PSVAR is a masterclass in sloppy legislation
Would you rather have extra-marital sex or extra marital sex?
That hyphen makes a big difference to whether you’re staying in the master bedroom (and enjoying it) or being relegated to the sofa.
The details of wording matters.
One example of where bad draftsmanship and bad policymaking have resulted in bad outcomes is the application of the Passenger Service Vehicle Accessibility Regulations 2005 (PSVAR) to coaches.
The idea was that by the 1st January 2020, all public transport across all modes would be accessible to all.
And, on rail and bus, that’s largely what happened.
But on coach, the 1st January 2020 was the trigger for all hell to break loose.
What happened?
What’s the problem?
The way the regulations worked, all new buses and coaches have had to be accessible from 2000 but older buses have had a grace period to enable operators to churn through their fleets.
This meant that inaccessible single deck buses have had to be eliminated from 2016 while inaccessible double-deck buses had to go in 2017 and inaccessible “Local and scheduled” coach services have had to go by 1st January 2020.
Given that all new buses and coaches have had to be accessible since 2000 (and it is very rare for a bus or coach to stay in service for 20 years), these final deadlines should have been largely irrelevant as by the time they came round, all they were doing was prohibiting a handful of outlying edge cases.
And so it proved in 2016 and 2017. By the time all buses had to be accessible, they largely already were. A tiny number of truly ancient buses had to be withdrawn and special dispensation had to be made for TfL’s heritage Routemaster service (sadly now defunct) but, largely, the passing of these deadlines was something of a non-event.
(The rail deadline of 2020 under equivalent rail regulations was slightly tougher as rail vehicles have a longer service life but some pragmatic derogations were made, and the offending vehicles are now gone),
But when the final coach deadline of 1st January 2020 came round, most coaches were still inaccessible and a huge argument kicked off.
Rail Replacement and Home to School Travel
The row was centred on two specific products: rail replacement and home to school travel.
Suddenly there was an expectation that, now 1st January 2020 had passed, these services should operate using accessible vehicles.
That was a problem as coach operator practice had long been to use their tour fleets for these products, and tour coaches specifically do not need to be accessible. As a result, the vast majority of coaches in operators’ fleets did not (and do not) comply with PSVAR requirements.
As a result, DfT issued various derogations for both rail replacement nad home to school travel; but with increasing ill-will.
This culminated in an angry ministerial letter last week.
In it, the minister pins the blame squarely on the coach industry:
The letter continues in a similar vein, angry at operators’ failure to invest and threatening to prohibit operators removing wheelchair lifts from coaches that come off scheduled services and go onto tours.
But while the sentiments about the importance of accessible travel that the minister expresses are absolutely right, the letter ignores the role of policymaking, legislation and enforcement in getting the industry to this position.
How the regulations were written
Back in 2005, the regulations were written such that certain types of coaches were specifically included in scope (“local” and “scheduled”) and certain types were specifically excluded from scope (“tour”).
“Scheduled” coaches were intended to describe services like National Express, that operate to a timetable and feel rather like a local bus, charging cash fares for individual rides. They were often subsidised for part of their length through fuel duty rebate. Talking to people involved, there was a consensus that National Express (and similar styles of service) should be in scope of the legislation, and - indeed - National Express rapidly got on with inventing a new kind of accessible coach, known as the Levante - introduced as early as 2005.
(in fact, and here’s my tiny claim to fame, I came up with the name Levante, when I worked at National Express. I still get a little frisson of pride when I see the name embossed on the side of every National Express coach. I know, sad isn’t it…)
I still get a frisson of pride from the word “Levante” on a coach…
The legislation’s authors were also aware that coach companies had a huge tour market, which was entirely outside the scope of ‘normal’ public transport. Talking to people involved at the time, the view was that as tour operators didn’t receive public money, they shouldn’t be subject to public regulation.
Now, I’m not getting into whether I think that was the right decision (personally I think it would have been better if coaches had been treated like buses and train carriages, and given a clear and unambiguous deadline for universal accessibility. But this isn’t what happened, and this post is about what did happen).
So the legislation was clear: scheduled coaches needed to be accessible and tour coaches did not.
The problem was that tour coaches were the vehicles used for a number of other categories of transport; including rail replacement and home to school travel.
The way the rules were interpreted - universally - by the coach industry was that National Express-style services needed to be accessible and other services did not.
Why no enforcement?
As we will come onto later in this post, there is a lot of room for ambiguity in the way the legislation is written.
But let’s assume that rail replacement and home-to-school transport should be accessible.
If that is the case, one of the biggest mistakes the Government has made over the last two decades is not enforcing its own rules.
After all, there should have been nothing magic about 1st January 2020. That was the deadline by which inaccessible vehicles had to be withdrawn but given that all new vehicles had to be accessible by 2005, virtually every home-to-school and rail replacement coach was already in-scope.
If using a 2006-dated coach on rail replacement was illegal, it was illegal in 2006. And 2007. And 2008. And 2009, etc etc
If PSVAR covered rail replacement and home to-to-school, then by 2019, virtually every rail replacement and home-to-school coach was operating illegally and had been doing so for around 10 years.
Given this, the complete lack of enforcement was - to put it mildly - misleading.
Surely the time to bring a test case to try to establish the precise meaning of the legislation was back in 2006 when these coaches started being used. If ambiguous legislation is universally interpreted in a certain way by an entire industry and the industry’s regulators do nothing to intervene for 15 years, it’s not unreasonable for that industry to assume that the regulator shares their interpretation.
I’ve spoken to lots of people who seem to think that the date of 1st January 2020 was special - that from this date, operators had to provide accessible coaches on services that are in-scope of regulation. But remember, this is not true. 1st of January 2020 was the date by which they had to stop using any inaccessible coaches that had been introduced before 2005. For coaches built between 2005 and 2019, nothing changed. As this was almost every coach, nothing should have changed.
