BUS SERVICES BILL DELEGATED POWERS IN THE BILL
Transcript of BUS SERVICES BILL DELEGATED POWERS IN THE BILL
BUS SERVICES BILL
DELEGATED POWERS IN THE BILL
MEMORANDUM BY
THE DEPARTMENT FOR TRANSPORT
INTRODUCTION
1. This Memorandum has been prepared for the Delegated Powers and Regulatory Reform
Committee to assist its scrutiny of the Bus Services Bill (“the Bill”). The Bill was
introduced in the House of Lords on 19 May 2016. This memorandum identifies the
provisions of the Bill that confer powers to make delegated legislation. It explains in each
case why the power has been taken and explains the nature of, and the reason for, the
procedure proposed.
PURPOSE AND EFFECT OF THE BILL
2. The Bill provides Local Transport Authorities (LTAs) with new powers to improve local
bus services, including by working with bus operators. LTAs are able to choose which
legislative tool is best suited to the local area and is likely to achieve the best results for
passengers.
3. The Bill also reflects the devolution deals that the Government has signed with local
authorities across the country. Some of the deals include the creation of a metro Mayor,
including in Greater Manchester, the North East, Sheffield and the West Midlands bringing
clear accountability and decision-making responsibility to the local area. Other deals, such
as that agreed with Cornwall, do not include provision for a Mayor, but still involve the
ambitious devolution of power and responsibilities.
4. Buses have featured strongly in the devolution deals agreed with local areas thus far,
reflecting the important role of bus services to local authorities and Local Enterprise
Partnerships (LEPs) looking to grow and develop their local economies. Many of the
authorities who have requested additional powers over bus services are aiming to provide a
more integrated and unified bus network with improvements in service quality and a
simplified ticketing offer to passengers.
5. The Bill makes provision for: (1) combined authorities in England with elected Mayors to
franchise local bus services in their area and for all LTAs in England to work with local
bus service operators in Enhanced Partnership Schemes (EPSs) that would develop a bus
strategy and network plan for the delivery of bus services, and (2) to promote better access
to route, timetable, punctuality and fares data so that anyone is better able to access it. The
Bill achieves this through amendments to the Transport Act 1985 and the Transport Act
2000 and other consequential amendments.
6. In summary the Bill -
introduces franchising and EPSs for local buses,
provides for Advanced Quality Partnership Schemes,
provides for ticketing schemes, registration and open data requirements, and
makes consequential changes to other provisions.
DELEGATED POWERS
7. The Bus Services Bill contains the following delegated powers.
Delegated Powers created by the Bus Services Bill
Clause 1 (j200): Amendments to Part 2 of the Transport Act 2000
Insertion of new section 113E(3): Power to clarify in regulations details about the measures
that may or may not be taken as a part of an Advanced Quality Partnership Schemes
(AQPS).
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This provision enables the Secretary of State to set out in regulations what would
constitute a measure for the purposes of an AQPS under new section 113C(4).
8. Justification: Clause 1 inserts new provisions in the Transport Act 2000 for AQPSs in
England that place particular obligations on authorities and bus operators who wish to
provide local services in the area covered by the scheme. The AQPS provisions in the Bill
broaden out the existing Quality Partnership Scheme arrangements in the Transport Act
2000. They developed from concerns expressed by bus operators and local authorities that
it will not always be in the interest of either tax payers or passengers for all Quality
Partnership Schemes to be linked to the provision of facilities by the LTA. This will be
especially true where improvements to facilities are no longer needed.
9. Under an AQPS a local authority, or authorities acting jointly, will be able to take
particular “measures” rather than, or instead of, providing specific facilities. Where
measures or facilities are provided in relation to bus routes in a certain area operators who
wish to provide local services in the area to which those measures relate must undertake to
provide services to a particular standard. New section 113E(3) provides for regulations to
make further provision about the “measures” which may or may not be specified in such a
scheme.
10. The Bill does not specify in detail what measures a local authority could take to initiate an
AQPS. An example of the type of ‘measure’ we envisage would be where an LTA agrees
to change its car parking policy by having less spaces and/ or higher charges in order to
discourage car use and encourage greater public use of local bus services. Measures could
also include changes to a road layout to create bus lanes or a bus only road. Detailed,
technical work is required with both local authorities and bus operators to identify the
range of measures that would be both realistic and appropriate for LTAs to adopt. The
nature of the measures that fall into this category will change over time as technology
(such as that for managing traffic) develops. We will also wish to learn from experience of
the new style schemes and clarify the types of measures which can be provided through
regulations. Section 113E(3) therefore provides the Secretary of State with power to
stipulate in regulations what constitutes a “measure” for the purposes an AQPS under
section 113C(4).
11. This power relates to a technical and detailed issue about how an AQPS will operate in
practice. It is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. The Government therefore considers that
the negative procedure would provide an appropriate level of Parliamentary scrutiny.
12. Similar technical and detailed issues for existing types of partnership scheme have
previously been made through regulations subject to the negative procedure. For instance,
section 119 of the Transport Act 2000 includes equivalent powers concerning the sorts of
facilities that a LTA can provide under a Quality Partnership Scheme (The Quality
Partnership Schemes (Existing Facilities) Regulations 2001 (SI 2001/3317)).
Insertion of new section 113K(1): Regulations about existing facilities or measures which
are already in effect.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This power allows the Secretary of State to make regulations about whether, and
if so how, existing facilities and/or measures can be included in an AQPS. It replicates, in
relation to facilities, current provisions relating to Quality Partnership Schemes in section
119 of the Transport Act 200. The existing section 119 provisions are amended in Schedule
1 of the Bill so that they will only apply in England if an English LTA makes a Quality
Partnership Scheme jointly with one or more LTA whose area is in Wales.
13. Justification: This power reproduces for an AQPS a regulatory provision in section 119 of
the Transport Act 2000 and broadens it to include existing measures, as well as facilities.
This occurs because the Bill replicates and then builds upon the existing provisions for
Quality Partnership Schemes. The equivalent existing Quality Partnership provisions will
apply only where one or more of the LTAs making the scheme is in Wales.
14. The Government’s intention is that in relation to facilities these powers should be used to
apply the existing provisions under the Quality Partnership (Existing Facilities)
Regulations 2001 (SI 2001/3317) so that the same policy position applies to AQPSs
developed after the Bus Services Bill receives Royal Assent. In particular, those
regulations require that:
(i) an existing facility may not be specified in a scheme if it was first provided ten years
before the local authority gave notice of a proposed scheme;
(ii) an existing facility provided more than five years before the local authority gave
notice of a proposed scheme cannot be specified in a scheme if any person who, on
that date, relies upon that facility in the provision of a local service has objected to it
being specified, and that objection has not been withdrawn.
15. This power is required as it is possible that the detail of the approach could need to evolve
over time, in the light of experience of AQPSs. The power relates to a technical and
detailed issue about how an AQPS will operate in practice. It is not considered to affect
substantially the provisions of an Act of Parliament, or to be a consideration of special
importance. The Government therefore considers that the negative procedure would
provide an appropriate level of Parliamentary scrutiny.
16. Parliament accepted that the negative procedure was appropriate for the equivalent power
at section 119 of the Transport Act 200, under which the Quality Partnership (Existing
Facilities) Regulations 2001 (SI 2001/3317) were made.
