2001 ASP 2

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These notes refer to the Transport (Scotland) Act 2001.

TRANSPORT (SCOTLAND) ACT 2001

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EXPLANATORY NOTES

INTRODUCTION

1. These Explanatory Notes have been prepared by the Scottish Executive in order to assist the reader of the Transport (Scotland) Act (asp 2) which received Royal Assent on 25 January 2001. They do not form part of the Act and have not been endorsed by the Parliament.

2. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

THE ACT

PART 1

Section 1     Joint transport strategies

3. This section gives the Scottish Ministers the power to require specified public bodies to prepare and submit to them a joint transport strategy addressing a named transport issue.

4. Subsection (2) places a statutory obligation on the Scottish Ministers to consult those bodies which would be covered by an order, and enables them to consult other interested parties.

5. Subsection (3) sets out details of the provisions, which may be included in an order requiring a joint strategy. This includes the form of the joint strategy, the environmental, social and economic impact of the strategy, other matters to which the public bodies are to have regard, the procedures relating to the preparation and making of the strategy and the timeframe within which a joint strategy is to be submitted.

6. Subsection (4) provides that an order requiring a joint strategy shall contain provision on consultation.

7. In addition subsection (5) provides that public bodies specified in an order have the discretion to consult such other persons, as they consider appropriate in preparing a joint strategy.

8. An order made by the Scottish Ministers under the powers conferred by subsection (1) will be subject to negative resolution procedure.

Section 2     Directions

9. This section sets out the circumstances in which the Scottish Ministers may give directions to specified public bodies in connection with the preparation of a joint transport strategy. The Scottish Ministers will have the power to issue directions in three separate sets of cases, namely:

• where no strategy is prepared;

• where no strategy is submitted; or

• in any other case where, in the opinion of the Scottish Ministers there are exceptional circumstances.

10. Where the Scottish Ministers are of the opinion that there are other exceptional circumstances subsection 2 requires them to consult the public body in question and other appropriate persons before giving a direction under subsection (1). Section 2 is without prejudice to section 211 of the Local Government (Scotland) Act 1973 (c.65). This provides for the Scottish Ministers to order a local inquiry if they believe that a local authority may have failed to do what is statutorily required of them.

PART 2 BUS SERVICES

Quality Partnership Schemes

Section 3     Quality partnership schemes

11. This section empowers local transport authorities, either alone or jointly, to set up quality partnership ("QP") schemes if this will to any extent implement their relevant general policies (as defined in section 48(1)) and either improve the quality of local services and facilities specified provided in a particular area, or reduce or limit traffic congestion, noise or air pollution. The expression "local transport authority" is defined in section 82(1) as meaning a local authority or the Strathclyde Passenger Transport Authority ("SPTA").

12. A QP scheme entails the authority providing specified facilities (as defined in subsection (3)(a)), and setting quality standards to be observed by bus operators as a condition for using those facilities. The specified facilities under a scheme (such as bus lanes and shelters) must be provided at specific locations along bus routes (or where appropriate prospective bus routes) which bus operators can use. Authorities may also include other ancillary facilities.

13. Information facilities may not be included if the authority have determined that these must be provided throughout their area under sections 33 and 34 of the Act. Standards that may be imposed on operators under a statutory QP scheme may include minimum frequency of services, but do not extend to maximum frequency or timing of services. The Scottish Ministers or the Secretary of State must be party to a QP scheme if any of the facilities requires the making of a traffic regulation order in respect of a road for which they are, or she, is the traffic authority.

Section 4     Regulations as respects specifying existing facilities in quality partnership schemes

14. The Scottish Ministers may make regulations under this section as respects the specification of existing facilities in a QP scheme. They might be used to impose more onerous consultation or consent requirements; to limit the period of time within which pre-existing facilities can be specified; to allow for particular facilities or classes of facility to be specified only in certain circumstances; and to allow appropriate modifications to be made to the QP scheme procedures where those QP schemes specify existing facilities.

