Official Report 1014KB pdf
Local Services Franchises (Traffic Commissioner Notices and Panels) (Scotland) Regulations 2024 (SSI 2024/229)
Good morning, and welcome to the 31st meeting in 2024 of the Net Zero, Energy and Transport Committee. The first agenda item for consideration is evidence on the Local Services Franchises (Traffic Commissioner Notices and Panels) (Scotland) Regulations 2024. The instrument is subject to the negative procedure, which means that it will become law unless it is annulled.
We first considered the instrument on 8 October, when we noted concerns that had been raised about bus franchising panels and we agreed to seek further evidence. Because of the limited time, we wrote to five organisations and individuals, including the Scottish Government, and I thank them all for writing back. Their responses are included in the papers.
Douglas Lumsden has lodged a motion to annul the instrument. Before we have the formal debate on the motion, we will have an evidence session with the minister and his officials that will give us an opportunity to ask questions or seek clarification on the basis of the evidence that we have received. For the record, given the interest in the item and in our provision of local bus services, I state that I had already asked the Scottish Government to give evidence before Douglas Lumsden lodged his motion.
I welcome Jim Fairlie, the Minister for Agriculture and Connectivity; Sharon Wood, bus policy manager for Transport Scotland; Kevin Gibson, a lawyer for the Scottish Government; and Bridget Bryden, bus regulatory policy team leader for Transport Scotland—that is a snappy title. Thank you very much for joining us. I will give the minister a few minutes to make a brief opening statement.
Good morning. Thank you for inviting me to discuss the regulations. As we know, franchising is an important tool for local transport authorities to improve services in their area. However, it is also a significant intervention in the local bus market. The franchising provisions in the Transport (Scotland) Act 2019 set out a new franchising model that seeks to deliver greater scrutiny and transparency in the franchising process. A key aspect of that is the inclusion of a final approval stage that is external to the authority, which assesses the proposals before the franchise can take effect. The act provides that safeguard to ensure that local authority transport authorities’ franchising proposals have been carefully considered.
Rather than providing for the decision to be made by the Scottish ministers, the 2019 act provides for an independent panel to be appointed by the traffic commissioner, with the intention of depoliticising the final decision-making process. Those measures were included in the Transport (Scotland) Bill at its introduction, they remained throughout the bill stages and they were agreed to by Parliament. Parliament also agreed that detail about the operation of the panels would be set out in regulations. The regulations that we are considering set out that detail and are fundamental to the operation of the franchise process in Scotland, not least because they will give local transport authorities certainty about how their franchising proposals will be considered.
The regulations make provision on a range of administrative and procedural matters in order to provide clarity and legal certainty on how panels should operate, and they include eligibility criteria that preclude the appointment to a panel of anybody who might be employed by operators that are affected by franchising proposals or who could otherwise not act impartially in deciding whether to approve a franchising framework. The approach is designed to secure the independence of the panel’s decision making. The regulations and the 2019 act provide guidance to panels on what they must consider when assessing a local transport authority’s franchising proposals and provide further clarity on what is and is not relevant to the panel’s decision making.
We have engaged closely on the development of the regulations with key stakeholders, including local transport authorities and the traffic commissioner’s office, and their involvement has been crucial in creating procedures that will ensure that the approval process is transparent and impartial. There is a keen appetite among a range of parties and stakeholders—including MSPs, some of whom are sitting here today—for franchising to be available to local transport authorities.
Calling for amendments to legislation or failing to pass the regulations will result in Scotland falling further behind in delivering franchising to improve services for passengers, as any proposal that would seek to significantly amend the panel process as set out in the 2019 act would require primary legislation. As committee members know, policy development of that sort can be significant and would not be completed before the end of this parliamentary session. As I have said, the regulations make important provision on the operation of panels as envisaged by Parliament when it passed the 2019 act, and annulling them could result in local transport authorities deciding to delay any franchising proposals, because of legislative uncertainty.
I am happy to answer any questions that members might have.
When I was welcoming people to the committee, I should also have welcomed Graham Simpson, who has joined us today. He will get to ask questions at the end of the evidence session.
I thank the minister for his opening statement. It is interesting that we have a committee member who sat through the passage of what became the 2019 act as a member of the Rural Economy and Connectivity Committee and who therefore looked at that legislation in some detail. We also have an ex-cabinet secretary for transport who was responsible for the legislation, so we have some knowledge of it.
I do not think that the relevant section of the 2019 act was highlighted as a problem when it came before the REC Committee, but it is being highlighted now, as the system in question will be used in Scotland and nowhere else. Does that justify our using it in Scotland and sticking with something that the Parliament was perhaps not made aware of when it voted on the legislation?
I was not even sitting in the Parliament in 2019, so I cannot answer for the decision-making process at the time, but I trust the parliamentary procedure, and I trust that the people who look at regulations or acts as they are going forward do their due diligence. Therefore, we are where we are.
As for whether we should continue with this, we face a stark choice—either we do not continue with it or we do. If we do continue with the regulations, franchising will happen more quickly. If we do not continue with them, we will have to change primary legislation, which, as you know, is not the simplest thing to do and will require a great deal of time and energy.
There were a lot of amendments to the 2019 act—I seem to remember sitting in the committee and dealing with more than 100 amendments on the workplace parking levy alone—so the fact that this was a failed system might have gone slightly under the radar. How long would it take the Government, if it were so minded, to bring forward primary legislation to change this very minor part of the 2019 act? I think that we are talking about section 38.
We would not be minded to change just this provision. We would have to change the act, which would take us beyond 2026.
Why would you have to change the whole act, if this is just a part of it?
Because it is set in primary legislation. It is part of the 2019 act, so we would have to go back to the beginning and start again.
Can you not change a section of an act through primary legislation? It looks as if Bridget Bryden wants to help me out—I might have got this confused.
It would be possible to make such a change, but we would have to look at the whole Scottish franchising model. The provision has been built in as a safeguard, and we would have to look at whether an alternative safeguard might be needed.
Committee members have a lot of questions. I will bring in Mark Ruskell first, to be followed by Douglas Lumsden and Monica Lennon.
Good morning. Minister, will you explain why a franchising scheme that is approved by a panel is less likely to be subject to legal challenge than one that is approved by a transport authority? That seems to be a key reason why the Government at the time decided to go down this route.
Such a scheme could still be challenged legally but, if it has gone through a panel, that panel will have looked at the requirement for a franchise to be established, the financial model and the business case, as well as consulting other local authorities. It is about crossing every t and dotting every i and making sure that all the processes that we agree with the traffic commissioner are in place and have been fulfilled, so that the case for a franchise is as robust as possible. A scheme could still be legally challenged.
In relation to the risk, you will understand that there is concern about the panel model, and there is not good evidence that that kind of system has worked well across the United Kingdom. However, your key argument is that going down the panel route reduces the risk of legal challenge. What evidence do you see for that?
Under that approach, a scheme is robustly scrutinised by an independent body that has no political input and is separate from the organisations and the authorisers who want to put the franchise in place.
Is there evidence that panels reduce the risk?
Clearly, this is the first one that we have done, so we do not have evidence. As I said, a scheme could still be legally challenged, but this is a safeguard to ensure that everything has been scrutinised to the fullest extent and therefore that any cause for a legal challenge would be lessened. It means that everything that is required to be done in order to provide the services that we are looking to be supplied has been scrutinised at every level.
