Scottish Road Works Commissioner: status and functions
Status of the Scottish Road Works Commissioner: section 109
459.The office of the Scottish Road Works Commissioner was established in October 2005 under section 16 of the Transport (Scotland) Act 2005 (“the 2005 Act”).
460.Where a person in Scotland holds a public office it is generally considered that the person does so in a separate capacity from that of the person as an individual. For example, where the person enters into a contract to employ staff or buy property, they are doing so as the office-holder and not in any personal capacity.
461.Section 109 of the Act amends section 16 of the 2005 Act to confirm that this is the case for the Scottish Road Works Commissioner. It is not regarded as a making change to the status of the Commissioner.
Inspection functions: section 110
462.Although the Scottish Road Works Commissioner has the power to require roads authorities, undertakers and road works authorities to provide certain information (see sections 118(4) and 119(2B) of the 1991 Act and section 18 of the 2005 Act), the Commissioner currently has no general inspection function and therefore no independent means of establishing levels of compliance with road works obligations. Section 110 addresses this by inserting a number of new sections into the 2005 Act, under which the Commissioner will be able to establish the facts in relation to specific instances of suspected non-compliance and to monitor levels of compliance by roads authorities and undertakers more generally.
463.New section 18A of the 2005 Act confers a number of inspection functions on the Commissioner. The specific actions which may be taken are set out in subsection (1) of the new section and include entering specified land or premises such as road works sites and related offices (but excluding private dwelling-houses), obtaining documents or other information, and examining or testing equipment used in connection with road works. However, the functions may only be exercised for the purposes specified in subsection (2) of the new section. These inspection functions may be exercised by the Commissioner personally or by a member of the Commissioner’s staff who is designated as an inspector by the Scottish Ministers.
464.New section 18B of the 2005 Act allows a warrant to be granted authorising the exercise of the powers conferred by section 18A. The obtaining of a warrant will be necessary (and can be granted) only where entry to the premises is refused, is expected to be refused, or where there is no occupier present to allow access – either because the premises are unoccupied, or because the occupier is temporarily away.
465.The ability to obtain a warrant is limited to premises of the type mentioned in section 18A(3)(a); land under section 18A(3)(b) is likely to be a road and therefore access to it would not be impeded by a locked door or an occupier’s refusal to allow entry. A warrant may only be granted if there are reasonable grounds for entering the premises for a purpose for which the right of entry may be exercised (essentially, establishing whether a specified duty has been breached or an offence committed).
466.It should be noted that, under the Courts Reform (Scotland) Act 2014, it is not just a sheriff who may grant such a warrant: a summary sheriff is also entitled to do so (see the consequential amendment made to the 2014 Act in schedule 1 of the Act).
467.The granting of a warrant authorises the Commissioner or inspector to enter the premises and exercise any of the other inspection powers conferred by section 18A. If necessary, reasonable force may be used in doing so. A warrant expires when it is no longer needed, unless the warrant itself makes provision for it to expire earlier.
468.New section 18C of the 2005 Act sets out rules that apply when an inspection function is exercised (whether it is exercised under the authority of section 18A or under the authority of a warrant). Entry must take place at a reasonable time of day, and a person exercising an inspection function must produce identification and evidence of their authorisation if asked to do so. The person exercising the functions may also bring someone else along with them, or any materials or equipment that are required.
469.Where the powers are exercised under a warrant, it may be that there is no occupier present to allow access to the premises – either because the premises are unoccupied, or because the occupier is temporarily away. Accordingly, the Commissioner or inspector must, if taking possession of anything (as opposed to taking copies and leaving the originals on site), leave a notice explaining that this has been done. The premises must also be left as secure as on arrival.
470.New section 18D of the 2005 Act provides that it is an offence to fail (without reasonable excuse) to comply with a requirement of the Commissioner or an inspector, or to intentionally obstruct such a person. This applies whether the inspection power being exercised is one conferred by the Act or one conferred by regulations made under new section 18F. The penalty that may be levied for committing this offence is a fine. On summary conviction, this fine is capped at the statutory maximum (currently £10,000) and on indictment it is unlimited.
471.New section 18E of the 2005 Act provides that neither the Commissioner nor an inspector will incur any personal liability (either civil or criminal) for anything done in the exercise of their inspection functions. The exception to this is where it can be proved that they acted in bad faith, without exercising a reasonable degree of care and skill, or were not acting on reasonable grounds. However, this section deals only with personal liability: it does not affect any liability which might attach to the Commissioner as an office-holder either as a result of the Commissioner’s own actions or on the grounds of vicarious liability.
472.New section 18F of the 2005 Act allows the Scottish Ministers to make further provision about inspection functions. For example, this could cover granting new inspection functions as well as putting limits on when inspection functions can be exercised. By dint of a consequential amendment made to section 52 of the 2005 Act by section 110(3) of the Act, regulations under this section are subject to the affirmative procedure.(18)
473.Section 110(4) of the Act deals with reporting by the Commissioner. A new requirement is introduced requiring the Commissioner’s annual report to the Scottish Ministers to include details of how the new inspection functions have been exercised. It also confirms that the Commissioner may make recommendations to Ministers in that report.
474.In addition to these changes to the existing annual report, the Commissioner is given explicit power to publish and provide Ministers with a report on anyone who is failing to comply with their obligations under the 1991 Act or failing to follow good practice in the carrying out of road works. This will allow the Commissioner to raise the profile of any failings which are identified as a result of an inspection.
Compliance notices: section 111
475.At present, the Commissioner can give directions to undertakers and road works authorities under sections 118 and 119 of the 1991 Act and can also, by virtue of section 119A, issue Commissioner penalties in relation to breaches of those sections. Beyond that, enforcement of obligations relies on the road works authority (which can issue fixed penalty notices under the 1991 Act), or the Crown (which can prosecute offences reported to it).
