Implementing the bus provisions of the Transport (Scotland) Act 2019

Please note SPT's response is draft until consideration by SPT's Strategy & Programmes Committee at its meeting on 26 November.

• The guidance needs to clearly set out the meaning of “LTA’s relevant general policies”. At present there is no indication as to what this might refer. Without such clarity, there is a danger that any proposal to introduce a municipal bus company – or other provision of the Act - could be subject to challenge. Indeed, conversely, someone wishing to challenge a proposal would have little clarity on the grounds on which to challenge this aspect. This could result in wasteful processes, use of resources and decision making for all parties. SPT believes that the most appropriate definition of “general policies” within this context should be the relevant statutory Regional Transport Strategy for the area in question, supported by the relevant Local Transport Strategy or Strategies and the statutory National Transport Strategy.
• Any guidance should reference some of the key issues and impacts of running a bus company – there may be aspects of that which those considering the establishment of a municipal concern may not have considered.
• On a broader point, we would suggest that the guidance on which matters should be considered by LTAs when looking at the option to set up a municipal bus operation should be kept high level. Local authorities already have a broad range of duties in relation to obtaining best value for public money and ensuring their operations are affordable. Guidance around the Transport Scotland Act 2019 should reflect this and not place undue and unnecessary additional burdens on them.
• Guidance should also cover what happens in the event of a major bus operator in the area ceasing to operate i.e. when the LTA may become the “operator of last resort”. Specifically, what resources and powers would be available to an LTA in such circumstances to ensure continuation of service can be provided for the public.
• SPT would highlight the importance of ensuring a consistent, coherent, integrated and complementary set of guidance for utilisation of provisions within the Act as, given its wide ranging scope, there is potential for confusion in that regard. There is reference in the consultation paper to the establishment of a Working Group to review the Guidance, and we would seek clarity on whether this has been established, the terms of reference, when it will meet, and who will be invited to participate. Further, we would emphasise that legislation should be strong enough to enable development of robust guidance without the need for parallel processes and should not be unduly reliant on, for example, case studies as a replacement or alternative to clear guidance.

• As noted above in our response to Q1. there needs to be clarity in the Guidance on what constitutes an LTA’s ‘relevant general policies’. This is a critical point since as noted such policies may be open to legal challenge at a future date. It is important to get this right to reduce the potential for challenge and ensure a robust framework is in place.
• If setting up a bus company, as for anyone else, the responsibility would be on LTA to source information and resources to assist it in creating the bus company.
• If the LTA is taking over an existing operator for whatever reason, it should be able to conduct due diligence over that company’s affairs as is normal corporate practice.
• As noted in response to Q1, guidance should also cover what happens in the event of a bus operator in the area ceasing to operate i.e. when the LTA may become the “operator of last resort” and what resources and powers are available to it.

There are also a range of other operational, logistical and financial considerations that would require to be taken into account by an LTA considering a municipal bus operation. While we acknowledge it is not the intended purpose of any guidance to provide a step by step process for the various ways in which an LTA might run their own services, we consider it would be an essential component of such guidance to alert LTAs to these specific considerations, some of which we note below:

• The arrangements for and requirements of applying for Operator Licensing.
• The need to consider appropriate depot premises
• Local Bus Service Arrangements including registration of services with the Traffic Commissioner and associated compliance elements.
• Compliance with drivers’ hours regulations
• The need to ensure effective arrangements for the rostering and timetabling of services, vehicles and staff
• In addition to drivers and vehicle support, any bus company would require the employment of appropriately accredited and professional staff including Transport Managers, Engineering, commercial, supervisory, HR, financial, training and clerical. TUPE may be relevant in all of the above, if a service or contract is being taken over from another operator. Also trade union arrangements for staff, if applicable.
• There would also be a requirement to ensure suitable fleet and public liability insurance, arrangements for staff pensions and compliance with company law.
• The purchase and maintenance of suitable vehicles for the routes operated would be required with prices currently in the range of £125,000 for a small bus to £150,000 for a larger single decker and up to c£200,000 for double decker. Further, the cost of electric / hybrid / hydrogen buses is significantly higher. Use of non-compliant vehicles is an offence under PSV Accessibility Regulations 2000. Vehicles must also meet current environmental and accessibility requirements.
• Other arrangements to be factored include: Purchase and installation of suitable ticket machines, back office and concession reimbursement arrangements with Transport Scotland; Fares / cash collection methods on-bus, reconciliation in office and banking; promotion / publicising services via production & circulation of timetables, internet, apps, website; CCTV and regulations surrounding its use on vehicles; compliance with GDPR legislation.

