The Act 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.