Commentary on provisions of Act Combined and local authorities: governance, constitution and functions etc Section 21: Sub-national transport bodies
This Section inserts a new Part 5A into the Local Transport Act 2008 establishing Sub-national Transport Bodies (STBs), which will operate at a sub-national level on transport matters with the aim of furthering economic growth in their area.
	The Section sets out provisions which enable proposals put forward by STBs to be tailored to the individual needs of the area. Functions of the STB will be defined within the regulations made to establish the STB or subsequently under regulations under the new Part 5A.
	Section 102E allows the Secretary of State to make regulations to establish an STB as a body corporate for any area in England outside Greater London and requires the regulations to specify the name and area of the STB. Subsection (4) provides that the area of an STB must consist of the whole of the area of two or more relevant authorities. Subsection (5) defines a "relevant authority".
	Section 102F sets out that regulations can only be made if the Secretary of State considers that establishing an STB would facilitate the development and implementation of transport strategies for the area and that the effect of those strategies would be to promote economic growth in that area. Subsection (2) defines "transport strategies". Subsection (3) provides that regulations establishing an STB may be made only if the constituent authorities, of the proposed STB, have submitted a proposal to the Secretary of State and consent to the regulations being made. "Constituent authorities" of an STB means every relevant authority whose area is within the area, or proposed area, of the STB (subsection (4)). Before making a proposal the constituent authorities must consult each "appropriate authority" that is not a constituent authority and whom the constituent authorities consider appropriate (subsection (5)). The Secretary of State may also require the constituent authorities to consult any other persons (not already consulted) whom the Secretary of State considers should be consulted in connection with the proposal (subsection (6)). An "appropriate authority" is defined in (subsection (7)).
	Section 102G allows the Secretary of State to make regulations to provide for the STB’s membership, voting, executive arrangements of the STB (as defined in subsection (6)) and the functions of the executive body of the STB. Subsection (3) sets out that members of an STB must be appointed by the STB’s constituent authorities and that those members must come from the elected members (as defined in subsection (10)) of the constituent authorities. Subsection (4) sets out that where an STB chooses a member who is not an elected member of a constituent authority, they can only be a co-opted member and non-voting member of an STB. Subsection (7) provides for regulations to be made concerning the executive functions of an STB executive body. Those regulations may include provisions for setting up, dissolving or merging an STB, conferring functions on or removing functions from an executive body of an STB or transferring functions to and from the STB and STB executive body. Subsection (8) sets out that regulations may authorise an STB to delegate any of its functions, subject to conditions or limitations, to one or more of its constituent authorities. Subsection (9) stipulates that regulations in this section may not provide for a budget of an STB to be agreed other than by the STB.
	Section 102H allows the Secretary of State to make regulations to provide for an STB to have any of these functions for its area: (a) to prepare a transport strategy for the STB area; (b) to provide advice to the Secretary of State on the exercise of transport functions in the STB area; (c) to co-ordinate the carrying out of functions in the STB area that are exercisable by different constituent authorities with a view to improving the effectiveness and efficiency in those functions being carried out; (d) if the STB considers that a transport function in relation to its area would be more effectively and efficiently carried out by the STB, they may make proposals to the Secretary of State for the transfer of that function to the STB; and (e) to make other proposals to the Secretary of State about the future role and functions of the STB. Subsection (2) provides that the Secretary of State may make regulations to provide for an STB to have other functions as described in the regulations. Subsection (3) provides that regulations can only be made for functions to be exercised in relation to the area of the STB that (a) relate to transport; (b) the Secretary of State considers can be appropriately exercised by the STB; and (c) are not already exercisable in relation to that area by a local authority or a public authority, except where functions have been transferred under 102J or 102K. Subsection (4) provides that regulations may make further provision on how the STB is to carry out functions. Subsection (5) sets out that regulations made in relation to an existing STB may only be made with the consent of the STB. Subsection (6) provides that nothing in the section limits the power of the Secretary of State to confer other functions on an STB.
