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Regulatory Reform (Scotland) Act 2014

Type Act of the Scottish Parliament

Publication 2014-02-19

Last updated 2025-11-01

State In force

Jurisdiction Scotland

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

PART 1 — REGULATORY FUNCTIONS

Regulations to encourage or improve regulatory consistency

Power as respects consistency in regulatory functions

1

(1) The Scottish Ministers may by regulations make any provision which they consider will encourage or improve consistency in the exercise by regulators of regulatory functions.

(2) Regulations under subsection (1)—

(a) must specify the regulators to which they apply,

(b) may specify regulatory functions in respect of which they are, or are not, to apply,

(c) may prescribe the forms, procedure or other arrangements in respect of which a regulator is to impose, set, secure compliance with or enforce a regulatory requirement (including the manner in which and extent to which fees may be charged or costs recovered),

(d) may require a regulator to co-operate, or co-ordinate activity, with other regulators or the Scottish Ministers (including providing information to the Scottish Ministers).

(3) Before making regulations under subsection (1), the Scottish Ministers must consult—

(a) the regulators to which the regulations would apply,

(b) such persons or bodies as appear to the Scottish Ministers to represent the interests of persons substantially affected by the proposed regulations,

(4) For the purposes of subsection (1), “consistency” includesconsistency—

(a) in the way in which particular regulators, their employees or their agents impose, set, secure compliance with or enforce a regulatory requirement,

(b) in the way in which different regulators, or the employees or agents of different regulators, impose, set, secure compliance with or enforce a regulatory requirement.

(5) In this Part—

“regulator” means a person, body or office-holder listed, or of a description listed, in schedule 1,

“regulatory functions” means—functions conferred by or under any enactment of—imposing requirements, restrictions or conditions in relation to an activity,setting standards or outcomes in relation to an activity, orgiving guidance in relation to an activity, orfunctions which relate to the securing of compliance with, or enforcement of, requirements, restrictions, conditions, standards, outcomes or guidance which by or under any enactment relate to an activity,but does not include any such functions exercisable by a planning authority,

“regulatory requirement” means a requirement, restriction, condition, standard or outcome (whether contained in guidance or otherwise)—which is to be complied with, met, attained or achieved by a person, body or office-holder whether by or under an enactment (including this Act) or otherwise, andin respect of which a regulator has regulatory functions.

(6) In the definition of “regulatory functions” in subsection (5), “activity” includes—

(a) providing goods and services, and

(b) employing or offering employment to any person.

Regulations under section 1: further provision

2

(1) Regulations under section 1 (“the regulations”) may include provision requiring a regulator—

(a) to secure compliance with or enforce an existing regulatory requirement,

(b) to impose, set, secure compliance with or enforce any other regulatory requirement which the regulator proposes to, or may, impose or set.

(2) Subject to subsection (3), the regulations may also include provision—

(a) amending a regulatory requirement,

(b) for a regulatory requirement to cease to have effect (by means of repealing or revoking an enactment containing the requirement or otherwise),

(d) requiring a regulator to create, amend or remove a regulatory requirement,

(e) where a regulator is required to act as mentioned in paragraph (d), imposing conditions in relation to that requirement.

(3) The regulations may not include provision that would—

(a) amend a regulatory requirement which, by or under an enactment (a “mandatory enactment”)—

(i) must be complied with, met, attained or achieved, and

(ii) a regulator is required to impose or set,

(b) repeal or revoke a mandatory enactment.

(4) But the regulations may include provision such as is mentioned in subsection (3) if the regulations otherwise make provision having an equivalent effect to the mandatory enactment.

(5) A provision in the regulations requiring a regulator to impose or set a regulatory requirement is not a mandatory enactment for the purposes of subsection (3) (unless such provision is included by virtue of subsection (4)).

(6) Where the regulations include provision such as is mentioned in subsection (2), they may also include provision preventing a regulator from imposing or setting a regulatory requirement—

(a) that amends, replaces or revokes a regulatory requirement amended or created by the regulations,

(b) that has an equivalent effect to a regulatory requirement which ceases to have effect by virtue of the regulations.

(7) Where the regulations make provision that would (but for this subsection) apply to a regulator, the Scottish Ministers may, if they consider it necessary or expedient, direct that, for a period no longer than that mentioned in subsection (8)—

(a) the provision is not to apply to the regulator, or

(b) the provision is to apply to the regulator—

(i) with such modifications as may be specified in the direction,

(ii) subject to such conditions as may be so specified.

