Bus services improvement partnerships
Partnership plans and schemes – inserted sections 3A and 3B
111.Section 3A(2) sets out the core requirements of what a partnership plan is and what it must contain.
112.Partnership plans operate at the strategic level and are to have three core elements, namely:
providing an analysis of the local services operating in an area;
determining policies relating to those services; and
setting objectives to be achieved within the life of the plan.
113.Partnership plans must also make provision for obtaining the views of those in the community using the local services about how well those services are working and make provision for when it is to be reviewed.
114.Section 3B(1) provides that a partnership plan must be underpinned by one or more implementation schemes (referred to in the Act as partnership schemes) which set out in detail how the desired improvements to services or standards required are to be achieved. Section 3B(2) confirms that further schemes may be made in relation to existing plans.
115.A partnership scheme may relate to the whole of the area of a partnership plan or any part of it. It will contain the standards of service that are expected of the operators of local services which have stopping places in the area of the scheme. It must also contain a requirement for at least one facility or measure to be provided by the local transport authority. Facilities will typically take the form of an investment in infrastructure, such as providing improved bus stops, whereas measures will relate to taking actions, such as restricting the number of times in a year that local authority roadworks occur on key bus corridors. It is also possible for a scheme to contain a requirement on a local transport authority or operator to take some other action designed to facilitate the operation of the scheme. This might include publicising the scheme or committing to meet on a regular basis to discuss matters.
116.Once a partnership scheme is in place, section 3F(1) confirms it will apply to all operators of local services within the area of the scheme. Failure to comply with the operational service standards of the scheme can lead to an operator being deregistered as an operator of a local service and therefore unable to provide services in that area (see sections 6(7ZA) and 6L of the 1985 Act, as added by section 37 of the Act). It is also open to the traffic commissioner to issue penalties under section 39 of the 2001 Act (as amended by paragraph 3(4) of the schedule of the Act) for non-compliance.
117.However, some types of services may be exempted from complying with partnership schemes. For example, it would be inappropriate for tour operators or community bus permit holders who stop in the area of a partnership scheme to have to comply with the service standards set for operators of local services. Regulations made under section 3M will set out the types of service that local transport authorities may decide to exempt from a scheme and can further provide that some types of service must be exempted.
Service standards – inserted sections 3C and 3D
118.Section 3C sets out what may be agreed by way of a service standard for inclusion in a partnership scheme. These standards may be in respect of almost any aspect of the service, from the buses used to provide the service, setting a maximum level for the fares that may be charged in certain cases through to design of tickets used.
119.Operators of local services in a scheme’s area will be bound by the scheme and the service standards contained in it. That will be the case even if a given operator did not participate in the preparation of the scheme and objected to it being made (a voting mechanism which is subject to a requirement for a sufficient number of persons to object).
120.There are two categories of service standard: route service standards (see section 3C(1)(a)) and operational service standards (see section 3C(1)(b)).
121.A ‘route service standard’ is one which relates to the frequency and timing of a particular service or, a particular service and other local services taken together (for example, where there are several services operating in an area, the route requirement can set frequency or timing requirements for a service which take into account there being other options available for bus users).
122.It is possible that, due to an increase in the number of operators, it may become impossible for a route service standard which, for example, imposes a maximum frequency of services, to be complied with. For example, it may be that services on a route are limited to operating four times an hour and there are now five operators each wishing to provide an hourly service.
123.In those circumstances, section 3D provides that the local transport authority which made the partnership scheme must modify the route service standard in such a manner as is necessary to make it possible for each registered operator to provide a service. This modification is a variation of the partnership scheme but, unlike other variations, the limited circumstances and the need to ensure that new operators are not prevented from entering the market on this ground, means that the full procedure for variation(5) does not need to be complied with. However, the section does contain a power enabling the Scottish Ministers to make regulations providing for the procedure to be followed before a modification may be made. Such regulations could include the requirement of notice being given or a consultation being carried out with persons who are likely to be affected.