Insertion of new section 113N(1): Provides Secretary of State with powers to make further
regulations about AQPSs.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This power replicates provisions currently found in section 122 of the Transport
Act 2000 in relation to Quality Partnership Schemes. It gives the Secretary of State the
ability to make further provisions about AQPSs, in particular in relation to: procedures for
making, varying or revoking AQPSs; the services that may or must be excluded from
schemes; the handling of objections; the manner in which commitments and notice are to
be given; and other incidental matters. The existing section 122 provisions are being
amended by Schedule 1 of the Bill so that they will only apply in England if an English
LTA makes a Quality Partnership Scheme jointly with one or more LTA whose area is in
Wales.
17. Justification: The new provisions reproduce for an AQPS the existing provisions at s.122
of the Transport Act 2000 which apply to a Quality Partnership Scheme. This occurs
because the Bill replicates and then builds upon the existing provisions for Quality
Partnership Schemes. The existing Quality Partnership provisions will apply only where
one or more of the LTAs making the scheme is in Wales.
18. The Government’s intention is that these powers should be used to apply the existing
provisions under the Quality Partnership Schemes (England) Regulations 2009 (SI
2009/445) so that the policy position that currently applies to a Quality Partnership Scheme
also applies to future AQPSs developed after the Bill receives Royal Assent. All of the
issues concerned are technical matters which could potentially change over time in the
light of experience of AQPSs.
19. This power relates to detailed issues about how an AQPS will operate in practice. It is not
considered to affect substantially the provisions of an Act of Parliament, or to be of special
importance. The Government therefore considers that the negative procedure would
provide an appropriate level of Parliamentary scrutiny.
20. Parliament accepted that the negative procedure was appropriate for the equivalent power
at section 122 of the Transport Act 2000, under which the Quality Partnership Schemes
(England) Regulations 2009 (SI 2009/445) (“the 2009 Regulations”) were made.
21. The 2009 Regulations made provision about quality partnership schemes under which the
LTA, or two or more LTAs acting jointly, provide particular facilities at specific locations
along the routes used by local bus services, and operators of local services who wish to use
those facilities agree to provide services of a particular standard including any
requirements as to frequencies, timings and maximum fares. The 2009 Regulations defined
the grounds and procedures under which operators may make “admissible objections if
they do not agree to specific elements of a QPS scheme such as, for example, the
imposition of a maximum fare. The 2009 Regulations have been subsequently amended by
the Quality Partnership Schemes (England) (Amendment) Regulations 2009 (SI
2009/3248).
Clause 4 (j101): Franchising schemes
Insertion of new section 123A(4): Power to provide by regulations that LTAs may be
franchising authorities.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Affirmative procedures
Purpose: The clause will enable regulations to provide that categories of LTAs for areas in
England, including county councils, unitary authorities, combined authorities which are
not a mayoral combined authority (MCAs) and Integrated Transport Authorities, may also
be franchising authorities.
22. Justification: The Bill provides for MCAs to have new bus franchising powers as the
Government considers that they have the necessary skills and capabilities, together with
responsibility for public transport over a sensible and coherent geography. Government has
signed a number of devolution deals with MCAs in which access to franchising powers
have been promised.
23. The Government considers that some other LTAs whose areas are in England are also
likely to have the skills, capability, track record and geography to make effective use of
bus franchising powers. Cornwall Council is a good example of such an authority. We
would like the Secretary of State to be able to extend franchising powers to other
categories of LTAs in the future. We do not want to provide for these powers to be
available to such authorities automatically. This is because before deciding whether to
make regulations expanding the categories of franchising authorities, the Secretary of State
would like to consider whether there is interest from authorities other than Mayoral
Combined Authorities in pursuing a franchising approach, and consider any work that
other authorities are undertaking on whether the outcomes they wish to achieve in relation
to local bus services in their area could be realised through bus franchising. The
Government considers that it is important to come back to Parliament to debate the benefits
and implications of potentially opening up access to franchising powers to a wider group of
authorities. If regulations are made which add a category of LTAs to the list of franchising
authorities, any individual authorities in that category will still need the consent of the
Secretary of State before preparing an assessment of their proposed franchising scheme.
24. We believe that an issue of this importance should be subject to scrutiny through
Parliamentary debate and that the positive agreement of Parliament should be sought in
opening up access to franchising to other authorities. So we are proposing that this power
is only exercisable by the affirmative procedure.
Insertion of new section 123Q(3): Power to specify how a franchising authority or
authorities must determine any fee payable by a bus operator for processing a service
permit application.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to set out in regulations how a
franchising authority or authorities must determine the fee payable by bus operators for
processing a service permit application. The regulations may specify the maximum amount
of the fee.
25. Justification: The Bill introduces a “service permit” system which enables operators of
local bus services who are not operating under a local service contract, and would
otherwise be subject to the prohibition from operating in the area to which a franchising
scheme relates, to operate in such an area under a service permit. One example of when an
operator might apply for a service permit is in relation to a cross-boundary service, namely
where a service has its origin or destination outside of the franchising area but is not a
service identified by a franchising authority as a service to be provided under a local
service contract.
26. The Government’s view is that franchising authorities will incur costs in relation to
processing applications for service permits and it would like such authorities to be able to
charge for considering such applications on a cost recovery basis. The Secretary of State
would have the power to set out how the fee amount should be determined by the authority
making the charge, and to specify the maximum amount that can be charged.
27. The policy intention is to charge fees on a cost-recovery basis. The regulations will set out
the detail which authorities should take into account when calculating the fee locally. The
Government’s view is that this level of detail would not be appropriate to include on the
face of the Bill and that flexibility is needed, in terms of amending the regulations, to
ensure that the maximum fee level can be adjusted over time to reflect, for example,
increased efficiency in the consideration process.
28. We consider that the negative procedure affords an appropriate level of Parliamentary
scrutiny given the level of detail involved and the technical nature of the contents of the
proposed regulations.
29. There are several precedents where fee levels are set out in regulations which are subject to
negative resolution. Section 52 and section 60(1) of the Public Passenger Vehicles Act
1981, for example, are the enabling powers for the Public Service Vehicles (Operators'
Licences) (Fees) Regulations 1995 (SI 1995/2909).
Insertion of new section 123R(3): Power to specify conditions, or description of conditions,
which may then be specified in a notice published by a franchising authority or authorities
which sets out the conditions, or description of conditions, that the authority or authorities
may attach to a service permit.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to set out in regulations conditions, or
descriptions of conditions, which a franchising authority or authorities may then specify in
a notice and attach to service permits issued by the authority. The regulations may provide
for a condition requiring holders of service permits to participate in ticketing
arrangements.
30. Justification: Franchising authorities will determine whether or not to accept permit
applications in accordance with the criteria set out on the face of the Bill. Permit
applications must be granted if the service proposed will benefit persons making journeys
on local services in the area to which the franchising scheme relates, and will not have an
adverse effect on any local service that is provided under a local service contract in the
area to which the scheme relates. Franchising authorities will be able to attach conditions
to service permits when they are granted and once they are granted. An example of a
condition would be that the operator must accept certain tickets.
31. The reason for setting out the conditions that franchising authorities may specify in a
notice and then attach to permits in regulations, rather than on the face of the Bill, is that it
is anticipated that as more experience is gained of how franchising will work in practice,
and as technological advances are made (such as new payment mechanisms or new vehicle
technologies) the Secretary of State will need to be able to amend the conditions and
description of conditions to ensure that they remain relevant.
32. We consider that the negative procedure affords an appropriate level of Parliamentary
scrutiny because of the level of detail involved in specifying conditions and descriptions of
decisions which can be attached to a service permit.
33. An example of provisions which enabled regulations to be made, by way of the negative
procedure, which provide for similar levels of detail in the context of requirements for bus
operators is section 122 of the Transport Act 2000 under which the Quality Partnership
Schemes (England) Regulations 2009 (SI 2009/445) were made.
