This is a reply to the CPT Letter to it’s Members dated 10th March 2014.
Open Letter March 2014
BCA is issuing this open letter in direct response to correspondence from CPT’s Mr McNally, Regional Manager for East Midlands and Yorkshire Regions. Mr McNally wrote to CPT members regarding information our organization has recently made public, because in their view, BCA’s UK-wide message was without foundation or fact.
It is not BCA’s intention for an on-going written battle to commence regarding this, however, the record needs to be put straight. Everything that the BCA has claimed can be supported with evidence and we note, that in Mr McNally’s response to his members, he has not supported what he has said with examples of evidence. We believe also, that he is incorrect for all the reasons we are outlining below.
BCA believes that there are 811 operator members and 152 supplier members in the CPT. This would make a total membership of 963. Why do we believe these figures are correct? Well, anyone can get membership information directly from the CPT’s own website. They advertise how many members they have so when Mr McNally claims that the CPT has more than 1,000 members this is incorrect.
I am afraid that BCA must take issue with the CPT in its claim to be the voice for the industry. Who says they are this voice? The CPT? I have not heard anyone inside or outside of the industry to make this claim other than the CPT. It is strange they make such claims when their membership numbers equal just 9% of the 9,090 transport operators.
Section 19/22 Permits
BCA has logged several hundreds of letters of complaint from both CPT and non
CPT members regarding issues surrounding Section 19/22 Permits. They are seriously concerned about the lack of a level playing field that has worsened since 1991 when the UK government was allowed a derogation to implement these permits. At that time, there were only 15 member states in Europe and all the other 14 signed up to a requirement for drivers of minibuses to hold a PCV license. The UK was allowed the derogation. This was because so many minibuses were driven by volunteer drivers for charitable purposes.
What is not common knowledge however, is that a derogation is allowed for seven years. In those seven years there was a requirement for our government to begin a rolling programme to change over this system so that eventually when the seven years was up, all minibus drivers would hold a PCV license. Instead of this happening, this country has seen a marked increase in the number of permits issued, often by a designated body such as a local authority or the Community Transport Association and not a Traffic Commissioner. Lobbying through ‘quiet diplomacy’ as the CPT’s preferred method, is in the BCA’s view, hiding the truth that everyone including their members have a right to know about. Why has the CPT not told its members about this seven year rule?
The issue of state aid has absolutely nothing to do with the CPT. Martin Allan from the BCA is the individual who is the official complainant regarding state aid and how it has been used, not the CPT, therefore the comments they have made are worrying to anyone in view of the fact that they do not and could not have any of the relevant paperwork to back up what they have claimed. This paperwork is held by the BCA and Martin Allen. For the CPT to tell its members that there was alternative legal opinion that the case may only result in relatively minor changers to Departmental Guidance is in BCA’s view both scandalous and at best, misleading. Martin Allan contacted the EU State Aid Department following CPT’s claims to establish the truth. The outcome was, that this EU department are able to provide evidence that they have not relayed any information back to the UK authorities in any form, nor has the EU given any indication to anyone including the CPT that Mr. Allen’s complaint is a lost cause. In fact, one of the reasons it is all taking time is the fact that his complaint has credence that cannot be ignored.
It has been said that Mr Allen and the BCA are frustrated that they were unable to influence the CPT to spend in the region of £100,000 of member’s funds on pursuing a legal action. Mr Allen is not a CPT member, has never been a member and never will be a member. Furthermore, he has not asked the CPT to finance any legal actions.
But more importantly, Mr McNally has stated that while there is a legal opinion that the UK government might have been found to be breaching state aid rules, that it was by no means certain that this would be found to be the case. The truth is this; this opinion was given by Lord Lester QC, one of the most highly regarded barristers with expert knowledge of EU law.
Four legal opinions cannot all be wrong.
The CPT are not aware that BCA has another four legal opinions, one of which was a legal opinion sought by Swindon County Council’s own legal department following a complaint from a member of the public about the amount of money awarded to a Dial-a-Ride service. The Council in this instance was put into a position where it was necessary for them to obtain the legal opinion from top barristers in Bristol. Those same barristers’ opinions were that the Council was in breach of the state aid rules. BCA deals in facts and can support any claims it makes. The CPT quite clearly will be unable to do this either because it is incorrect in the statements it has made or, it does not have the evidenced paperwork, in particular, the paperwork held by the BCA which is confidential to our organization as its founder Martin Allen is the complainant and not the CPT.