	Section 102I describes the transport strategy of an STB as a document containing the STB’s proposals for the promotion and encouragement of sustainable, safe, integrated, efficient and economic transport facilities and services to, from and within the STB area. The STB may include in its transport strategy any other proposals that relate to transport to, from or within its area (subsection (3)). The STB must publish its transport strategy or revised transport strategy (subsections (4) and (5)); and in preparing or revising its transport strategy an STB must carry out a public consultation, and in doing so must consult any of the listed persons as the STB considers appropriate (subsections (6) and (7)). In preparing or revising its transport strategy, an STB must have regard to (a) the promotion of economic growth; (b) the social and environmental impacts in connection with implementation of the proposals contained in the strategy; (c) any current transport related national policy published by or on behalf of Her Majesty’s Government; and (d) the results of the public consultation carried out (subsection 8)). The constituent authorities of an STB must exercise transport functions with the aim of securing the implementation of the proposals contained in the STB’s transport strategy.
	Section 102J permits the Secretary of State, by regulations, to provide for functions exercised by a local authority in an area that is, or is to become, an STB area to be exercised by the STB. Subsection (2) sets out that regulations may be made (a) only in relation to transport functions and (b) only if the Secretary of State considers that it is appropriate for the STB to exercise the function. The transferred functions may be different between STBs, reflecting the local context. Subsection (3) sets out that regulations may be made regarding functions that relate both to transport and to other matters but can be transferred only so far as the function is exercisable in relation to transport. Subsection (4) provides for the function to be exercised by the STB generally or subject to conditions or limitations as specified. Subsection (5) sets out that regulations may also provide for the function to be exercised by the STB instead of the local authority or for the function to be exercised by the STB concurrently with the local authority. Subsection (6) provides that regulations may be made only with the consent of the local authority concerned and, where regulations are made in relation to an existing STB, the STB.
	Section 102K permits the Secretary of State, by regulations, to provide for functions carried out by a public authority in relation to an STB area, to be carried out by the STB. Regulations under subsection (2), may be made (a) only in relation to functions that relate to transport, and (b) only if the Secretary of State considers them appropriate for exercise by the STB (subsection (2)). Subsection (3) sets out that regulations may be made with regard to a function that relates both to transport and to other matters, but may be transferred only so far as the function is carried out in relation to transport. Subsection (4) provides that regulations may provide for a function to be carried out by the STB either generally or subject to conditions or limitations specified. Subsection (5) sets out that regulations may make provision for the transferred function to be exercised (a) solely by the STB instead of the public authority or (b) jointly by the STB with the public authority. If the STB already exists, its consent is required before the Secretary of State makes any regulations under this section (subsection (6)).
	Section 102L allows the Secretary of State to pay grants to the STB to cover expenditure incurred in carrying out its functions and such grants may be subject to any conditions that the Secretary of State thinks appropriate. Subsection (3) allows the Secretary of State to make regulations that allow constituent authorities of an STB to contribute to its costs and about the basis on which the amount payable by each constituent authority is to be determined.
	Section 102M provides that an STB may do (a) anything it considers appropriate to carry out any of its functions and, as with local authority functions, this would vary from STB to STB. An STB may also do anything (b) it considers appropriate for purposes related to its functions or (c) anything it considers to be connected with any of its functions. An STB also may do, for a commercial purpose, anything it may do under paragraphs (a) to (c) but for non-commercial purposes. Power conferred on an STB by subsection (1) is in addition to other powers of the STB (subsection (3)). Where an STB has an executive body, the STB may delegate to that body its function of taking action but not the function of determining what action to take (subsection (4)).
	Section 102N does not allow an STB to do anything where there is a post-commencement limitation expressed to apply a) to its powers conferred by section 102M(1); (b) to all its powers; (c) to all its powers but with exceptions that do not include its power under section 102M(1). This section sets out that an STB is not authorised to borrow money (subsection (2)) or to charge a person for anything it does otherwise than for a commercial purpose; but with certain exceptions (subsection (3)). An STB is also not authorised to do things for a commercial purpose regarding a person, if a statutory provision requires the STB to those things (subsection (4)). The effect here is to ensure that an STB does not transfer functions to a commercial operator. Where an STB does things for a commercial purpose it must do them through a company or a registered society (subsection (5)).