Insertion of new section 123S(3): Power to make provision about the period of notice
before a revocation or suspension of a service permit can take effect and, in particular, to
enable a franchising authority or authorities to revoke or suspend a service permit with
immediate effect on the ground that the public would be endangered if the service
continued to operate.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to make provision in regulations about
the period of notice that must expire before a revocation or suspension of a service permit
can take effect and, in particular, the regulations may enable a franchising authority or
authorities to revoke or suspend a service permit with immediate effect in specified
circumstances.
34. Justification: Franchising authorities will have the power to revoke or suspend a permit if
the criteria which must be satisfied before a service permit is granted are no longer
satisfied, if the service permit holder has failed to comply with a condition attached to the
service permit or if the continued operation of the service would endanger the public.
35. Regulations would set out the periods of notice that must expire before a revocation or
suspension of a service permit takes effect. Regulations would also enable a franchising
authority or authorities to revoke or suspend a service permit with immediate effect if the
revocation or suspension was on the ground that the public would be endangered if the
service continued to operate.
36. We take the view that it is appropriate to prescribe notice periods in regulations because it
is anticipated the notice periods may have to change once we gain more experience of how
the permit system will work in practice. It may be that if operators take the view that the
prescribed notice periods are too short, it may dissuade them from applying for permits.
Alternatively, longer notice periods may be required to provide more certainty for
passengers. Prescribing notice periods in regulations will provide flexibility should they
need to be amended in the light of experience. We consider that the negative procedure
affords an appropriate level of Parliamentary scrutiny because the prescription of notice
periods is a matter of technical detail. Enabling a franchising authority to suspend or
revoke a service permit, with immediate effect, to ensure the public is not endangered is
not, in the Government’s view, a controversial issue. A precedent for specifying details of
this nature in regulations, made by way of the negative procedure, is section 122 of the
Transport Act 2000 (as described above).
Insertion of new section 123T(7): Power to make provisions about appeals under this
section.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to set out in regulations the periods
within which appeals against decisions refusing an application, and imposing conditions on
a service permit must be brought; enable and require traffic commissioners to hold
hearings; and set out the time within which a hearing must be held and an appeal must be
determined.
37. Justification: The Government takes the view that it may well be necessary to amend
regulations setting out appeal procedures in the light of experience. Changes in the
application of technology and the complexity of case law that develops could also affect
decisions on appropriate time limits, together with changing levels of Traffic
Commissioner resources and time. This militates in favour of provision not being included
on the face of the Bill. The regulations will deal with procedural details and, as a result,
the Government takes the view that the negative process gives the appropriate level of
scrutiny.
38. Precedents for setting out details of this nature in regulations, which are subject to the
negative procedure, include section 122 of the Transport Act 2000 under which the Quality
Partnership Schemes (England) Regulations (SI 2009/445) were made. These Regulations
set out the period the LTA has to respond to objections by operators and the period that the
relevant operator has to appeal the decision to the Traffic Commissioner. Section 59 of the
Public Passenger Vehicles Act 1981 also contains powers enabling procedural aspects in
relation to public service vehicle operator licensing to be made by way of regulations (The
Public Service Vehicles (Operators’ Licences) Regulations 1995 (SI 1995/2908) are made
under this section).
Insertion of new section 123U(1), (3) and (4): Regulations about schemes.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This section enables the Secretary of State to, by way of regulations (1) make
further provision with respect to franchising schemes; (2) make further provision with
respect to service permits and (3) modify or exclude from the application of provisions of
Part II of the Transport Act 2000 in cases where franchising authorities vary or revoke a
franchising scheme, or propose to do so, or having varied the scheme decide to postpone or
propose to postpone.
39. Justification: The powers under this section are required to enable further provision to be
made with respect to franchising schemes, service permits and the application of Part II of
the Transport Act 2000 in relation to circumstances where schemes are varied or revoked
or where that is proposed. The way in which franchising schemes, and the issue of service
permits, work in practice will inform the decision on what needs to be included in
regulations made under these subsections. For example, franchising authorities will be
required to comply with certain requirements before introducing a franchising scheme
including-
(i) preparing an assessment of the proposed franchising scheme;
(ii) publishing a consultation document which includes a description of the area to
which the proposed scheme relates and the local services that are proposed to be
provided under local service contracts;
(iii) consulting with persons listed in section 123E(4); and
(iv) publishing a response to the consultation and decision on whether to make a
franchising scheme.
40. Once franchising schemes are made the provisions in regulations made under this power
are likely to need amending in the light of experience. For example, it could become
apparent that what is required to be included in the consultation needs to be amended to
ensure that the consultees are provided with the information they need to make an
informed response. Alternatively, it may become clear that further detail is required to
supplement the variation and revocation procedures, for example to provide further detail
regarding the procedure for giving notice, including who should be notified. We are not
proposing that secondary legislation made under this section should amend primary
legislation.
41. The regulations will deal with procedural details and, as a result, the Government takes the
view that the negative process gives the appropriate level of scrutiny.
42. This regulation making power is similar in substance to section 122 of the Transport Act
2000 which enables regulations to be made in relation to Quality Contract Schemes, such
regulations being subject to the negative procedure. Paragraph 20 and 21 above provide
further information about the use of section 122 powers.
Insertion of new section 123V(1): Power to make regulations for transitional provisions
about franchising schemes.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to make in regulations transitional
provisions in relation to the making of, operation, variation and revocation of franchising
schemes.
43. Justification: When a franchising authority makes a franchising scheme the bus market will
change when the prohibition in operating in a franchise area comes into effect. There will
be a transition from the current market to a system of franchising. There may also be a
transition period when a franchising scheme ends. As such, it will be necessary to make
detailed provisions, and we think that it is appropriate for these detailed procedural matters
to be set out in regulations and given the level of procedural detail involved, we also take
the view that the negative procedure would be appropriate.
44. There is a precedent for making transitional provisions in the Transport Act 2000 in
relation to Quality Contract Schemes, where regulations under the negative procedure may
be made under section 134. The power in section 134 has been used to make the Quality
Contract Schemes (Tendering Requirements) (England) Regulations 2009 (SI 2009/3244)
which prescribe certain exceptions from competitive tendering requirements, and impose
certain obligations on authorities making quality contracts.
Insertion of new section 123X(6) and (9): Power to make regulations in connection with
TUPE and pensions.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to set out in regulations further detail
regarding the TUPE and pensions provisions relating to employers and employees who are
affected by franchising.
45. Justification: The Bill will provide for TUPE to apply to employee transfers as a result of
franchising, and for employees who are transferred to be provided with comparable
pension arrangements. The regulations will be detailed and technical, and will set out how
TUPE provisions should be applied in the specific context of franchising. They will
include detail relating to how employees should be grouped, and how the employees
should be allocated to new employers. These regulations will need to be updated and
amended to ensure they remain aligned with parent TUPE legislation, and that the practical
application of the legislation is effective, together with reflecting any significant
developments in relevant case law.
46. These issues are both detailed and technical and we do not expect to be using this power to
make substantive policy (which is instead set out in the TUPE legislation) and we therefore
consider that the negative procedure would provide an appropriate level of Parliamentary
scrutiny.
47. There is precedent for detail of this nature relating to the application of TUPE and pensions
issues to the bus sector to be set out in regulations under the negative procedure in section
134B(6), (7), (8)(b)(ii) and (9) of the Transport Act 2000 - under which the Quality
Contracts Schemes (Application of TUPE) Regulations 2009 (SI 2009/3246) and the
Quality Contracts Schemes (Pension Protection) Regulations 2009 (SI 2009/3247) are
made.