We note reference in the consultation text above to competition issues and it will be essential that future guidance makes explicit that LTAs considering the establishment of a local bus operation do so fully aware of the commercial nature of the bus market and that any local authority bus company will be subject to market competition and to UK legislation governing competition.

SPT support the proposed form and content of plans and schemes, and welcomes the flexibility provided in creating them which will allow local / regional circumstances to be taken into consideration.

Guidance should advise on the appropriate duration of a BSIP and appropriate timescales for review and monitoring. There should be flexibility built into to the process to enable changes to the objectives and measures in line with due process and agreement of BSIP members.

We do not consider that any conditions should be included in guidance at this stage. While it is sensible to have clear and consistent rules around variation and revocation, there must also be discretion and flexibility available to LTAs to accommodate unforeseen or emergency situations such as where a bus company becomes insolvent and this should be reflected in guidance.

Consideration should be given to an emergency provision to accommodate immediate revocation, or revocation within the suggested notice periods detailed.

See response at Q8 which covers both facilities and measures.

We acknowledge that consultation document is not intended as the specific draft guidance; however, it is likely to significantly influence the final text of the guidance. It is on this basis that we make the following comments.
SPT is concerned that the proposed definition of facilities indicates that the LTA will need to commit to investment in ‘bus’ infrastructure specifically, whereas investments in other infrastructure (e.g. traffic management including upgrading of technology and systems) can also have benefits for bus services. Also, the inclusion of specific examples of bus infrastructure in the definition could lead to problems around inclusion of, for example, real time passenger information, as a ‘qualifying’ investment in a BSIP. SPT feels that the definition needs to be clearly broad and expansive with regard to infrastructure which improves the bus network, but also recognise this could lead to challenges in agreeing a scheme.
We are concerned that the definition of measures appears to prejudge the purpose and agreed objectives/outcomes of a specific BSIP by including a specific objective (i.e. improving bus journey times) in the definition. References to “improving bus travel times” in the definition of measures, could be just as valid if they maintain bus speeds but improve bus service reliability by removing buses from variable or occasional congestion problems. Simply saying “improving bus services” in the second line of the definition would suffice.
Additionally, the proposed definition may overlap with the definition of facilities (e.g. priority signalling). Clarity is needed to avoid such assumptions.
The consultation document also notes that the LTA must, at least, invest in either a facility or a measure. A facility is defined as “investment in infrastructure”. It does not mention or seek to define ‘bus infrastructure’. The text in this regard would benefit from removal of the word “including” in the second line, as that could suggest that at least one of the examples should be included in the facilities scheme/schemes.
In general, SPT considers that measures should be extended to include actions that improve the attractiveness of bus services rather than being narrowly defined.

9. Should existing facilities form a part of a partnership plan and/ or scheme?

SPT believes there should be scope for existing facilities to form part of a BSIP. SPT and partner local authorities have invested substantially in bus passenger facilities, bus stations, real time passenger information and urban traffic management systems across the Strathclyde region over the past decade and more and, on many routes, the infrastructure remains of a very good standard and continues to deliver benefits for passengers.
In particular, a facility that has only been in place for 1-2 years and hasn’t been fully optimised should be included within the scope of the partnership plan / scheme. Further, a facility that is planned to be provided in the near future but obviously has not resulted in benefits as yet (e.g bus speeds / reliability) should also be included. Such planned facilities as these are valid since they contribute to BSIP objectives even if they are not being directly delivered by the BSIP intervention programme.

Question 9A: If yes, should there be a time restriction and why?

There should be no time restriction as the facilities previously provided may still be fit for purpose despite the length of time since they were constructed or installed.

