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The next item of business is consideration of Parliamentary Bureau motion S6M-15078, on consideration of a Scottish statutory instrument. I call Alexander Burnett, on behalf of the Parliamentary Bureau, to move the motion.
Motion moved,
That the Parliament agrees that nothing further be done under the Local Services Franchises (Traffic Commissioner Notices and Panels) (Scotland) Regulations 2024 (SSI 2024/229), that is to say, that the instrument be annulled.—[Alexander Burnett]
18:10
I lodged a motion to annul the instrument so that, at yesterday’s meeting of the Net Zero, Energy and Transport Committee, we would have the option to annul it once we had heard from the minister, Jim Fairlie. I did not expect to move that motion yesterday, but, after hearing from the minister, I was convinced that the instrument should be annulled.
Let me make a few points to start with. Annulling the SSI will not mean that franchising cannot take place, nor will it mean delay to transport authorities being able to bring forward their plans for franchising. It will not even delay the franchising process. Annulling the instrument will allow the Government to change the legislation, to enable us to have a process that works, and will permit bus franchising to take place if that is what our regional partnerships want.
For me, annulling the SSI is not about making a party-political point or derailing, in a backhanded way, legislation that has been approved by the Parliament; it is about the committee process and the Parliament working as it should do, by providing the post-legislative scrutiny that it is meant to.
The franchising process was put into legislation in good faith, but the Parliament should have the courage to accept that such a process has been tried in other parts of the country and has failed. It would be completely wrong of us to plough on regardless when we have taken evidence from people who have studied the franchising process and told us that we should simplify it.
Yesterday, the committee heard that the SPT—and for the minister’s benefit—
Will the member take an intervention?
I will take an intervention.
When the minister speaks, he might claim that voting to annul the instrument will bring work on franchising to a halt or will take us back to square 1. That would be completely wrong.
Earlier today, I spoke to Valerie Davidson, the chief executive of Strathclyde Partnership for Transport, who told me that nothing that it is doing will change. It will continue to work on the strategy. It will not be in a position to decide whether it wants to pursue franchising until late next year. If it decides to go ahead, it could be 2027 before a panel—the issue here is about establishing a panel—would be handed anything. Does Mr Lumsden agree that that would allow us ample time to amend the legislation or to find another solution, so that we could have a workable and democratically accountable system?
Mr Lumsden, I can give you back some of the time for that intervention.
It is good that Graham Simpson spoke to SPT today, to hear from it exactly what the implications of annulling the SSI would be. If the panel appointment stage is more than two years away, we would have ample time to amend the legislation and get it right.
Personally, I would like to see the franchising process simplified. We can see from the flowchart provided by Transport Scotland that the process is pretty long, with audit of financial implications and consultation built into it long before any panel is appointed. The Government should take this time to review and improve the process. For me, that would show strength and not weakness on the part of the Government. It would show that it is willing to learn lessons and to implement good legislation that can work.
18:13
At its meeting yesterday, the Net Zero, Energy and Transport Committee agreed to a motion to annul the SSI that we are debating today. Scottish Labour supports that position.
Despite the additional powers that emerged through the Transport (Scotland) Act 2019, which were intended to give local authorities the option of franchising bus services in their areas, such franchising remains a complex process. One example of that can be seen in the work that Andy Burnham has conducted in Greater Manchester to bring bus services under a franchising model. That process will have been on-going for more than seven years by the 25 January date for full implementation, and it will have been subjected to extensive scrutiny during that time. Under the 2019 Scottish act, the process would have included a further six-month process to enable an unelected official to have their say on the matter. However, I believe that it should be for local authority elected representatives to determine the proposals.
Will the member give way on that point?
I am sorry, but I do not have time.
I also believe that that view is in keeping with the spirit of the powers that were created through the Transport (Scotland) Act 2019.
When we look at the work that has been done elsewhere in the UK on bus franchising, we see a country that is moving towards legislation that is designed to simplify the process. Whether we are talking about UK Labour’s proposed better buses bill or the work that the Welsh Government and Transport for Wales have done on their road map to bus reform and franchising, the purpose of those exercises is to simplify the processes.
Therefore, it would be disappointing if Scotland, having been the first to do the work to introduce a route to bus franchising, was left with the most complex process for achieving that. I fully support local authorities having the ability to run their own bus services, to franchise bus services in their areas or to enter into bus service improvement partnerships with bus operators in their areas.