Clause 5 (j102): Amendments to the Transport Act 1985
Insertion of new section 143A(3)(g): Power to obtain information about local services:
franchising schemes.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This clause enables a local authority to gather data from operators relating to
local bus services operated within the local authority area for the purposes of assessing a
franchising scheme.
48. Justification: The Bill will provide authorities with the power to request data from bus
operators relating to the services they operate for the purposes of conducting an assessment
of their franchising scheme.
49. The Bill sets out a list of information types that we expect will be required by the authority
for the purposes of conducting an assessment of its franchising scheme. It however
provides for further categories of information to be specified in regulations. We expect that
the nature of the information required to develop an effective business case for a bus
franchising scheme may change over time. The format of information required is also
likely to change as technology develops. Lessons will be learned from the experiences of
different local authorities as they pursue franchising, and the information which it is
appropriate to require, as different business cases are developed and consulted upon. It
would be very difficult to include an exhaustive list on the face of the Bill and if we
attempted to do so, there would be a reasonable expectation that some of the information
so provided by operators could be superfluous. We do not wish to place undue burdens on
business and so wish to develop and update the information requirements in the light of
experience and need.
50. These regulations will supplement the core information requirements set out on the face of
the Bill. As they will be detailed and technical in nature, developed through close working
with bus operators and LTAs and are likely to be updated and amended in light of
experience, we consider that the negative procedure affords an appropriate level of
Parliamentary scrutiny.
Clause 9 (j230): Enhanced Partnership Plans and Schemes
Amendments to Part 2 of the Transport Act 2000
Insertion of new section 138D(3): Power to make provision about measures which may or
may not be specified in an EPS.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This provision enables the Secretary of State to set out in regulations what would
constitute a measure for the purposes of an EPS under new section 138A.
51. Justification: An EPS is a new type of partnership scheme. It differs from an AQPS as it: is
designed for a wider geographical area; can be made provided there is appropriate support
overall from bus operators (rather than requiring all admissible objections to be resolved);
and includes a broader range of powers (for example in relation to ticketing schemes).
52. Several aspects of an EPS are similar to the provisions for an AQPS. As under an AQPS, a
local authority, or authorities acting jointly, can take particular measures in relation to bus
routes in the whole or a part of the area that the scheme will cover. New section 138D(3)
provides for regulations to make further provision about the measures which may or may
not be specified in such a scheme. This is equivalent to the power in the new section
113E(3) of the Transport Act, inserted by clause 1 of the Bill, in relation to an AQPS.
53. The measures taken by authorities could be direct and indirect. Direct measures could
include investment in buses or information provision about services. Indirect measures
could include investment in the road network to speed up journey times, or increased
parking prices in order to make travel on the bus a more attractive proposition and thereby
increase the service viability and potentially its frequency.
54. The Bill does not specify in detail what measures a local authority could take. Detailed
technical work is required with both local authorities and bus operators to confirm the
scope of the measures that would be both realistic and appropriate. The nature of the
measures that fall into this category will change over time as technology (such as that for
managing traffic) develops. We will also wish to learn from experience of the new style
schemes and clarify the types of measures which can be provided through regulations.
55. This power relates to a technical and detailed issue about how an EPS will operate in
practice. It is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. The Government therefore considers that
the negative procedure would provide an appropriate level of Parliamentary scrutiny.
56. Similar technical and detailed issues for existing types of partnership scheme have
previously been made through regulations subject to the negative procedure. For instance,
section 119 of the Transport Act 2000 includes equivalent powers concerning the sorts of
facilities that a LTA can provide under a Quality Partnership Scheme (The Quality
Partnership Schemes (Existing Facilities) Regulations 2001 (SI 2001/3317)). Those
Regulations make provision for the circumstances under which “existing facilities” would
form part of a quality partnership scheme and how objections to proposals are to be made.
Existing facilities may include bus stops, stands and other street furniture that is the
responsibility of the LTA. However, LTAs cannot include ‘facilities’ that were already in
existence before a specified time in a scheme.
Insertion of new section 138F(10) and 138G(9): Power to make regulations about preparing
and making of an Enhanced Partnership Plan and Scheme, specifically on the description
of services that are qualifying local services and the number of operators who would need
to object for a plan and/or scheme not to proceed.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Affirmative procedure
Purpose: These provisions enable the Secretary of State to set out in regulations key
elements of the arrangements for allowing operators to object to an Enhanced Partnership
plan and/or scheme. Sections 138F and 138G specify that an LTA will need to give all
operators of qualifying services in the area no less than 28 days’ notice within which to
object to the plan and/or the scheme. This is required both before and after the plan and/or
scheme is consulted upon. The LTA cannot proceed to the next step in making the scheme
if a sufficient number of operators of qualifying local services object to the plan and/or the
scheme.
57. Justification: The Bill contains detailed provisions about how the LTA should prepare and
make an Enhanced Partnership plan and/or scheme. It specifies how the authority should
allow operators the opportunity to object to the plan and/or the scheme and the need for the
LTA to conduct a consultation before it can adopt a plan and/or scheme. This secondary
legislation will specify who is able to object and the scale of objections needed to prevent
the plan and/or scheme from being taken further.
58. We anticipate that the regulations will need to be updated and change over time as the
nature of the bus market in England continues to evolve and technology develops. For
example, the relatively quick pace of development of real-time information and other
innovations in the public transport market could also impact on the scope of services
provided under the enhanced partnership provisions.
59. The number of bus operators who would need to disagree with a plan and/or scheme for it
not to proceed will be dependent on the nature of the evolving bus market. If the bus
market was to change through greater consolidation so that there were fewer, larger
operators in the future or to lead to the creation of a large number of new small or medium
sized operators entering the market, then we can foresee a need to revisit the requirements.
60. The Government’s intention is to strike a fair balance between the views of larger and
smaller operators in the making of an Enhanced Partnership plan or scheme. This would be
difficult to ensure if the voting mechanism that will apply for a proposed plan or scheme
was not specified in regulations.
61. The way in which this power is exercised could make a significant difference to the
effectiveness of the Enhanced Partnership elements of the Bill and could also have
particular impacts on smaller operators. The Government therefore considers that these
powers have particular importance and that the affirmative procedure would allow an
appropriate level of Parliamentary scrutiny.
Insertion of new section 138L(8): Power to make regulations about proposed variations of
an Enhanced Partnership Plan and Scheme, specifically on the description of services that
are qualifying local services and the number of operators who would need to object for a
proposed variation of a plan and/or scheme not to proceed to consultation.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The provision enables the Secretary of State to set out in regulations the
arrangements for allowing operators to object to the variation of an Enhanced Partnership
plan and/or scheme. Sections 138K and 138L specify that an LTA will need to give all
operators of qualifying services in the area no less than 28 days’ notice within which to
object to the variation of a plan and/or the scheme. This is required both before and after
the plan and/or scheme is consulted upon. The LTA cannot proceed to the next step in
varying the scheme if a sufficient number of operators of qualifying local services object to
the proposed variation.
62. Justification: The Bill contains the process under which an LTA can vary an Enhanced
Partnership plan and/or scheme. It specifies how the authority should allow operators the
opportunity to object to a proposed variation and the need for the LTA to conduct a
consultation before it can make a variation. This secondary legislation will specify who is
able to object and the scale of objections needed to prevent the variation of the plan and/or
scheme from being taken further.