476.Section 111 of the Act introduces a new concept of compliance notices into the 1991 Act, which will allow the Commissioner to intervene where a person such as an undertaker, road works authority or roads authority fails in the carrying out of their duties. It will also allow the Commissioner to intervene in a way designed to resolve the problem which has arisen, rather than the person merely being issued with a fine.
477.Inserted section 153A establishes the concept of a compliance notice (a notice requiring someone to take the steps set out in it in order to address their breach of a duty) and sets out the duties in respect of which such a notice may be issued.
478.Inserted section 153B provides that only one compliance notice can be issued in respect of the same act or omission which constitutes a breach of a duty. However, if the notice is withdrawn then it would be possible to re-issue it. It also provides that a compliance notice cannot be issued requiring someone to stop committing an on-going offence if criminal proceedings have already been brought against the person for that offence. It should be noted that where an offence is committed, the compliance notice may be about taking steps to stop committing the offence but it may also be about taking steps to avoid a recurrence of the offending behaviour arising. Where the compliance notice is exclusively about the latter, its issue would not be incompatible with criminal proceedings also taking place in respect of the offence.
479.Inserted section 153C makes provision about the content and form of a compliance notice. It must set out why it has been issued, the steps that the person is required to take, the date of issue, the time allowed for compliance with it, how representations about or appeals against the notice can be made, and what the consequences are of non-compliance with a notice. The time allowed for compliance must always be at least 28 days. The Scottish Ministers may by regulations make further provision about the form and content of notices. As noted in relation to inserted section 153B, where an offence has been committed, the steps that the person is instructed to take may be about stopping committing an on-going offence but may also be about taking action to avoid a recurrence of the offending behaviour.
480.Inserted section 153D allows the time that a person is given in which to comply with a compliance notice to be extended (but not shortened) after it has been issued. This may be done at any time during the compliance period. As an extension is of benefit to the recipient, this does not alter the period within which an appeal against the notice may be made.
481.Inserted section 153E allows a compliance notice to be withdrawn. A notice which is withdrawn is treated as never having been issued. However, a notice may not be withdrawn after the person who received it has complied with it, so a person who complies with a notice will benefit from the protection against criminal proceedings offered by inserted section 153H.
482.Inserted section 153F allows for an appeal to be made against a compliance notice provided it is made within 21 days of the notice being issued. Where an appeal is in progress, the compliance period is suspended. It should be noted that, under the Courts Reform (Scotland) Act 2014, it is not just a sheriff who may hear such an appeal: a summary sheriff is also entitled to hear an appeal against a compliance notice (see the consequential amendment made in schedule 1 of the Act).
483.Inserted section 153G deals with the consequences of failing to comply with a compliance notice. It is an offence for a person to fail to comply with a notice issued to them, unless they have a reasonable excuse for not doing so. On conviction, they are liable to a fine (capped at £50,000 on summary conviction, and unlimited where the conviction is on indictment). However, if the person takes alternative steps to those set out in the compliance notice and the Commissioner confirms in writing that those alternative steps are acceptable, the person will be treated as having complied with the compliance notice.
484.Inserted section 153H makes provision in relation to compliance notices which are about requiring someone to take steps to cease committing an on-going offence. In such cases, criminal proceedings may not be brought against the person during the period the person has been given in which to comply with the notice. In addition, compliance with the notice (or what amounts to compliance through the taking of agreed alternative steps) will guarantee that the person cannot be convicted of the offence in relation to the particular breach in question.
485.Inserted section 153I allows the Scottish Ministers, by regulations, to make supplementary, incidental or consequential provision in connection with compliance notices. This is a general power but, in particular, this can be used to make provision about cases where the compliance notice relates to an offence and a fixed penalty notice may also be issued in respect of the offending behaviour. Under section 111(3) of the Act, any regulations under this section which modify the text of an Act (specifically inserted section 153G or paragraph 6 of schedule 6B) are subject to the affirmative procedure.
Fixed penalty notices: section 112
486.A number of offences under the 1991 Act can currently be dealt with by the issue of a fixed penalty notice in accordance with section 154A of that Act. This allows the person who committed the offence to pay a fixed penalty as an alternative to prosecution. The offences for which a fixed penalty notice may be issued are listed in schedule 6B of the 1991 Act. The Scottish Ministers have the power to amend the offences listed there. Section 112(2) of the Act makes failure to comply with a compliance notice (as to which, see section 111 of the Act) a fixed penalty offence.
487.Currently, a fixed penalty notice may only be issued by an authorised officer of a road works authority. Section 112(3)(a) of the Act allows the Commissioner and authorised members of the Commissioner’s staff to issue these notices too. A number of minor consequential changes are made by section 112(3) as a result.
488.As a compliance notice may only be issued by the Commissioner, the decision to deal with its breach by means of a fixed penalty notice is restricted by section 112(3)(b) to the Commissioner and authorised members of the Commissioner’s staff. Slightly different rules will apply to the fixed penalty notices too:
The maximum penalty is to be set by regulations but may not exceed £100,000 (section 112(3)(d)). The rule which applies to other fixed penalty offences could not operate here as it is based on the maximum fine for the offence, but conviction on indictment for the offence of failure to comply with a compliance notice is subject to an unlimited fine;
There will be no discount for early payment (section 112(3)(e)).
489.Section 112(3)(g) of the Act provides the Scottish Ministers with the ability, by regulations, to make further provision about fixed penalty notices. In particular, this would allow Ministers to make provision for the situation where a fixed penalty notice is issued by both a road works authority and the Commissioner in respect of the same offence, and it is therefore necessary for one of the notices to be cancelled.
For details of the affirmative procedure, see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010.