must also provide that, if no hearing is held, the traffic
commissioner must determine the application within a prescribed time after
receiving notice of the application.
Consequences of the traffic commissioner’s determination
11
Regulations must provide that—
30
(a)
if the traffic commissioner determines that one of the grounds
prescribed by virtue of paragraph 9(3) above is made out, the traffic
commissioner must order the nominated custodian to return the
vehicle to the owner; and
(b)
if the traffic commissioner determines that none of those grounds is
35
made out, the vehicle may be sold or destroyed by the nominated
custodian, in such manner as may be prescribed.
Appeal to Transport Tribunal from traffic commissioner
12    (1)
Regulations must provide for an appeal to the Transport Tribunal against
the determination of the traffic commissioner.
40
      (2)
Regulations may—
(a)
prescribe the period within which an appeal must be made;
(b)
make provision for notice of any appeal to be given to each of the
following—
the Transport Tribunal,
45

Local Transport Bill [HL]
Schedule 3 — Detention of certain PSVs used without PSV operators’ licences
107

the traffic commissioner,
such other persons as may be prescribed.
Sale or destruction of vehicle where no application made under paragraph 9
13
Regulations may provide that, if no application is made to the traffic
commissioner in accordance with regulations made by virtue of paragraph
5
9 above, any vehicle detained by virtue of paragraph 2 above may be sold or
destroyed in such manner as may be prescribed.
Return or disposal of contents and personal effects
14    (1)
Regulations may provide that the nominated custodian may retain custody
of any property falling within sub-paragraph (2) below until—
10
(a)
the property is returned, in accordance with the regulations, to a
person who establishes entitlement to it; or
(b)
the property is sold or destroyed by the nominated custodian in such
manner as may be prescribed.
      (2)
The property is—
15
(a)
any property detained by virtue of paragraph 2 above;
(b)
any personal effects that remained on the vehicle so detained.
      (3)
Regulations may also make provision as to—
(a)
the period within which a person who claims to be entitled to the
property may make a claim for its return;
20
(b)
the requirements to be satisfied by a person who claims to be entitled
to the property (including requirements as to the person’s
entitlement); and
(c)
the manner in which entitlement is to be determined where there is
more than one claim to the property.
25
      (4)
The nominated custodian may not sell or destroy any property unless—
(a)
such steps as may be required by regulations made by virtue of
paragraph 7(2) above have been taken and no person has, before the
expiry of the period referred to in sub-paragraph (3)(a) above,
established an entitlement to the property; or
30
(b)
the condition of the property requires it to be disposed of without
delay.
Custody of property
15    (1)
Regulations must provide that while any property is in the custody of a
nominated custodian, it is the duty of the nominated custodian to take such
35
steps as are necessary for the safe custody of that property.
      (2)
Any such provision is subject to the powers of the nominated custodian to
sell or destroy property by virtue of this Schedule.
Proceeds of sale
16    (1)
Regulations must provide for the proceeds of sale of any property sold
40
under regulations made by virtue of paragraph 11(b), 13 or 14(1)(b) above—
(a)
to be applied towards meeting expenses incurred by any authorised
person in exercising functions by virtue of this Schedule; and