63. The form of this power is identical to that at sections 138F(10) and 138G(9) discussed
above and the rationale for a secondary legislative power is the same. The impact of the
power, however, will be significantly less than that of the powers under sections 138F(10)
and 138G(9). This is because the Bill provides for an EPS to include provisions about its
future variation or revocation (see the new sections 138A(6)(c), 138E and 138K(7) of the
Transport Act 2000 inserted by the Bill). The arrangements specified under this power will
therefore only apply in relation to an EPS where: a sufficient number of operators have not
objected to the initial creation of a scheme in accordance with the arrangements set in the
regulations made under 138F(10), 138G(9); and the scheme concerned does not include its
own arrangements for variation.
64. The Government considers that this power will not have a significant impact on the
effectiveness of the Enhanced Partnership powers contained in the Bill and that it is not,
therefore, of special importance. The Government considers that the negative procedure
would give an appropriate level of Parliamentary scrutiny to the use of this power.
Insertion of new section 138M(8) and 138O(11): Power to make regulations on the
processes for varying or revoking an Enhanced Partnership plan and/or scheme.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to set out in regulations greater detail
on specific aspects of the procedure for varying and revoking an Enhanced Partnership
plan and/or scheme including on what constitutes qualifying local services, proportion of
operators who have to disagree for a proposed variation or revocation not to proceed, how
the disagreement is to be evidenced and the timescales for variation and revocation
procedures.
65. Justification: The Bill includes detailed provisions on how an Enhanced Partnership plan
and scheme can be varied or revoked. The provisions on timescales (e.g. how long the
operators should have to voice their disagreement with a variation/revocation) are
considered too detailed and technical for primary legislation. They are also likely to be
subject to change as more EPSs are made across England, as only with experience will it
be possible to determine how much and how often Enhanced Partnership plans and/or
schemes will be varied throughout their lifespan or revoked.
66. The form of parts (a) and (d) of these powers is identical to that at sections 138F(10) and
138G(9) and 138L(8) discussed above. The rationale for a secondary legislative power in
this instance is the same as in those cases, relating to likely changes in the bus market and
the need to learn from experience of EPSs. The impact of the power is considered to be
most similar to that under the new section 138L(8).
67. The arrangements specified under this power will only apply in relation to an EPS where: a
sufficient number of operators have not objected to the initial creation of a scheme in
accordance with the arrangements set in the regulations made under 138F(10), 138G(9); it
has been consulted on in accordance with the arrangements set in the regulations made
under 138L(8); and the scheme concerned does not include its own arrangements for
variation.
68. The Government considers that this power will not have a significant impact on the
effectiveness of the Enhanced Partnership powers contained in the Bill and so is not of
special importance. We therefore consider that the negative procedure would give an
appropriate level of Parliamentary scrutiny to the use of this power.
Insertion of new section 138P(1): Power to make Regulations on further provisions in
relation to schemes.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative Procedure
Purpose: The clause enables the Secretary of State to set out in regulations further detail
about Enhanced Partnership plans and schemes, namely:-
(i) further aspects of the procedure to be followed when making, varying or
revoking schemes,
(ii) the content or operation of schemes which include a requirement about the
frequency or timing of particular services or types of services;
(iii) the local services or classes of local services which must be, or may be, excluded
from schemes,
(iv) the making of traffic regulation orders in connection with schemes, and
(v) such other incidental matters in connection with schemes as the Secretary of
State thinks fit.
69. Justification: This power allows the Secretary of State to address a number of detailed and
technical issues, which will need to be developed in discussion with bus operators and
LTAs, in secondary legislation. Sub-section 138P(2) highlights the level of detail that is
envisaged which is expected to cover the means by which information is transmitted,
objections are raised and material is structured.
70. We anticipate that the regulations will need to be updated and change over time as the
nature of the bus market in England continues to evolve and technology develops. These
are matters which are also likely to require updating in the light of experience of utilising
the new Enhanced Partnership plan and scheme provisions, in order to ensure that they
work effectively in practice for both bus operators and LTAs.
71. This power is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. The Government therefore considers that
the negative procedure would provide an appropriate level of Parliamentary scrutiny.
72. The provisions for delegated legislation in this Clause are similar to powers in section 122
of the Transport Act 2000 for Quality Partnership and Quality Contract Schemes which
provide for technical procedural details to be set out in secondary legislation. Parliament
previously considered that it was appropriate for those powers to follow the negative
procedure. Paragraph 20 above, gives further information about the use of these powers.
Insertion of new section 138Q(1): Power to make transitional provisions about schemes.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The section gives the Secretary of State power to make by regulations about
transitional arrangements. These will include regulations about registration of services
operating before an EPS comes into force, the making, variation and revocation of plans
and schemes, including cancellation of registrations, notice given to operators of cancelled
services and provisions for operators to appeal the authority's decision.
73. Justification: Once the LTA has made an EPS in its area, the method of bus service
provision will need to transition to a system compliant with the EPS. It may be that certain
requirements of the scheme come into force at different times. As such, it may be
necessary to make detailed provisions relating to the processes to be followed when an
EPS is either coming into force or ending, and we think that it is appropriate for these
detailed procedural matters to be set out in regulations.
74. This power is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. The Government therefore considers that
the negative procedure would provide an appropriate level of Parliamentary scrutiny to the
use of this power.
75. The new provision replicates the precedent in current legislation for bus Quality Contract
Schemes, where regulations under the negative procedure may be made under section 134
of the Transport Act 2000. No transitional provisions have been set out in secondary
legislation made under section 134 because no Quality Contract Scheme has been
successfully introduced to date. However, we expect the take up of EPS to be higher, and
expect secondary legislation will be necessary to set out the transitional arrangements.
Insertion of new section 138S(6) and (9): Power to make regulations in connection with
TUPE and pensions.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to set out in regulations further detail
regarding the TUPE and pensions provisions relating to employers and employees who are
affected by EPSs.
76. Justification: The market continues to be deregulated under an EPS. However, a situation
could arise from the EPS where the authority would be obliged to tender for some services
in the Enhanced Partnership area (described below in relation to powers in clause 12).
77. The Bill will provide for TUPE to apply to employee transfers as a result of an EPS, and
for employees who are transferred to be provided with comparable pension arrangements.
The technical and procedural detail relating to how TUPE and pension protections are
applied in the EPS context will be set out in regulations because they may need to be
updated to reflect the practical application of the legislation and any significant
developments in relevant case law.
78. This power is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. The Government therefore considers that
the negative procedure would provide an appropriate level of Parliamentary scrutiny to the
use of these powers.
79. There is precedent for detail of this nature relating to the application of TUPE and pensions
issues to the bus sector to be set out in regulations under the negative procedure in section
134B(6) and (9) of the Transport Act 2000 - under which the Quality Contracts Schemes
(Application of TUPE) Regulations 2009 (SI 2009/3246) and the Quality Contracts
Schemes (Pension Protection) Regulations 2009 (SI 2009/3247) are made.
Clause 10 (j232): Amendments to Part 2 of the Transport Act 2000
Insertion of new section 143B(10): Power to make regulations describing relevant
information that an operator may be required to provide to a local authorities or local
authorities who are preparing an Enhanced Partnership plan and scheme.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This power allows the Secretary of State to make regulations specifying what
types of data an LTA may require from bus operators for the purposes of making,
reviewing and varying an Enhanced Partnership plan and/or scheme.
80. Justification: The need for a LTA to have information about the bus market in order to
develop an Enhanced Partnership plan and/or scheme is in many respects similar to the
need they would have to obtain information were they to be considering bus franchising.
