Visitor Levy (Scotland) Act 2024

Chapter 1 – Investigatory Powers

Section 30 – Power to obtain information and documents from the liable person

62. This section gives an “authorised officer” (defined in subsection (4)(c) for the purposes of this Part as a person authorised in writing by the local authority which has introduced the VL scheme) power to issue an information notice to a liable person requiring the provision of information or production of a document as specified in the notice (subsections (1) and (3)). A requirement to provide information not contained in documents may relate, for example, to oral information or pictures. An information notice may be issued under this section where (i) the officer reasonably requires the information or document for the purpose of assessing the liable person’s liability to pay the levy and any penalties paid or payable by the liable person in connection with the levy, and (ii) it is reasonable for the liable person to be required to provide the information or produce the document (subsection (2)).

63. An example of a circumstance in which this power might be used is where a local authority has cause to believe that an occupier of premises may have been providing overnight accommodation without making returns or payment in accordance with the duties in sections 26 and 29.

64. Subsection (4) contains a number of definitions used in this Part of the Act.

Section 31 – Power to obtain information and documents from third parties

65. This section gives an authorised officer power to issue an information notice to a person (other than a liable person) requiring the provision of information or production of a document in respect of a liable person as specified in the notice (subsections (1) and (3)). An information notice may be issued under this section where (i) the officer reasonably requires the information or document for the purpose of assessing the liable person’s liability to pay the levy and any penalties paid or payable by the liable person in connection with the levy, and (ii) it is reasonable for the person to be required to provide the information or produce the document (subsection (2)).

66. An example of a circumstance in which this power might be used is where a local authority has cause to believe that a travel booking company may have been providing overnight accommodation on behalf of a liable person, without returns or payment having been made in accordance with the duties in sections 26 and 29.

Section 32 – Complying with information notices

67. This section makes general provision regarding information notices issued under sections 30 and 31. It provides that a person issued with an information notice must provide the requested information or document by the time, and in the manner, reasonably specified in the notice (subsection (1)). Where production of a document is requested, it must be produced at an agreed place or at such a place reasonably specified by the authorised officer (which may not be a place used solely as a dwelling) (subsections (2) and (3)).

Section 33 – Producing copies of documents

68. This section makes general provision regarding information notices issued under sections 30 and 31. It provides that any requirement in an information notice to produce a document may be complied with by producing a copy of the document (subsection (1)). However, it will not be possible to comply with such a requirement by producing a copy of the document where the notice specifically requires, or an authorised officer subsequently requests, the original document (subsection (2)). Where an authorised officer subsequently requests the production of an original document, subsection (3) requires it to be produced by the time, and in the manner, reasonably requested by the officer.

Section 34 – Further provision about powers relating to information notices

69. This section provides the Scottish Ministers with a power to make regulations regarding the form and content of information notices and the manner and time period for complying with such notices. Regulations made under this section are subject to the negative procedure.

Section 35 – Information notices: general restrictions

70. This section provides for some general restrictions on information notices, including that a person is required to produce a document only if it is in their possession or power (subsection (1)). In addition, an information notice may not require a person to produce a document if the whole of it originates more than 5 years before the date of the notice (subsection (2)).

Section 36 – Types of information

71. This section sets out the types of information that an information notice cannot compel a person to provide or produce. These are: (i) material acquired or created for the purposes of journalism (subsections (1) to (4)), and (ii) information contained in certain types of “personal records” (subsection (5)). Subsection (6) defines “personal records” for the purposes of the exclusion in subsection (5) as including records relating to a person’s physical or mental health, or different types of counselling or assistance given to that person. This may, for example, be relevant if an exemption is made under section 11 or 14(1)(h) in relation to visitors staying in overnight accommodation for the purpose of obtaining medical treatment, or for the compulsory exemption in section 14(1)(i) for those in receipt of specified disability benefits, payments or allowances. An information notice may require the production of documents that are personal records but with the personal information omitted, and the provision of any information contained in such records that is not personal information (subsection (7)).

Section 37 – Protection for privileged communications between legal advisers and clients

72. This section provides that an information notice issued under section 30 or 31 does not require a person to provide privileged information or parts of documents that are privileged (subsection (1)). This refers to information or documents that benefit from the confidentiality that arises in information or documents between a professional legal adviser and a client (subsection (2)).

Section 38 – Power to inspect business premises

73. This section provides that an authorised officer can enter a liable person’s business premises and inspect the premises (including buildings, structures, land and transport) and business documents on the premises if the officer has reason to believe that the inspection is reasonably required to assess the liable person’s liability to pay the levy (subsections (1) and (2)). Subsection (3) confirms that the authorised officer is not able to enter or inspect any part of those premises that is used solely as a dwelling. A person who deliberately obstructs an authorised officer (or a person authorised by the officer) in the course of an inspection under this section is liable to a penalty under section 56. The terms “business documents”, “business premises”, “carrying on a business” and “premises” are defined in subsections (4) and (5).

Section 39 – Power to inspect business premises of third parties

74. This section provides that an authorised officer can enter and inspect the business premises (and any “relevant documents” found) of a person who has entered into an arrangement with the liable person under section 9 (which could be an online booking agent, for example), or other persons specified by the Scottish Ministers in regulations (such persons are referred to in this section as an “involved third party”) (subsections (1) and (3)). The types of documents which may be inspected by an authorised officer are those specified in regulations made by the Scottish Ministers (subsection (3)). Regulations made under subsection (3) are subject to the affirmative procedure (subsection (5)). Given that the requirement to keep copies of the records mentioned in section 28(4) (details of chargeable transactions entered into, etc.) applies, by virtue of section 28(2), to a person who has entered into an arrangement with a liable person under section 9(1)(b)), examples of documents held by a third party which might be specified as “relevant documents” are those mentioned in section 28(4).

