Transport (Scotland) Act 2005

The Scottish Road Works Commissioner S

16 Creation, appointment, status and funding of Scottish Road Works Commissioner S

(1) There is, by this Act, created an office, the holder of which is to be known as the Scottish Road Works Commissioner (in this Part, “the Commissioner”).

(2) The Commissioner shall be appointed, on such terms and conditions as they determine, by the Scottish Ministers.

(3) Those terms and conditions may include arrangements relating to the payment of pensions, allowances or gratuities to, or in respect of, persons who have ceased to hold office as the Commissioner.

(4) The Commissioner is not a servant or agent of the Crown and has no status, immunity or privilege of the Crown.

[F1 (4A) The Commissioner is, as such, to be regarded as a juristic person distinct from the individual for the time being holding the office.]

(5) The Scottish Ministers may make grants to the Commissioner in respect of the Commissioner's expenses.

Textual Amendments

F1 S. 16(4A) inserted (14.1.2021) by Transport (Scotland) Act 2019 (asp 17), ss. 109(2), 130(2) (with s. 126); S.S.I. 2020/429, reg. 2(f)

Commencement Information

I1 S. 16 in force at 10.10.2005 by S.S.I. 2005/454, art. 2, Sch. 2

17 Functions of Commissioner S

(1) The Commissioner has the general functions of—

(a) monitoring the carrying out of works in roads in Scotland;

(b) promoting compliance with the 1991 Act and obligations imposed under it; and

(c) promoting the pursuit of good practice by those persons who have functions conferred on or permissions granted to them by or under that Act,

as well as the particular functions conferred upon the Commissioner by or under that or this Act.

(2) In subsection (1) above, “works in roads” includes road works within the meaning given by section 107(3) of the 1991 Act, works for roads purposes within the meaning given by subsection (2) of section 145 of that Act and major works for roads purposes within the meaning given by subsection (3) of that section.

(3) The Commissioner may, for the purposes of the discharge of the general functions referred to in paragraphs (b) and (c) of subsection (1) above, assess whether the persons referred to in subsection (1)(c) above are complying with the 1991 Act and any obligations imposed on them under it and are following good practice.

(4) In this section “good practice” means compliance with—

(a) any code of practice issued or approved under the 1991 Act or any direction issued under that Act; and

(b) subject to such codes and directions, such practice in the doing by the persons referred to in subsection (1)(c) above of what they must or may do by or under the 1991 Act as appears to the Commissioner to be desirable.

(5) Schedule 2 provides further as to the Commissioner.

(6) The Commissioner may do anything calculated to facilitate the discharge of any of the Commissioner's functions.

Commencement Information

I2 S. 17 in force at 10.10.2005 by S.S.I. 2005/454, art. 2, Sch. 2

18 Duty of road works authority and undertakers to provide Commissioner with information S

(1) A road works authority or an undertaker shall, on being required to do so by the Commissioner, provide the Commissioner with such information relevant to their respective functions and activities as the Commissioner reasonably asks for for the purposes of the performance of the Commissioner's functions.

(2) For the purposes of subsection (1) above, information is relevant to functions or activities if it is information which the authority or undertaker possesses or can reasonably be expected to acquire.

(3) Where—

(a) a road works authority or an undertaker; and

(b) the Commissioner,

do not agree as to whether information asked for by the Commissioner in pursuance of subsection (1) above is reasonably asked for, the matter shall be settled in such manner as may be prescribed by the Scottish Ministers by regulations.

(4) Where regulations under subsection (3) above prescribe that a matter is to be settled by arbitration, section 158 of the 1991 Act shall apply in relation to that matter as that section applies in relation to a matter which, under Part 4 of that Act, is to be so settled.

Commencement Information

I3 S. 18 in force at 1.4.2008 by S.S.I. 2008/15, art. 2(2), Sch. 1

[F2 18A Power to carry out inspections S

(1) The Commissioner or an inspector (“the authorised person”) may—

(a) enter any premises of the type mentioned in subsection (3) and inspect it and anything in it,

(b) require the production of any information relating to the fulfilment of specified functions or obligations, and specify the form in which the information is to be produced,

(c) take copies of, or take possession of, information (in whatever form) which relates to the fulfilment of specified functions or obligations and retain it for as long as the authorised person reasonably considers necessary,

(d) carry out an examination of, and conduct tests on, any equipment used or to be used in fulfilling specified functions or obligations by—

(i) an undertaker,

(ii) a road works authority, or

(iii) a roads authority,

(e) require any person to provide the authorised person with such facilities and assistance as the authorised person reasonably considers necessary.

(2) The powers in subsection (1) may be exercised only for the purposes of—

(a) establishing whether an offence has been committed under the 1991 Act,

(b) establishing whether a duty under section 118 or 119 of the 1991 Act has been breached, or

(c) establishing whether a duty under section 60(3A) or 61B of the 1984 Act has been breached.