124.The regulation-making power also anticipates that the effect of the modification may be postponed. For example, if the operators are able to agree a means of complying with the service standard without the need for a modification, that may be a preferable outcome.
125.An ‘operational service standard’ is a standard which relates to anything other than the timing or frequency of a service. Subsection (3) offers some examples of what may be imposed but it is not an exhaustive list (i.e. a standard could relate to other matters than those listed). These service standards can therefore cover a wide variety of different types of requirements that operators will have to comply with if they wish to run a service in the area of the partnership scheme.
126.Section 37(2)(a) of the Act includes a provision amending the 1985 Act which requires that service standards have to be recorded with the particulars of the service that are registered. This is to help ensure that the service standards are met.
Making partnership plans and schemes to implement them
127.Section 3A(1) enables a local transport authority(6) to make a partnership plan when it considers it appropriate to do so. This is a broad test which gives the local transport authority discretion as to when they wish to make a partnership plan. In practice this will be informed by discussions with the operators of local services in the area and those in the community using those services.
128.Section 3B(1) requires the making of at least one scheme to implement a partnership plan.
129.To make a partnership scheme the local transport authority must be satisfied that the scheme will contribute to the implementation of the policies that are in the partnership plan itself and their relevant general policies (section 3B(6)). In a situation where there are two or more local transport authorities acting jointly, each must be satisfied that the scheme will contribute to the implementation of their own relevant general policies.
130.In addition, the local transport authority have to be satisfied that the scheme will either bring benefits to users of the services by improving the quality or effectiveness of the services or otherwise reduce or limit traffic congestion, noise or air pollution.
Procedure for making a partnership plan or scheme - Part 1 of inserted schedule A1
131.To make a partnership plan and scheme or a partnership scheme or schemes in respect of an existing plan, the local transport authority must follow the procedure set out in Part 1 of schedule A1. That procedure involves giving notice to and consulting a range of interested people at different stages in the process. The process also gives operators of local services a right to be involved in the preparation of the partnership plan and the scheme. This collaborative working element recognises the intrinsic role that operators have in delivery of service improvements under any partnership plan and scheme that is put in place. Operators do not, however, have to participate in the preparation process if they do not want to.
132.Another significant aspect of the procedure is that the operators of local services in the area of a proposed partnership plan or scheme are given an opportunity to object to a draft partnership plan or scheme (paragraphs 4 and 5 of schedule A1). If a sufficient number of such operators object, the scheme cannot proceed and the local transport authority will either need to revise it and go through the process again or start again with a new proposal.
133.What will constitute a sufficient number of operators to prevent a partnership proposal from progressing will be set out in regulations (see Part 4 of schedule A1). This reflects that there will be a wide range of possible circumstances that need to be covered, taking into account both the number of operators and their share in the market, and that there may need to be regular updates to reflect different trends in how bus services operate.
134.The process also includes an opportunity for the local transport authority to modify the proposed partnership plan or scheme before formally making the plan or scheme. This is likely to arise where the consultation that has been carried out has raised issues that need to be addressed. Paragraph 7 of schedule A1 governs the procedure for this. Again the local transport authority must give notice of the modifications to persons with an interest and give the operators of local services an opportunity to object to the partnership plan or scheme as modified.
135.Finally, once the partnership plan or scheme has been made, the local transport authority must give a notice confirming that fact within the period of 14 days starting on the day after the partnership plan or scheme was made. The plan or scheme will not have effect if this notice is not given within the time period.
Traffic regulation orders – inserted section 3E
136.In some cases, to deliver what is proposed under a partnership plan or a scheme, it may be necessary for a traffic regulation order to be made. In many cases, the local transport authority will be the traffic authority and so will be able to proceed on that basis. However, for those roads where the traffic authority is the Scottish Ministers (within the meaning of section 121A of the Road Traffic Regulation Act 1984), section 3E of the 2001 Act requires that the creation, variation, postponement or revocation of a partnership scheme will have to be made with the local transport authority and the Scottish Ministers acting jointly.
