The Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2023
| Jurisdiction | UK Non-devolved |
| Citation | SI 2023/80 |
| Year | 2023 |
2023 No. 80
Constitutional Law
Devolution, Scotland
Transport
The Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2023
Made 25th January 2023
The Secretary of State makes the following Order in exercise of the powers conferred by sections 104, 112(1), 113(2) to (5) and (7) and 114(1) of the Scotland Act 19981.
In accordance with paragraphs 1, 2 and 3 of Schedule 7 to that Act, a draft of this Order has been laid before and approved by a resolution of each House of Parliament.
PART 1
Introductory
Citation, commencement and extent
1.—(1) This Order may be cited as the Transport (Scotland) Act 2019 (Consequential Provisions and Modifications) Order 2023.
(2) Parts 1, 2 and 5 come into force on 31st January 2023.
(3) Parts 3, 4 and 6 come into force on 31st October 2023.
(4) Articles 32 to 35 extend to Scotland only.
Interpretation
2.—(1) In this Order—
“the 1985 Act” means the Transport Act 19852,
“the 2001 Act” means the Transport (Scotland) Act 20013,
“the data protection legislation” has the meaning given by section 3(9) of the Data Protection Act 20184.
(2) Words and expressions used in Parts 3, 4 and 6 of this Order have, unless the contrary intention appears, the same meaning as in the 2001 Act.
PART 2
Low Emission Zones
Information sharing
3.—(1) The Secretary of State for Transport and the Secretary of State for Environment, Food and Rural Affairs may provide information to the Scottish Ministers or a local authority for any purpose connected to the operation and enforcement of low emission zone schemes made under Part 2 of the Transport (Scotland) Act 20195(low emission zones).
(2) In paragraph (1) “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 19946(constitution of councils).
(3) Nothing in this article authorises the disclosure of information which would contravene the data protection legislation or any other enactment relating to the disclosure of information, or give rise to the commission of an offence (but the power is to be taken into account in determining whether the disclosure or use would contravene that legislation).
PART 3
Bus Services and Ticketing Arrangements and Schemes
CHAPTER 1
Enforcement of the Competition Test
Interpretation
4. In this Chapter—
“the CMA” means the Competition and Markets Authority7,
“the competition test” means the test specified in section 37 of the 2001 Act8(competition test for exercise of bus functions),
“relevant function” means—
(a) making and varying partnership schemes9,
(b) making ticketing schemes10on or after the date on which this Part comes into force,
(c) varying ticketing schemes made on or after that date,
and any reference in this Chapter to a proposed exercise of a relevant function is to be construed in accordance with section 37(2) of the 2001 Act.
Investigation by the CMA
5. If at any time the CMA considers that the exercise or proposed exercise of a relevant function may not meet the competition test, the CMA may conduct an investigation.
Provision of information
6.—(1) For the purposes of an investigation under article 5 the CMA may require any person other than a Minister of the Crown within the meaning of the Ministers of the Crown Act 197511—
(a)
(a) to produce to the CMA or to a person appointed by the CMA, at a specified time and place, any specified document,
(b)
(b) to provide the CMA or such a person, at such a time and place, with any specified information,
which the CMA considers relates to any matter relevant to the investigation.
(2) The power conferred by paragraph (1) is to be exercised by a notice in writing indicating the subject matter and purpose of the investigation, and in this article “specified” means—
(a)
(a) specified, or described, in the notice, or
(b)
(b) falling within a category which is specified, or described, in the notice.
(3) Information required to be provided under paragraph (1) must be provided in the specified manner and form.
(4) The power conferred by paragraph (1) to require a person to produce a document includes power—
(a)
(a) to require that person to provide an explanation of the document, or
(b)
(b) if the document is not produced, to require that person to state, to the best of that person’s knowledge and belief, where it is.
(5) A notice does not have effect to the extent that complying with the notice would involve the disclosure of information which would contravene the data protection legislation or any other enactment relating to the disclosure of information, or give rise to the commission of an offence (but the duty or power is to be taken into account in determining whether the disclosure or use would contravene that legislation).
(6) In this article “information” includes estimates and forecasts.
Failure to comply with a notice
7.—(1) If a person, without reasonable excuse, refuses or fails to comply with a notice under article 6, the CMA may apply to the Court of Session for an order requiring the person to comply with the notice within a time specified in the order.
(2) An order under paragraph (1) may provide for all of the expenses of, or incidental to, the application to be borne by that person.
Privileged communications
8.—(1) A person is not required by article 6 to produce or disclose a privileged communication.
(2) In paragraph (1) “privileged communication” means—
(a)
(a) communications between a professional legal adviser and a client of that adviser, or
(b)
(b) communications made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings,
being communications which would in legal proceedings be protected from disclosure by virtue of any rule of law relating to the confidentiality of communications.
Notice of decision
9. Before the CMA, as the result of an investigation under article 5, makes a decision that the exercise or proposed exercise of a relevant function does not meet the competition test, the CMA must—
(a) give written notice to the person or persons likely to be affected by the proposed decision, and
(b) give that person or those persons an opportunity to make representations.
Publication of decision
10. When the CMA makes a decision after conducting an investigation under article 5, the CMA must publish that decision, together with the reasons for making it.
Enforcement of decisions
11.—(1) If the CMA has made a decision that the exercise or proposed exercise of a relevant function does not meet the competition test, the CMA may give to the local transport authority12or authorities by which it was or was to be exercised such directions as the CMA considers appropriate.
(2) A direction under paragraph (1) may (in particular)—
(a)
(a) in the case of a proposed exercise of a relevant function, include provision prohibiting the exercise of the function in the manner proposed,
(b)
(b) in the case of the exercise of a relevant function, include provision requiring the variation or revocation of the scheme made in exercise of that function.
(3) A direction under paragraph (1) must be given in writing.
(4) If a local transport authority fail without reasonable excuse, to comply with a direction under paragraph (1), the CMA may apply to the Court of Session for an order requiring the authority to comply with the direction within a time specified in the order.
(5) An order under paragraph (4) may provide for all of the expense of, or incidental to, the application for the order to be borne by the local transport authority.
Disclosure of information
12.—(1) No information which—
(a)
(a) has been obtained by the CMA in connection with the CMA’s functions under this Chapter, and
(b)
(b) relates to the affairs of any individual or to any particular business,
is to be disclosed during the lifetime of that individual or while that business continues to be carried on, unless the condition mentioned in paragraph (2) is satisfied.
(2) The condition is that consent to the disclosure has been obtained from—
(a)
(a) the person from whom the information was obtained, and
(b)
(b) if different, the individual to whose affairs the information relates or the person for the time being carrying on the business to which the information relates.
(3) Paragraph (1) does not apply to a disclosure of information—
(a)
(a) made for the purpose of facilitating the performance of any function of—
(i) the CMA,
(ii) the traffic commissioner13,
(iii) the Office of Rail and Road14,
(b)
(b) made for the purpose of criminal proceedings in any part of the United Kingdom or in connection with the investigation of a criminal offence triable in any part of the United Kingdom, or
(c)
(c) made in compliance with the order of a court or tribunal.
(4) If information is disclosed to the public in circumstances in which the disclosure does not contravene paragraph (1), that paragraph does not prevent its further disclosure by any person.
(5) A person who contravenes this article is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale15.
(6) Nothing in this article authorises the making of a disclosure which would contravene the data protection legislation or any other enactment relating to the disclosure of information, or give rise to the commission of an offence (but the power is to be taken into account in determining whether the disclosure or use would contravene that legislation).
False or misleading information
13.—(1) If information is provided by a person to the CMA...
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