(8) The period is that beginning with the day on which the direction is given and ending 6 months later.

(9) The Scottish Ministers must publish (in such manner as they consider appropriate) any direction given under subsection (7).

(10) Where the regulations include provision such as is mentioned in subsection (1)(b), such provision does not affect any requirement for the regulator to consult before imposing or setting the regulatory requirement mentioned in that subsection.

(11) This section is without prejudice to the generality of the power to make regulations under section 1.

Compliance and enforcement

Regulations under section 1: compliance and enforcement

3

(1) A regulator to which regulations under section 1 apply must comply with the regulations except to the extent that—

(a) the regulator lacks the powers necessary to comply, or

(b) the regulations impose on the regulator a requirement that conflicts with any other obligation imposed on the regulator by or under an enactment.

(2) Where a regulator fails to comply with the regulations, the Scottish Ministers may—

(a) declare the regulator to have so failed, and

(b) direct the regulator to take such steps to remedy the failure as are specified in the direction within such reasonable period as may be so specified.

(3) Where a regulator fails to take some or all of the steps specified in a direction under subsection (2)(b), the Scottish Ministers may—

(a) take the steps,

(b) arrange for any other person to take the steps, or

(4) The Scottish Ministers may recover from a regulator the costs incurred by the Scottish Ministers in relation to—

(a) taking steps under paragraph (a) of subsection (3),

(b) arranging for another person to take steps under paragraph (b) of that subsection (including costs incurred by that other person which the Scottish Ministers have to bear),

(c) an application relating to the regulator under paragraph (c) of that subsection up to the time of making the application.

(5) The Scottish Ministers may recover the costs mentioned in subsection (4) as a civil debt.

Exercise of regulatory functions: economic duty and code of practice

Regulators’ duty in respect of sustainable economic growth

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(1) In exercising its regulatory functions, each regulator must contribute to achieving sustainable economic growth, except to the extent that it would be inconsistent with the exercise of those functions to do so.

(2) The Scottish Ministers may give guidance to regulators with respect to the carrying out of the duty imposed by subsection (1).

(3) Regulators must have regard to guidance given under subsection (2).

(4) The Scottish Ministers must publish (in such manner as they consider appropriate) any such guidance.

(5) Subsection (1) does not apply to a regulator to the extent that the regulator is, by or under an enactment, already subject to a duty to the same effect as that mentioned in that subsection.

Code of practice

5

(1) The Scottish Ministers may issue and from time to time revise a code of practice in relation to the exercise of regulatory functions by a regulator.

(2) The Scottish Ministers must publish (in such manner as they consider appropriate) any code of practice issued under subsection (1).

(3) A code of practice issued under subsection (1) applies only to—

(a) such regulators as may be specified in the code, and

(b) such regulatory functions as may be so specified.

(4) A copy of a code of practice issued under subsection (1) must be issued to the regulators to whom it applies.

(5) A regulator to whom a code of practice issued under subsection (1) applies must, from the date a copy is issued to the regulator, have regard to the code—

(a) in determining any general policy or principles by reference to which the regulator exercises any regulatory functions to which the code applies, and

(b) in exercising any such regulatory functions.

(6) References in this section to a code of practice issued under subsection (1) include references to such a code as revised from time to time under that subsection.

Code of practice: procedure

6

(1) Where the Scottish Ministers propose to issue or revise a code of practice under section 5, they must prepare a draft of the code (or revised code).

(2) In preparing the draft, the Scottish Ministers must seek to secure that it is consistent with the principles in subsection (3).

(3) The principles are—

(a) that regulatory functions should be—

(i) exercised in a way that is transparent, accountable, proportionate and consistent, and

(ii) targeted only at cases in which action is needed, and

(b) that regulatory functions should be exercised in a way that contributes to achieving sustainable economic growth, except to the extent that it would be inconsistent with the exercise of such functions to do so.

(4) The Scottish Ministers must consult the following about the draft—

(a) persons appearing to them to be representative of regulators in respect of which the code or revised code would apply,

(b) such other persons as they consider appropriate.

(5) If the Scottish Ministers decide to proceed with the draft (either in its original form or with modifications) they must lay the draft before the Scottish Parliament.