	Section 102O allows the Secretary of State by regulations to make provisions preventing an STB from doing anything under the general powers section that is specified or described in the regulations. Under subsection (2) the Secretary of State may, by regulations, provide for the exercise by STBs of the powers (as provided in the general powers section) to be subject to conditions, whether generally or in relation to doing anything specified or described in regulations. Subsection (3) provides that before making such regulations the Secretary of State must consult representatives of the STBs, local government and any other person the Secretary of State considers appropriate. Under subsection (4) the Secretary of State is not required to consult where the regulations are made only for the purpose of amending earlier regulations, for example to extend earlier regulations, or any provision of the earlier regulations or so that the earlier regulations or any provision in the earlier regulations, cease to apply to an STB.
	Section 102P allows the Secretary of State by regulations to give an STB power to give directions to a constituent authority about the exercise of transport functions by the authority. This direction will only be possible if it is relevant to the implementation of the STB’s transport strategy. Subsection (3) provides that regulations giving a power to direct may include provision (a) for the power to be given generally or subject to conditions or limitations; (b) for the power to apply to all transport functions or only to those functions specified or described in the regulations; (c) about the manner in which the directions are to be given; and (d) about the consequences if there is a contravention of a direction given. Subsection (4) provides that regulations made about the consequences of contravention may include provisions enabling the STB to take any steps it considers appropriate to reverse or modify the effect of a constituent authority exercising a transport function in contravention of the direction and to recover any reasonable expenses incurred in taking those steps as a civil debt from the local authority.
	Section 102Q allows the Secretary of State to make regulations to change the boundaries of an STB’s area by (a) adding the area of a relevant authority to an existing STB area or (b) removing the area of a constituent authority from an existing STB area. Subsection (2) provides that regulations may be made (a) only if the constituent authorities have together made a proposal to the Secretary of State for the change in boundaries; (b) in the case of regulations adding an area, only if authority joining the STB area joins in the making of the proposal; and (c) in the case of a constituent authority exiting an STB, only if the resulting area of the STB still consist of the whole of two or more relevant authorities. Subsection (3) provides that regulations changing the boundaries of an STB’s area may only be made if the Secretary of State considers that the new STB area would still facilitate the development and implementation of transport strategies for the area and economic growth in the area would still be furthered by the development and implementation of the STB’s transport strategies. By subsection (4) regulations may only be made with the consent of the STB but also the consent of the relevant authority whose area would be added to the STB.
	Section 102R sets out provisions which allow an STB to change its name by a resolution which is to be considered at a meeting of the STB convened for that purpose. The resolution must be included in the notice of the meeting and the resolution must be passed at the meeting by not less than two-thirds of the members of the STB who vote on it. Subsection (5) requires an STB which changes its name under this section to (a) send notice of the change to the Secretary of State, and (b) publish the notice as the Secretary of State may direct. A change of name under this section does not affect the rights or obligations of the STB or render defective any legal proceedings (subsection (6)). Any legal proceedings may be commenced or continued as if there had been no change of name (subsection (7)).
	Section 102S enables the Secretary of State, by regulations, to make incidental, consequential, transitional or supplementary provisions in relation to regulations made under Part 5A. Subsection (2) allows regulations being made under Part 5A to make different provision for different STBs or otherwise for different purposes. Subsection (3) allows the regulations under Part 5A to include provision for the transfer under the regulations of property, rights and liabilities. Subsection (4) provides that the regulations may include provisions (a) for the creation or imposition by the Secretary of State of new rights or liabilities regarding anything transferred under the regulations; (b) for the management or custody of transferred property; and (c) for bodies to make agreements with respect to any property, income, rights, liabilities and expenses of, and any financial relations between, the parties to the agreement. Subsection (5) provides for a Henry VIII power. This provision allows the Secretary of State to make regulations to amend either primary or secondary legislation.
	Section 102T provides that regulations under Part 5A must be made by statutory instrument and for the affirmative resolution procedure to be used. Subsection (3) requires the Secretary of State to lay a report before Parliament at the time the draft statutory instruments are laid explaining the effect of the regulations and why the Secretary of State considers it appropriate to make the regulations. Subsection (3) provides that the negative resolution procedure shall apply to regulations made under section 102J(4) and (5)(b); section 102K(4) and (5)(b); section 102O(1) for the purposes mentioned in section 102O(4)(b); and section 102O(2). Subsection (6) disapplies the hybrid instrument procedure in respect of regulations under new Part 5A of the Local Transport Act 2008, which but for this subsection might otherwise be hybrid.
	Section 102U provides definitions for Part 5A of the Local Transport Act 2008.