I believe that the bus network in Scotland has suffered under the private operator model that we have had for too long and that it is time that the power to determine what is best for an area when it comes to bus service provision was put back into the hands of people and communities across the country. That is why it is crucial that bus franchising is made as simple as possible. The annulment of the SSI that is before us will be a step in the right direction to achieving that.
18:16
It is clear that our communities have suffered from years of bus services being run for private profit rather than in the public interest, so change is desperately needed in order that the public can take greater control over how our services are run.
The SSI that we are considering today would create a system whereby a panel of experts established by the traffic commissioner would have the final say on new franchising proposals. However, the previous traffic commissioner was reported as having made comments against bus franchising. Given that the stated objective of the traffic commissioner is to
“minimise regulatory burden on operators”,
that does not give confidence to transport authorities that their plans will be fairly judged.
Yesterday, the minister attempted to allay those concerns by pointing to future guidance, but it is not clear how such future guidance will address the fundamental concern. How will the public interest be reflected on the panel rather than its being dominated by members who have a largely technical view of bus operation that comes from their experience in a privatised sector? Unfortunately, there are even some in the private bus industry who, sadly, have stated that they see the proposed changes as a form of theft of their business model.
The minister said that the issues in question could have been debated in 2019, when the Transport (Scotland) Bill was considered, but SPT raised strong concerns in evidence at the time. In the original consultation on the bill, it was ministers who were to make the final decision on franchising. The switch to the use of a panel in the final 2019 act was warmly welcomed by private operators, including FirstGroup. Today, we know that the panel system has been discredited and that new models of partnership between national and local government appear to be the most effective and most robust way of introducing franchising. According to an adviser to the Welsh Government, the Scottish Government’s on-going commitment to the panel process leaves Scotland as a backward-facing outlier on bus reform in the UK.
Yesterday, as we have heard, the NZET Committee could not have been clearer in its support for new bus franchising and municipal models, but we need to ensure that the legislation that underpins that mission actually works. Therefore, the Greens will vote to annul the SSI, and it is up to the Government to consider whether improvements can be made to the panel process or whether a change through primary legislation is now needed.
Regardless of the outcome tonight, SPT will, I believe, continue to work on franchising over the next two years, even though no guidance on that is currently available from the Scottish Government. I, too, spoke to the chief executive of SPT this afternoon. As it is unlikely that any decision on any proposal that emerges from SPT’s work will go for approval until summer 2027, there really is time for the Parliament to fix the problem. I am sure that SPT and others will be prepared to work with Transport Scotland and ministers on further necessary reforms should primary legislation be needed.
18:19
The Net Zero, Energy and Transport Committee, which I sit on, was of one voice yesterday in saying that we all support franchising. Much has been said about an independent panel system being a barrier to franchising. I understand that that was considered to be the position in relation to franchising with Nexus in England in 2015. Our legislation was passed in 2019, and it will have taken account of the situation some four years earlier. In 2019, the Parliament came together to decide that an independent three-member panel should be a final check and balance on the system. If the SSI is annulled, that does not scrap that panel. The panel will still come into effect. However, it would block guidance that was developed by the Government in the public interest to ensure that franchising has a safe, secure public-interest pathway. In my view, blocking that guidance would have a negative effect.
Will Bob Doris take an intervention?
I do not think that I have time. I apologise to Mr Lumsden for that.
That said, any party—Government or Opposition—could consider an alternative to the regulations and bring it to the Parliament. If it did, legislative change could be forthcoming that would sweep away both the panel and the guidance. To only block guidance in the public interest is ill considered and ill thought out. I say to Parliament that we should support guidance in the public interest. If politicians wish to look at the matter again, let us do that.
I will not be supporting the annulment.
18:21
I feel that I must express my extreme disappointment and—dare I say it?—my surprise at the short-sightedness of the decision of members of the Net Zero, Energy and Transport Committee, who voted yesterday to move to annul the vital regulations before us, which represent one of the very final pieces of the jigsaw that will allow us to undo some of the damage done to one of our vital public services by Thatcherism’s obsession with selling off the nation’s assets—in this case, the maligned deregulation of bus services.
The Transport (Scotland) Act 2019, which was passed by this Parliament, set us on a journey of giving control back to local authorities in a number of ways to ensure that the people of Scotland have an affordable, reliable bus service that works for the people who rely on it most, rather than providing dividend payments for shareholders.
Franchising is one of the most important and—dare I say it?—ambitious measures, and supporting the motion to annul the regulations puts the brakes on years of work and progress towards delivering that vision and turning it into a reality for the people of Scotland. It may well jeopardise the ability to deliver franchising progress in this session of Parliament.