(6) Where the draft so laid is approved by resolution of the Parliament, the Scottish Ministers may issue the code (or revised code).

Power to modify list of regulators

Power to modify schedule 1

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(1) The Scottish Ministers may by order modify schedule 1 so as to—

(a) add—

(i) a person, body or office-holder which has regulatory functions to the list of persons, bodies and office-holders for the time being listed there, or

(ii) a description of a person, body or office-holder having regulatory functions to that list,

(b) remove—

(i) a person, body or office-holder from that list, or

(ii) a description of a person, body or office-holder from that list,

(2) An order under subsection (1) may, in relation to a person, body or office-holder or a description of a person, body or office-holder—

(a) specify that a function is or is not to be a regulatory function for the purposes of section 1, 4 or 5,

(b) specify the extent to which a function is or is not to be a regulatory function for such purposes.

PART 2 — PRIMARY AUTHORITIES

Scope of Part 2

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(1) This Part applies where—

(a) a person carries on an activity in the area of two or more local authorities, and

(b) each of those authorities has the same relevant function in relation to that activity.

(2) In this Part (other than section 12), “the regulated person” means the person referred to in subsection (1)(a).

Meaning of “relevant function”

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(1) In this Part, “relevant function”, in relation to a local authority, means a regulatory function—

(a) exercised by that authority, and

(b) specified for the purposes of this Part by order made by the Scottish Ministers.

(2) In subsection (1), “regulatory function” has the same meaning as in section 1(5).

Nomination of primary authorities

10

(1) For the purposes of this Part, the Scottish Ministers may nominate a local authority to be the “primary authority” for the exercise of the relevant function in relation to the regulated person.

(2) The Scottish Ministers may delegate their function under subsection (1) to another person.

(3) Sections 13 and 14 apply in any case where a primary authority is nominated under this section in relation to the regulated person.

Nomination of primary authorities: conditions and registers

11

(1) The Scottish Ministers may nominate a local authority under section 10(1) in relation to the regulated person only if—

(a) the Scottish Ministers consider the authority suitable for nomination, and

(b) the authority and the regulated person have agreed in writing to the nomination.

(2) The Scottish Ministers may in particular consider as suitable for nomination under subsection (1)—

(a) the local authority in whose area the regulated person principally carries out the activity in relation to which the relevant function is exercised, or

(b) the local authority in whose area the regulated person administers the carrying out of that activity.

(3) The Scottish Ministers may at any time revoke a nomination under section 10(1) if they consider that—

(a) the authority is no longer suitable for nomination, or

(b) it is appropriate to do so for any other reason.

(4) Subsection (2) applies in relation to a revocation of a nomination as it applies in relation to a nomination.

(5) The Scottish Ministers must maintain or cause to be maintained a register of nominations.

(6) Subsections (1) to (5) apply in relation to a person to whom the function under section 10(1) is delegated as they apply in relation to the Scottish Ministers.

Primary authorities: power to make further provision

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(1) The Scottish Ministers may by order make further provision about the exercise of relevant functions by primary authorities in relation to persons (in this section, “regulated persons”).

(2) The provision that may be made under subsection (1) includes provision—

(a) requiring a local authority other than the primary authority (an “enforcing authority”) to notify the primary authority before taking any enforcement action against a regulated person pursuant to the relevant function,

(b) prescribing the circumstances in which—

(i) the enforcing authority may not take any enforcement action against a regulated person,

(ii) the primary authority may direct the enforcing authority not to take any enforcement action against a regulated person,

(iii) the enforcing authority must notify the primary authority that it has taken enforcement action against a regulated person,

(d) prescribing the circumstances in which provision made by virtue of paragraphs (a) to (c) does not apply including, in particular, circumstances—

(i) where the enforcement action is required urgently to avoid a significant risk of serious harm to human health, the environment (including the health of animals or plants) or the financial interests of consumers,

(ii) where the application of provision made by virtue of those paragraphs would be wholly disproportionate,

(e) requiring an enforcing authority to notify the primary authority, as soon as reasonably practicable, of any enforcement action it takes against a regulated person in circumstances prescribed under paragraph (d).

