Provision of service information when varying or cancelling registration
Section 39 of the Transport (Scotland) Act 2019, introduced a new information-sharing process related to the local service registration process. This new information-sharing process is contained in section 6ZA to 6ZB of the Transport Act 1985 (“1985 Act”) and the Public Service Vehicles (Registration of Local Services) (Provision of Service Information) (Scotland) Regulations 2022 (“2022 Regulations”). The 2022 Regulations, which come into force on 1 April 2023, replace the existing voluntary arrangements.
The new process enables affected authorities (defined by section 6ZA (6) of the 1985 Act) to obtain specific service information from an operator who proposes to vary or cancel the registration of a local service. The provisions within the 1985 Act also enable, in limited circumstances, the affected authority to share the new information with other affected authorities, and with people who wish to bid to provide a service to supplement or replace the one being varied or withdrawn.
The information-sharing process is designed to fit in with the 28 day period, which an operator must observe by sending a notification of a proposed application to an affected authority and actually submitting the application to the Traffic Commissioner.
The Scottish Government has prepared a guidance note on the new process, which includes an information request form. The template can be used by affected authorities to request specific service information. The guidance note is below. The information request form is also included below, in PDF and Word format.
Guidance note on the new information-sharing process
Guidance notes on the new information-sharing process contained in the Transport Act 1985 and the Public Service Vehicles (Registration of Local Services) (Provision of Service Information) (Scotland) Regulations 2022.
Introduction
Section 39 of the Transport (Scotland) Act 2019 (“the 2019 Act”) introduced a new information-sharing process related to the local service registration process. The new information-sharing process is contained in section 6ZA to 6ZB of the Transport Act 1985 (inserted by section 39 of the 2019 Act) and the Public Service Vehicles (Registration of Local Services) (Provision of Service Information) (Scotland) Regulations 2022 (“the 2022 Regulations”).
The new information-sharing process applies only in relation to notifications of proposed applications to vary or cancel a registration received by an affected authority on or after 1 April 2023. This means if an operator notifies an affected authority of a proposed application to vary or cancel a registration and the authority receives this notification on 31 March 2023, the authority cannot require the information prescribed in regulation 3 of the 2022 Regulations as the new information-sharing process does not apply to that notification.
The new provisions enable an affected authority (defined by section 6ZA (6) of the 1985 Act) to obtain specific service information from an operator who proposes to vary or cancel the registration of a local service. The new provisions also enable, in limited circumstances, the affected authority to share the information with other affected authorities, and with people who may wish to bid to provide a service to supplement or replace the one being varied or withdrawn.
This guidance note is intended to provide further information on how the new information-sharing process will operate and provides a step-by-step guide to affected authorities and operators on using the new process.
Summary of the registration process
The bus service registration process is set out in the Public Service Vehicles (Registration of Local Services) (Scotland) Regulations 2001(“the 2001 Regulations”)(as amended) and requires operators to submit notification of any proposed application for registration, or for variation or cancellation of a registration, to the relevant authority.
For further information about the registration process for local bus services in Scotland, please read the guidance for operators, produced by the Office of the Traffic Commissioner. The registration form can also be accessed from the Traffic Commissioner’s website. The form provides clear instructions on what the operator must provide to enable the Traffic Commissioner to assess the registration. Throughout the pre-registration and registration process, the aim should be for good data accuracy and adherence to timescales.
Proposed applications to vary or cancel an existing registration of a local service
This section explains the legislative requirements which apply to operators and affected authorities, and best practice in relation to those requirements recommended by the Scottish Government. It provides a step-by-step breakdown of the information-sharing process that may be initiated by an affected authority when it receives a notification from an operator who proposes to vary or cancel the registration of a local service.
The 2022 Regulations prescribe the period when an affected authority may require information from an operator and when the operator must provide the required information to the affected authority. This allows sufficient time for dialogue between the affected authority and the operator to determine whether and to what extent, the authority can provide support for replacement services.