You said that we are where we are with the legislation, but 2019 was some time ago, and a lot of water has flowed under the bridge with progress on bus franchising around the UK, so there is now a lot more experience. If you were to revisit the provision through a transport act, would you go down the same route? Given what we know about Wales, is this the best route to go down to secure franchising?
Would I personally do that? I would not answer that question right now; I would go back and have a much broader look at everything right back to 2019. I have to be absolutely honest and say that I have not gone back and looked at the debates or the amendments or anything that was done leading up to the 2019 act. However, I reiterate that we are where we are today. Either we pass the regulations or we do not. On what will happen after that, we will just have to see where we go.
My final question is about the guidance that could come on the back of this Scottish statutory instrument. You understand the concerns that have been raised in the petition to Parliament and I am sure that you have read the evidence and know of the experience elsewhere in the UK. What is your response to that? Strathclyde Partnership for Transport and others have a real stake and an interest in seeing this happen. What is your answer to them? How can you deliver reassurance right now through guidance or interpretation of the SSI?
I am trying to help you to find out what the solution is, because I want to see a solution, too. I want franchising to happen as quickly as possible. We are on the same page, but I am struggling to see what the fix is. I am frustrated for you, because a motion has been lodged to annul the regulations.
We will have a memorandum of understanding, and the guidance is under development. I suspect that somebody will ask whether franchising could go ahead whether or not the regulations are annulled. It could, and the traffic commissioner would still establish a panel but, without the regulations, there would be no conversation with officials or the Scottish Government about what the panel would look like, what its make-up would be or what its parameters were. The guidance that is under development will be part of the legislation, which will allow us to have full input into what the commissioner will do when they set up a panel.
My understanding is that, in 2019, we wanted to ensure that there was no political interference in something that is so big and so important and that it would be done independently. The process has to be gone through. It is not that simple to cut the corners. We can put it into the memorandum of understanding that the guidance that is under development will provide the parameters that the traffic commissioner will work to. If the regulations were annulled and if we continued with franchising, the traffic commissioner would make the decisions and we would have no input whatsoever.
09:15
Douglas Lumsden has some questions.
I will pick up on that point first. Minister, you seem to be saying that, if the instrument is annulled, the panels will continue anyway.
Yes—that is in primary legislation.
If the instrument was annulled, what would the Government’s response be? What would its next step be?
If the regulations are to be annulled, I assure you that the rest of my day will be scrapped—let me put it that way. We will go away and have a long and detailed conversation about what will happen next. If the instrument was annulled, the panels would still be implemented and they would then be decided on entirely by the traffic commissioner, without any input from us. That would be the net result.
We would then have to consider whether that was a road that we were prepared to go down or whether we had to stop the approach in its entirety. That is why I am saying that we would be going back to square 1.
You say that that could happen. Would it happen, or would there be changes? I am slightly confused because such a system was tried in England, but it did not work and it has been scrapped there. Wales is doing something completely different. I am confused about why we as a committee and a Parliament would approve what we see as a failed process.
The process that you talk about being used down south is the Nexus process, which was different from this one. That looked at financial aspects; we are looking at the entire effect of franchising.
I will give you an example from my area. There are cross-border issues with bus provision in my constituency, and I give this as a purely random example of a possibility. If we decided in my area to go down a franchising route, we would be required to talk to all the other areas in our locality, so that there was joined-up thinking.
The process that was used down south failed the scheme on finances. My understanding is that the business case was not robust enough, so the proposal was then rejected.
One of the beauties of what we are proposing to put in place is that anyone who wants to go down the franchising route—it will be entirely their choice whether to do so—will have to be absolutely clear in their mind that they have put forward the strongest business case, that they have consulted everyone who has a stake and a vested interest in what the franchise looks like and that they have spoken to their neighbours, because everyone knows that if you want to plant a hedge, that will affect your neighbour, and this is a similar kind of thing. Those involved will have to ensure that they have taken the biggest possible picture that they can in deciding that they want to do this and that they are going to go down this route.
Yes, but after speaking to your neighbours, you would think that you would learn some lessons. From your evidence at question 6, it seems that the Government has no plans to revisit the 2019 act, so I guess that you are not really going to be changing anything.
We could revisit the act if people wanted us to do that, but we would have to forget about franchising between now and 2026, because we would have to go back to stage 1.
Will there be any franchising between now and 2026?
We are in the process of working towards getting stuff done now. We are a long way down the road. I was not in the Parliament when the act was passed, so I do not know why it has taken us so long to get to this point from 2019, but we are where we are and work is being done right now. Conversations are being had about allowing the memorandums of understanding to be established so that we know what the guidance looks like.
If the regulations are passed, we will proceed at pace to get the work done as quickly as we can. I ask Sharon Wood or Bridget Bryden to speak about the timescale for progress. If we get the regulations through today, what will be the timescale for the next stage? Where would we go from here?
After this set of regulations, we require to bring forward one more on franchising. We had hoped to make those regulations before Christmas but, realistically, they will now be produced after Christmas. They concern the process of transitioning into and out of a franchise.
As the minister mentioned, guidance is being developed to support local authorities. We have been engaging with local transport authorities on the draft of that and we will be looking to publish that in the new year. At that point, all the legislative processes will have been completed, so any local authorities that are starting franchising will know exactly what the expectations are as they go through the system.
There is a criticism that the panel could potentially delay franchising. Do you accept that?
No. The panel will be required to make its decision within a six-month period, although it will be up to whoever is presenting the franchising proposal to ensure that they have done all the work that they need to do for it to be progressed.
We are taking a belt-and-braces approach. Anyone who cuts corners will get stopped, so why start in the first place? It is a matter of having certainty that someone else is taking another look—and they might say, “You didn’t do that bit.” Those who are making a proposal should therefore do it right in the first place.
I completely agree with that. However, we should be learning lessons from England and Wales, where people have tried to do the same thing. The approach has not worked there, but we are carrying on with it.
The approach that was taken there was based on the financial model alone; it did not take the whole picture into account. That is the fundamental difference. The proposal there was rejected on the basis of a financial model.
Clearly, the financial model is a really important aspect. We want to ensure that the business case has been made to the fullest extent, and it will include everything else. We are not comparing apples with apples here; we are comparing two different things.
Would our panels not consider the financials, too?
Of course they would. They would be looking at everything; that is the point that I am making.
So—
I am sorry, Douglas—I have given you quite a lot of time on that, and other committee members wish to come in. I will bring you back in afterwards, but I would like to widen the discussion, rather than hear just from you and the minister. I will bring in Monica Lennon, and we will then see who is next.
Thank you, convener, and good morning to you, minister, and to your officials.
We all want to get this right; that is not in doubt. Mark Ruskell is correct to say that we are on the same page and that we want to get it right.
I will follow on from Douglas Lumsden’s questions. The committee has asked a number of experts to give us their views, and we are grateful for the responses that we have received. It is important that we try to learn from practice elsewhere. You can correct me if I am getting any of this wrong.