If we break down what is, in reality, a fairly complex process for the sake of simplicity, we find that the regulations allow for the creation of a panel that will scrutinise the proposals of an authority to develop a franchise, ensure the robustness of the business case and satisfy itself that the authority has done proper due diligence and has consulted the appropriate people, organisations and neighbouring authorities, so that all considerations are made and required actions completed.
It cannot be the case that such a major financial and socially important decision should be taken without full and robust scrutiny. The very presence of a panel to carry out that role will be the insurance policy that we need, so that authorities will adopt the level of rigour that is required to get the process right, and right first time.
The Labour Party’s position—that panels do not work because of the experience in England—simply does not stack up, because highlighting the single panel decision on which it based its comparison is like comparing apples with oranges. That panel only considered the financial business case, which was not robust.
There are many other arguments that could be made but, with an eye on the time, I will confirm what I told the committee yesterday. I instructed the chief executive officer of Transport Scotland to talk to the CEO of SPT, which is the only authority that is currently considering franchising as an option. Some would say that it is a trailblazer for future possibilities; its response was emphatic. SPT is currently developing a new regional bus strategy. Although the strategy is yet to be finalised, in its discussion, SPT noted the importance of checks and balances in the franchising process. Given that it is among the options under consideration, SPT felt that, should the regulations be annulled, it would not be suitable to leave the primary legislation in its current form, with no supporting regulations. [Interruption.] It highlighted the need for a quick resolution to the current position, noting that any legislative changes should be delivered timeously, and it has intimated a desire to work collaboratively with Transport Scotland and other partners to identify a workable solution. [Interruption.]
I do not know whether you can hear me, Presiding Officer, because of all this noise.
Minister, resume your seat. I remind members that they are perfectly entitled to ask for an intervention, but it is at the discretion of the person who has the floor whether he or she takes that intervention. There should therefore not be heckling or conversations around the chamber. Let us listen to the minister conclude his remarks.
In the interests of time, I will continue, because there are a lot of points to get through. As the regional bus strategy continues to be developed, with franchising as one of the options, it needs certainty of direction. These regulations deliver that certainty, and annulment takes that certainty away. If the annulment is successful, it is possible to continue with the progress of the legislation. A panel would or could still be established, but no one other than the traffic commissioner would have any say on its parameters, guidance or timescales of implementation. There would be no Government input into one of the most fundamental safeguards that the legislation is designed to introduce. It would be left entirely up to the transport commissioner, which is simply untenable. The other flawed option that is being proposed by others—
Will the minister take an intervention?
The minister is concluding
Minister, you need to conclude. You had up to three minutes.
The other flawed option that is being proposed by others is a change to primary legislation. At this point in the parliamentary session, that, too, is simply untenable. It would mean that franchising would be delayed into the next parliamentary session, with whatever make-up of Government that delivers. Again, there would be no certainty for the people who rely on bus travel most. Buses are our most used public transport service, so it is too high a risk to take when we have already come so far in delivering what the people have clearly stated they want.
Minister, you need to conclude. [Interruption.]
I could understand if there was a desire to kill the idea of franchising. The Tory position on the issue is understandable, but what makes no sense whatsoever—[Interruption.]
Minister, I ask you to resume your seat for a second. I have asked the minister to conclude. I will not be barracked, nor will he. I will start naming individuals if they are not careful. Minister, you need to conclude; you are well over time, and we are already behind time.
Bear with me, Presiding Officer. If Labour and the Greens vote with the Tories today and annul the regulations, they will have in effect blocked franchising from proceeding in Scotland for years to come. The Scottish National Party knows where we stand on this. We stand for improving the bus network for the benefit of bus passengers, operators, local communities and businesses. We hope that, even at this stage, Labour and the Greens recognise that this is where they want to be, too.
The question on the motion will be taken at decision time.
The next item of business is consideration of Parliamentary Bureau motion S6M-15079, on approval of an SSI. I ask Jamie Hepburn, on behalf of the Parliamentary Bureau, to move the motion.
Motion moved,
That the Parliament agrees that the Coronavirus (Recovery and Reform) (Scotland) Act 2022 (Extension of Temporary Justice Measures) Regulations 2024 [draft] be approved.—[Jamie Hepburn]
I call Liam Kerr, who joins us remotely, for up to three minutes.