Section 19 Permit operator enquiry
Recently the BCA received a correspondence from a person claiming to be the largest operator of Section 19 and 22 permits. This operator explained that he employs 800 people and has a 500 fleet operation. He claimed that other operators are flouting laws in respect of their permits. After carefully researching this operator, BCA found that their finances received were £11000,000 in grants in 2013 and 10 million the year before, Worrying this company are not the biggest one around. BCA has also found that the biggest operator of community transport has a turnover of more than £40 million. All have one thing in common – they hide behind the structure of a charitable organization or not for profit limited company.
There are more concerns revolving around the legality of section 19 and 22
Operators may not be aware of the transport regulations. Prior to the access to the profession 1071/2009 directive, is a directive of 96/26/EC. Under article 2, section 3 it states “member states may after consulting the commission exempt from the application of all or some of the provisions in this directive to undertaking engaged in exclusively in certain road and passenger transport services for non-commercial purposes or having a main occupation other than that of a passenger transport operator. In so far as their transport operations may only have a minor impact on the transport market.” Could you class this as a minor impact? In the 1071/2009 directive regarding exemptions it reads undertakings engaged in road passenger transport services exclusively for non-commercial purposes of which have a main occupation other than that of a road passenger transport operator. The first test would be exclusively non-commercial, how can a section 19 or 22 operator bid for contracts against a commercial operator and this government’s view that it is exclusively non-commercial, this would never stand up in a court of law. The second test other than a transport operator, have these organisations engaged in transportation full time it cannot fulfil this requirement. Moving to the drivers CPC directive 2003/59/EC under exemptions; vehicles used in non-commercial carriage of passengers and for goods of personal use. This too fails the directive, then we will move onto the 91/439/EEC it reads provided that the vehicles are being used by non-commercial operators for non-commercial purposes and the driver provides his services on a voluntary basis. Finally we turn to the 1985 Transport Act; section 23 (a) the driver receives no payment for driving except reimbursement of any reasonable expenses incurred by him in making himself available to drive and an amount representing any earnings lost as a result of making himself available to drive in exceptional circumstances. According to the DfT, VOSA and the DVSA drivers. that pass their car test before the 01/01/1997 are eligible to be paid. After the 01/01/1997 they can only be paid out of pocket expenses as in the lines above. We have researched many documents relating to the way that these drivers can be paid, the only evidence we have found that they must be a volunteer, we have asked the above government bodies to clarify under what rule, regulation, directive, transport act that states these drivers can be paid. Unfortunately they are unwilling to answer. In previous emails regarding all of the above their responses to a colleague has been that it is the departments view. I have written to the department on 3 occasions with a view to clarify the law regarding the issues above. I have also written to the senior traffic commissioner and the Community Transport Association and have received no reply from either. We can supply any member or non-member any copy of correspondence to and from these government departments.
Please do not let us forget about the ruling in Northern Ireland regarding section 10b permit holders the same as the section 19/22 here in the UK bidding for contracts. The department of transports legal opinion is that permit holders bidding for contracts is a clear breach of the law within the 1071 directive. Can CPT give reason why they have never commented on the issue of this statement that came out of Northern Ireland? Please remember Northern Ireland is part of the UK and also in the EU.
I was sent an email today from a CPT member and this is what he had to say regarding the issues relating to the section 19/22 and state aid.
“Why don’t you offer them an opportunity for an open debate to be streamed live or held with all the CPT members present at a location to be agreed, let’s get to the bottom of all this before any more operators go bust”
My door is open, the Bus & Coach Association and the CPT should be working together there are serious issues at stake that need to be clarified by law as I have said. My door is open.
• BCA is more than willing to share its findings and evidence with anyone that would like to see it both CPT and non CPT members.
• BCA is an open book.
• BCA will not make statements that are not factual and that cannot be supported with evidence.
• BCA is thorough in its research.
Click the link below to view recent CPT letter to its members.