One of our witnesses, Jonathan Bray, a transport expert who advises the Welsh Government, said in his submission to the committee, referring to the English quality contract scheme, that the proposal for Scotland
“proposes powers that go beyond the English ‘QCS board’. The ‘QCS board’ was only required to make a recommendation, with the transport authority making the final decision on whether to proceed. However, the proposed panel in the draft legislation is given the duty to make the approval for a franchising scheme. This will put great weight on the decision of the panel and may leave the panel at risk of judicial review from incumbent monopoly bus operators. Again risking the panel leaning towards the safer option of rejection.”
I would be interested to hear your response to that, minister. If expert voices from elsewhere are saying that we should not follow that discredited route, would you not agree that this is a good time to pause and reflect? We want to get this right.
Absolutely—we want to get it right. However, I go back to a point that I made previously. If we stop and we do not proceed with the measures that are before us, we will potentially go back to square 1.
On the evidence that you heard from Mr Bray and the proposals that were rejected, there had been a recommendation, as opposed to a final decision. We could turn that round the other way: if a transport authority knows that the final decision could be taken out of its hands, then—going back to the point that I made to Mr Lumsden—it will make damn sure that it gets it right in the first place. It will therefore do all the work and the due diligence that it needs to do to ensure that, when it presents its proposal to the panel, it has done absolutely everything within its power.
I know that we do not have all the time in the world today, but let us consider the submissions from Get Glasgow Moving and other organisations that have a lot of expertise, in which the strong view was expressed that the panel approach would not be the right one for Scotland to take. I hear your point about the fact that, if we do not approve the SSI and we cannot give guidance to the traffic commissioner for Scotland, they will go ahead and appoint a panel anyway. However, surely we—Parliament and Government together—have an opportunity to say today that we will have to take a different approach, having reflected and looked at the evidence and at practice elsewhere.
My concern is about whether, irrespective of whether they are given lots of guidance, the traffic commissioner for Scotland is the right individual to appoint the panel. Without getting into a big constitutional discussion, I see that the point is made in the submissions that this would undermine devolution. The Scottish Government is seeking to give the final decision to the traffic commissioner for Scotland, who is appointed by the UK Government. I know that you have said that annulling the instrument would take us back to square 1, but maybe it would not be a bad thing to use the time to get it right. Is that not an attractive opportunity for you?
I could turn that round and ask, “If it is not the traffic commissioner, then who?” Who would be the decision maker? Do you want the decision to come back to ministers? That would bring the matter back into the political sphere. It was decided in 2019 that it would be taken out of the politicians’ hands, and that is where we are.
I am sorry, but what was the second part of your question, Monica? I did not write it down. I apologise.
You are comfortable that it would be the traffic commissioner regardless of—
I am comfortable that it would be the traffic commissioner for Scotland, on the basis that we will be allowed to create a memorandum of understanding and guidance.
I remember the second part of your question now. The Secretary of State for Transport appoints the traffic commissioner for Scotland based on the fact that there are both devolved and reserved matters in traffic legislation in Scotland. I voted to come out of the UK in 2014. The result of staying in the UK is that, in 2024, we still have tie-ups with another Parliament. Therefore, we live within the bounds of what we voted for in 2014.
The proposal is not about taking powers away from the Scottish Government or from the Scottish Parliament. This is about the reality of the position that we are in: the traffic commissioner looks at reserved and devolved matters, so it is the UK Government’s right to say that the traffic commissioner for Scotland will be appointed by the secretary of state. One of my officials sits on the panel that will go through the process of employing someone in that role. Ultimately, it is a UK Government decision, because we voted to stay in the UK in 2014.
Okay—I do not want us to get too distracted from the issue at hand today. As a Parliament, we have decisions to make and we want to get the best possible system for franchising, because that is what we want to happen. The issue comes down to the question of time and delay. Although I am sympathetic to the principle behind the motion to annul and what it is trying to achieve, when I saw it, my concern was that it could lead to delays and get in the way of franchising. However, no franchising proposal is sitting on the table right now. Therefore, I am interested to know when the Government expects the first proposal for franchising to reach approval stage. I am trying to understand how much time we have to play with.
A consultation is on-going at the moment with—
They will be consulting shortly.
Sorry—my apologies. Let me correct the record. They will be consulting shortly on whether they are going to go for the franchising model.
Just to be clear, who is consulting?
Strathclyde Partnership for Transport.
You expect there to be a consultation. How long will that last?
I will let Bridget Bryden answer that.
SPT is currently working on its regional bus strategy. It has expressed a preference to franchise in its area, but it has not yet committed to that. I think that it has said that it will make a final decision in the spring.
Is that the spring of 2025?
Spring 2025. I am sorry for not having briefed the minister sufficiently on that point. I am not sure, but I think that a further consultation would be required.
09:30
Right, so it sounds as though there is a bit of time to play with, in that nothing is happening quickly. If we were to agree to the motion to annul the instrument, we would not be getting in the way of the SPT process, which has not started yet. I just wanted to get that on the record.
Yes, there is time in hand.
Realistically, if the consultation gets under way in the spring of next year, when is the earliest that the strategy could reach the approval stage?
I cannot speak for SPT or about the level of work that it has done to date. It has not yet started the official process that the act requires. I do not know whether it would be willing to do that without the legal certainty of all the requirements that it would have to meet. If it were to do so, I think that it said that it would take it five years to go through the full process from getting a franchise to having the first buses on the ground.
This will be my final question, because I know that convener is keen to let others in. I am just trying to understand the position. You raised the question of possible delay if we were to vote to annul the instrument. If the consultation ended some time next year, do you expect that the final approval stage would happen in 2025, or could it go into 2026?
Again, it depends on the outcomes of the consultation. If SPT makes a final decision to go ahead with franchising, we would expect to hear something next year. It will then have to go through all the processes that are set out in the act. At the moment, it is consulting on its regional bus strategy. It has not developed its franchising proposals, or consulted on those, and it has not gone through the process for an order.
So the process is still at an early stage. That is helpful.
Before I come to our deputy convener, I would like to clarify a simple point. If the instrument is agreed to, and the next legislation is passed, when is the first year that we could expect to see buses moving into the new process that you suggest could happen?
Based on the legislation alone, if we assume that a local authority has already done all the work in the background, but—
No—that is an assumption that you cannot make; we must start from where we are at the moment.
If we start from where we are at the moment, let us assume that the authority has done all the research that it needs to back up its business case and is just waiting for the legislation to be in place before it starts the formal processes under the act. By the time that it has gone through all the consultations and has drawn up a full document, it would take perhaps a couple of years to get to the point of approaching the panel.
Before approaching the panel?
Yes. Then it is a six-month period for the panel decision.
So we are talking about 2026 as a minimum—possibly 2027, if there is not a fair wind and not everything has been done. I just want to get that into my brain so that I understand it.
We come to questions from our deputy convener.
The committee has received only limited evidence on the matter. Only one individual and two organisations have so far provided evidence, because the committee has had little time to pursue the issue. In the latter part of the evidence that we received from Get Glasgow Moving it referred to SPT’s own timeline for the Strathclyde regional bus strategy process, which is part of its review of the franchising model. It set out that
“its franchising proposals will not be ready for the full independent financial audit (to be followed by the statutory public consultation) until the end of 2025.”
