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Tied Pubs (Scotland) Act 2021

Part 2: Powers

Chapter 1: Power to require information
Imposition of requirement

79.Paragraph 4 gives the adjudicator power to require information and documents.

80.The statutory limits on the extent to which the adjudicator can require information do not limit the adjudicator’s ability to ask for information to be provided voluntarily on any matter, at any time.

Offence of failing to comply with requirement and of providing false information

81.Paragraphs 5 and 6 create offences, punishable on conviction by a fine(3), for intentional failure to comply with a requirement to provide information (subject to a defence of having a reasonable excuse) and for knowingly providing false information. A failure to provide information in the way specified will be considered as a failure to comply with a notice requiring the information to be provided.

Chapter 2: Other Powers
Powers to advise on the code and issue guidance

82.Paragraph 7 allows the adjudicator to give anyone advice about any aspect of the code. This power is likely to be exercised with a view to encouraging compliance with the code, but could also, for example, be used to advise prospective tenants about the code. This is a power and not a duty, so the adjudicator has discretion regarding whom to advise, and how.

83.Paragraph 8(1) provides that the adjudicator may publish guidance on the practices and procedures of the adjudicator, the application of the code and what pub-owning businesses must do to comply with it, and anything else related to the code. For example, this would enable the adjudicator to give general guidance about the application of a particular provision of the code (the Pubs Code Adjudicator for England and Wales has published a number of such guidance documents on its website). Sub-paragraph (2) requires the adjudicator to follow his or her own guidance, in the interests of consistency.

84.Sub-paragraph (3) states that the adjudicator must consult any organisation or person considered to be appropriate before issuing any guidance. This makes it possible for the adjudicator to conclude that it is not appropriate to consult with anyone, if (for example) the guidance reflects practice that is already well-established and uncontroversial. Should the adjudicator decide to consult, it is left to the adjudicator to decide whom to consult.

General powers

85.Paragraph 9 allows the adjudicator to do anything that will help with performing the functions of the role, even if it is not mentioned in the earlier paragraphs of the schedule. This is to avoid the schedule being interpreted as an exhaustive list of powers and so leading to an unintended narrowing of the adjudicator’s room for manoeuvre.

3

On summary conviction, the maximum fine is the “statutory maximum”, which was £10,000 at the time of Royal Assent.

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