137.In practice, this means that at the point it is identified that such a traffic regulation order is required (perhaps as part of the preparation of a partnership scheme), it will be necessary for the local transport authority to contact the Scottish Ministers in relation to the proposal and involve them in the process for finalising what is to be in the partnership scheme. The Scottish Ministers will become akin to a local transport authority at that point and will be a party to the final partnership scheme as made or varied. The precise working arrangements between the local transport authority and the Scottish Ministers will vary from scheme to scheme.
138.Paragraph 1 of the schedule of the Act amends section 1 of the Road Traffic Regulation Act 1984 to enable the local transport authority to make the necessary traffic regulation order. To do so they must have the consent of the Scottish Ministers.
Postponement – inserted section 3G
139.A local transport authority may also postpone the coming into operation of all or part of a partnership scheme by up to 12 months, or for such different period as may be specified in regulations made by the Scottish Ministers. This may be useful where there are unexpected circumstances which delay the provision of a facility or a measure or operators need more time to adapt to a new service standard. The procedure for postponing a partnership scheme (or any part) is set out in paragraphs 9 and 10 of schedule A1.
Variation and revocation of partnership plans and schemes – inserted sections 3H and 3I and Parts 2 and 3 of inserted schedule A1
140.Sections 3H and 3I set out the situations where a local transport authority may undertake a process to vary or revoke a partnership plan or a scheme.(7)
141.A partnership scheme may only be varied under section 3H where the local transport authority are satisfied that the scheme, as varied, will contribute to the implementation of the policies that are in the partnership plan itself and the relevant general policies of the local transport authority. In a situation where there are two or more local transport authorities working together, each must be satisfied that the variation will contribute to the implementation of their own relevant general policies.
142.In addition, the local transport authority have to be satisfied that the scheme as varied will either bring benefits to users of the services by improving the quality or effectiveness of the services or otherwise reduce or limit traffic congestion, noise or air pollution.
143.The variation of schemes specifically allows for new local transport authorities to join an existing partnership plan. This may be where services operate across the areas of the authorities or if the authorities wish to promote consistency across a region. In those circumstances the new authority (the prospective authority) must also be satisfied that the scheme as varied will contribute to the implementation of the policies of the partnership plan they are joining and their relevant general policies and bring benefits to service users or reduce or limit traffic congestion etc. in the same way as they would if they were making a plan. This replicates the situation that would arise if the prospective authority were proposing a new partnership plan for their area.
144.Part 2 of schedule A1 sets out the procedure for varying a partnership plan or scheme under section 3H. This follows a similar approach to that for making a partnership plan or a scheme in the first place with notices being given, operators having an opportunity to object to the variation or revocation and a confirmatory notice being given at the end. As with making a scheme, it is possible for an authority to postpone the coming into operation of a variation or a part of a variation for up to 12 months, or for such different period as may be specified in regulations made by the Scottish Ministers.
145.Subsection 3I provides that a partnership plan or a scheme may be revoked where the local transport authority consider it appropriate to do so. Where a partnership plan is revoked, the scheme or schemes that are in place to implement it must also be revoked. Similarly, if all the schemes relating to a partnership plan are to be revoked, the partnership plan itself must also be revoked.
146.Part 3 of schedule A1 sets out the procedure for revoking partnership plans and schemes. There are fewer steps to this procedure (in that there is no need to prepare the revocation or modify the proposals) but operators still have an opportunity to object to the revocation. If a sufficient number object, the partnership plan and schemes may not be revoked.
