Inserted section 130C
532.This section confers two powers on the Scottish Ministers, both of which are designed to bolster the operation of the preceding sections.
533.Subsection (1) provides the Scottish Ministers with the ability to issue or approve(23) codes of practice relating to the new duties about reinstatement plans imposed by sections 130A and 130B (and any regulations made under section 130C). The code (or codes) will give guidance to anyone who needs to prepare a reinstatement plan as to how best to comply with the duties.
534.Subsection (2) gives power to the Scottish Ministers to make regulations about reinstatement plans. Subsection (2) is general in its terms while subsection (3) elaborates on the power in subsection (2) and provides a non-exhaustive list of the types of provision that are expected to be made. As set out in the subsection, it includes regulations about the form and content of reinstatement plans and the notices that can be given under section 130A(2)(b)(ii), regulations about the procedure and process, and the ability of Ministers to require the review of existing plans in certain circumstances. This latter ability is primarily aimed at ensuring those general plans which deal with reinstatement works in a range of situations are kept up to date and in line with current standards.
535.Of particular note is that the regulations under subsection (2) may make provision about the consequences of complying or failing to comply with a code of practice issued or approved under the section. As with other codes of practice under the 1991 Act, it is expected that the regulations will provide for a person who complies with the code to be deemed to have met the obligations imposed under section 130A or 130B (at least in so far as they comply) whereas a failure to comply with the code will be evidence of a failure to comply with the duties under those sections.
536.Subsections (4) and (5) make it clear that the regulations may create criminal offences with a maximum penalty of a fine on level 5 of the standard scale (currently £5,000). For example, a failure to comply with any requirement of periodic review of plans imposed under the regulations is likely to be a criminal offence. Regulations under subsection (2) which create criminal offences are subject to the affirmative procedure in accordance with subsection (6).
As is currently the case for other codes of practice under the 1991 Act, codes are likely to be prepared initially by the Roads Authorities and Utilities Committee for Scotland and passed to the Scottish Ministers for approval through the Scottish Road Works Commissioner.