Question 10: Do you consider any further services may or must be exempted from the service standards of the scheme (beyond services under section 22 of the 1985 Act as detailed above)?

No

The flexibility afforded to the LTA should be sufficient in dealing with any other matters. However, we would suggest that specific reference be made to the position of Community Transport in the Guidance.
While we note that Section 3C(4)10 provides that a scheme may not impose a standard in relation to the use of vehicles under permits granted under section 22 of the 1985 Act, it would be welcome if Scottish guidance were to follow the approach in England, where Community Transport Services are exempted but where reference is made as follows from the National Bus Strategy:
“We would encourage LTAs and community transport operators to co-operate together and with commercial bus operators to deliver BSIP outcomes – using, for example, a separate contractual agreement, a memorandum of understanding or, for section 22 operators, a voluntary partnership agreement.”
- https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1002507/national-bus-strategy.pdf Para 1.7, Page 5

We would agree with the proposed definition whilst noting that under the current BSIP proposals, a Partnership Board would have the power to alter the voting mechanism by agreement. This is an important feature of the voting mechanism as proposed and it is important that this power is retained in the finalised Guidance.

There could be circumstances where there are very few operators in an LTA area and this could result in one large operator dictating service standards and imposing them on other operators to their detriment. The voting mechanism set out above broadly encompasses this situation and helps mitigates that risk.

Excursions / tourism and interurban coach services should be excluded as these do not fall within the accepted definition of a local bus service.

To ensure that no operator currently providing a service is excluded.

There are 3 large operators in the SPT region, each of which operates about 20% or more of the total registered mileage in the region. This means that, under option 1, there is a potential situation, dependent upon the spatial extent of the proposed BSIP, that any one large operator, supported by any single small operator, could object to a BSIP scheme being made; however, this outcome would not necessarily reflect the majority view of operators. Therefore, SPT prefers option 2 as it is more likely to result in an outcome reflecting the overall view of operators.

It seems sensible to follow the definition as set out in the Block Exemption Scheme since this is a legally recognised and accepted definition. This will support consistency of approach and help to any future issues or challenges that may arise.

The suggested approach seems reasonable. The decision at this stage not to introduce a reporting format through regulations is welcome given, as noted, the varying bus market contexts.

We would however, and building on our points earlier in this response in relation to a clear definition of what constitutes ‘general policies’, suggest the scope of reporting in terms of ‘general policies’ should be defined in clearer terms. From SPT’s perspective – and like Regional Transport Strategies and Local Transport Strategies - this should reflect wider local, regional and national policies in relation to areas such as reducing inequalities, promoting inclusive growth and tackling climate change rather than any potentially narrower definition of ‘general policies’ which may be included within a BSIP’s objectives e.g around issues of reliability, affordability, reduced journey times.

No information should be absolutely excluded. To make a BSIP, LTAs will be required to invest in facilities and/or measures and it is essential that this investment is focused on specific problems with an identifiable solution, and that the benefits of the investment can be measured and monitored. This requires sufficiently comprehensive data to ensure problems are understood at network and route levels and that the objectives and outcomes of the BSIP can be measured and monitored at both operational (e.g. journey times) and strategic levels (e.g. modal shift).

In addition, we have a number of concerns about the proposed approach to information provision as follows:

• We are concerned that the information listed under ‘may include the following categories’ is likely to become the only information that may be requested.
• We also believe that information provision needs to be mandatory and unambiguous; this is based upon our previous experiences with sQPs and the considerable challenges around information sharing.
• With the introduction of ‘free’ bus travel for under 22s, over 40% of bus travel will be funded by public purse and yet obtaining detailed data on patronage remains challenging. The inequitable nature of this situation emphasises the importance of ensuring a wide range of data is available.
• Further, data needs to be collectable in such a manner that effective BSIP forward planning can take place. As such, data covering the information set out in this consultation document needs to cover all services at a local authority, city and regional level (depending on the scope of the BSIP), individual bus services and corridors.
• In general terms, SPT would advocate the establishment of a central repository of transport data covering all modes, including bus services, to enable accessible and consistent information on bus services to be available to LTAs. Such a repository would of course be subject to robust rules around maintaining commercial confidentiality. Data specific to BSIPs could be accessed via this wider repository.
• We are also concerned that the reference to “How and when a local service operated by an operator is used by passengers” is too vague and open to interpretation. This needs to be more clearly defined and should instead make specific reference here to comprehensive data on patronage at both aggregate and disaggregate (by individual service) levels and all levels in between e.g by corridor.
• Finally we would highlight that the approach to information provision in England is such that LTAs have the power to require such comprehensive information to be released.

