246.This section amends the Local Government (Scotland) Act 1973 (“the 1973 Act”) to confirm that local authorities have the ability to pass byelaws in relation to wildfires and to provide the Scottish Ministers with a power to create a fixed penalty regime in respect of such byelaws.
247.Section 201(1) of the 1973 Act confers powers on local authorities to make byelaws for the good rule and government of the whole or any part of the local authority area and for the prevention and suppression of nuisances in the area. This is limited by subsection (3) which prohibits byelaws where the provision for which the byelaw might be made is already covered by another enactment (i.e. byelaws can’t be made in respect of activities that are already prohibited or an offence).
248.The new section 49(2) qualifies subsection (3) of section 201 of the 1973 Act to the extent that there may be existing statutory offences relating to starting fires and in new subsection (4) confirms that the power to make byelaws under subsection (1) may be used to create byelaws in connection with the prevention of wildfires, including in particular by prohibiting or regulating the lighting and control of a fire or an activity likely to cause a fire. This may, for example, regulate or prohibit the use of portable barbeques or setting campfires in circumstances which increase the risk of a wildfire starting.
249.Section 49(3) inserts a new section 204A into the 1973 Act, allowing the Scottish Ministers to make regulations for or in connection with the issuing of fixed penalty notices for byelaws relating to the prevention or suppression of wildfires. 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 (section 204A(10)).
250.Section 204A(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 local authority has authorised in writing for the purpose of issuing fixed penalty notices. 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 provides that the penalty that may be specified in regulations for a fixed penalty notice is 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)).
251.Scottish Ministers must consult both persons that they consider to be representative of local authorities (such as COSLA29) and also such persons as they consider to be interested in or affected by the issuing of fixed penalty notices for byelaw offences in relation to the prevention or suppression of wildfires before making regulations (subsection (7)).
252.Subsection (8) contains the procedure to be applied to different types of regulations. Subsection (8)(b) makes the regulations subject to the affirmative procedure in most circumstances. However, subsection (8)(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 the substantially same effect. A replacement of a byelaw that substantially modifies its effect will not fall under subsection (8)(a)(ii) and will need to be subject to the affirmative procedure. Subsection (9) allows for regulations to make incidental, supplemental, consequential, transitional, transitory or saving provision and different provision for different purposes. Definitions for the purposes of the section are contained in subsection (10).
The Act Wildfires Section 49 – Wildfires: enabling local authorities to issue fixed penalty notices