It went on to say:
“This means that they will not be ready for final approval until later in 2026.”
It then explained:
“This gives a window of at least a year for the necessary legislative changes to be made”.
Does that timeline for SPT seeking to take the matter to a panel sound right, given the evidence that we have received?
I think that that estimated timeline has been taken from SPT. It published a number of documents last year, and that estimate was in one of those.
I believe so. From the check that I have made, it published documents in 2023. That is its own timeline. On the basis of that timeline, and that evidence, that would mean that a decision on whether to go to a panel would have to be in place by the end of 2026. Is that correct?
SPT is the first authority in Scotland to provide a timeline for developing franchising, and that is the timeline that it has given. We are not aware that anyone would want to come in ahead of it.
I am questioning that because of what Get Glasgow Moving said about what would happen if the panel issue was not resolved. To be fair to it, I am paraphrasing what it said and it might want to challenge this, but it said that, if the requirement for a panel cannot be removed within that timeframe, the SSI should be passed as an interim measure only, with a view to doing something more appropriate in the future. With regard to the timeline that SPT has set out, is it likely that primary legislation will be brought forward between now and the end of 2026—or at least later in 2026—to remove the requirement for a panel to consider any franchising proposal?
We have not made any preparations for legislation and I am not aware of any suitable legislative vehicles.
Therefore, your answer to that question is no.
Realistically, the answer is no.
Therefore, if SPT took something forward later in 2026 and the SSI had been annulled, we would be in the situation that ministers have set out, namely that the traffic commissioner would have established a panel but that we would have no control over how the panel operated because of the existing arrangements in primary legislation. Is that correct?
Yes.
Get Glasgow Moving is saying that, even if you oppose the idea of a panel, given the timelines that SPT has set out, it would be better to take the SSI forward as an interim arrangement to allow it to make progress on the matter but with a view to the Government considering whether, in the future, there might be a more appropriate mechanism than the panel system set out in the legislation. Would the Government consider that, given the concerns about the panel?
I would need to consider that.
I am conscious that that matter is not necessarily entirely within your portfolio responsibilities. However, like any good Government, you would always want to learn lessons from experience and build on those. I have no doubt that, if the Government felt that there was a more appropriate mechanism in the future, it would want to introduce that.
Yes.
However, that legislative change would not happen before the end of 2026.
That approach would allow the process to continue just now to allow anyone who is looking at franchising to work on the basis that we are where we are and that we are moving in the direction that we are moving in. However, I am very aware of the concerns that have been raised by committee members. I have read the evidence, so I am very aware of those concerns. I cannot give any guarantees, because, ultimately, the cabinet secretary will make the decision. All that I can say is that I am now acutely aware of some of the concerns that have been raised.
You also cannot bind any post-2026 Government anyway. I am conscious that, even after an election, legislation tends to get pushed back as committees are established and priorities are set. That is helpful, thank you.
Will the guidance that will be implemented learn the lessons of the Nexus experience in 2015? There will be cognisance of the fact that the UK Government changed its position through the Bus Services Act 2017, but I also note that the act that we are fully implementing today was passed in 2019. I suspect that everything that we have heard about today, when we have spoken about the need to learn the lessons from what happened elsewhere, was already known when that primary legislation was passed in 2019.
I note that the Welsh experience is still fluid with regard to a national franchising system, and that that system is completely different from what would happen in Scotland. Therefore, will the guidance take into account the experiences in England and Wales in order to ensure that the situation is balanced, proportionate and fair to SPT and others, so that there is a reasonable expectation that a strong and robust case will be approved by an independent panel?
I ask Bridget Bryden to answer that, because she is working through the regulations, at the moment.
We have engaged with the Welsh and UK Governments and with some of the mayoral authorities in England that are developing franchises, or which have franchises in place, to learn from their experience. That is informing the work that is going into the guidance document.
Is that a very concise way of saying that the Scottish Government will take into account people elsewhere’s experiences of raising issues with independent panels that are not necessarily—albeit that I do not want to use this word—competent? I suppose that some of the narrative around this would be that, if you are dissatisfied with an outcome, you do not like the panel. Is the Scottish Government confident that lessons that need to be learned will be learned during development of the guidance?
The independent panel model was tried only once in England. We are looking at drawing from experience that is wider than just experience of the panel model. The Scottish model that went through Parliament takes a different approach to the franchise model that operated in England at the time when the panel sat. One key thing that the minister mentioned is that there is an audit of the financial situation—the business case—before we even get to a consultation, so some issues should be addressed far earlier in the process than was the case when the Nexus case was considered.
I am mindful that SPT has been mentioned a few times, convener. Although I am sure that it will be well aware that the statutory instrument exists, it has not proactively contacted the committee about it. Has SPT proactively contacted the Government about it, minister? Will it be a key partner in consultation on guidance that might flow from the statutory instrument?
A working group of local authorities has been feeding in to the work on all the legislation that is coming through the Transport (Scotland) Act 2019. SPT sits on that group. We also engage with it separately on individual concerns. It has engaged with us. I do not think that it has written to us about panels, but it speaks to us regularly and has written to us about various points.
So, leaving aside various points on which the SPT and others would want a statutory instrument or guidance to reflect what they think is the best design and structure of the arrangements, can you confirm that you are not aware of any overarching or underlying issue for SPT? Can you also confirm that it will, as a matter of course, be consulted on the drafting of guidance?
SPT has not reached out to us in relation to the regulations. As I said, it was consulted when we were developing the panel model. We will definitely consult it on the guidance. As I said, it sits on the working group. It has already made valuable contributions to the draft guidance.
All roads lead back to the guidance, convener.
If the pathway to franchising does not include passing this statutory instrument, will there be no guidance for a panel to look at? Will it, if you like, create its own guidance and decide its priorities for itself? In other words, decisions would still be made by a panel, but it would be less likely to base those decisions on guidance, which would be in the public interest. Is that your understanding?
The traffic commissioner would have the authority to decide all the parameters for the panel. The panel will still be established if we continue on the same route.
Okay.
Get Glasgow Moving has a live petition, which is not with the committee as yet, although I suspect that it might end up with us. I thank it for its briefing and dialogue ahead of today’s meeting. It asks for two things that appear to be contradictory: it wants to fully enact the franchising provisions of the 2019 act, which the instrument seeks to do today, but it also wants a speedier, more streamlined and easier system to secure franchising.
I am not speaking for Get Glasgow Moving—it will be watching the meeting carefully and will speak for itself—but, similar to what Michael Matheson said, if we complete the powers of the 2019 act, will the Scottish Government continue to monitor what is happening elsewhere, learn lessons from that and, if required, reflect and change course? In other words, it will not be a myopic Scottish Government that passes the instrument and says, “Job done”, but will continue to review what is happening elsewhere.
With regard to the asks of Get Glasgow Moving, I had a quick discussion and debate with Ellie Harrison of the group before we came to the meeting, and a lot of those points were raised. She made a strong argument and is very good at what she does. She is asking for streamlining, but our position is that we want to get franchising done, and we want it to work. The panels are part of the 2019 act. If the committee does not pass the SSI, we will still have the panels and the Government would then have to decide how we will take that model forward.
09:45With regard to our scrutiny of what happens as we move forward, we will absolutely keep a close eye on how the model develops, what the guidance will look like and how that will all be implemented.