The new section 143B inserted into the Transport Act 2000 by clause 10 provides for an
appropriate level of information to be provided to an LTA for the development, review and
variation of an EPS.
81. Where franchising is being considered the Bill requires the LTA to publish a detailed
assessment addressing certain specific issues (set out in the new section 123B in clause 4).
The Bill provides relatively broad powers (under a new section 143A inserted by clause 5)
for the LTA to acquire the information necessary. This is considered appropriate because a
move to a franchising regime will have long-term impacts on local bus markets and
operators and is a decision which rests solely with the LTA.
82. For an Enhanced Partnership the Bill has a broader requirement on the LTA (under the
new 138A(3) and (4) inserted by clause 9) to publish an Enhanced Partnership plan. The
Government wants the powers available to the LTA in these circumstances to relate only to
information that is likely to be required for the purposes of developing, reviewing or
varying the EP scheme.
83. The nature of the information required will depend on the way in which LTAs intend to
utilise the powers and may change over time – as new information sources become
available, the bus market develops and experience of how EPSs operate is gained. The
regulations made under this power will be both detailed and technical and require
discussions with both bus operators and LTAs.
84. We think, therefore, that it is appropriate for the detail relating to the types of information
that should be provided, as well as the format to be used, to be set out in regulations. Our
proposed approach follows the precedent in Section 122 of the Transport Act 2000 under
which the Quality Partnership Schemes (England) Regulations 2009 (SI 2009/445) were
made. Those regulations included provisions for requiring operators to provide information
to LTAs and Traffic Commissioners in certain circumstances.
85. The Government considers that the negative procedure would provide an appropriate level
of Parliamentary scrutiny for the use of this power.
Clause 11(j231aa): Registration of local services: Enhanced Partnership areas
Amendment of the Transport Act 1985
Insertion of paragraph (ha) into section 6(9): regulation as to variation or cancellation of
the record of a requirement under section 138A(5)(b) of the Transport Act 2000.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause enables the Secretary of State to set out in regulations the form and
the particulars of the records related to the variation or cancellation of requirements
related to stopping places in an EPS area.
86. Justification: The clause inserts an additional paragraph (paragraph (ha)) into existing
regulation making powers under section 6(9) of the Transport Act 1985. The provision
applies where the registration functions of a Traffic Commissioner have been delegated to
the LTA in accordance with section 6G. The Bill sets out what records must be kept and
what particulars must be subsequently supplied to a Traffic Commissioner. The new
paragraph (ha) will enable regulations to specify the form in which records must be kept by
the LTA in relation to variation or cancellation of services in an EPS area.
87. These are procedural and technical issues which may need to be varied in the light of
experience to ensure that the arrangements set out in the Bill work in practice. So we
consider that a secondary legislative power is appropriate.
88. Section 6 of the Transport Act, into which paragraph (ha) is inserted provides a number of
regulation making powers in relation to registration of local services all subject to the
negative procedure. The Government believes that given that context and the procedural
nature of the provision that is to be made under this clause the negative procedure will
afford an appropriate level of scrutiny over the use of these powers.
Clause 12(j231bb): Cancellation of registration etc. where EPS is in operation
Amendment of the Transport Act 1985
Insertion of new section 6E(6) and (8): Power to make regulations concerning cancellation
and control of registrations where an enhanced partnership scheme is in operation.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: Regulations may be made under this section for determining what services may
be registered in an EPS area in place of services whose registration are cancelled (because
they cannot be provided in accordance with a route requirement contained in the scheme)
and for how long. Regulations may also be made to revoke or postpone such cancellation.
89. Justification: The EPS can contain route requirements specifying timing and frequency of
services. The regulation making powers in this clause will deal with situations where:-
(i) the scheme determines a maximum frequency of services on a particular route and/
or a requirement for there to be particular timings of individual buses,
(ii) services are being provided at the maximum frequency, and/ or a new service does
not comply with a timing requirement, and
(iii) a new application is submitted to register a service on the relevant route that is not
compliant with (i) or (ii) above. If the registration authority were to reject the
registration application, it would create an ‘exclusive right’ without running a
tendering exercise, and this would not be compliant with legal obligations under EU
legislation.
90. In particular, the regulations will set out that if the situation described above arises, the
registration authority would have to cancel all registrations on the particular route with
effect from a date prescribed. Regulations will also specify in more detail how the situation
may be resolved. For example, the cancellation date may be postponed in order to give
time to all the operators running services on the particular route to agree, through a
competition law compliant qualifying agreement, to come to an arrangement that would
satisfy their needs as well as the requirements of the scheme as a whole, before any
cancellation date prescribed in regulations was reached. Regulations will make provisions
for awarding contracts if the operators cannot agree a qualifying agreement that would
satisfy the requirements of the scheme before the cancellation date.
91. These provisions are technical and detailed in nature and so we consider that they are
better suited to secondary legislation. The Government expects the circumstances in which
this power would be applied to arise relatively rarely, as the frequency requirements will
be included in the EPS and the scheme cannot be made if a sufficient number of operators
object. The Government therefore believes that detailed provisions about how the LTA
could deal with this scenario should be included in secondary legislation as they will likely
need amending in light of experience.
92. Details relating to applications for registration, variation and cancellation of local services
are currently provided for in regulations made under section 6 of the Transport Act 1985
and subject to the negative procedure. We view the circumstances in this case as similar.
This power is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. So the Government considers that the
negative procedure will afford an appropriate level of Parliamentary scrutiny given the
nature of the matters to which the powers relate.
Clause 13 (j231cc): Appeals
Amendment of Transport Act 1985
Insertion of new section 6F(4): Regulations relating to procedures for certain appeals in
relation to enhanced partnership scheme.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedures
Purpose: Under an EPS, the registration authority can be either the LTA or the Traffic
Commissioner. The Bill therefore provides for an appeals procedure against the relevant
registration authority. The Bill makes provision for regulations to be made for the purpose
of determining the detailed appeals procedure.
93. Justification: Under the Bill, the registration authority in an EPS area can be either an
LTA or the Traffic Commissioner. The Bill provides for an appeal against their decisions
on local bus service registrations to the relevant appellate body. If the LTA is the
registration authority, the appellate body is the Traffic Commissioner. If the Traffic
Commissioner is the registration authority, the appeal is to the Upper Tribunal. This clause
will enable regulations to set out the detailed procedures on how decisions made by a
registration authority in an Enhanced Partnership area may be appealed to the relevant
appellate body.
94. This setting out of details and procedures relating to appeals in secondary legislation
follows a precedent in section 9(3) of the Transport Act 1985.
95. This power is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. The Government therefore considers that
the negative procedure will afford an appropriate level of Parliamentary scrutiny for the
use of this power.
96. Parliament has considered previously that a negative procedure was appropriate for the
similar provisions at section 9(3) of the Transport Act 1985 which also provides for such
regulations to be subject to the negative procedure.
Clause 14(j231dd): Traffic Commissioner functions
Amendment of the Transport Act 1985
Insertion of new section 6G(9): Regulations relating to the delegation of Traffic
Commissioner functions where an EPS is in operation.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The Bill provides for registration functions to be delegated from the Traffic
Commissioner to the LTA in certain circumstances. Regulation may be made for the
purposes of carrying this section into effect including the precise powers to be delegated.
97. Justification: Registration functions are currently held by the Traffic Commissioner and the
Bill will permit these functions to be delegated to an LTA when an EPS is in operation.
