Pushing back the glacier: it’s time for UK buses to diverge from EU law

The UK's exit from the inflexible legal structures of the EU will allow significant areas of UK bus policy to be objectively reviewed and modified for the first time in decades. The UK should use these new freedoms to help the bus sector prepare for the triple challenges arising from Covid, re-regulation and electrification.

European-originated law currently controls everything from the hours that bus drivers can work, and the training that they must receive, to the size of wing mirrors and doors, up to the framework for awarding operating rights, contracts and subsidies. After 47 years of membership, there are few areas of urban transport policy that are untouched by EU law. All this has happened by the "Monnet Method" whereby the EU institutions gradually and imperceptibly accumulate further powers, on a ratchet basis.

EU legislation generally approached the UK bus industry in two ways – either very slowly, or very quickly. Both modes tended to prevent effective scrutiny, and – contrary to popular opinion – the UK generally had no practical veto in most legislative areas.

Sometimes policy would appear as if from nowhere – usually as a result of decisions of the activist European Court of Justice (ECJ) which could overnight make new policy through rulings, or strike down domestic laws.

The majority of EU transport legislation developed via the "very slow" category, and trying to modify EU proposals often seemed like fending-off an approaching glacier with a small box of matches. Years would pass by while some piece of legislation moved tediously through the EU machinery of "trilogues", obscure committees and ministerial and parliamentary ratification. Very often no one was clear who had instigated any proposal, or why - other than the perennial demand for 'greater harmonisation'. The decision influencers (in the UK usually the CPT and the Department for Transport) were often the only domestic industry actors who fully understood the opaque EU processes, and much excellent work was done to bring some UK input into important areas of policy. Such arcane structures are inevitably dominated by those industry sectors and large corporates that can fund expensive lobbying operations in Brussels over sustained periods of time - something UK operators abs local government entities were unable and unwilling to do. Large state-owned companies, owned by, or connected to the French or German governments, were usually the winners. The UK also suffered from cognitive dissonance – in most EU countries public transport provision was, or remains, some kind of deficit-financed monopoly, and UK ideas around competition within the market, and passenger revenue risk, were generally alien to EU lawmakers.

At a certain point, the proposals would become law, and enter the 'acquis communautaire' – the corpus of powers acquired by the European Union. At that point there would be no effective way of modifying the legislation, and certainly no reliable way of instigating change domestically.

Moreover the European Court of Justice (ECJ) itself ruled in 1962, that European law is superior to all national law – a superiority which is nowhere defined in the European treaties themselves but was 'inferred' by the ECJ judges. This means that rulings of the activist ECJ also had the force of law in the UK, and have themselves significantly affected UK transport policy.

Over 47 years of membership, we have therefore allowed such laws and directives to accumulate unchallenged – indeed there was no way to repeal such legislation. In areas where the EU chose to legislate, the UK was effectively a colonial territory, receiving orders from the imperial capital, and the slow accumulation of powers has led to this strange state of affairs being accepted with remarkably little understanding or complaint.

This has now changed, and the time has come to subject such legislation to objective scrutiny. The economic justification for leaving the EU is to improve regulation by diverging from 'one size fits all' models.

Here are some suggestions for policy areas that can now be properly reviewed.

Driver hours – the safety logic of regulating driver hours is to manage risks arising from driver fatigue. The current separation between domestic and 'European' driver hours regulations has no clear basis in risk assessment or logic. Consideration should be given to a relaxation of current rules, within a framework set by objective, risk-based considerations of driver and passenger safety. The absurd '50km rule' is a particularly egregious example of a regulation with large inconvenience to passengers, and negative cost implications, which seemingly has no objective justification.

Driver training requirement – the mandatory requirement for 35 hours of periodic training every 5 years for the "driver CPC" is another example of 'harmonization' of EU law to conform with a continental tradition that itself has no clear, objective basis. Training should be outputs-based with a focus on delivering standards, and as such a matter for operators to determine; the current, arbitrary requirement should be scrapped. Driver standards should be defined by industry regulators and bus operators, who should be free to devise training programs that deliver the desired result.

Bus subsidy and regulation regime – for years attempts at reforming UK bus subsidy regimes have been hindered by the restrictions created by the 'Altmark' case and emerging EU law regarding public subsidies for local transport. These rulings have had the effect of prising open some of the decades-long 'grandfather rights' that have allowed favoured operators in mainland Europe to benefit from the direct award of operating rights by politically-friendly local authorities. Breaking up such monopolies may or may not be desirable, but it has little relevance to the UK situation. The justification for this intrusion was that local authorities would not adopt pro-market solutions if left to their own devices (which is, of course, an argument against local democracy), and the more substantial complaint is that some private operators benefit from discriminatory subsidies which enable them to win contracts outside their protected market. However the 'acquis' in this area have long complicated attempts at reforming UK bus subsidies and operating rights.

Given that bus services are by definition local, the structure of subsidies and regulation for UK urban transport should be a matter for UK transport and competition policy. This matter is now especially urgent, given the twin challenges of a post-Covid reduction in passenger demand, and the political desire to accelerate the electrification of local bus services. Repealing EU law in this area would significantly simplify the development of new policy and incentives, and in particular would assist the creation of local partnership schemes between operators and local authorities to modernise bus fleets, introduce public and private capital and enhance the provision of bus priority.

For almost half a century local transport policy has been increasingly detached from the sphere of national politics and democratic policy making. The scope of European law has constantly expanded into many purely domestic areas of transport policy that should be reserved for national or city region law-makers, accountable to voters. Given the challenges of the post Covid world, now is the time to review and adapt legislation that has been protected from effective political scrutiny for decades.