I have one final question. I highlight that the third bullet point of the petition from Get Glasgow Moving relates to cash—the finance and money to make all this work. Points 1 and 2 are moot if there is no cash in the system to do these things.
If a future Government were to decide to unpick the provisions of the 2019 act, that would—as we have heard—involve another full review of the franchising system, which could take quite some time.
Mr Lumsden will, during the debate, tell us his motivations for wanting to annul the instrument. It is for him to speak for himself in that regard; however, some politicians simply do not agree with franchising and will use any tool in the toolbox to wreck the proposals.
Would you be concerned that, without anything to replace the pathway to franchising, there is a risk that what replaces it in a future session of Parliament might not be as robust as what we currently have?
There might well be such a risk, but my focus right now is on where we are and how we take the proposals to the next stage in order to ensure that franchising actually has the opportunity to go ahead.
I call Douglas Lumsden, to be followed by Monica Lennon.
Thank you for allowing me back in, convener.
I want to pick up on one point, minister. You said that the panels will still be created if the SSI is not approved today. However, with regard to the timescales for creating panels, it sounds as though SPT is furthest on in terms of franchising, although that is still many years away. Surely that gives you time to look again at the legislation and the franchising models, and to ensure that the panels are actually in place. Is that not correct?
It is, but I go back to the point that Mr Matheson made. We have a timescale in which to get things done, so I would much prefer that we get the SSI passed now to allow us to progress the work on franchising and to ensure that we continue making progress such as we have already made.
If the SSI is not passed, that will not really change the timescale. We have heard that SPT is the furthest on, but it is still continuing its work and completion is still a long way off. It would surely be better, therefore, to correct the legislation—as I would put it—as opposed to pushing on regardless and missing this opportunity to get it correct.
You talk about correction, but what does that mean? It means that we would go back to the primary legislation, and I can only see that creating a much longer delay, going into the next session of Parliament.
Mr Lumsden, you said that you had a question, but you have asked two, at the last count.
I will leave it there, convener.
We will continue the discussion under the next agenda item, so I am sure that you will have a chance to return to your questions if you get to speak in that debate. That will be up to you.
I call Monica Lennon.
You have said that the decision on what will happen next is ultimately for the Cabinet Secretary for Transport. Ahead of today’s meeting, have you discussed the matter with the transport secretary, or do you know her view on it?
No. I envisage—and very much hope—that what will happen next is that the committee will pass the SSI today, which will allow us to continue to move forward with franchising. If that is not the case, I will have to go away and we will have to have some discussions.
To be clear, then, in preparing for today’s committee session, the Government has not thought through the scenario in which the SSI could be annulled today, and you are in front of the committee without a plan B. We are looking for as much certainty as possible on what the Government would do next.
I did not speak to the transport secretary when I learned that the motion to annul was being lodged. I looked at the concerns and at why this was becoming an issue. I take on board the issues, but I go back to the primary point that I made, which is that if the committee does not pass the SSI, that will set us back considerably.
Just to be clear, in preparation for this morning’s committee session, views have not been sought from the cabinet secretary, and you and your officials have not reached out to SPT or to any other regional transport partnership for their views.
No, that is not the case. Strathclyde Partnership for Transport is part of the on-going process that the officials—
Have you spoken to SPT about the SSI?
We have not spoken specifically about the SSI.
I am talking about the SSI: that is the matter that is in front of us right now.
SPT is aware that the SSI is on-going. My expectation would be that, if it was concerned, it would reach out and make its issues known.
I think that you are alluding to due diligence not having been done by the Government. I do not think that that is the case. We learned late on Friday that there was a motion to annul, so we are now sitting here on Tuesday morning. I spent my time speaking with officials and asking what the issues and problems are, how we could get around them and what the implications will be. Let us assume that we will get this SSI done and we can continue, but if we do not, we will have to go away and give it further consideration. I would not do that over one weekend; I would ensure that we give it proper consideration.
I was not trying to trick you about due diligence. I am trying to establish what happens next, because that is what interests me, as someone who has to vote on the SSI today. I was hoping to hear a bit more certainty about the Government’s position. The Government understands that the committee might not vote as it wants it to vote today, so we want to know what will happen next.
Just so that we are clear, you have not discussed the issue with the cabinet secretary and it has not been discussed with key partners, including SPT. The committee would therefore have to have faith that you are going to go and talk to people, but we do not know what that conversation would be like. That is all; I will leave it there.
We now come to questions from Graham Simpson.
Thank you very much, convener. It has been a very full and interesting discussion so far.
Minister, the key question, which has been raised already, is basically what will happen if the regulation is annulled today. From what I have heard, given the timescale and where SPT is at, at the moment, it seems that there is time to introduce fairly minor primary legislation to change the system while SPT carries on with its consideration of franchising. Is that correct?
No, I do not think that that is correct: we would have to change the 2019 act. That could not be done in a short timescale. I keep reiterating that we either pass the regulations or we do not, and we have already debated the consequences of that.
I understand that. It is a negative instrument. We either pass it or do not pass it—we accept it or reject it. If it is rejected, there is nothing to stop SPT continuing with its work.
Yes—SPT can continue with its work.
You would then consider your legislative options, in the meantime. Is that correct?
Yes. When we consider the legislative options, I would take that back to the cabinet secretary.
Given what we have heard already, whatever happens, it will be at least 2026 before anything happens, so there is time to do that.
Yes, there is.
Okay, I will leave it there.
There appear to be no more questions. We will move on to our next agenda item, which is consideration of motion S6M-15035, to recommend that the Local Services Franchises (Traffic Commissioner Notices and Panels) (Scotland) Regulations 2024 be annulled. Douglas Lumsden, do you intend to move the motion?
Yes, I intend to move it.
Thank you.
Therefore, I remind everyone that Scottish Government officials cannot take part in the formal debate. I invite Douglas Lumsden to speak to and move the motion. After that, other members may contribute, followed by the minister, then Douglas will wind up the debate and press or seek to withdraw his motion. Obviously, brief interventions can be taken at the discretion of whoever is speaking.
Bob Doris asked me about my motives for the annulment motion. I want to set out straight away that it is not about trying to derail franchising; it is about trying to ensure that we get it right. When I lodged the motion to annul, I did not think that I would move it. My idea was to listen to the minister’s answers, then decide. From the answers that have been given, it is clear that annulling would not really delay franchising. We heard that in the answer to a question from Graham Simpson.
Will the member take an intervention?
Of course.
Can I get a bit more clarity about your position? If we do not implement the provision, do you envisage that we should still have a check and balance in the system beyond simply removing the role of the traffic commissioner? In other words, would we bring in a new provision that the Conservatives think would be appropriate or, as others have suggested, would we just not have the check and balance in the system?
We need to have legislation that is correct and which works. It is up to the Government to review what is in place and then to bring forward changes that will actually do what we want to do. We have seen evidence on the experience in other parts of the UK, where the approach has not really worked. Wales is doing something completely different. I understand that that is not comparing apples with apples, but it is right that we learn lessons and try to improve the legislation.
