Aquaculture and Fisheries (Scotland) Act 2013

57 Enforcement of orders: powers of entry

(1) The Sea Fisheries (Shellfish) Act 1967 is amended in accordance with this section.

(2) After section 4C insert—

“4CA Power to enter land

(1) For the purposes of exercising the powers conferred by sections 4A to 4C, and of enforcing the restrictions imposed by, or regulations made by, an order under section 1 conferring a right of regulating a fishery, a British sea-fishery officer may at any time enter land (including the foreshore) other than a dwelling house, and for that purpose may—

(a) open lockfast places,

(b) remove any objects preventing the officer from gaining access to the land,

(c) require any person who has placed an object in such a position as to prevent the officer from gaining access to the land to remove the object,

(d) require the owner or occupier of the land to allow the officer access to the land.

(2) A British sea-fishery officer may—

(a) exercise the power of entry under subsection (1) on foot or in a vehicle,

(b) when exercising that power, take with the officer—

(i) such persons as appear to the officer to be necessary,

(ii) any equipment or material.

(3) The power of entry under subsection (1)—

(a) may not be exercised in relation to land in respect of which section 4B confers a power of entry, and

(b) is without prejudice to the power of entry conferred by that section.

(4) A British sea-fishery officer who proposes to exercise the power of entry conferred by subsection (1) must, if so required, produce evidence of the officer’s identity.”.

(3) In section 4D—

(a) in subsection (1)—

(i) for the words “or 4B(3) or (12)” substitute “, 4B(3) or (12) or 4CA(2)(b)”,

(ii) for the words “or 4C” substitute “, 4C or 4CA”,

(b) in subsection (2)(a), for the words “or 4B” substitute “, 4B or 4CA”,

(c) after subsection (2) insert—

“(2A) A constable may arrest without warrant any person who the constable reasonably believes is committing or has committed an offence under subsection (2) relating to—

(a) a failure to comply with a requirement imposed under a power conferred by section 4CA,

(b) obstructing a British sea-fishery officer in the exercise of such a power.

(2B) Subsection (2A) above is without prejudice to any power of arrest conferred by law apart from that subsection.”.

(4) In the title to section 4D, for “4C” substitute “4CA”.

(5) After section 24 insert—

“24A Crown application: Scotland

(1) Section 4CA binds the Crown and applies in relation to Crown land as it applies in relation to other land.

(2) Nothing in that section is to be taken as in any way affecting Her Majesty in Her private capacity.

(3) No contravention by the Crown of section 4D(2) in respect of a failure to comply with a requirement under a power conferred by section 4CA makes the Crown criminally liable.

(4) But the Court of Session may, on the application of the Lord Advocate, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(5) For the purposes of subsection (1), “Crown land” means land an interest in which—

(a) belongs to Her Majesty in right of the Crown,

(b) belongs to an office-holder in the Scottish Administration or a government department or is held in trust for Her Majesty for the purposes of the Scottish Administration or a government department.

(6) In subsection (5), “an office-holder in the Scottish Administration” is to be construed in accordance with section 126(7)(a) of the Scotland Act 1998.”.