The information-sharing process is designed to fit in with the 28-day pre-notification period contained in regulation 4 of the 2001 Regulations. Under regulation 4, an operator must submit a notification of a proposed application for registration, or to vary or cancel a registration, to the relevant authority. Then, the operator may only submit the application to the Traffic Commissioner after receiving a confirmation notice from the affected authority, or after 28 days have passed since the operator’s notification.
Step 1
The operator issues a notification to the affected authority of their proposed application to vary or cancel a registration. The Scottish Government recommends that the affected authority acknowledges receipt of the notification.
Step 2 (Days 1 – 7)
The affected authority considers the content of the notification. The affected authority may request from the operator specific information relating to the local service prescribed by regulation 3 of the 2022 Regulations. This request for information must be made within a seven-day period. The seven-day period starts on the day after receipt of the notification. Part 4 of this guidance note specifies the prescribed information an authority may request.
The affected authority may only require information about the part of the service detailed in the operator’s notification. Therefore, if the operator is only seeking to vary part of a service, the authority can only require information about that part.
Step 3 (Days 8 – 14)
The operator receives the affected authority’s request for information. The operator must provide the information within a seven-day period. This seven-day period starts on the day after receipt of the authority’s request.
When providing information to an affected authority, an operator may also provide evidence that the disclosure of some or all of the information is likely to damage its commercial interests and request that the authority does not disclose the information. If an operator provides evidence and makes a request for the information provided not to be disclosed, the affected authority is required under section 6ZA (5) (b) of the 1985 Act to decide whether it agrees with the operator’s assessment based on the evidence submitted and to notify the operator of its decision.
Step 4 (Days 15 – 28)
The affected authority has at least 14 days to consider the information provided by the operator. The Scottish Government recommends that the affected authority and the operator use this period to also discuss the proposed changes.
Step 5 (Day 28 (or before))
The operator may submit its application to the Traffic Commissioner after either (i) receiving a confirmation notice from the authority, or (ii) 28 days have passed since it sent the notification to the authority.
Prescribed information that affected authorities can request
Regulation 3 (1) of the 2022 Regulations sets out all the prescribed information that an affected authority may require from an operator:
- the total number of journeys undertaken by passengers on the part of the relevant service specified in the operator’s notice,
- the number and types of passengers using the part of the relevant service specified in the operator’s notice,
- the journeys made by those passengers,
- the types of fares paid by them,
- the type of tickets used by them, and
- the revenue received from the part of the relevant service specified in the operator’s notice to the authority, including information about revenue attributable to -
- specified types of fares or journeys undertaken, and
- specified times of the day or week.
An affected authority can only require this information for the purposes of exercising their functions under section 9A of the Transport Act 1968 (where the affected authority is SPT) or under section 63 of the Transport Act 1985 (where the authority is a local transport authority or Transport Partnership other than SPT).
As noted earlier in this document, an affected authority can only require information about that part of the service specified in the operator’s notice. Therefore, if the operator is only seeking to vary part of a service, the authority can only require information about that part.
In addition, an affected authority can only require information in respect of the preceding 12 months, or a shorter period if the service has not been operating for 12 months.
Excluded applications
Regulation 5 of the 2022 Regulations provides that the information-sharing process in section 6ZA of the 1985 Act does not apply to certain types of proposed applications to vary or cancel a registration. These applications are known as “excluded applications” in the 2022 Regulations and they are listed in regulation 5. If an operator proposes to make an application of this type, the affected authority cannot require the prescribed information listed in part 3. The ‘excluded applications’ are listed below:-
- an application to vary a service to provide additional stopping places for the service (without removing any such stopping places),
- an application to vary a service so as to increase the frequency of the service,
- an application to vary a service so as to extend the period in any day for which the service operates,
- an application to vary or cancel a service coming within a case specified in regulation 7 (2) (a) to (e) and (g) of the 2001 Regulations, or
- an application to vary a service by adjusting the timetable of the service without significantly affecting the level of the service provided, and the adjusted timings are either—
- in no case more than 10 minutes earlier or later than those in the registered timetable, or
- required to adapt the service to a variation in connecting a rail, ferry or air service.