(3) In subsection (2), “enforcement action” means any action—

(a) which relates to securing compliance with or enforcement of any requirement, restriction, condition, standard, outcome or guidance in the event of breach (or putative breach) of the requirement, restriction, condition, standard, outcome or (as the case may be) guidance,

(b) taken with a view to or in connection with—

(i) the imposition of any sanction (criminal or otherwise) in respect of an act or omission, or

(ii) the pursuit of any remedy conferred by an enactment in respect of an act or omission.

(4) Where a relevant function consists of or includes a function of inspection, an order under subsection (1) may make provision for or about an inspection plan including, in particular, provision for or in connection with—

(a) prescribing the circumstances in which a primary authority may make, revise or withdraw an inspection plan,

(b) specifying the matters that a primary authority must take into account in preparing an inspection plan,

(d) prescribing the circumstances in which a primary authority must consult a regulated person in relation to the carrying out of the function of inspection,

(e) prescribing the arrangements for notifying a local authority about the making, revising or withdrawal of an inspection plan,

(f) specifying the duties of a local authority in relation to an inspection plan,

(g) prescribing the circumstances in which a local authority must notify a primary authority before carrying out the function of inspection.

(5) An “inspection plan” is a plan made by a primary authority containing recommendations as to how a local authority with the function of inspection should exercise that function in relation to a regulated person.

(6) Before making an order under subsection (1), the Scottish Ministers must consult—

(a) any primary authority to which the order would apply,

(b) such persons or bodies as appear to the Scottish Ministers to represent the interests of persons substantially affected by the proposed order, and

Advice and guidance

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(1) The primary authority has the function of giving advice and guidance to—

(a) the regulated person in relation to the relevant function,

(b) other local authorities having the relevant function as to how they should exercise that function in relation to the regulated person.

(2) The primary authority may make arrangements with the regulated person as to how the authority will exercise its function under subsection (1).

Power to charge

14

The primary authority may charge the regulated person such fees as it considers represent the costs reasonably incurred by it in exercising functions as the primary authority under or by virtue of this Part in relation to the regulated person.

Guidance

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(1) The Scottish Ministers may issue guidance to local authorities about the operation of this Part including, in particular, guidance about—

(a) inspection plans for or about which provision is made under an order under section 12(1),

(b) arrangements under section 13(2),

(2) A local authority must have regard to any guidance issued to it under this section.

(3) Before issuing guidance under this section, the Scottish Ministers must consult such persons as they consider appropriate.

(4) The Scottish Ministers must publish (in such manner as they consider appropriate) any guidance issued under this section.

(5) The Scottish Ministers may at any time vary or revoke any guidance issued under this section.

PART 3 — ENVIRONMENTAL REGULATION

CHAPTER 1 — REGULATIONS FOR PROTECTING AND IMPROVING THE ENVIRONMENT

General purpose: protecting and improving the environment

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(1) The purpose of this Chapter is to enable provision to be made for or in connection with protecting and improving the environment, including (without prejudice to that generality)—

(a) regulating environmental activities,

(b) implementing—

(i) the relevant EU instruments, or

(ii) any international obligations relating to protecting and improving the environment.

(2) In subsection (1)—

“the relevant EU instruments” has the same meaning as in paragraph 22(2) of schedule 2, and

“international obligations” means any international obligations of the United Kingdom ....

Meaning of expressions used in section 16 and schedule 2

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(1) Expressions used in section 16 have the following meanings for the purposes of this Chapter—

“environmental activities” means—activities that are capable of causing, or liable to cause, environmental harm, andactivities connected with such activities,

“protecting and improving the environment” includes, in particular—preventing deterioration (or further deterioration) of, and protecting and enhancing, the status of ecosystems, andpromoting the sustainable use of natural resources based on the long-term protection of available natural resources.

(2) In subsection (1)—

“activities” means activities of any nature whether industrial, commercial or otherwise and whether carried on in particular premises or otherwise; and includes (with or without other activities) the production, treatment, keeping, depositing or disposal of any substance,

“environmental harm” means—harm to the health of human beings or other living organisms,harm to the quality of the environment, including—harm to the quality of the environment taken as a whole,harm to the quality of air, water or land, andother impairment of, or interference with, ecosystems,offence to the senses of human beings,damage to property, orimpairment of, or interference with, amenities or other legitimate uses of the environment.

(3) In schedule 2 (introduced by section 18), “regulated activities” means any environmental activities in respect of which regulations under that section make provision.