In addition to the information set out in the consultation, we would suggest that this should be widened to cover a range of other areas, including:

• The number, location and severity of vehicular accidents and passenger accidents within buses.
• Information about Vehicle emissions and fleet age including the mechanical condition of vehicles and the number of breakdowns experienced.
• Information about fare revenues by ticket type and service should be eligible for requests, if ticketing improvements are going to form part of the BSIP.
• Information about the total number of journeys undertaken by passengers on the local services operated by the operator in the area;
• Information about the structure of fares for journeys on those local services;
• Information about revenue received from those local services, including information about revenue attributable to particular types of fares or derived from journeys undertaken on particular parts of those local services;
• Information about the total distance covered by vehicles used by the operator in operating those local services;
• Information about persons employed by the operator in the provision of those local services;
• Information about journeys that the operator has forecast will be undertaken by passengers on those services and revenue that the operator has forecast will be received from those services;
• Information about journey speeds and reliability
• Information about journey patterns
• Information on varied or cancelled services

In general, the scope of the information that can be requested and must be provided should be drawn as widely as possible and certainly should include any information relating to bus operations, bus passengers and bus fares that, acting reasonably, could be considered relevant to making an effective BSIP.
We are not attempting in any way to set out a comprehensive list within this consultation response to the range of information that could reasonably ensure the effective development, measurement and success of a BSIP. We would welcome further consideration be given to this area, perhaps through the working group noted in the consultation document, to ensure BSIPs are able to draw on the appropriate and necessarily comprehensive range of data.

Yes, for example where this breached commercial confidentiality. However, this circumstance could be addressed through some form of non-disclosure agreement.

No

We support the requirements as set out above but would suggest that consideration needs to be given to people with a wider range of disabilities and should include audio information and consideration of non-visible disability.

Consideration should also be given to the needs of parents / guardians and carers.

No

We would welcome greater emphasis within the guidance on the need to promote a bus network that integrates well with other transport modes, including, for example, integration with rail/ferry timetables, participation in multi-modal ticketing arrangements or schemes and carriage of bikes on buses.

SPT is supportive of the proposed approach to franchise assessment outlined on pages 41 and 42 of the consultation document.
However, the guidance should:
• clarify the process that needs to be followed and set out Minister’s expectations on how the Five Case Model will be developed and the interface with STAG;
• clarify the need to compare the proposed franchising framework with other options is only required whilst making the strategic and economic cases;
• set out the anticipated role of statutory assessment processes in the preparation of the franchising assessment;
• specify the criteria that must be taken into account by the auditor when compiling their reports;
• specify the matters that must be taken into account by the LTA when selecting an auditor; and
• Set out broad expectations for engaging with bus passengers and/or the general public in the preparation of the franchising framework.

In addition to cost and vehicle data, as noted above, SPT believes that LTAs should be able to request, at minimum, revenue data related to passenger and ticketing usage and operational data related to performance. SPT considers this information essential for LTAs to prepare a franchising assessment in line with the requirements of the Five Case Model including assessing different options.

No – as per reasons set out in response to Q21.

As proposed in the consultation document, the ISAE 3000 approach should form the basis of guidance to auditors. As noted under question 17, the guidance should specify the criteria that must be taken into account by the auditor when compiling their reports. The guidance must require auditors to provide clear and detailed reasons for their decisions.

Given the significant costs likely to have been incurred in the preparation of a franchising proposal, the guidance should be clear and specific on how to prepare a new assessment – including whether there is or isn’t a need to revise particular sections etc. – and on exactly what a new assessment is expected to demonstrate.

