BUS SERVICES BILL DELEGATED POWERS IN THE BILL · PDF fileBUS SERVICES BILL DELEGATED POWERS IN THE ... also include changes to a road layout to create bus ... they do not agree to

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.




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.




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.



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.




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.




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.


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.




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.




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.




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.




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.




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.




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.




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,



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.



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.




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.




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.



Parliamentary Procedure: Negative Procedure


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,



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.




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.



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.





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.



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.




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.




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


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.




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.



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.



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


Insertion of new section 6G(9): Regulations relating to the delegation of Traffic

Commissioner functions where an EPS is in operation.




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


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




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.




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.



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.



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


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.




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


Insertion of section 6J: fees that may be charged by authorised persons who are carrying

out certain functions of Traffic Commissioners.




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.


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.



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.




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

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