It would be wrong for us just to say, “This is what was decided back in 2019 and we need to move forward with it regardless.” That would be daft, and we would potentially end up in a worse situation. I was concerned that annulling the SSI would delay things. However, from what we have heard today, I gather that SPT will continue with its work. We already seem to be stuck in the slow lane with franchising, and annulling the SSI would give us a little bit of time to make sure that we get the legislation correct and can then move forward with a franchising model that will work for us all.
I move,
That the Net Zero, Energy and Transport Committee recommends that the Local Services Franchises (Traffic Commissioner Notices and Panels) (Scotland) Regulations 2024 (SSI 2024/229) be annulled.
I am looking for members to contribute. I have Mark Ruskell first, followed by Bob Doris.
I welcome the fact that Douglas Lumsden has moved the motion to annul, because it has enabled us to have a full debate, discussion and exploration of all the issues, which I felt were lacking at our previous meeting. It is good that we now have the opportunity to do that.
I believe that there is a strong consensus in the committee and in Government and that we want bus franchising to work in this country, but I cannot ignore the evidence that has been presented. We need to have a fair and robust decision on franchising—that is absolutely critical. It seems that we have two options. If the SSI is annulled there will still be a panel, although it will be a decision-making panel that will be appointed by the traffic commissioner. If the SSI goes through, there will still be a panel that is appointed by the traffic commissioner, but there will be additional guidance from the Scottish Government.
Will Mark Ruskell take an intervention?
Yes—briefly.
Does the member share my view that a panel will not be created imminently and that, once the Government gets things corrected and has a system that we can all agree on, we can potentially have a panel, or something else, at that stage? The transport commissioner is not going to create a panel at this time.
10:00
It has been useful to understand the timescale for the appointment of the panel. However, regardless of whether we annul, we will still have a panel in place, and I am not convinced that having guidance for the appointment of that panel will change the fundamentally flawed system that was put in place by the 2019 act. I do not think that the guidance will make much difference. We have heard today that it will not make a difference to the timescale that SPT is using in working out its proposal.
The Government keeps trying to bang a square peg into a round hole. I appreciate that the issues of the complexity, difficulty and risk of having a panel were not foreseen when the bill was going through Parliament some time ago, but the Government should now rapidly reflect on those concerns and bring forward a system that offers genuine certainty while being fair and robust.
We heard evidence from an adviser to the Welsh Government, who suggested that Scotland might become a backward-facing outlier because of its commitment to the panel system. I do not think any of us want to go there. That was not foreseen during the passage of the bill in 2019, but that is where we are now. We must look at experiences elsewhere in these islands, and across Europe, to see what works in getting franchising over the line, reducing the risk to transport authorities and getting a fair decision. I struggle to see how having a panel, with or without guidance, will achieve that, because it will not fundamentally change the system that we have.
It is regrettable that we are where we are today, and that should give the Government pause for thought. I fear that we will go down a route that will not get franchising over the line and, because of that, I am prepared to support Mr Lumsden’s motion to annul.
Hindsight is a wonderful thing. My issue with the 2019 act is that using a negative instrument is not the best way to make these regulations, which have “affirmative instrument” written all over them. We should give this a bit more time.
Having said that, I agree that we should take the path towards franchising, as was envisaged on a cross-party basis in 2019. The analysis of the possible issues with having an independent panel draws on the 2015 experience and the 2017 legislative changes, but we passed the act in 2019. Those experiences would have been considered at that time by Parliament and by the committee, which I was not on in 2019.
The one difference that I have with Mr Ruskell is that I think that guidance is key. We are close in many ways, because we want to see a franchising model that will benefit travellers, commuters and communities by taking a partnership approach. Guidance is key and will make a huge difference, so I would like to hear a little more from the minister about how that guidance will be pulled together.
Would it not have been better for the Government to have come to the committee today with a far clearer articulation of what will be in the guidance? I know that preparing it would have put a lot of pressure on the minister and officials, but it would have been better to see the guidance. Then we could have made a judgment about whether it offered some reassurance on the integrity of the panel.
I am not sure about that. I am sympathetic and am tempted to agree, but the regulations and the guidance will be what was intended by the 2019 act. There is nothing untoward in having guidance follow the passing of a statutory instrument.
However, if the regulations are not annulled, there is nothing to prevent the minister spending a bit more time with the committee before any guidance comes into force. That would be helpful to the committee and the democratic process.
If the regulations are annulled, we will still be left with a franchising system, but one that will be significantly inferior to what we will have if they pass.
The guidance will be an underpinning assurance that public interest is at the heart of the matter, and that the independent panel will make decisions in a prudent, proportionate and appropriate manner. It is really important that the guidance is put in place and that franchising comes into existence—which I suppose it is already. Not having guidance would weaken our franchising system, irrespective of what people would prefer an alternative franchising system to look like.
You said that we would end up with an inferior process if the regulations are annulled, but surely that will happen only if the Government does not make changes to get it right going forward.
I appreciate that intervention from Mr Lumsden, because it gives me an opportunity to say that I do not believe that the process is inferior. The regulations will help to bring franchising into existence and enable the powers that are outlined in the 2019 act to be used. The debate that we are having is about whether there could be another way to do that.
I asked the minister whether the Scottish Government would continue to monitor what is happening elsewhere in the UK and beyond and whether, if the Government came to a view that there could be another way to do things, it would be myopic or open minded. His response was that the Government would be open minded. On the basis that the process will be inferior if the regulations are annulled, I will not support their annulment.
I would ask Mr Lumsden what his policy position would be if the regulations do not pass. Would it be to replace them with different checks and balances in the system, or would he want to remove the checks and balances? That goes to the heart of what we are talking about, because that was not articulated by the member when he proposed the annulment—he was silent on that issue. I am happy to take another intervention if Mr Lumsden can clarify what his preference would be—at the moment, we just do not know.
It is a worry for me if we start to change the goalposts on franchising without knowing what other people are intending. We could come out of a new legislative process with a weaker, rather than a stronger, commitment to franchising. I think that we have to let the regulations pass into law and retain the strongest possible franchising system that we can. If others want to look at a different system, we have elections in 2026 and I suspect that franchising will be an issue then.
Irrespective of whether the Government supports the motion, realistically, we all know that there will be draft legislation to review franchising in autumn 2026. Given that SPT could be ready to put something to a panel in winter 2026, I would not want to take the risk of annulling the regulations.
Monica Lennon is the only other person who indicated that they wish to speak. I will go to her, then I will make a comment before we come to the minister.
I agree that is important that we are having the debate, and I thank Douglas Lumsden for lodging the motion to annul the regulations in order to allow us to have a fuller debate. To be clear, like others who have spoken in the meeting and organisations such as Get Glasgow Moving that have given their views to committee members, I want to see a fully integrated, affordable and accessible public transport network that better connects to the public. In the face of a climate and nature emergency and cost of living pressures, that has never been more important.
Before the committee went into public session, I was feeling a bit conflicted. I do not want there to be a further delay because we have not made enough progress, but I also do not want to double down on the bad practice that we have seen elsewhere.
We have had the benefit of time to reflect on the legislation, to look at what has happened elsewhere, and to listen carefully to the experts and campaigners who have taken the time to respond to the committee—I am grateful to all of them for doing that. It is clear that they are telling us that the model that we are looking at—which is similar, although not identical, to others that have been used—has been discredited in other parts of the UK. The minister is shaking his head, but the committee has received what I think are credible statements saying, “Don’t do this—it would be a mistake.” I have not heard a response from the Government today that would make me want to put all that aside.