Variation or revocation in accordance with the terms of a partnership scheme – inserted section 3B(10)
147.As part of a partnership scheme, a local transport authority and operators may decide to include provision for the scheme to be varied or revoked if certain conditions are met or events occur. For example, a scheme could provide that it will be revoked (or become revocable) if the number of users of the service do not meet the specified expectations within a certain time period. In this situation, the scheme will set out what is to happen and what process is to be followed.
148.The Scottish Ministers may make regulations under section 3M about the types of situations where this method of variation and revocation is available (or not available) and the process which may or must apply.
Competition test
149.Paragraph 3(2) of the schedule of the Act amends the competition test in section 37 of the 2001 Act to ensure it is applied whenever a local transport authority is considering making or varying a partnership scheme. That reflects the potential impact that such a scheme has in relation to the bus services market in an area. Where a scheme would have a significantly adverse effect on competition and that effect cannot be justified by reference to the benefits to be gained, the scheme cannot go ahead.
150.As a further competition safeguard, the Competition and Markets Authority are mandatory consultees at a number of stages in the process of making and varying partnership plans and schemes.
Reports on partnership schemes
151.Inserted section 3J requires each local transport authority to prepare an annual report on the effectiveness of each of the partnership schemes made by the authority which are still in force. Where the local transport authority are, in fact, a number of local transport authorities acting jointly it will be sufficient for one of them to report on the scheme, but the duty to co-operate in section 47 of the 2001 Act combined with the effect of inserted section 3L(3) will mean each may be required to contribute to the report.
Provision of information
152.Inserted section 3K enables a local transport authority to require relevant information from operators of local services when the authority is exercising functions in relation to preparing and making a BSIP plan or scheme; reviewing the effectiveness of a plan or scheme or determining whether and how to vary or revoke a plan or scheme. What constitutes relevant information for these purposes will be set out in regulations made by the Scottish Ministers and those regulations may specify circumstances in which information may not be required by the local transport authority.
153.Information required under section 3K may only be used for the specific purpose for which it was gathered. It is an offence to disclose this information other than to permitted persons (see subsection (8)). The permitted persons are a local transport authority, any person providing services to the local transport authority in connection with the function being exercised, and where section 3E applies (that is, where the Scottish Ministers are required to act jointly with the local transport authority), the Scottish Ministers.
Guidance
154.Section 79 of the 2001 Act, as amended by paragraph 3(6) of the schedule of the Act, will require a local transport authority to have regard to any guidance issued by the Scottish Ministers in relation to the authority’s exercise of the functions relating to a BSIP. This is intended to provide best practice advice in relation to the new provisions and regulations.
155.Any guidance issued must be published.
Multi-authority partnership plans – inserted section 3L
156.While the majority of the provisions simply make reference to a local transport authority making a partnership plan, it is open to 2 or more such authorities to act jointly to make a partnership plan and the necessary scheme or schemes. In those cases, where there is a reference to the area of local transport authority which is a combination of local transport authorities acting jointly, it is to the combined area of all of them. However, a reference to the relevant general policies(8) of a local transport authority is a reference to the relevant general policies of each of the local traffic authorities which are acting together.
157.Where two or more local transport authorities choose to work together to make a partnership plan, it will be for them to decide how best to achieve that administratively. This is supported by the duty in section 47 of the 2001 Act (as amended by paragraph 3(4) of the schedule of the Act) which requires authorities to co-operate in relation to BSIP arrangements.
158.However, section 3L(3) confirms that once the authorities start acting jointly in respect of a partnership plan or scheme, they must continue to do so for the life of the partnership plan or scheme. For example, it would not be open to one authority to revoke the partnership plan without the co-operation of the other authorities.
Further provision – inserted section 3M and Part 4 of inserted schedule A1
159.Section 3M confers power on the Scottish Ministers to make regulations about the BSIP arrangements. The regulations are expected to provide further details on a broad range of matters from the required content of a partnership plan or a scheme as well as in respect of a number of procedural matters.