Section 5     Consultation as to proposed quality partnership schemes

15. This section sets out requirements as to consultation. Authorities must give notice of proposed schemes in at least one local newspaper circulating in the area, and that notice must either set out the authority's proposals for facilities and standards of services to be provided, or state where, in what form and at what times such details can be inspected. A scheme may not be made without prior consultation with bodies specified in section 5(4). This includes bus operators and representatives of bus users and, if the scheme affects a trunk road, the Scottish Ministers or the Secretary of State.

Section 6     Making of quality partnership scheme

16. This section provides for the making of a QP scheme (with or without modifications) if an authority have complied with the terms of section 5 of this Act. The scheme must set out the specified facilities, specified standards of local services, the date on which it will come into operation, the period for which it shall remain in operation and the procedures for determining any dispute. A QP scheme must be in operation for a minimum period of 3 years and no longer than 7 years. In certain circumstances local services may be excluded from a QP scheme, but continue to operate on a specific route. An example might be a community bus service acting as a feeder to a main bus route, on which there are QP facilities.

17. A QP scheme may not be brought into force before the authority consider it is reasonably practicable for the relevant facilities to be provided and for the operators to meet the prescribed standards, although the Act provides for the phasing in of facilities and service standards. In any event, the operative date may not be earlier than 3 months after the scheme is made, or any necessary traffic orders are made, whichever is the later. The making of traffic regulation orders can often take some time, and a scheme should not be brought into force before the specified facilities are in place.

18. No later than 14 days after making a scheme the authority must publish a notice in a local newspaper and notify all operators affected by the scheme, and the traffic commissioner. The notice must set out the scheme, or say where, in what form and at what times the scheme can be inspected, and state if any modifications have been made.

Section 7     Postponement of quality partnership scheme

19. This section provides for consultation and publicity in the event that an authority decides to postpone the introduction of a QP scheme (for a maximum of 12 months). Again, this is to ensure that appropriate procedures are available for different circumstances. Authorities must, within 14 days of any postponement of a scheme, give notice in a local newspaper and notify all operators affected by the postponement and the traffic commissioner.

Section 8     Effect of quality partnership scheme

20. This section sets out the effect of a QP scheme, once in place. It places obligations on both the local transport authority and the bus operators - the former to provide the relevant scheme facilities, and the latter to operate their services to the relevant standards.

21. Authorities will be under a duty to provide specified facilities, and continue to do so while the scheme remains in operation, unless in the event of circumstances beyond their control - for example a sewer collapse rendering a bus lane unusable. This duty will not apply to the Scottish Ministers or the Secretary of State (if they are, or she is, party to a QP scheme) if they are or she is unable to provide the facilities owing to the variation or revocation of a traffic regulation order.

22. An operator may only use the scheme facilities if a written undertaking is given to the traffic commissioner, who will be responsible for enforcement, confirming that the services specified in the scheme will be provided to the required standard, and that those services are duly provided to that standard (except in circumstances beyond the operator's control). Where local services are excluded from a QP scheme (e.g. a community bus providing a feeder service may be excluded) such services are not to be subject to the quality standard requirements. But any conditions applicable to that exclusion are to be treated as if they were prescribed particulars registered under section 6 of the Transport Act 1985. Thus an excluded operator who fails to comply with these conditions can face enforcement action by the traffic commissioner.

Section 9     Variation or revocation of quality partnership scheme

23. This section provides for the variation or revocation of QP schemes. This will give flexibility both for future changes and for any circumstances where it may be necessary to revoke a scheme. The local transport authority may revoke a scheme before its end date, but only if all participating operators consent. Consent cannot be unreasonably withheld. If a variation requires the making of a traffic regulation order, then the variation will be subject to the procedures set out in section 5 and 6 of the Act. Unless modified by regulations made under section 11 any other variation or revocation is also subject to the procedures set out in sections 5 and 6.

