49Wildfires: enabling local authorities to issue fixed penalty notices(1)

The Local Government (Scotland) Act 1973 is modified as follows.

(2)

In section 201 (byelaws for good rule and government)—

(a)

in subsection (3), at the beginning, insert “Subject to subsection (4),”,

(b)

after subsection (3) insert—(4)

Without limit to the generality of subsection (1), a local authority may make byelaws in connection with the prevention of wildfire (including, in particular, by prohibiting or regulating the lighting and control of a fire or any activity likely to cause a fire).

(3)

After section 204 insert—

204AByelaws: fixed penalty notices to prevent or suppress wildfires(1)

The Scottish Ministers may by regulations make provision for and in connection with the issuing of fixed penalty notices in respect of any byelaws made under section 201 which relate to the prevention or suppression of wildfires.

(2)

Regulations under this section must specify—

(a)

the byelaws in relation to which fixed penalty notices may be issued, and

(b)

the persons who may issue fixed penalty notices.

(3)

The persons who may be specified for the purposes of subsection (2)(b) are—

(a)

the persons, or categories of persons, that a local authority has authorised in writing for the purpose of issuing fixed penalty notices, and

(b)

such other persons, or categories of persons, as the Scottish Ministers consider appropriate.

(4)

A fixed penalty notice provided for in regulations under this section must state—

(a)

the byelaw to which it relates,

(b)

particulars of the circumstances alleged to constitute the offence,

(c)

the date on which the fixed penalty notice is issued,

(d)

the amount of the fixed penalty,

(e)

the person to whom payment may be made and the person’s address,

(f)

the payment period,

(g)

the method by which payment may be made,

(h)

the effect of paying the fixed penalty within the payment period and the consequences of not paying the fixed penalty within that period,

(i)

details of any procedure for challenging or appealing the fixed penalty notice.

(5)

Regulations under this section may, in particular, include provision—

(a)

specifying the form and content of a fixed penalty notice,

(b)

specifying how a person or category of persons may be authorised to issue fixed penalty notices,

(c)

conferring powers to enter land (other than dwelling-houses) for or in connection with the issuing of a fixed penalty notice,

(d)

about the circumstances in which fixed penalty notices may or may not be issued (including any test which must be satisfied before a person authorised to issue such notices may do so),

(e)

about the withdrawal of fixed penalty notices including when it is permissible, the effects of such withdrawal and the procedure by which the withdrawal is effected,

(f)

specifying the amount of the fixed penalty which is to apply to an offence (including different amounts for different purposes), being not more than level 2 on the standard scale,

(g)

specifying the person to whom payment may be made (who need not be the person who issued the fixed penalty notice),

(h)

specifying the payment period,

(i)

about the circumstances in which a person to whom a fixed penalty notice is issued may decline the notice or otherwise object to or challenge it (including the period within which the person may do so and the procedure for doing so),

(j)

about the effects of failing to decline or otherwise object to or challenge a fixed penalty notice before the end of the period specified for doing so (including that such failure is deemed to be acceptance of the notice),

(k)

conferring on the person who issued the fixed penalty notice or the person to whom payment may be made the power to extend the payment period in any particular case if the person considers it appropriate to do so,

(l)

about the methods by which fixed penalties may be paid,

(m)

for the amount of a fixed penalty to be discounted or increased by an amount or percentage in circumstances specified by the regulations (but not so as to make the amount payable more than level 2 on the standard scale),

(n)

specifying the effect of paying a fixed penalty within the payment period (for example, that no proceedings may be brought in respect of the offence to which the fixed penalty notice relates),

(o)

about the consequences of not paying a fixed penalty within the payment period (including the ability to refer offences for prosecution and how liability to pay the penalty may be enforced),

(p)

for additional procedure relating to fixed penalty notices (for example to make provision for hearings or appeals),

(q)

for the destination of funds, the keeping of accounts and the preparation and publication of statements of account relating to fixed penalties provided for under the regulations,

(r)

specifying persons who may prepare and publish guidance on issuing fixed penalty notices (including when prosecution is more appropriate),

(s)

creating offences relating to—

(i)

the obstruction of a person who is exercising functions in relation to fixed penalty notices,

(ii)

a failure to provide information requested in connection with a fixed penalty notice.

(6)

The maximum penalty that may be provided for in regulations under this section creating an offence is, on summary conviction, a fine not exceeding level 2 on the standard scale.

(7)

Before making regulations under this section, the Scottish Ministers must consult—

(a)

persons that they consider to be representative of local authorities, and

(b)

such other persons as they consider to be interested in or affected by the issuing of fixed penalty notices in respect of any byelaws made under section 201 which relate to the prevention or suppression of wildfires.

(8)

Regulations under this section—

(a)

are subject to the negative procedure if the regulations are only—

(i)

removing a reference to a byelaw which has been revoked, or

(ii)

specifying, for the purpose of subsection (2)(a), a byelaw which has been made to replace a byelaw (with or without modification) which was previously specified and which has substantially the same effect,

(b)

are otherwise subject to the affirmative procedure.

(9)

Regulations under this section may also make—

(a)

incidental, supplemental, consequential, transitional, transitory or saving provision that the Scottish Ministers think necessary or expedient,

(b)

different provision for different purposes.

(10)

In this section—

“fixed penalty notice” means a notice specifying a sum of money that may or must be paid as an alternative to prosecution for an offence,

“payment period” means the period of time within which a fixed penalty may or must be paid.