160.Regulations made under Part 4 of schedule A1 will set some important aspects of the procedure for deciding if a partnership plan or scheme may go ahead (particularly in relation to which operators qualify as having a right to object). However, the nature of the material is such that it may need to be fairly specific to operate effectively and it is considered more appropriate that this is therefore left to regulations to enable adjustment and fine tuning in light of experience.
161.By virtue of section 81 of the 2001 Act, regulations made under section 3M may make different provision for different cases and classes of case any may include incidental, supplementary, consequential saving or transitional provision. This will allow the regulations to differentiate between the different types of operations and circumstances that exist and make tailored provision where necessary.
162.Further, section 81(3) provides that regulations under section 3M will be subject to the negative procedure. Section 81(4) (as amended by the schedule to the Act) provides that regulations made under paragraph 26 of schedule A1 will be subject to the affirmative procedure.
Interpretation
163.Section 48 of the 2001 Act is amended by paragraph 3(5) of the schedule of the Act to define a number of words and expressions for the purpose of the sections relating to BSIPs. The paragraph also removes redundant expressions relating to quality partnership schemes.
Registration of local service and functions of traffic commissioner – section 37
164.Section 37 of the Act makes a number of changes to the 1985 Act to deal with the implications of a BSIP plan and scheme being in place on the registration of local services and the functions of the traffic commissioner.
165.Several of the changes made in section 37 are aimed at ensuring that operators who are not in a position to comply with operational service standards are either refused registration under section 6 of the 1985 Act or are at risk of having such a registration cancelled if they do not comply. This therefore prevents operators from providing services which do not meet the imposed operational service standards and represents a significant aspect of the means by which partnership schemes are enforced.
Application for registration where partnership scheme in operation – inserted section 6K of the 1985 Act
166.Section 6K of the 1985 Act caters for situations where a partnership scheme has imposed an operational service standard on a local service and a person is either applying to be registered to provide that service or to vary an existing registration that they have in respect of that service.
167.The section requires the traffic commissioner to refuse such an application where the traffic commissioner considers that the applicant is unlikely to be able to comply with the service standard in relation to the services. The traffic commissioner does not have any discretion in this respect.
Cancellation of registration when operational service standards not met – inserted section 6L
168.Section 6L (read with the new subsection (7ZA) of section 6) enables the traffic commissioner to cancel a registration in circumstances where the traffic commissioner considers that an operator is not providing a registered service in accordance with an operational service standard that has been imposed in relation to the service (or services) that the operator provides.
169.It is worth noting that the wording of subsection (2) gives the traffic commissioner discretion about cancelling the registration in order to enable other means of resolving the situation to be explored first (including the imposition of penalties or attaching conditions to the registration).
Appeals – inserted section 6M
170.This section provides the Scottish Ministers with the power to make regulations for appeals against service standards decisions.
Scrutiny of operation of bus services improvement partnership – inserted section 6N
171.Section 6N of the 1985 Act applies where a BSIP scheme is in operation, and it appears to the traffic commissioner that the local transport authority may not be complying with their obligations under the scheme. In these circumstances, the commissioner may investigate the local transport authority’s actions and require the provision of information to support the investigation within such period as the commissioner specifies when requiring the information.
172.Where the commissioner has carried out an investigation, the commissioner must prepare and publish a report on the investigation. The report must set out whether the commissioner considers that the local transport authority is complying with its obligations under the scheme. If the commissioner is not satisfied, the commissioner may make appropriate recommendations, including specifying remedial actions that should be undertaken by the local transport authority.
See inserted section 3H, schedule A1 and the material on variations elsewhere in the document.
Local transport authority is defined in section 82(1) of the 2001 Act. As explained at paragraph 156 below, two or more local transport authorities may act jointly to put in place a partnership plan and scheme.
It is also possible to vary or revoke a partnership scheme where the scheme itself provides for that. See section 3B(10) and the further explanation elsewhere in the document.
Defined in section 48 of the 2001 Act.