Section 10     Reports on quality partnership schemes

24. This section imposes a duty on local transport authorities to prepare a report on the effectiveness of each QP scheme for each successive 12-month period and to submit these reports to the Scottish Ministers. In preparing reports, authorities must have regard to representations received during the relevant period. An authority may require an operator to provide information, and the operator is under an obligation to provide that information in so far as the provision of that information would be reasonable. Reports are to be submitted within 6 months of the end of the period to which they relate. The traffic commissioner must be consulted on the terms of the report before an authority submit it to the Scottish Ministers.

Section 11     Regulations as respects quality partnership schemes

25. This section empowers the Scottish Ministers to make regulations for various purposes in connection with QP schemes. This will enable any necessary provision to be made in respect of the detailed implementation of QP schemes. The regulations may deal, in particular, with the procedures for making, varying and revoking QP schemes, specify any case where no procedure requires to be followed, the scope of permitted exclusions under section 6(3), the form and manner of undertakings under section 8(4), the making of traffic regulation orders in connection with schemes and other incidental matters.

Section 12     Eligibility for service subsidies

26. This section amends section 63(5) of the Transport Act 1985 to enable authorities to provide a subsidy to an operator where a service would not otherwise be provided because it did not meet the standard required in a QP scheme. This power will enable authorities to provide a subsidy to an operator to enhance the quality of its buses, perhaps in an area where it would not otherwise be commercially viable to do so.

Section 13     Quality contract schemes

27. This section empowers local transport authorities, either alone or jointly, to set up quality contract ("QC") schemes if this is necessary for the purpose of implementing their relevant general policies (as defined in section 48(1)), and the scheme proposed would implement those policies in a way which is economic, efficient and effective.

28. In summary, a QC scheme is one under which a local transport authority can determine what local services should be provided in an area, and to what standards, and can enter into contracts with bus operators giving them exclusive rights to provide services to the authority's specification. A QC scheme cannot be made unless the authority have complied with the notice and consultation requirements set out in section 15 of the Act, and obtained the approval of the Scottish Ministers.

29. A QC scheme allows the local transport authority to determine the necessary level and standard of bus provision for their area, and to secure that provision through a competitive tendering procedure. A QC scheme will grant exclusive rights to a bus operator (or operators) to provide the specified services in the specified area. QC schemes may contain provisions as to payment by the authority to the operator, a payment of a premium by the operator to the authority, or a zero payment or premium bid. Provision is also made for other services or facilities to be included in a QC. The provisions of section 88(1) of the Transport Act 1985 (which relate to tendering for subsidised services under the present arrangements) are disapplied for the purposes of QC schemes.

Section 14     Proposed quality contract scheme

30. This section sets out what must and what may be included in a proposed QC scheme. A proposed scheme must specify the area to which the scheme relates, and whether the scheme will, in relation to each local service included in the scheme, come into operation either not earlier than six months from the letting of the contract or on an earlier specified date. It must also specify the period (at least 3 years, but not more than 7) during which it is to remain in operation. The Scottish Ministers have the power to amend the minimum and maximum periods by order.

31. The proposed scheme must outline the local services that are to be provided under QCs and the features of the proposed invitation to tender. It may also provide that specified local services are to be excluded from the scheme, and those services may be subject to certain conditions. The proposed scheme may also contain provisions in connection with ancillary matters. If a proposed QC scheme relates to any extent to the same area as an existing QP scheme the QC scheme may contain provision to vary or revoke that QP scheme.

Section 15     Consultation as to proposed quality contract schemes

32. This section sets out requirements as to consultation. A QC scheme may not be put to the Scottish Ministers for approval without prior consultation with the persons specified in section 15(3). These include bus operators, representatives of bus users, holders of public service vehicle operators' licences or community bus permits and the traffic commissioner. Authorities must give notice of proposed schemes in at least one local newspaper circulating in the area, and that notice must describe the proposed scheme or state where, in what form and at what times such details can be inspected. The authority may modify their proposals in the light of consultation prior to seeking approval from the Scottish Ministers.