75. The power under this section can be exercised where the authorised officer has reason to believe that the inspection is reasonably required to assess the liable person’s liability to pay the levy (subsection (2)). Subsection (4) confirms that the authorised officer is not able to enter or inspect any part of those premises that is used solely as a dwelling. A person who deliberately obstructs an authorised officer (or a person authorised by the officer) in the course of an inspection under this section is liable to a penalty under section 56.

Section 40 – Carrying out inspections under sections 38 and 39

76. This section sets out conditions for inspections of business premises as provided for under sections 38 and 39. Subsection (1) gives the person whose business premises are to be inspected an opportunity to agree a time for the inspection to be carried out, but this may be overridden where the conditions in subsection (2) are satisfied (in which case, the inspection is to be carried out at any reasonable time). Those conditions are that either: (a) the occupier of the premises is given at least 7 days’ notice in writing of the time of the inspection; or (b) the authorised officer has reasonable grounds for believing that giving notice of the inspection would seriously prejudice the assessment of the liable person’s liability to pay the levy, or the payment of the levy by the liable person (for example, if the officer had concerns that the person was likely to try and destroy or remove important evidence in advance of an inspection).

77. Subsection (3) provides that where an inspection is carried out by virtue of section (2)(b) (i.e., where no notice of the inspection is given), a written notice must be provided to the occupier or someone else who appears to be in charge of the premises at the time. If no one is present at the time, the notice must be left in a prominent place on the premises. Subsection (4) provides that a notice given in advance of an inspection (under subsection (2)(a)) or at the time of an inspection (under subsection (3)) must state the possible consequences of obstructing the authorised officer from exercising the power to carry out the inspection.

Section 41 – Carrying out inspections under section 38 or 39: further provision

78. This section provides further powers, in subsections (2) to (5), available to an authorised officer carrying out an inspection of business premises under section 38 or 39. These include: taking any person(s) with them onto the premises (including a constable where the officer has reasonable cause to anticipate serious obstruction); taking any equipment or materials required for the purpose of the inspection (for example heavy machinery); examining or investigating anything considered necessary in the circumstances of the inspection; directing that the premises (or any part of the premises) be left undisturbed for as long as is reasonably necessary for the purposes of any examination or investigation.

79. The power to take equipment or machinery can be exercised at a time agreed with the occupier or, alternatively, at any reasonable time (subsection (6)). The power can only be exercised without the agreement of the occupier at a reasonable time either: (a) where a notice was issued under section 40(2)(a) informing the occupier in advance that the officer intended to exercise the power; or (b) where the officer considers that there are reasonable grounds for believing that giving advance notice that the power will be exercised would seriously prejudice the assessment of the liable person’s liability to pay the levy, or the payment of the levy by the liable person. Subsection (8) applies the requirements in section 40(3) and (4) to the exercise of the power in subsection (3) where advance notice is not given by virtue of subsection (7)(b); as a result, in such a case, written notice must be provided to the occupier or someone else who appears to be in charge of the premises at the time of the inspection (or if no one is present at the time, the notice must be left in a prominent place on the premises) stating the possible consequences of obstructing the authorised officer from exercising the power to carry out the inspection.

Section 42 – Power to copy and remove documents

80. This section provides a power for an authorised officer to copy, make extracts from and remove documents at a reasonable time (subsections (1) and (2)(a)). What amounts to a reasonable time in subsection (2)(a) will depend on the context and so will vary from case to case. Documents removed may also be retained for a reasonable period of time if the authorised officer considers it necessary to do so (subsection (2)(b)). Subsection (3) allows the person who produced the document to request a receipt for it and a copy of it. The authorised officer must not charge for providing either the receipt or the copy (subsection (4)).

81. Subsection (5) provides that where a document that has been removed is lost or damaged, the relevant local authority is liable to compensate the owner of the document for any expenses reasonably incurred in replacing or repairing the document.

Section 43 – Restriction on inspection of documents

82. This section provides that an authorised officer may not inspect a document during an inspection if an information notice given at the time of the inspection could not require the occupier of the premises to produce the document (for example, if the document is legally privileged).

Section 44 – Electronic records

83. This section deals with the application of the enforcement powers in relation to information and documents which are held electronically. It applies to any provision of this Chapter or Chapter 3 (penalties) of Part 5 which (i) relates to the requirement to provide information or produce documents, or permits the inspection, copying or removal of documents, or (ii) makes provision about penalties in connection with those matters (subsection (1)). Subsection (2) provides that in any such provisions, references to information are to be read as information held in any form, and references to documents are to be read as anything in which information of any description may be recorded; similarly, references to copies of documents are to be read as anything onto which information recorded in the document has been copied by whatever means.

84. Subsection (3) allows an authorised officer at a reasonable time to obtain access to, inspect, and check the operation of any electronic device or other equipment used in connection with “relevant information” or a “relevant document” (defined in subsection (4) to mean information that someone is required to provide or a document that someone is required to produce, or which may be inspected, copied or removed by an authorised officer). Subsection (5) allows the authorised officer to require the person in charge of the electronic device to provide assistance to allow the officer to gain access to, inspect or check the operation of the device.