Regulations relating to protecting and improving the environment

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(1) The Scottish Ministers may by regulations make provision for any of the purposes specified in Part 1 of schedule 2.

(2) Part 2 of that schedule has effect for supplementing Part 1 of the schedule.

(3) In accordance with section 16, the provision that may be made by regulations under this section is provision for or in connection with protecting and improving the environment, including any of the matters mentioned in paragraph (a) or (b) of subsection (1) of that section.

Regulations relating to protecting and improving the environment: consultation

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(1) Before making any regulations under section 18, the Scottish Ministers must consult—

(a) any regulator on whom the proposed regulations would confer functions, and

(b) such other persons as they think fit, including such persons appearing to them to be representative of the interests of local government, industry, agriculture, fisheries or small businesses as they consider appropriate.

(2) Consultation undertaken before the coming into force of this section is as effective compliance with subsection (1) as if undertaken after its coming into force.

(3) In subsection (1), “regulator” is to be construed in accordance with paragraph 3(1) of schedule 2.

CHAPTER 2 — SEPA'S POWERS OF ENFORCEMENT

Fixed monetary penalties

20

(1) The Scottish Ministers may by order make provision for or about the imposition by SEPA of a fixed monetary penalty on a person in relation to a relevant offence.

(2) Provision under subsection (1) must provide that a fixed monetary penalty—

(a) may be imposed on a person only where SEPA is satisfied on the balance of probabilities that the person has committed the offence to which the penalty relates,

(b) is to be imposed by notice, and

(c) may not be imposed on a person in relation to an offence constituted by an act or omission if a fixed monetary penalty has already been imposed on that person in respect of the same offence constituted by the same act or omission.

(3) For the purposes of this Chapter, a “fixed monetary penalty” is a requirement to pay to SEPA a penalty of an amount specified in an order made under subsection (1).

(4) The maximum amount of such penalty that may be so specified in relation to a particular offence is an amount equivalent to level 4 on the standard scale.

(5) In this section, “the standard scale” has the meaning given by section 225(1) of the Criminal Procedure (Scotland) Act 1995.

Fixed monetary penalties: procedure

21

(1) Provision under section 20—

(a) must secure the results in subsection (2) (“the mandatory results”),

(b) may secure the result in subsection (3) (“the optional result”).

(2) The mandatory results are that—

(a) where SEPA proposes to impose a fixed monetary penalty on a person, it must serve on the person a notice of what is proposed (a “notice of intent”) which complies with subsection (4),

(b) except where the person has discharged liability by virtue of provision made under subsection (3), the person may make written representations to SEPA in relation to the proposed imposition of the fixed monetary penalty (including that the person would not, by reason of any defence, be liable to be convicted of the offence to which the penalty relates),

(c) SEPA must, after the end of the period for making representations, decide whether to impose the fixed monetary penalty,

(d) SEPA must, in so deciding, have regard to any representations,

(e) where SEPA decides to impose the fixed monetary penalty, the notice imposing it (“the final notice”) complies with subsection (5), and

(f) the person on whom a fixed monetary penalty is imposed may appeal against the decision to impose it.

(3) The optional result is that the notice of intent also offers the person the opportunity to discharge the person's liability for the fixed monetary penalty by payment of a sum specified in the notice of intent (which sum must be less than or equal to the amount of the penalty).

(4) To comply with this subsection the notice of intent must include information as to—

(a) the grounds for the proposal to impose the fixed monetary penalty,

(b) the right to make written representations,

(d) where provision is made under subsection (3)—

(i) how payment to discharge the liability for the fixed monetary payment may be made,

(ii) the period within which liability for the fixed monetary penalty may be discharged, and

(iii) the effect of payment of the sum referred to in subsection (3).

(5) To comply with this subsection the final notice must include information as to—

(a) the grounds for imposing the penalty,

(b) how payment may be made,

(d) any early payment discounts or late payment penalties,

(e) rights of appeal, and

(f) the consequences of non-payment.

(6) Provision to secure the result in subsection (2)(f) must secure that the grounds on which a person may appeal against a decision of SEPA—

(a) include the grounds that—

(i) the decision was based on an error of fact,

(ii) the decision was wrong in law, and

(iii) the decision was unreasonable, but

(b) do not include the ground that SEPA failed to comply with guidance issued to it by the Lord Advocate under section 31(1).

Fixed monetary penalties: effect on criminal proceedings etc.

