66.Section 10 of the Act contains an enabling power to introduce a fixed penalty notice regime for the enforcement of National Park byelaws. For the purposes of this new section, a fixed penalty notice is a notice specifying a sum of money that may or must be paid as an alternative to prosecution for an offence (inserted section 26A(13)).
67.Schedule 2, paragraph 8 of the 2000 Act gives National Park authorities the ability to create byelaws in order to protect the natural and cultural heritage of the National Park, prevent damage to the land, and secure public enjoyment and safety in the National Park. Paragraph 9(3) of schedule 2 provides that sections 202 to 204 of the Local Government (Scotland) Act 2003 apply to byelaws made by National Parks, and section 203 provides that contravening a byelaw is an offence which is liable on summary conviction to a fine not exceeding level 2 on the standard scale.
68.National Park authorities use tools such as verbal warnings and warning letters before any formal enforcement is taken. Generally, National Park byelaws can only be formally enforced through the criminal justice system i.e. reports to the Crown Office and Procurator Fiscal Service (“COPFS”). COPFS has a range of options for dealing with reported offending, including taking no action, issuing warning letters, imposing financial penalties, diversion from prosecution, and commencing court proceedings. Fixed penalty notices issued by National Park authorities are not currently part of this enforcement regime, although the Loch Lomond and The Trossachs National Park authority does have the ability to issue fixed penalty notices for littering and fly-tipping offences under the Environmental Protection Act 1990 (sections 33A(11A)(b) and 88(10)(b)).
69.Section 10 inserts a new section 26A into the 2000 Act, allowing the Scottish Ministers to make regulations for or in connection with the issuing of fixed penalty notices for offences against National Park byelaws. For the purposes of this new section, a fixed penalty notice is a notice specifying a sum of money that may or must be paid as an alternative to prosecution for an offence (subsection (13)).
70.Subsection (2) requires the regulations to specify both the byelaws in respect of which fixed penalty notices may be issued and the persons (or categories of persons) who may issue fixed penalty notices. Subsection (3) sets out the persons who may be specified as able to issue fixed penalty notices, including the persons, or categories of persons, that a National Park authority has authorised in writing for the purpose of issuing fixed penalty notices. These may be, for example, park rangers. The Scottish Ministers may also specify such other persons or categories of persons they consider appropriate. Subsection (4) lists the information which must be included in a fixed penalty notice provided for by regulations. Other things that the regulations may provide for, without limiting what the regulations may cover, are listed in subsection (5). In particular, the regulations may confer powers to enter land (other than homes) for or in connection with issuing a fixed penalty notice (subsection (5)(c)) and limit the penalty that may be specified in regulations for a fixed penalty notice to a fine which may not exceed level 2 on the standard scale (subsection (5)(f)). The regulations may also create offences relating to the obstruction of a person who is exercising functions in relation to fixed penalty notices and a failure to provide information requested in connection with a fixed penalty notice (subsection (5)(s)). The maximum penalty that may be imposed in relation to those offences is a fine of not more than level 2 on the standard scale (subsection (6)).
71.The Scottish Ministers must consult such persons as they consider to be interested in or affected by the issuing of fixed penalty notices for National Park byelaw offences before making regulations (subsection (7)). In circumstances where the question is just whether a byelaw should be included in the regulations as a byelaw in respect of which a fixed penalty notice may be issued, subsections (8) and (9) allow for the consultation obligation in subsection (7) to be delegated to the relevant National Park authority. Where the consultation has been delegated to a National Park authority, subsection (9)(b) allows the Scottish Ministers to require the National Park authority to provide the Scottish Ministers with a report on the consultation. Subsection (10) allows the Scottish Ministers to also consult if they so wish, despite delegating a consultation to a National Park authority under subsection (9).
72.Subsection (11) contains the procedure to be applied to different types of regulations. Subsection (11)(b) makes the regulations subject to the affirmative procedure in most circumstances. However, subsection (11)(a) applies the negative procedure in two circumstances: (i) when the regulations are removing a reference to a byelaw which has been revoked, and (ii) when the regulations are specifying a byelaw which replaces a byelaw (with or without modification) and has substantially the same effect. A replacement of a byelaw that substantially modifies its effect will not fall under subsection (11)(a)(ii) and will need to be subject to the affirmative procedure. Subsection (12) allows for regulations to make incidental, supplemental, consequential, transitional, transitory or saving provision and different provision for different purposes.
73.Definitions for the purposes of the section are contained in subsection (13).
The Act Enforcement of National Park byelaws Section 10 – Power to make regulations for the issuing of fixed penalty notices