(3) The premises referred to in subsection (1)(a) are—

(a) any premises (other than any premises that is used as a dwelling) occupied or used by any of the following persons for the purposes of exercising their functions as—

(i) an undertaker,

(ii) a road works authority, or

(iii) a roads authority, or

(b) any land on which works in roads are being carried out.

(4) For the purposes of this section—

(a) an “inspector” means a member of staff—

(i) appointed under paragraph 1(1) of schedule 2, and

(ii) designated by the Scottish Ministers as an inspector for the purpose of this section,

(b) a “specified function or obligation” means—

(i) any function or obligation under the 1991 Act, or

(ii) any function or obligation under the 1984 Act so far as it relates to works in roads.

Textual Amendments

F2 Ss. 18A-18F inserted (1.4.2024) by Transport (Scotland) Act 2019 (asp 17), ss. 110(2), 130(2) (with s. 126); S.S.I. 2023/250, sch.

18B Inspections: warrants S

(1) This section applies to the powers conferred by section 18A(1).

(2) A sheriff may grant a warrant under this subsection only if the sheriff is satisfied, by evidence on oath—

(a) that there are reasonable grounds for entering premises—

(i) for a purpose specified in section 18A(2), and

(ii) of a type mentioned in section 18A(3)(a), and

(b) that—

(i) entry to the premises has been refused,

(ii) such a refusal is reasonably expected,

(iii) the premises are unoccupied, or

(iv) the occupier is temporarily absent.

(3) A warrant authorises an authorised person—

(a) to enter the premises,

(b) to exercise any other power conferred by section 18A(1), and

(c) if necessary, to use reasonable force in doing so.

(4) A warrant expires—

(a) 28 days after the day on which the warrant was granted, or

(b) if earlier, when any period as is specified in it for the purpose for which it was granted expires.

Textual Amendments

F2 Ss. 18A-18F inserted (1.4.2024) by Transport (Scotland) Act 2019 (asp 17), ss. 110(2), 130(2) (with s. 126); S.S.I. 2023/250, sch.

18C Inspections: further provision S

(1) This section applies to the powers conferred by section 18A(1) (whether exercised by virtue of that section or under a warrant granted under section 18B).

(2) The power of entry may be exercised only at a reasonable time of day.

(3) An authorised person seeking to exercise a power must, on request, produce evidence of the person's identity and authorisation before exercising the power.

(4) An authorised person may take onto the premises such other persons, and such materials and equipment, as the authorised person considers necessary.

(5) If an authorised person enters the premises by virtue of a warrant, the authorised person must, if taking possession of anything under section 18A(1)(c), leave a statement on the premises giving particulars of what has been taken and by whom.

(6) On leaving any premises which an authorised person is authorised to enter under a warrant, the person must, if the premises are unoccupied or the occupier is temporarily absent, leave the premises as effectively secured against entry as the authorised person found them.

Textual Amendments

F2 Ss. 18A-18F inserted (1.4.2024) by Transport (Scotland) Act 2019 (asp 17), ss. 110(2), 130(2) (with s. 126); S.S.I. 2023/250, sch.

18D Offence of obstructing inspections S

(1) A person commits an offence if the person—

(a) without reasonable excuse, fails to comply with a requirement of an authorised person, or

(b) intentionally obstructs an authorised person in the exercise of a power conferred by section 18A(1) or by virtue of section 18F.

(2) A person who commits an offence under subsection (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum,

(b) on conviction on indictment, to a fine.

Textual Amendments

F2 Ss. 18A-18F inserted (1.4.2024) by Transport (Scotland) Act 2019 (asp 17), ss. 110(2), 130(2) (with s. 126); S.S.I. 2023/250, sch.

18E Liability of authorised persons S

(1) An authorised person does not incur any civil or criminal liability for anything done or omitted to be done in the exercise or purported exercise of a power conferred by section 18A(1) or by virtue of section 18F.

(2) Subsection (1) does not apply where it is proved that—

(a) the authorised person acted in bad faith,

(b) the authorised person failed to exercise a reasonable degree of care and skill, or

(c) the authorised person did not act on reasonable grounds.

(3) For the purpose of subsection (1), no regard is to be had to any defect in the appointment of an authorised person.

(4) Subsection (1) does not affect any liability of any other person in respect of things done or omitted to be done by the authorised person.

Textual Amendments

F2 Ss. 18A-18F inserted (1.4.2024) by Transport (Scotland) Act 2019 (asp 17), ss. 110(2), 130(2) (with s. 126); S.S.I. 2023/250, sch.

18F Power to make regulations about inspections S

(1) The Scottish Ministers may by regulations make further provision about the functions of authorised persons in relation to inspections.

(2) Regulations under subsection (1) may, in particular, make provision—

(a) conferring powers on an authorised person,

(b) specifying requirements with which an authorised person must comply.]

Textual Amendments

F2 Ss. 18A-18F inserted (1.4.2024) by Transport (Scotland) Act 2019 (asp 17), ss. 110(2), 130(2) (with s. 126); S.S.I. 2023/250, sch.