The panel must be required to commit to undertaking their review in a balanced, objective, evidence-based and transparent way. Panel members must not be allowed to refuse a franchise because they object to the principle of franchising; the case being made for the franchise should be allowed to be judged on its own merits.

Panel members should have an appropriate professional or public background – legal, financial, transport, planning, current / former elected members, community involvement, passenger representative.

The make-up of the panel must take into account the Equality Act (2010).

Panel members must not have any financial or personal interest in the outcome of their decision.

Panel members must be protected from any potential personal repercussions or litigation arising from their decision.

Panel members must comprise a mixture of skills including legal, financial and industry expertise, to enable an effective and appropriate assessment to be undertaken.

SPT is concerned that the Panel model is potentially inherently risk averse, and may also lack accountability. Following on from our observations about the panel set out above we would elaborate as follows:
The Panel must include someone knowledgeable on bus service operations and legislation, and who has had direct experience of the bus industry. Upskilling an individual without such prior knowledge and experience to an appropriate level would be impractical.

However, someone that has extensive industry involvement is unlikely to have entirely independent and objective views about the industry. The selection process therefore needs to:
• be transparent, with a person specification prepared and used to guide selection;
• involve the LTA, not simply be left to the TC’s discretion; and
• address head-on the issue of entrenched views, ensuring anyone that is incapable of taking a properly independent view should be rejected
The selection of this panel is pivotal; it cannot be left to unclear selection processes and potential influence from outside forces with entrenched views from across the spectrum.

• The process for the Panel to follow in making their decision must be specified and detailed criteria applied in that regard.
• The Panel must be required to justify their decision in detail.
• The Panel should hold public hearings in making their assessment – this should be similar to the “public inquiry” approach taken in deliberating land-use planning applications by Reporters.
• SPT, in the strongest terms, do not support the proposal that the Panel must “satisfy itself” that it has reached a “reasonable conclusion” on the proposal. This approach is undemocratic, lacking in transparency, and provides room for subjective judgements to be made which will not need to be justified. The Panel, in taking the responsibility to make the judgment, must be prepared to justify its decision to all parties – including the public – in detail.
• SPT is concerned that the Panel as constituted will by nature be risk averse since it may be open to legal challenge. There is a significant risk that the panel, unless sufficiently empowered, will be reluctant to approve the making of a franchise framework even where the business case covers all necessary objectives.

• As noted in our response to Q.25 above.
• A key criteria which the Panel must give appropriate weight to is the LTA’s “general policies” (RTS, LTS) and any other adopted public policy in the area. General policies are subject to a rigorous process of development, consultation, and approval and are the official public policy for the area in question. However, as noted in earlier responses the definition of ‘general policies’ requires to be clearly defined.

There should be no prescribed limit. It may take time for an LTA to consider and analyse information provided depending on the nature of the changes proposed and to consider an appropriate response. Operators proposing service changes will have assembled all the necessary information to make an informed commercial judgement and as such this information should be made available when the operator provides the LTA with the notice to vary or cancel a service.

As per our response at Q.26 above, operators proposing service changes will have assembled all the necessary information to make an informed commercial judgement and as such this information should be made available when the operator provides the LTA with the notice to vary or cancel a service.

In relation to information provision on deregistration/service reduction, all information about ridership, fares and operating costs should be provided to the LTA.

Confidentiality conditions should be introduced to protect commercially sensitive information but it should still be made available when requested by a LTA.

As a general rule no information should be prescribed. Commercially sensitive information can be covered by confidentiality agreements but must be available to LTAs.

Comprehensive patronage (and revenue) data should be available to LTAs subject to non disclosure. It should also be available to prospective tenderers. In an aggregated form patronage information should be available publicly given the extent of public subsidy and funding made available to operators.

Only in exceptional circumstances e.g where legal proceedings would be a factor.

See our response to Q17A.

In a form as requested by the LTA which is reasonable, practical, affordable and efficient but on the basis that no information should unreasonably be withheld. There should be an onus on bus operators not to act obstructively or outwith the spirit of legislation.

No. Impact assessments will require to be undertaken when the provisions in the Act are being taken forward and should be considered at that stage

None other than the comment above at Q.35.