Section 16     Approval of proposed quality contract scheme

33. This section deals with the process of seeking and obtaining the approval of the Scottish Ministers to the making of a QC scheme. The application to the Scottish Ministers shall include the authority's reasons for wishing to make the scheme and other information that the Scottish Ministers may require in order to assess whether the test in section 13(1) has been met. Any person consulted during the consultation process may make written representations to the Scottish Ministers (which could either be in support of, or opposition to, the scheme) after the proposed scheme has been passed to them for a decision.

34. The Scottish Ministers may approve the scheme (or approve it with modifications) if they are satisfied that it is in the interests of the public to make the scheme. In considering whether it is in the interests of the public the Scottish Ministers must have regard to the conditions in section 13(1), i.e. that the scheme must be necessary in order to implement the authority's relevant general policies in the area affected; and that the proposed scheme will implement those policies in an economic, efficient and effective way.

35. If modifications to a scheme are proposed by the Scottish Ministers, any such modifications must be brought to the attention of the authority making the scheme, and they must in turn consult any of the previously consulted parties likely to be affected; the authority then must notify the Scottish Ministers of the outcome. The Scottish Ministers may approve the scheme once these procedures have been followed.

Section 17     Making of a quality contract scheme

36. This section provides that the local transport authority may make a QC scheme once the Scottish Ministers have approved it, and that it must be made within 6 months of approval. Making a QC scheme enables an authority to move on to the next stage - to seek tenders for its operation. It does not enable an authority to bring a scheme into operation immediately.

37. The authority must give notice of the making of the scheme in a local newspaper circulating in the area, no more than 14 days after its making, and ensure that the traffic commissioner is sent a copy. The notice must state where, in what form and at what times a copy of the scheme can be inspected. If a QC scheme includes provision to vary an existing QP scheme which was made by two or more authorities, those authorities which did not make the QC scheme may vary or revoke that QP scheme subject to specified conditions.

Section 18     Tendering for quality contracts

38. This section provides that tenders have to be sought by general invitation no later than three months after the making of a scheme, unless the Scottish Ministers specify an alternative period. The tender must be issued generally by authorities in order to bring it to the attention of persons who may be interested, and issued individually to all persons who request a copy in writing. Tenders will only be acceptable from licensed operators of public service vehicles or persons holding a community bus permit under section 22 of the Transport Act 1985. The Scottish Ministers may by regulations make provision requiring local transport authorities to publish information in relation to the tenders submitted to them or their reasons for entering into particular QCs.

Section 19     Exceptions from section 18 (1)

39. Section 19(1) enables the Scottish Ministers, by regulations, to provide for cases where normal tender procedures will not apply. Section 18(1) will not apply where it appears to the authority that action is urgently needed to maintain an existing service, to secure the replacement of a service that has ceased to operate or to meet unexpected public transport requirements. If an authority do enter into such an agreement they must invite tenders as soon as possible for the longer-term delivery of the contract. The duration of these "emergency" agreements is limited to 3 months after the end of the period allowed for the submission of tenders so as to ensure that the tender provisions are not improperly circumvented.

40. The section also makes provision for agreements to be entered into in circumstances where no tender, or no acceptable tender, is received. The Scottish Ministers may by regulations require authorities that enter into such agreements to publish a statement that no tender was submitted to them, or a statement of their reasons for considering that no acceptable tender was received.

Section 20     Commencement of quality contract schemes

41. This section provides when approved QC schemes can come into operation. This is either the date, which is specified in the QC scheme, or such date as is determined under the QC. The authority must, within 14 days of entering into a QC, give notice in at least one local newspaper, and separately to all operators of local services likely to be affected by the contract, and to the traffic commissioner. The notice must state the local services to be provided under the QC, the date on which the QC scheme will become operational in respect of those services and the duration of the contract.