Relevant registration functions that apply to services operating in the Enhanced Partnership
include applications to register and vary a service and the cancellation of a service. We
intend to work with the Office of the Traffic Commissioners, LTAs and bus operators to
define the precise, technical boundaries of which of these functions will and will not be
delegated. Our policy intention is that, as a minimum, the functions of a Traffic
Commissioner under sections 6, 6D, 6E and 6F of the Transport Act 1985 will be included.
98. The Bill provides that if the EPS contains route requirements wholly within the EPS area,
the registration function must be delegated from the Traffic Commissioner to the LTA as
this will help to avoid creation of a confusing mix of registration requirements between the
LTA and the Traffic Commissioner. If the scheme does not contain any such route
requirements, the LTA may elect to carry out the relevant registration function anyway but
it must notify the Traffic Commissioner of its decision. The delegation of these functions
from the Traffic Commissioner to the LTA will come to an end when the relevant scheme
in question ceases to operate.
99. The Government is keen that the delegation of powers works effectively in practice and
wishes to have the ability to amend the precise, technical boundary of the powers to be
delegated as experience demonstrates is required. Including this secondary legislative
power will allow the Government to respond to any unforeseen practical issues that arise in
the operation of these delegated powers and learn from experience of EPSs in practice.
100. Regulations made under this clause will supplement existing provisions to deal with
situations where functions are delegated from the Traffic Commissioner. Details relating to
applications for registration, variation and cancellation of local services are currently
provided for in regulations made under section 6 of the Transport Act 1985. So we are
following the precedent set by existing provisions for this sort of detail to be set out in
secondary legislation, rather than on the face of the Bill
101. This power is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance – given than that the intention to delegate
powers of this nature, and the circumstances in which that is possible or required, are set
out on the face of the Bill. The Government therefore considers that the negative procedure
will afford an appropriate level of Parliamentary scrutiny.
102. Our proposed approach is consistent with the view taken previously by Parliament that
regulations made under section 6 of the Transport Act 1985 should be subject to the
negative procedure.
Insertion of new section 6H(3): Fees relating to relevant registration functions
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The Bill gives power to a LTA to charge a registration fee if the LTA is the
responsible registration authority in the EPS area. Details about the fee, when and how it is
to be paid will be set out in regulations.
103. Justification: If relevant registration functions are delegated from the Traffic
Commissioners to LTA, the LTA may change a fee for the exercise of these functions. The
fees that may be charged by an LTA under this provision are for applications to register a
relevant service, variation of the registration of a service that continues to be a relevant
service and for an application to cancel a relevant service. Relevant service for these
purposes means a service that only has stopping places in the area to which the EPS
relates.
104. Regulation will set out the fee, when the fee is to be payable and by whom, and that the fee
may be paid in a lump sum or in instalments. The Government’s policy intention is that the
fee should reflect full cost recovery. It is anticipated that the details to be included in this
regulation will develop over time as the Department gains more experience of how
Enhanced Partnerships work in practice and the costs and potential benefits of exercising
these delegated powers. Setting out the details in delegated legislation will also allow fees
to be adjusted to reflect inflation, deflation and any efficiency savings realised (for
example through the digitisation of services). Precedent for such details to be set out in
regulations can be found in section 60 of the Public Passenger Vehicles Act 1981.
105. The principle that a fee can be charged is set out on the face of the Bill. This power covers
the associated details which are not considered to be particularly significant in their impact.
The Government therefore considers that the negative procedure would afford an
appropriate level of scrutiny over the use of these powers.
106. Parliament has considered previously that negative procedure is appropriate for similar
regulations made under sections 60 and 61 of the Public Passenger Vehicles Act 1981.
Insertion of new section 6I(7): Records of registration etc.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: If relevant registration functions are delegated from the Traffic Commissioners
to the LTA, the LTA must keep a record of services that are registered, varied or cancelled
in the area covered by the EPS. The LTA must supply this information to the Traffic
Commissioner and allow a member of the public to inspect them on request. Regulation
may specify the form and the particulars of the records, as well as the particulars that are
to be supplied to the Traffic Commissioner.
107. Justification: The Bill outlines what powers are to be delegated and in what circumstances,
what records the LTA must keep, and under what circumstances these records are to be
shared with the Traffic Commissioner and the public. This power allows additional
technical details about what precisely the records should contain and the format in which
they are to be kept to be specified in secondary legislation. These details will need to be
developed through discussion with the Office of the Traffic Commissioners, LTAs and
potentially bus operators. They may also need to vary over time, for example as electronic
approaches to the registration of bus services are taken up more widely than at present.
108. Details relating to applications for registration, variation and cancellation of local services
are currently provided for in regulations made under section 6 of the Transport Act 1985.
Putting detail such as this in secondary legislation, rather than on the face of the Bill,
follows this precedent.
109. This power is not considered to affect substantially the provisions of an Act of Parliament,
or to be a consideration of special importance. The Government therefore considers that
the negative procedure will afford an appropriate level of Parliamentary scrutiny.
110. Our approach is consistent with the view that Parliament took on similar regulation making
powers under the existing provisions of the section of the Transport Act 1985 into which
the Bill inserts this clause.
Clause 17 (j301): Power to require provision of information about English bus services
Insertion of new section 141A(1) into the Transport Act 2000: Power to make regulations
that would require operators of bus services and LTAs in franchising areas to provide
prescribed information about their services.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Affirmative procedure
Purpose: The clause will enable the Secretary of State to prescribe in regulations applicable
in England that operators of local bus services and franchising authorities are to provide
information about route, timetables, fares, tickets and information about the operation of
services.
111. Justification: The Government wants to make route, timetable, ticket, fares and punctuality
data “open” so that anyone is free to use it subject, at most, to measures that preserve
provenance of the information and integrity of the data. This will enable third parties to use
the information to develop journey planning websites and applications for smartphones
enabling passengers to have access to better information about bus services.
112. Bus journey planning websites are already available. However, unlike for some other
public transport modes (rail for example), information on fares and punctuality data is not
always available for passengers. Where such information is available it is rarely contained
in the same place for multiple operators so that passengers can make informed choices.
The powers in new section 141A will enable regulations to prescribe information
requirements that will apply to all operators in the deregulated bus market and to
franchising authorities in England except London.
113. We intend to specify in regulations under this Clause that information should be provided
in several phases starting with timetable information, followed by fares data and then real
time bus arrival information where that is available. The precise definition of what
information will be required in each case and the date by which it is to be provided will be
developed through close consultation and discussion with bus operators, LTAs and
potential users in parallel with the passage of the Bill.
114. We consider that the use of regulations is appropriate because technological developments
could make significant differences to the ease and cost of providing information and the
dates on which it would be appropriate for Government to mandate new requirements. The
format in which information is to be provided may also change quickly as new standards
and technologies emerge.
115. Precedent for the use of secondary legislation in this way has been set by section 6 of the
Transport Act that provides that various detailed information-related requirements are set
out in regulations.
116. We consider that the affirmative procedure provides the appropriate level of Parliamentary
scrutiny for the exercise of these powers given their importance to operators and
passengers who use local services.
Clause 18 (j302): Variation or cancellation of registration: service information
Amendment of the Transport Act 1985
Insertion of new section 6C(1) into the Transport Act 1985: regulations to require the
operator of English local bus services, except in London, to provide prescribed usage
information at the request of the LTA where a service is varied or cancelled.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: The clause will enable the Secretary of State to prescribe in regulations that a bus
operator in England, except for in London, who wishes to vary or cancel the registration of
the service has to provide usage information within a prescribed period to the local
authority.