What is a scheduled coach?
But it did change. Suddenly an expectation existed that rail replacement and home-to-school transport should be accessible, despite 15 years of custom-and-practice.
So people had to dig out their old copies of the original regulations and what they found was that the original wording was highly ambiguous.
For buses, it was very clear: all buses had to be accessible. And, separately, so did all trains. If someone wanted a specific derogation, they had to actively seek it.
But for coaches, PSVAR only applied to vehicles being used on “local” or “scheduled” services. Now, “local” is fine, as the regulations cross-refer to the Transport Act 1985, which contains a clear definition of a “local” service and which is used in many other pieces of regulation. No room for ambiguity there. Good.
But the definition of “scheduled” is a lot more tricky. Here it is (it’s worth quoting in full):
“Scheduled service” means a service, using one or more public service vehicles, for the carriage of passengers at separate fares –
(a) Along specified routes,
(b) At specified times, and
(c) With passengers being taken up and set down at pre-determined stopping points, but does not include a tour service
Does this describe a rail replacement coach, or does it not?
It’s possible to argue that it does: for reasons that are obvious.
But, equally, if you’re a coach operator with a large fleet of tour coaches (and, remember, tours explicitly do not have to be accessible), you might not feel it’s so obvious. You might feel that rail replacement customers and many home-to-school transport customers don’t pay separate fares. After all, if you’re the operator, you’re paid a fee for the whole coach. If you run a local bus service, you are paid a fee by each passenger who boards. But if you run a rail replacement coach, you’re paid a fee by the rail operator and have no relationship with the customers’ fares at all. So are you paid separate fares? Well, as “separate fares” are not a defined term, no-one knows. But if you’re not, then none of the points under (a), (b) or (c) are relevant as the definition doesn’t apply.
But even if you do take separate fares, the definition of a “scheduled service” is one to which (a), (b) and (c) must apply (the regulations say “and” not ‘or). And there is room for ambiguity here as well. Unlike “Local” (which explicitly cross-refers to a defined term in the Transport Act 1985), these definitions are left open to interpretation.
Take “specified routes”, for example. If you’re running a rail replacement service, then are you running a “specified route”? Now, you might say that it’s obvious that you are, as you have to go from station to station. But stations are “pre-determined stopping points”, which is what is covered separately in (c). Given that a “scheduled service” is something that must fulfil the definitions of (a) and (c), then surely a “route” must be something in addition to a “pre-determined stopping point”. But what?
This is where if it were a “Route”, we would be clear. A “Route” is used in the registration process and defines a specific series of streets that a bus must use. By this definition, a rail replacement coach doesn’t have “specified routes”. Whereas a local bus must go the way it is registered, a rail replacement coach can get from point A to point B anyway it likes.
But, of course, if we interpret “route” that way, then the definition also excludes the many National Express services….
In summary: the wording is an ambiguous mess.
Clarity “coming soon”
What makes this whole saga even worse is that the DfT clearly considered that this was unfinished business back in 2000. The guidance, published in 2005, includes this paragraph:
16 years on, the promise of “further consideration and consultation” for “other services” is still live on the DfT website!
Put yourself in the position of a coach operator in 2010. The new rules have been in force for 5 years and no one’s complaining about what you’re doing. What you’re doing is the same as what the rest of the industry’s doing. The Government’s website promises further consultation in due course. And the regulations are unclear.
You’re not going to spend hundreds of thousands of pounds each year on a type of coach you’re not required to buy. Don’t forget that most coach operators are very small family-0wned businesses.
Where we are now
The position we’re left with is far from ideal.
Wheelchair users are entitled to feel fed up that, twenty years after legislation assuring them of access to public transport, there are elements of public transport that remain inaccessible. It would have been much better if coaches had been treated the same way as buses and trains, with all vehicles in scope and clear, unambiguous deadlines.
Coach operators are entitled to feel fed up that, after following the rules in the way they were led to understand they were being enforced, they’re suddenly being cast as the bad guys - and presented with demands for massive upfront investments (of the kind that the bus and rail industries were given fifteen years to make), immediately after being the only sector of the transport industry not granted any kind of bailout during Covid.
And everyone is entitled to feel fed up that we’ve ended up where we are.
But writing angry letters isn’t the right way to resolve this.
Not least because PSVAR is a wholly inadequate way of providing accessibility on coaches anyway. Unlike buses and trains, most coach passengers do not travel at platform level. The normal solution that has been adopted has been a lift. But while making the vehicles compliant with the wording of the regulations, lifts aren’t great at actually facilitating travel for wheelchair users. There are too many stops in which a wheelchair lift cannot be deployed. And lifts are slow and cumbersome.
There are possible other solutions. For some scheduled routes in Scotland, Stagecoach has invested in coaches with a low-floor section at the front. But these are still unusual vehicles and there are questions over their suitability as tour coaches.
It would be better if everyone - including the Government - accepted that we’re not in a good place but instead of exchanging letters, stepped back and actually did that further consultation that was promised 16 years ago to find the solution to a somewhat tricky problem.
This is what MPs should be for
There is, by the way, a wider point to all of this.
The wording of legislation matters. The regulations described have not done the job that they were intended to do. But they were “secondary legislation”, which means that ministers can write them and they go through Parliament on the nod. The last time secondary legislation was rejected by the House of Commons, I hadn’t even been born.
It’s beyond the scope of this article and it’ll never be an election issue, but it would be great if MPs could be judged on their primary job; which is to scrutinise legislation going through Parliament.
Because the wording really does matter.