Section 21     Postponement of quality contract scheme

42. This section provides for a QC scheme, which would, in relation to a local service included in it, become operational under section 20(1)(b) to be postponed (for a maximum of 12 months). In such circumstances certain consultation and publicity requirements must be met. Before postponing a scheme an authority must consult all operators of local services who might be affected by the postponement. Authorities must then, within 14 days of any postponement of a scheme, give notice in a local newspaper and notify all operators affected by the postponement, and the traffic commissioner. The Scottish Ministers may make regulations as regards postponements and these regulations may in particular cover the maximum period of postponements and any requirement for authorities to reissue invitations to tender in accordance with section 18 of the Act.

Section 22     Effect of quality contract scheme

43. This section provides that, once a scheme is in operation in relation to a local service included in it, sections 6 to 9 of the Transport Act 1985 (which deal with registration of local bus services) will cease to have effect in relation to that service and no such service may be provided except in accordance with a QC. The role of the traffic commissioner in monitoring services is therefore removed and enforcement becomes a matter of contract management for the local transport authority in accordance with the terms of the QC. However, where a service is excluded from a QC scheme under section 14(3) of the Act, sections 6 to 9 of the 1985 Act continue to apply to it and any conditions made under section 14(3) will be treated as if they were prescribed particulars under section 6 of the 1985 Act. The traffic commissioner may therefore still take action for breach of any conditions under which the excluded service is required to operate.

Section 23     Variation or revocation of quality contract schemes

44. This section makes provision for the variation or revocation of a QC scheme. The Scottish Ministers must approve such variations or revocations. A QC scheme may be varied by increasing or decreasing the area covered, increasing or decreasing the level of specified services, postponing the any date specified in the scheme as a date on which the scheme shall come into operation, or providing for new exclusions or variations or revocations of existing exclusions.

45. A QC scheme may not be varied by increasing the area covered or by increasing the level of specified services to be provided unless the both of the conditions in section 13(1) are met with regard to the scheme as varied. An authority may revoke a scheme where either of the conditions in section 13(1) is no longer met or the authority is making a QC scheme covering that area.

46. Where the Scottish Ministers do approve a variation or revocation, the procedure set out in section 17 (making of a QC scheme) applies to that variation or revocation, subject to any modifications of that procedure made by the Scottish Ministers by regulations. The section also provides powers for the Scottish Ministers to make regulations allowing them to revoke a scheme after it has been made but before it comes into operation in circumstances set out in the regulations (for example, an unexpected collapse of the tender process).

Section 24     Reports on quality contract schemes

47. This section imposes a duty on local transport authorities to prepare a report on the effectiveness of each QC scheme for each successive 12-month period and to submit these reports to the Scottish Ministers. In preparing reports, authorities must have regard to representations received during the relevant period. An authority may require an operator to provide information, and the operator is under an obligation to provide that information in so far as the provision of that information would be reasonable. Reports are to be submitted within 6 months of the end of the period to which they relate.

Section 25     Non-implementation of quality contract scheme

48. Subsection (1) provides that a QC scheme will cease to have effect if an authority have not, within 12 months of the date the scheme was made, entered into a QC in respect of each local service. However, subsection (2) provides that local transport authorities may seek a variation of the scheme where they have not been able to enter into a QC in respect of each local service within that period. For example, the authority may seek an extension to the 12-month period to enable them to let any outstanding contracts, or in a multi-contract scheme they may seek to reduce the scope of the scheme by reducing the number of contracts within it.

Section 26     Regulations as respects quality contract schemes

49. This section empowers the Scottish Ministers to make regulations in relation to the detailed implementation of QC schemes. The regulations may deal, in particular, with the procedures for making, varying and revoking QC schemes, the scope of permitted exclusions under section 14(3), the giving of notice and handling of objections, the holding of inquiries or hearings into objections, and various other ancillary matters.