117. Justification: In December 2011, one of the recommendations made by the Competition
Commission (now CMA) in its investigation into the local bus services market was that the
Secretary of State should give Local Transport Authorities powers to obtain information
about revenue and patronage of deregistered services and the right to disclose information
in such detail as they consider appropriate, having regard to its nature, to potential bidders
for subsequent tenders. They recommended that failure by an operator to provide such
information should result in the request to deregister the service being refused.
118. This recommendation was designed to enable local authorities to determine whether to
tender a service and to prevent incumbent operators of commercial services having an
unfair information advantage when tendering for newly supported services. The
Commission concluded that it may be appropriate for certain restrictions to be put on the
disclosure of the information. For example, it should not be disclosed where the LTA takes
the revenue risk on a contract (i.e. where they have the risk of collecting and retaining fare
revenue).
119. The powers in new section 6C of the Transport Act 1985 will enable regulations to be
made to require operators to provide, at the request of the LTA, specified patronage and
revenue information in respect of services that are being varied or cancelled. This will
enable the authority to decide whether to put a tender out to replace the service. The
regulations will be able to specify the information to be provided and when, make
provision about the use and disclosure of the information and enable the Traffic
Commissioner not to accept applications to vary or cancel a service if the information is
not provided.
120. We think it is appropriate for the details outlined above to be set out in regulations to
ensure that there is flexibility to change the requirements in terms of what information
must be provided, and by when, if it becomes clear that the initial approach is not working.
We therefore consider that such provisions are suitable to be made under delegated
legislation and we believe that the negative procedure will afford an appropriate level of
Parliamentary scrutiny.
Clause 20 (j701): registration of English local services: fees where functions contracted out
Amendment of the Transport Act 1985
Insertion of section 6J: fees that may be charged by authorised persons who are carrying
out certain functions of Traffic Commissioners.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This clause permits an authorised person carrying out certain functions of a
Traffic Commissioner to charge and retain the fee for performing those functions.
121. Justification: Existing legislation provides that a local bus service has to be registered with
a Traffic Commissioner and the operator is required to pay a fee for that service.
Legislation already provides that Traffic Commissioners may delegate their functions to
other persons however any fees collected by them or the delegated person have to be paid
into the Consolidated Fund and cannot be retained unless this is provided for in legislation.
The administrative functions of Traffic Commissioners are currently undertaken, under
delegated authority, by staff employed by the Driver and Vehicle Standards Agency.
122. New section 6J is being inserted into the Transport Act 1985 so that regulations may be
made for an “authorised person” delegated to take on the registration functions of the
Traffic Commissioner to charge a fee rather than the Traffic Commissioner. Where the
“authorised person” is not central government they will be able to retain the registration fee
rather than it being paid into the consolidated fund. Delegation to someone other than staff
employed by the Driver and Vehicle Standards Agency is only likely if it becomes clear
that it is untenable for them to continue in this role because large numbers of LTAs start
using the new franchising and EPS powers. For this reason we think it is appropriate for
the fee provisions to be set out in regulations.
123. The Government’s view is that it would not be appropriate to include details about the
level of fees on the face of the Bill and that flexibility is needed, in terms of amending the
regulations, to ensure that the maximum fee level can be adjusted over time to reflect, for
example, increased efficiency or costs.
124. We consider that the negative procedure affords an appropriate level of Parliamentary
scrutiny given the level of detail involved and the nature of the proposed regulations.
125. Precedent for such details to be set out in regulations is to be found in section 60 of the
Public Passenger Vehicles Act 1981 and by section 61 of the that Act
Clause 22: Power to make consequential provision
Power enabling the Secretary of State to make any consequential regulations that are
appropriate for the purposes of the Bill.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Affirmative procedure if amending an Act otherwise negative
procedure
Purpose: The clause will enable the Secretary of State to make provisions in other English
and Welsh primary legislation as a consequence of, or to give full effect to, any provisions
of the Bill.
126. Justification: The legislative framework for the bus market is very complex. There are a
number of Acts that the Bill is amending (including the Transport Act 2000, the Transport
Act 1985 and the Road Traffic Regulation Act 1984). We also expect that a number of
statutory instruments will be required to amend existing regulations and make new
provisions in order to implement the various provisions in this Bill. We have identified all
the changes to primary legislation that we believe are necessary to make the legislation
work and have included them in the Bill. However, given the complexity of the existing
legislation, there is a possibility that something important has been missed.
127. Clause 22(1) confers a power on the Secretary of State to make regulations that are
consequential to any provision made by or under this Bill. Subsection (2) provides that this
power to make regulations may be exercised by amending, repealing, revoking or
otherwise modifying any provision made by or under an Act passed before this Bill or in
the same Session.
128. We understand the importance of proper Parliamentary scrutiny and we are proposing that
any regulations made by the Secretary of State under this clause that amend or repeal
primary legislation must be laid before and approved by a resolution of each House of
Parliament. This follows the general principle that changes made to primary legislation by
secondary legislation should be subject to the affirmative procedure, in order to provide an
appropriate degree of Parliamentary scrutiny.
129. Clause 22(5) applies the negative procedure to amendments or revocations of secondary
legislation. It is submitted that this gives an adequate level of Parliamentary scrutiny in
enabling either House of Parliament to debate the regulations if (for example) they were
seen to be controversial in any way.
130. In seeking these powers we are following the precedent included section 3 of the Passenger
Vehicles Act 1981, as amended by section 1 of the Transport Act 2008, providing the
Secretary of State with power to vary by Order, provisions in that Act or any other
enactment, concerning traffic areas. Those powers were subject to the affirmative
procedure. A similar power is available in section 6(3) of the Transport Act 2008 and has
been used to make the Local Transport Act 2008 (Traffic Commissioners) (Consequential
Amendments) Order 2013 (SI 2013/1644) for the purposes of making consequential and
supplementary amendments to primary and subordinate legislation to remove the link
between Traffic Commissioners and traffic areas.
Clause 23: Power to make transitional, transitory or saving provision
Power to enable Secretary of State to make by regulation such transitory, transitional or
saving provisions.
Power conferred on: Secretary of State
Power exercised by: Regulations made by Secretary of State
Parliamentary Procedure: Negative procedure
Purpose: This will enable Secretary of State to make by regulation such transitory,
transitional or saving provisions, as the Secretary of State considers necessary or expedient
for the purposes of, in consequence of or for giving full effect to, any provision of this Bill.
131. Justification: The justification for this clause is similar to that for clause 22. The
complexity of existing legislation concerning schemes for local bus services may make it
necessary to set out in regulations how existing arrangements may be accommodated once
the Bill is in force. This will be particularly important to English LTAs that may have set
up a ticketing scheme under section 135 of the Transport Act 2000 which wish to develop
an advanced ticketing scheme under clause 7 of the Bill.
132. These regulation making powers will only be used to ensure that any transition process for
the provision of local bus services from the current legislation to new legislation that is
proposed in this Bill is smooth and effective. We believe that the negative procedure is
appropriate and gives an adequate level of Parliamentary scrutiny in enabling either House
of Parliament to debate the regulations if (for example) they were seen to be controversial
in any way.
133. In seeking these powers we are following the precedent included in section 60 of the
Transport Act 2008 under which the Section 19 Permit Regulations 2009 (SI 2009/365)
and the Community Bus Regulations 2009 (SI 2009/366) were made. In addition, section
277(2)(b) of the Enterprise Act 2002 contained a similar provision to make transitional,
transitory or saving provisions that were used to make the Enterprise Act 2002
(Commencement No. 3, Transitional and Transitory Provisions and Savings) Order (SI
2003/1397) which made extensive amendments to the Transport Act 2000.
Department for Transport
25th May 2016