Do we go ahead, taking the chance that we are doubling down on bad practice that does not serve the people of Scotland well, or do we pause and use the time properly in order to make sure that we have the best possible system?
A few of us questioned the minister on the point about delaying. I do not think that by annulling today we are risking any timetable. We have heard that SPT is furthest ahead, but our actions today will not get in the way of the work that it has under way and, as a Parliament, we have time to work on this. For those reasons, and because of the evidence that I have heard today, I will support Douglas Lumsden’s motion.
It is regrettable that, in anticipation of these very legitimate concerns, the Scottish Government has not come to the table and told us clearly what its view is. It is concerning to hear from the Government that it expects bodies such as SPT and other regional transport bodies to come to it. The Government should be much more proactive in reaching out. The submissions are available on the Parliament website and I know that the Government pays attention to them. I would have felt more reassured if it had taken the time to reach out to key stakeholders. It is disappointing that it did not.
Before I go to the minister, I would like to make a couple of comments. I started off this morning probably in the same position as Monica, not sure that a motion to annul would be the correct way forward. I have listened to the comprehensive evidence that we have taken this morning, which is quite interesting. I lived and breathed as convener of the REC Committee through the passage of the Transport (Scotland) Bill in 2019. I could probably quote some of the amendments and I saw where some of the issues were. The issue that we are discussing today was never flagged up then—it is not something that we saw—and the committee and the Parliament subsequently supported the franchising system.
Today’s meeting has demonstrated the Parliament when it is at its best, which is when we are doing something called post-legislative scrutiny. We are looking at something and saying to ourselves, “We’re not sure about this. We’re not sure if this is the right decision.” That is where we are at. Just because somebody is doing something elsewhere, following them and doing it in Scotland is not necessarily the right way to go.
I am not convinced by any of the arguments today that a motion to annul would delay the franchising system. In fact, I think that it will strengthen it. I think that it will make it better because everyone will buy into it and support it.
I do not want to put words into your mouth, minister, but you said that you were acutely aware of the feelings of the committee and that you would consider them afterwards. However, it will be up to the Cabinet, as a Cabinet Government, to decide whether changes can be made if the statutory instrument goes through. There is no guarantee to the committee that changes will be made if we allow it to go through. Things change—politics change—and therefore we cannot be sure of that.
For those reasons, and because I have very large concerns that what we are doing might not be the right way to go, I will support those members who said that passing a motion to annul is the right thing to do. I put on record that it is a testament to this committee that the process of post-legislative scrutiny of the Transport (Scotland) Act 2019, which is effectively what we have done, has been effective.
I now pass to the minister before I ask Mr Lumsden to sum up.
Okay. It is quite clear where we are in the committee. I will make one or two observations.
Douglas Lumsden said that there will be no delays because we have the timescale. However, we have no idea whether SPT will continue with the process if it now has uncertainty about how things will go. I am not saying that there will be a delay, but there is definitely a risk of delay to the process that SPT is in. That is my first point.
Mr Lumsden also said that there will be no panel if we do not pass this legislation, but there will be a panel. The point has been made on a number of occasions that that panel will be put in place by the traffic commissioner without any scrutiny or input from the Government at any point.
I would like to get some clarification. You are suggesting to the committee that there is now a risk in terms of what SPT might or might not do. However, you have been quite clear to the committee today that you have not asked SPT what its position on that is. How can you be confident that annulling the regulations will increase risk?
10:15
I did not say that I am confident about that; I said that it is a possibility. SPT is putting huge amounts of time and resource into the process of looking at its financial model and everything else that it will have to do. The current position means that we are going to stall the progress of the legislation that would allow SPT to set up a franchise. If the regulations do not pass, SPT will have to decide whether it wants to continue putting the time and resource into that effort when it is not sure what the direction of travel will be.
You have mentioned SPT. What discussions have you had with it on the issue?
I have not had any discussions with SPT. I am merely making the point that a huge amount of time and resource goes into the work that it is having to do around the process. If the instrument stalls today, I anticipate there being a risk that SPT could say that, until there is clarity on and certainty about what the legislation will do, it will pause spending money and putting resource into the process. I am merely making the point that that is a risk.
Every committee member who has spoken today is in favour of franchising—and it is in the 2019 act. The message to SPT from the Parliament would be that the Parliament is in favour of franchising. The only thing that has been debated today is an element of that, which is about the existence of a panel.
If we carry on with the legislation as it is, there will be a panel, regardless. That goes back to the point that Mr Lumsden made. [Interruption.] I will let you finish your point. I apologise; that was rude.
No, that is okay. There does not have to be a panel.
There does. It is in primary legislation.
With respect to both of you—I know that you are arguing and it is always great to have an informed discussion—I would like the discussion to be through me, rather than being head to head, because I struggle to hear both people talking at once.
I will restrain myself, convener.
It is quite all right; it is good to see the minister being passionate about the issue. It just seems to me that, if the motion to annul is passed and the SSI is annulled, the minister has to go away and rethink things. He has the opportunity not to have a panel, if he so chooses.
I disagree with Graham Simpson’s point. If the regulations are not approved and we continue the process of creating or finalising legislation to allow franchising to go ahead, the panel will be set up, because it is in the 2019 primary legislation. The panel will be established by the traffic commissioner, who will do that entirely separately and without any involvement of the Scottish Government, ministers or anybody else. It will be entirely up to the traffic commissioner. That point needs to be clarified before the committee votes. If we do not approve the SSI, there will still be a panel, but it will have no input at all from Government or officials. [Interruption.] We have clearly set something going.
Yes. It is up to you whose intervention you take, but Bob Doris was first, followed by Monica Lennon, if that helps.
I will take Bob Doris.
Thank you, minister. I appreciate that there have been lots of interventions during your contribution.
If the panel is still to be set up, because that is in primary legislation, and no one can assume what primary legislation will or will not pass in this parliamentary session or after the 2026 election, would the current Scottish Government still seek to produce—or is it possible to have—non-statutory guidance that the Government would ask the traffic commissioner and the independent panel to take cognisance of, although they would have no need to do that whatsoever? My view would be that, if you can do that, I would rather have that guidance on a statutory footing rather than having a pick-and-mix, take-it-or-leave-it approach from the independent panel.
The assurance that I can give the committee is that, if we approve the instrument, I will come back to the committee with the guidance as it develops. The committee can then scrutinise that guidance before it goes into the traffic commissioner’s remit. However, once it becomes part of the traffic commissioner’s remit, it is his or hers, because the whole purpose of the regulations is to cut the umbilical cord between the political side of things and deliver a process that the people of Scotland want. I am more than happy to come back to the committee to talk about the guidance and to try to get that agreed as we go forward. I can give that commitment.
There were other interventions. Was it Douglas Lumsden?
I think that Monica Lennon was going to come in next.
I am grateful—
Let me clarify. It is up to the minister to say who he will take an intervention from. However, I note the extremely polite behaviour of all committee members and I encourage that at all times.
Monica, you go first; my apologies.
