Proposal by Transport for London to decriminalise red routes – provision of Traffic Warden Services

Report: 6
Date: 5 March 2004
By: Commissioner and the Clerk

Summary

This report advises the MPA of the proposal currently being considered by Transport for London (TfL) to decriminalise the existing Red Routes on the London Bus Network and sets out the legal position in regard to such a proposal. Further, TfL have proposed changes to the Special Services Agreement (SSA) which will enable MPA Traffic Warden services to continue to be provided, funded by TfL. The objectives (Appendix 1) as encompassed in the current SSA will be unaffected and these proposed, additional, services will be delivered as a sub-part of this Agreement. This report seeks the approval of the MPA to undertake detailed negotiations with TfL who, concurrently, will be undertaking a consultation exercise with other stakeholders on this issue. A further report will be brought to Members in due course. The MPA’s legal adviser, Ian Adamson, of Bircham Dyson Bell Solicitors will be in attendance for the committee meeting to advise members on any legal points on which advice is sought.

A. Recommendations

The Committee is asked to:

1. Concur with the proposal to enter into negotiations for the provision of traffic warden services to Transport for London.
2. Note that a further report will be brought to this Committee in due course.

B. Supporting information

Background

1. The operation and management of the Transport OCU, together with the responsibilities of the respective parties is detailed in the Special Services Agreement previously approved by the MPA. The agreement anticipated the possibility that TfL might wish to apply for decriminalisation at some point, and there are provisions (see below) within the SSA to accommodate this eventuality.

2. The offences which would be decriminalised in relation to TfL red routes (and which are currently enforced by MPS traffic wardens) include stopping offences relating to bus stops, single and double red lines on a red route, contravention of parking, loading and waiting restrictions and contravention of other parking restrictions – such as misuse of taxi ranks, disabled parking spaces and motorcycle bays.

The provisions of the agreement (SSA)

3. Schedule 16 to the agreement (Appendix 2) is exclusively devoted to decriminalisation. The schedule first provides that TfL will give MPA not less than six months notice of the date upon which decriminalisation will take place following the delivery of which notice the parties will attempt to agree upon whether decriminalisation requires more or fewer resources from the MPA and, if so, what the consequences of that will be.

4. Most importantly, however, should MPA determine that it will be possible to continue to enforce decriminalised offences, TfL is required by paragraphs 6 and 7 of schedule 16 to use (and to procure that others shall use) all their powers to consent to or enable MPA personnel to enforce the decriminalised offences. TfL will use the appropriate powers to authorise MPA personnel to enforce decriminalised offences should that possibility be available to MPA.

5. It is important to note that these paragraphs do not require or imply that MPA must enforce the decriminalised offences, simply that should such action be a possibility, then TFL will give or procure the appropriate consents.

Decriminalisation – legal position

6. The Road Traffic Act 1991 enables decriminalised offences to be enforced by “parking attendants” appointed by a local authority. Section 63A of the Road Traffic Regulation Act 1984 allows local authorities (a term defined to include TfL) to provide for parking places in their area to be supervised by parking attendants who must be either employees of the relevant authority or, where the work is “contracted out”, employees of the contractor.

7. Section 95 of the Road Traffic Regulation Act 1984, which authorises police authorities to appoint traffic wardens, permits a police authority to employ traffic wardens to act as parking attendants at street parking places provided or controlled by a local authority and s.95(4A) of that Act provides that TfL is a local authority for that purpose. Therefore, MPS traffic wardens may act under contract as TfL parking attendants.

8. That legislation envisages traffic wardens acting as parking attendants in addition to their normal functions as traffic wardens. Therefore a decision on the extent to which the MPS should maintain a traffic warden OCU could not be taken solely on the basis that they will act as contracted-out TfL parking attendants. Section 95 permits traffic wardens to be appointed “to discharge, in aid of the police, functions normally undertaken by the police in connection with the control and regulation of, or the enforcement of the law relating to, traffic”. Consequently, MPS will need to consider to what extent traffic wardens need to be appointed in any event, having regard to the effects of decriminalisation and its impact on the establishment and workload of the traffic warden OCU, before agreeing to their being contracted out as TfL parking attendants.

9. The statutory authority for traffic wardens to be permitted to enforce decriminalised offences will also extend to “dual designated” Police Community Support Officers (PCSOs) who are in law both a PCSO and a traffic warden. Those PCSOs who are not dual designated would also be able to enforce decriminalised offences but not on the basis of this statutory power. Unlike constables, PCSOs are not office holders and therefore it is possible for the same person to be employed both as a PCSO and a contracted out parking attendant at the same time and thus exercise both functions concurrently.

Operational independence

10. It should be noted that the operational independence of the Operational Commander will remain unaffected by any proposals.

Resource implications

11. If, post-decriminalisation, traffic warden services are provided to TfL then, as in the case of services currently provided by the Transport OCU, there would be no additional financial costs on the MPA budget. In the event that TfL decriminalised the red routes and did not require traffic warden services from the MPS, then unless the personnel affected could be found alternative, appropriate positions, some of these posts would be redundant.

C. Equality and diversity implications

At this stage there are no equality or diversity implications. If any should arise during negotiations they will be brought to Members attention in the subsequent report to this Committee.

D. Financial implications

The financial implications of the proposal will be reported to this Committee subsequent to negotiations with TfL.

E. Background papers

None.

