Operation, variation and revocation of franchising arrangements
Postponement of franchising framework coming into operation – inserted section 13M
216.In some circumstances, it may be necessary to postpone when a franchising framework is to come into operation as it relates to a particular local service. For example, this may be useful where unexpected events have occurred with the result that the preparations for launching a service are behind schedule. However, a local transport authority cannot postpone the coming into operation of a framework where the framework itself provides for its coming into force on a particular date. Where they need to do that, they should seek approval to vary the framework under section 13N.
217.Where the date of coming into force of the framework is determined by a franchise agreement, a local transport authority can postpone the date on which the framework (so far as relating to a local service) is to come into operation for up to a year. Before doing so, they must consult the operators who are likely to be affected by the decision, and the traffic commissioner. They must also then give notice in accordance with section 13M(4) of having gone ahead with the postponement. In a similar manner, they can postpone the coming into effect of a variation (in so far as relating to a local service).
218.The Scottish Ministers have power under subsection (5) to make regulations which may provide for a different maximum period of postponement.
Variation or revocation of franchising frameworks – inserted sections 13N and 13O
219.Sections 13N and 13O provide a means for a local transport authority to vary the terms of a franchising framework or revoke one before it comes to its natural end.
220.For both variation and revocation the local transport authority must request the traffic commissioner to convene a panel to approve the variation or revocation and supply a range of information as part of an application to the commissioner for onwards transmission to the panel to enable it to make its decision. The traffic commissioner must thereafter publish a notice under section 13O(2) (read with subsection (3) of that section) inviting representations from persons with an interest and the traffic commissioner is obliged to pass them to the panel once constituted.
221.In proposing a variation, it will be necessary for the local transport authority to consider many of the same issues as they did when proposing and assessing the framework in the first place. The documents that will result from that consideration are set out in subsection (3) of section 13N and form part of the application to the traffic commissioner. Where the local transport authority are proposing a variation which will have a material effect on the matters considered as part of the assessment prepared under section 13E, they may consider it necessary to carry out a new assessment of the framework (or a part of it) and, in those circumstances, the provisions around assessment, audit, consultation and modification apply to the variation as they applied to the original proposed framework by virtue of subsection (5). For minor variations, however, this will not be necessary.
222.The panel convened by the traffic commissioner has largely the same range of options in relation to its decision to approve a variation as it would have in relation to the making of a proposed framework. This includes, by virtue of section 13O(4)(b), the power to require the local transport authority to adjust the proposed variation.
223.In relation to revocations, the options available to the panel are slightly more restricted as there is no need for them to be able to require modifications to be made to a framework that is being revoked.
224.Once the panel has given approval, the variation or revocation must be publicised in the same manner as the making of a framework under section 13K.
Reports on franchising frameworks – inserted section 13P
225.A local transport authority must prepare an annual report on the effectiveness of the franchising framework. This obligation to report starts on first anniversary of the date when local services first start being provided under the franchising framework.
226.In preparing the report, the local transport authority have to consult such persons as they consider necessary to be able to assess the effectiveness of the framework and also must consider any other relevant representations which have been made to it relation to the period under review.
227.Once prepared, the report must be published in such manner as the local transport authority consider appropriate.
Non-implementation of franchising frameworks – inserted section 13Q
228.Section 13Q(1) acts as a long-stop provision to prevent franchising frameworks being made and left unimplemented for more than 12 months by providing for them to cease to have effect at that point. This also provides a means of extinguishing frameworks (short of formal revocation) where it transpires that franchise agreements cannot be entered into in respect of all the services in the framework (for whatever reason).
229.However, the framework is not extinguished if, at the time the framework would otherwise be extinguished, the local transport authority has applied for approval of a variation and the decision for that has not been made. In those circumstances, the expiry of the framework is suspended until either a decision is made refusing the variation (which will mean the framework ceases to have effect at that point) or, where the decision is to approve the variation, on a date six months after the date of approval (if the variation has not been implemented in the meantime by the local transport authority who sought it).
230.Subsection (4) enables the Scottish Ministers to make regulations amending the section to substitute a different period for when a franchising framework will expire. This is to enable the period to be adjusted in light of operational experience. Such regulations are subject to the affirmative procedure (see the amendment of section 81 of the 2001 Act in paragraph 3(7) of the schedule).
Provision of information – inserted section 13R
231.Section 13R 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 franchising framework; reviewing the effectiveness of a framework or determining whether and how to vary or revoke a framework. 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.
232.Information required under section 13R may only be used for the specific purpose it was gathered for and it is an offence to disclose this information other than to the permitted persons. The persons are a local transport authority, an auditor appointed under section 13F, any other person providing services to the local transport authority in connection with the function being exercised and the panel appointed under section 13J(2) or 13O(2).
Multi-authority franchising – inserted section 13S
233.While the majority of the provisions simply make reference to a local transport authority making a franchising framework or agreement, it is open to two or more such authorities to act jointly to make a franchising framework and the necessary agreements. In those cases, where there is a reference to the area of a local transport authority which is, in fact, 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(13) of a local transport authority is a reference to the relevant general policies of each of the local traffic authorities which are acting together.
234.Where two or more local transport authorities choose to work together to make a franchising framework, 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 franchising frameworks.
235.However, section 13S(3) confirms that once the authorities start acting jointly in respect of a franchising framework, they must continue to do so for the life of the framework. For example, it would not be open to one authority to revoke the framework or any agreement without the co-operation of the other authorities.
Further provision about franchising arrangements – inserted section 13T
236.This section confers on the Scottish Ministers a power designed to supplement the provision in the chapter with matters of administrative and procedural detail. Examples of the kind of thing in contemplation are listed in subsection (2). Subsection (3) anticipates that there is likely to be a particular requirement to deal with the transitional arrangements for the start, variation and end of franchising framework arrangements.
Defined in section 48 of the 2001 Act.