18:27
I wish to speak against the motion to pass the coronavirus extension regulations, but let me be clear exactly why. I find myself in the perhaps unusual position of actually understanding where the Cabinet Secretary for Justice and Home Affairs was coming from with regard to the continuation of many of these measures when she was responding to questions at committee. However, we cannot ignore that the legislation was brought forward in response to the pandemic, most of the direct impact of which ceased around three years ago. There can be no analysis whereby good practice is to simply extend legislation brought in during an emergency in a vacuum of scrutiny. That is why I have concerns about the fiscal fines regime aspect of this SSI.
A fiscal fine is a direct measure that prosecutors may offer to an accused as an alternative to prosecution in court. The legislation that the Government seeks to extend today increases the maximum amount that can be issued through a fiscal fine to £500. However, data shows that around two fifths of accused who rejected a fiscal fine faced no further action. In short, not only do criminals—for that is what they are if they are in this situation—avoid a court process and, indeed, any sanction, but, of course, victims are left in the dark as a result.
The problem is compounded not only by the SSI bringing more criminals within scope but, three years on, the Government’s still not having bothered to collate reliable up-to-date data showing the outcome of this so-called temporary change to our law. It is instructive that the Scottish Government itself appears to recognise the need for much greater scrutiny of this change in that it seeks to make it permanent in a forthcoming bill.
Perhaps by then it will have presented robust comprehensive data on the increase and thus adduced evidence as to why the measure is required and whether the stated outcomes at the time have been achieved and will continue. In the absence of such evidence, it is deeply inappropriate to extend legislation on the nod. For that reason, I ask Parliament to vote against the motion.
I call Angela Constance to respond, for up to three minutes, please.
18:29
Colleagues will remember that the Coronavirus (Recovery and Reform) (Scotland) Act 2022 included a number of temporary justice measures to ensure that our justice system was able to respond to the acute impact of the pandemic. Although there has been significant progress towards recovery, we still have some way to go. Therefore, it is necessary to extend the remaining measures for one final year, so that they stay in effect until the end of 30 November 2025, and that move has been backed by our justice partners.
There has been considerable progress in reducing the backlog of cases in the courts, with the number of outstanding scheduled trials falling by more than 45 per cent between January 2022 and September 2024. However, modelling by the Scottish Courts and Tribunals Service anticipates that backlogs and solemn trials will continue above the target baseline until 2026-27. Therefore, these measures will ensure that court resources are used efficiently.
The availability of the higher maximum fiscal fine means that, where appropriate, more summary cases can be diverted from prosecution, reducing the number of cases that go to court. We are talking about cases that, if they were not subject to a fiscal fine, would potentially go to a justice of the peace court and, in all likelihood, would be subject to a financial penalty. There is a pragmatic reason for the use of fiscal fines.
After my recent evidence session with the Criminal Justice Committee, I wrote a follow-up letter, on 24 October, outlining further information and presenting particular data to the committee. Parliament might want to be aware that the Crown Office also regularly updates Parliament on a range of matters relating to its functions.
Turning to the two extended time limits, those are for one further year only. There is no power to extend them beyond next year, and we are not introducing primary legislation to extend them. These regulations are necessary to increase the courts’ capacity to hear trials by, again, ensuring that the resources are not diverted to holding large numbers of procedural hearings to extend time limits on an individual case-by-case basis. I am sure that Parliament does not want to risk compromising the courts’ capacity to focus on progressing trials and reducing the backlog. As the Lord Advocate highlighted to members on 10 October, removal of the time limits right now would present a serious risk that victims and witnesses might be deprived of their access to justice.
To conclude, I acknowledge Mr Kerr’s comments. There are indeed a limited number of these temporary measures that are being baked into permanent legislation that has been introduced to Parliament.
I believe that the regulations are a package and are crucial to assisting our continued recovery, and I commend the motion to Parliament.
The question on the motion will be put at decision time.
The next item of business is consideration of three Parliamentary Bureau motions. I ask Jamie Hepburn, on behalf of the Parliamentary Bureau, to move motion S6M-15080, on approval of a United Kingdom statutory instrument; motion S6M-15081, on approval of an SSI; and motion S6M-15094, on committee membership.
Motions moved,
That the Parliament agrees that the Vehicle Emissions Trading Schemes (Amendment) Order 2024 [draft] be approved.
That the Parliament agrees that the Public Procurement (International Trade Agreements) (Miscellaneous Amendments) (Scotland) Regulations 2024 [draft] be approved.
That the Parliament agrees that Elena Whitham be appointed to replace Ruth Maguire as a member of the Health, Social Care and Sport Committee.—[Jamie Hepburn]
The question on the motions will be put at decision time.
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