The reason the information-sharing process does not apply to ‘excluded applications’ is that these applications tend to either improve the local network or make minor alterations to timetables (as highlighted above).
Extent of permissible disclosure
Section 6ZB of the 1985 Act sets out the limited circumstances, in which information obtained by an affected authority may be disclosed. In doing so, it draws a distinction between the two distinct types of information, patronage, and revenue, with the latter having a narrower group of potential recipients and additional controls on what can be disclosed. In both cases, the information may be shared with other affected authorities, but they may not then disclose the information to anyone else.
The disclosure of patronage information may be shared with an economic operator (an economic operator is any person, public entity or group of persons or entities, including temporary association of undertakings that offers to provide local services on the market.) in connection with an invitation to submit a tender to provide a supported service to replace or supplement the service being varied or cancelled by the operator.
An affected authority may disclose the revenue information to an economic operator in connection with an invitation to submit a tender to provide a supported service to replace or supplement the service being varied or cancelled. However, the revenue information must be aggregated into an annual figure to preserve commercial confidentiality. The affected authority is also prevented from disclosing revenue information where it has decided to take on the revenue risk as there would be no practical benefit in its disclosure.
As noted in part 3 of this note (at Step 3), when providing the required information to the affected authority, an operator may also provide evidence that the disclosure of some or all of the information is likely to damage its commercial interests and request that the authority does not disclose the information. If the operator provides evidence and makes such a request, then section 6ZB (6) of the 1985 Act requires the affected authority to decide whether it agrees with the operator’s assessment (based on the evidence submitted) and notifies the operator of its decision.
Section 6ZB (7) of the 1985 Act states the authority must not disclose any information which is the subject of such a request until the authority has compiled with the duties under section 6ZB (6) of the Act. In addition, if the authority decides that disclosure is likely to cause damage to the commercial interests of the operator in question, then section 6ZB (7) of the 1985 Act provides the authority must not disclose the information in question.
Regulatory interventions
The Traffic Commissioner for Scotland is the licensing authority for the bus and coach industry, whose functions promote safe, fair, efficient, and reliable passenger and goods transport through regulation. A large part of the Traffic Commissioner’s work relates to the operation of local bus services and operators who fail to meet their obligations under the licencing regime.
The Traffic Commissioner may take steps against an operator who fails to comply with a request for information by an affected authority under section 6ZA of the 1985 Act. Under section 39 of the Transport (Scotland) Act 2001 (The 2001 Act as amended by section 39 (2) of the 2019 Act.) the Traffic Commissioner may impose a financial penalty on an operator who (without reasonable excuse) fails to comply with a request for information under section 6ZA of the 1985 Act. In addition, under section 26 of the 1985 Act (The 1985 Act as amended by article 36 of the Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2023), the Traffic Commissioner may attach conditions to an operator’s licence if the operator fails to comply with a request under section 6ZA.
Furthermore, an affected authority who, without reasonable excuse, discloses information in contravention of the rules in section 6ZB of the 1985 Act commits an offence, and the penalty is a fine of up to level 5 on the standard scale (currently £5,000). Section 6ZB (10) also sets out the circumstances where an individual may be prosecuted for an offence, if the disclosure is attributable to an individual employed by an affected authority.
An information request form that has been designed to function as a template for affected authorities requiring information from operators who are proposing to vary or cancel a local service. This form is for guidance only.
The Information Request Form is designed to enable affected authorities to request information they require from operators in relation to proposals for varying or cancelling a registered service.
Regulation 6 of the 2022 Regulations states the operator may provide the information in any form in which it is reasonable for the information to be provided (having regard to the manner in which the information is kept).