Thank you. Everyone has been very nice on the committee today.
I accept that you have said that there will be a panel, but I want to go back a bit. You said that if the motion to annul was agreed to, you would be clearing your diary and you and your officials would spend the rest of the day considering what happens next. If we end up with an annulment, could you make a commitment that you would endeavour not just to liaise with the committee but to make a statement to Parliament?
I am sorry; could you repeat that?
If we agree to the motion to annul the instrument today, in addition to coming back to the committee, would you also endeavour to make a statement to the Parliament so that we can consider the Government’s position on the next steps? We are getting into the realms of amending the primary legislation, and the Government will have options.
I will not give any commitment about what I will do if the instrument is annulled. The only commitment that I can give you is that, if it is not annulled, I will certainly bring the guidance back to the committee so that you can scrutinise it. Other than that, I cannot give any other commitment.
I notice that members are trying to intervene. Before we started this discussion, I promised that I would not look at the clock, but it is inappropriate not to look at the clock occasionally. Members and the minister can infer from that what they wish. Minister, it is up to you to take any interventions that you feel are appropriate.
I will go to Douglas Lumsden first and then come back to Mark Ruskell.
Thank you, minister. My point is about panels being created. Thinking about the trajectory that SPT is on, when would you envisage the panel being created, whether the SSI is approved or not? Would it be in 2026, 2027 or 2028?
I do not know whether it is appropriate for me to check the dates or ask Bridget Bryden to take part.
Your officials can slide you a bit of paper with the dates on it if you want.
They can slide me a bit of paper with the current timelines. I am sorry, Mr Lumsden; ask me the question again.
Looking at the SPT’s trajectory, when would you anticipate a panel being created, whether the SSI is approved or not?
You are asking when the panel is to be created?
Yes.
It will be sometime in 2026-27.
Thank you.
I appreciate the minister giving way. It has been a very challenging session.
It has been fine. There’s been nae problems.
You are rolling with it; that is great. I have just one point for clarification. Your official mentioned in the earlier discussion that one more piece of legislation is required to bring in the provisions for franchising. I would like to hear a commitment that that work will continue.
I welcome you saying that, even if you do not need to supply the guidance if the SSI is annulled, you will still work on the guidance and it will still be available for the traffic commissioner.
Some of the concerns that are being raised today come down to the independence of the traffic commissioner and their appointment. The minister will remember that the previous commissioner did an interview that appeared to be quite prejudicial towards franchising. That has really riled people, who want franchising to happen because that is in the public interest. What assurances can you give that the incoming traffic commissioner clearly understands their responsibilities and clearly understands that the policy priority of Government and this Parliament is for franchising to work successfully in Scotland, as is the case in Wales, where there has been a strong public commitment to that?
I will defer to the convener.
As you briefly answer that question, minister, I encourage you to come to the end of your winding up.
Okay. I will clarify one point. Let me be absolutely clear that I said that I will come back to the committee with the guidance as we develop it if the motion to annul is not passed.
You asked about—I am trying to think carefully about the words that I use here—the integrity of the commissioner and their ability to make that decision independently. That goes to the heart of whether we trust people whom we give jobs to. We need to bear in mind that it will not be the Scottish Government who appoints a traffic commissioner but the Secretary of State for Transport. We might have someone sitting on the panel who will be part of that process, but the process of deciphering who the traffic commissioner will be is up to the secretary of state. We then have to accept the fact that that decision is made and that that is the traffic commissioner with whom we will work.
I will make one final point. Monica Lennon talked about there being slight differences between the models. They were not identical at all. The system that did not pass in England looked only at the financial model. The model that we are looking at goes much wider than that.
I will wind up by saying that I would very much like the committee to rethink, given some of the things that we have said. Some members have said that they are minded to vote in favour of a motion to annul. The regulations will give us the certainty to continue with the work that we have already been doing for the past number of years.
We have had the debate, so I will leave it at that.
I will ask Douglas Lumsden to briefly wind up.
I will briefly wind up. Like others, I did not come to the meeting today convinced that a motion to annul was the right way forward, but that was before I listened to the minister’s answers. There seemed to be no real commitment to the process changing, so I think that a motion to annul is our only option. I do not think that we will be doing our scrutiny function any justice were we to continue to use the model, given the evidence that we have taken.
What part of the process does the member want to change? We either have a panel or we do not have a panel. If we do not, that would require changes to be made to primary legislation. Does he want us to go through the primary legislation process in order to remove the panel, which would take us into 2026-27 or beyond, depending on what the political structures look like? What certainty would that give any organisation that is looking to establish a franchising system right now? If I were the chief executive of such an organisation and did not have a clue what the next Government, whatever shape or form it takes, would do on franchising, I would stop everything.
We have heard that there are no voices against franchising in the room; we just want to make sure that it is done in the correct way. You may pull a face about that if you want, but we have seen so much bad legislation—
Will the member take an intervention?
Yes.
Sitting in this room is one thing. We are on the cusp of giving local authorities or transport authorities all the powers that they need to do the thing that we want to happen. There is no guarantee that the policy will continue in the next session of Parliament, and there is no guarantee that the primary legislative process will occur. We are where we are, and I understand the committee’s concerns about the panel. I have given commitments on how we can give surety that the guidance with regard to the panel’s remit is robust and fair. However, if we stop the measure going ahead, we will potentially place a huge delay on the processes that SPT, or anyone else, wants to continue with, because they would not have certainty.
10:30
I clarify that the purpose of interventions is to ask questions. Everyone has had a chance to make statements. Once again, I invite Mr Lumsden—briefly—to wind up.
I am sorry, convener. My question is: what would the alternative be?
It is up to Mr Lumsden whether he takes a question or continues to wind up.
I will continue to wind up.
We have seen that primary legislation can come to this Parliament very quickly—that is evident from our next agenda item. If the Government wants to move forward with franchising and to have it in place before the next election, it can do so if the political will for that exists. I encourage the minister to talk to the cabinet secretary, to ensure that the political will is there and to get primary legislation before us as quickly as possible, so that we can move forward with franchising.
I say, with respect, to Bob Doris, Monica Lennon and Jackie Dunbar, that we have come to the end of this part of proceedings. Rather than anyone else making comments, this is the point at which I will put the question.
The question is, that motion S6M-15035, in the name of Douglas Lumsden, be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Lennon, Monica (Central Scotland) (Lab)
Lumsden, Douglas (North East Scotland) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Against
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dunbar, Jackie (Aberdeen Donside) (SNP)
Matheson, Michael (Falkirk West) (SNP)
The result of the division is: For 4, Against 3, Abstentions 0.
Motion agreed to,
That the Net Zero, Energy and Transport Committee recommends that the Local Services Franchises (Traffic Commissioner Notices and Panels) (Scotland) Regulations 2024 (SSI 2024/229) be annulled.
Given that the committee must produce a report on the instrument and that the deadline for producing that report is extremely tight, it will have to be a very short and factual report. Is the committee content to delegate to me the responsibility for clearing the clerk’s draft for publication later today? That is the timescale.
Members indicated agreement.
Thank you. I thank the minister and his officials for attending.
I suspend the meeting for 10 minutes to allow for a changeover of witnesses before we move on to the next item.
10:32 Meeting suspended.