486.A number of offences under the 1991 Act can currently be dealt with by the issue of a fixed penalty notice in accordance with section 154A of that Act. This allows the person who committed the offence to pay a fixed penalty as an alternative to prosecution. The offences for which a fixed penalty notice may be issued are listed in schedule 6B of the 1991 Act. The Scottish Ministers have the power to amend the offences listed there. Section 112(2) of the Act makes failure to comply with a compliance notice (as to which, see section 111 of the Act) a fixed penalty offence.
487.Currently, a fixed penalty notice may only be issued by an authorised officer of a road works authority. Section 112(3)(a) of the Act allows the Commissioner and authorised members of the Commissioner’s staff to issue these notices too. A number of minor consequential changes are made by section 112(3) as a result.
488.As a compliance notice may only be issued by the Commissioner, the decision to deal with its breach by means of a fixed penalty notice is restricted by section 112(3)(b) to the Commissioner and authorised members of the Commissioner’s staff. Slightly different rules will apply to the fixed penalty notices too:
The maximum penalty is to be set by regulations but may not exceed £100,000 (section 112(3)(d)). The rule which applies to other fixed penalty offences could not operate here as it is based on the maximum fine for the offence, but conviction on indictment for the offence of failure to comply with a compliance notice is subject to an unlimited fine;
There will be no discount for early payment (section 112(3)(e)).
489.Section 112(3)(g) of the Act provides the Scottish Ministers with the ability, by regulations, to make further provision about fixed penalty notices. In particular, this would allow Ministers to make provision for the situation where a fixed penalty notice is issued by both a road works authority and the Commissioner in respect of the same offence, and it is therefore necessary for one of the notices to be cancelled.