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(1) Provision under section 20 must secure that in a case where a notice of intent referred to in section 21(2)(a) in respect of an offence constituted by an act or omission is served on a person—

(a) no criminal proceedings may be commenced against the person in respect of that offence constituted by that act or omission—

(i) before the end of any period in which the person may discharge liability for the fixed monetary penalty pursuant to section 21(3), or

(ii) if the person so discharges liability, and

(b) the period as mentioned in subsection (2) is not to be counted in calculating any period within which criminal proceedings in respect of that offence constituted by that act or omission must be commenced.

(2) The period is that beginning with the day on which the notice of intent is served and ending with the day which is the final day on which written representations may be made in relation to the notice.

(3) Provision under section 20 must also secure that, in a case where a fixed monetary penalty is imposed on a person in respect of an offence constituted by an act or omission, no criminal proceedings may be commenced against the person in respect of that offence constituted by that act or omission.

(4) The references in subsections (1)(a) and (3) to criminal proceedings being commenced are to be read as if they included references to—

(a) a warning being given by the procurator fiscal,

(b) a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995) being sent,

(d) a combined offer under section 302B of that Act being sent, and

(e) a work order under section 302ZA of that Act being made.

Variable monetary penalties

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(1) The Scottish Ministers may by order make provision for or about the imposition by SEPA of a variable monetary penalty on a person in relation to a relevant offence.

(2) Provision under subsection (1) must provide that a variable monetary penalty—

(a) may be imposed on a person only where SEPA is satisfied on the balance of probabilities that the person has committed the offence to which the penalty relates,

(b) is to be imposed by notice, and

(c) may not be imposed on a person in relation to an offence constituted by an act or omission if a variable monetary penalty has already been imposed on that person in respect of the same offence constituted by the same act or omission.

(3) For the purposes of this Chapter, a “variable monetary penalty” is, subject to subsection (4), a requirement to pay SEPA a penalty of such amount as SEPA may in each case determine.

(4) SEPA may not in any case impose a variable monetary penalty that exceeds the maximum amount specified in an order made under subsection (1) in relation to that case.

(5) The maximum amount that may be so specified is—

(a) in the case mentioned in subsection (6), the maximum amount of the fine that may be imposed on summary conviction in such a case,

(b) in any other case, £40,000.

(6) The case is one where the offence in respect of which the variable monetary penalty is imposed—

(a) is triable summarily (whether or not it is also triable on indictment), and

(b) is punishable on summary conviction by a fine (whether or not it is also punishable by a term of imprisonment).

(7) The Scottish Ministers may by order substitute another sum for the one for the time being mentioned in subsection (5)(b).

Variable monetary penalties: procedure

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(1) Provision under section 23 must secure the results in subsection (2).

(2) The results are that—

(a) where SEPA proposes to impose a variable monetary penalty on a person, it must serve on the person a notice (a “notice of intent”) which complies with subsection (3),

(b) the person may make written representations to SEPA in relation to the proposed imposition of the variable monetary penalty (including that the person would not, by reason of any defence, be liable to be convicted of the offence to which the penalty relates),

(c) SEPA must, after the end of the period for making such representations, decide whether to impose a variable monetary penalty and, if so, the amount of the penalty,

(d) SEPA must, in so deciding, have regard to any representations,

(e) where SEPA decides to impose a variable monetary penalty, the notice imposing it (the “final notice”) complies with subsection (4), and

(f) the person on whom a variable monetary penalty is imposed may appeal against the decision as to the imposition or amount of the penalty.

(3) To comply with this subsection the notice of intent must include information as to—

(a) the grounds for the proposal to impose the variable monetary penalty,

(b) the right to make written representations, and

(4) To comply with this subsection the final notice must include information as to—

(a) the grounds for imposing the penalty,

(b) how payment may be made,

(d) any early payment discounts or late payment penalties,

(e) rights of appeal, and

(f) the consequences of non-payment.