F. Contact details

Report author: Commander Jo Kaye, Transport Operational Command Unit, MPS.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Transport OCU - objectives

Objective 1: To ensure the efficient movement of buses on agreed routes and corridors

Objective 2: To ensure the efficient movement of buses on agreed routes and corridors and other agreed priority locations on the London Bus Network.

Objective 3: Enforcement of the law relating to taxis and private hire vehicles (PHV) within the Metropolitan Police District to ensure the safety of the public, focusing on agreed priority locations.

Objective 4: To assist the control and, where possible, the reduction of congestion at agreed priority locations within the Metropolitan Police District.

Appendix 2

Schedule 16

Decriminalisation

The following provisions will apply in relation to Decriminalisation:

TFL will give to MPA not less than 6 months notice in writing of the day upon which any offences whose enforcement is contemplated as part of the Contractual Services under this Agreement will become Decriminalised Offences pursuant to action taken by TFL. Upon receipt of the said notice MPA will commence an assessment of the financial operational and any other impact upon the TOCU of Decriminalisation and will report thereon in writing to TFL and the CAC within the said period of 6 months. Within a further period of not more than 2 months from the delivery of the said report:

• if and to the extent that the parties agree that the resources (including any equipment specifically required to enforce Decriminalised Offences) available to the TOCU for the purposes of this Agreement need to augmented the Charges will be varied and thereafter paid by TFL;
• if and to the extent that the parties agree that the resources available to the TOCU for the purposes of this Agreement need to be reduced the Charges will be varied and thereafter paid by TFL and TFL will indemnify and keep indemnified MPA in respect of the Employment Costs and any other costs incurred by MPA in relation to the Equipment the Services and/or the Property arising out of the said reduction of resources as if clause 14 applied to the aforesaid Employment Costs and the costs of Equipment Services and Property;
• if and to the extent that the parties are unable to agree upon the impact on the TOCU of Decriminalisation the matter will be deemed to be a dispute for the purposes of clause 23 of this Agreement and will be treated accordingly.

Following compliance with the procedure set out in paragraph 1.3 above and to the extent that such procedures have failed to result in a resolution of the matter then if in the reasonable opinion of MPA the Consequences of Decriminalisation will cause unacceptable difficulties in relation to the delivery of the Contractual Services MPA may terminate this Agreement on such notice as will expire no later than the date by which Decriminalisation comes into effect and for the avoidance of doubt clause 14 shall apply to such termination.

If Decriminalisation occurs as a result of the action of a person other than TFL the parties will use all reasonable endeavours to apply the provisions of paragraph 1 of this Schedule to the circumstances that actually apply. If either party becomes aware that a third party may be contemplating Decriminalisation that party shall notify the other in writing as soon as reasonably practicable
MPA shall not be or be deemed to be in breach of this Agreement if Decriminalisation occurs as a result of the action taken by a person other than TFL to the extent and for the time that such action affects the ability of MPA to deliver the Contractual Services;

MPA shall not be nor be deemed to be in breach of this Agreement in respect of the enforcement of any Decriminalised Offence on any Local Authority Road for such time as consent to the enforcement of such offences is withheld or otherwise not granted by the relative Local Authority provided that MPA shall use all reasonable endeavours to procure the consent of such Local Authority to the extent that may be reasonably required to enable it to comply with its obligations under this Agreement and provided further that TFL will use all powers available to it to assist MPA to deliver the Contractual Services on roads utilised by Bus Routes controlled by persons other than TFL and in particular to obtain the consent of the relative Local Authority to permit MPA to use its powers to enforce the offences contemplated by this Agreement on roads controlled by that Local Authority;

TFL hereby gives to (and to the extent that it does not have the appropriate power undertakes to procure for) MPA the full consent and authority required by all applicable legislation to permit traffic wardens or other MPS Personnel while wearing the uniform of traffic wardens or other MPS Personnel to exercise such powers that they may reasonably require to enforce Decriminalised Offences and TFL further undertakes that it will not withdraw or permit the withdrawal of such powers whilst this agreement subsists unless such powers are withdrawn or otherwise become unavailable for reasons beyond the control of TFL and any consequent inability of MPA to deliver such part of the Contractual Services as may be dependent upon the availability of such powers will neither be nor be deemed to be a breach by MPA of its obligations under this Agreement. Provided that if such consents or powers are withdrawn for reasons beyond the control of TFL the procedure specified in paragraphs 1.1., 1.2 and 1.3 (as the case may be) shall apply. And Provided further for the avoidance of doubt that TFL shall exercise the powers specified in this paragraph at any time throughout the duration of this Agreement that they may reasonably be required by MPA.

To the fullest extent of the powers available to it TFL shall grant or shall take all necessary steps to procure the grant to MPA of such powers as may be required by MPA for police officers traffic wardens or other MPS Personnel to enforce any Decriminalised Offence on any road in respect of which TFL is (either itself or on behalf of GLA or any other authority) the enforcing body and will take all necessary steps to prevent such powers being removed while this Agreement is in force.
For the duration of this Agreement one member of the TOCU (whose identity shall be determined by the Operational Commander) shall be invited to participate in the Enforcement Task Force or such other body as shall replace it from time to time.

In the event that as a consequence of Decriminalisation MPA needs to reduce the number of staff in the Central Ticketing Office the MPA shall use all reasonable endeavours to redeploy such staff and in the event that the MPA is unable to redeploy such staff within a period of three months the parties shall negotiate in good faith with a view to agreeing proposals for the redeployment of such staff or as to how any redundancy costs in respect of such staff should be met.

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