(5) Provision to secure the result in subsection (2)(c) must include provision for—

(a) the person on whom the notice of intent is served to be able to offer an undertaking as to action to be taken by that person, within such period as may be specified in the undertaking, for all or any of the following purposes—

(i) to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed,

(ii) to benefit the environment to the extent that the commission of the offence has harmed the environment,

(iii) to secure that no financial benefit arising from the commission of the offence accrues to the person,

(b) SEPA to be able to accept or reject such an undertaking, and

(6) Provision to secure the result in subsection (2)(f) must secure that the grounds on which a person may appeal against a decision of SEPA—

(a) include the grounds that—

(i) the decision was based on an error of fact,

(ii) the decision was wrong in law,

(iii) the amount of the penalty is unreasonable, and

(iv) the decision was unreasonable for any other reason, but

(b) do not include the ground that SEPA failed to comply with guidance issued to it by the Lord Advocate under section 31(1).

Variable monetary penalties: effect on criminal proceedings etc.

25

(1) Provision under section 23 must secure the result in subsection (2) in a case where—

(a) either—

(i) a variable monetary penalty is imposed on a person, or

(ii) an undertaking referred to in section 24(5) is accepted from a person, or

(b) both such a penalty is imposed on, and such an undertaking is accepted from, a person.

(2) The result is that no criminal proceedings may be commenced against the person for an offence constituted by an act or omission if the variable monetary penalty or, as the case may be, the undertaking related to that offence constituted by that act or omission.

(3) Provision under section 23 must provide that the period mentioned in subsection (4) is not to be counted in calculating any period within which criminal proceedings in respect of an act or omission in relation to which a notice of intent under section 24(2)(a) is served must be commenced.

(4) The period is that beginning with the day on which the notice of intent is served and ending with the day which is the final day on which written representations may be made in relation to the notice.

(5) The reference in subsection (2) to criminal proceedings being commenced is to be read as if it included a reference to—

(a) a warning being given by the procurator fiscal,

(b) a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995) being sent,

(d) a combined offer under section 302B of that Act being sent, and

(e) a work order under section 302ZA of that Act being made.

Non-compliance penalties

Undertakings under section 24: non-compliance penalties

26

(1) Provision under section 23 may include provision for a person to pay a monetary penalty (in this Part, a “non-compliance penalty”) to SEPA if the person fails to comply with an undertaking referred to in section 24(5) which is accepted from the person.

(2) Where such provision is included, it may also—

(a) specify the amount of the non-compliance penalty,

(b) provide for the amount to be calculated by reference to criteria specified by order by the Scottish Ministers,

(d) provide for the amount to be determined in any other way.

(3) Where provision is included as mentioned in subsection (1), it must provide that the maximum amount of the non-compliance penalty that may be imposed in any case is not to exceed the maximum amount of the variable monetary penalty to which the non-compliance penalty relates in such a case.

(4) Where provision is included as mentioned in subsection (1), it must secure that—

(a) the non-compliance penalty is imposed by notice served by SEPA, and

(b) the person on whom it is imposed may appeal against the notice.

(5) Provision pursuant to subsection (4)(b) must secure that the grounds on which a person may appeal against a notice referred to in that subsection include that—

(a) the decision to serve the notice was based on an error of fact,

(b) the decision was wrong in law,

(c) the decision was unreasonable for any reason (including, in a case where the amount of the non-compliance penalty was determined by SEPA, that the amount is unreasonable).

Enforcement undertakings

27

(1) The Scottish Ministers may by order make provision—

(a) for or about enabling SEPA to accept an enforcement undertaking from a person in a case where SEPA has reasonable grounds to suspect that the person has committed a relevant offence, and

(b) for the acceptance of the undertaking to have the consequences in subsection (4).

(2) For the purposes of this Chapter, an “enforcement undertaking” is an undertaking to take action of a type mentioned in subsection (3) and specified in the undertaking within such period as may be so specified.

(3) The types of action are—

(a) action to secure that the offence does not continue or recur,

(b) action to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed,

(4) The consequences are that, unless SEPA has certified under provision made in pursuance of subsection (5)(g) that the person from whom the enforcement undertaking is accepted has not complied with the undertaking or any part of it—

(a) no criminal proceedings may be commenced against the person from whom the enforcement undertaking is accepted in respect of an offence constituted by an act or omission if the undertaking relates to that offence constituted by that act or omission,

(b) SEPA may not impose on the person a fixed monetary penalty which it would otherwise have power to impose by virtue of section 20 in respect of the act or omission, and

(c) SEPA may not impose on the person a variable monetary penalty which it would otherwise have power to impose by virtue of section 23 in respect of the act or omission.

(5) An order under this section may in particular include provision—

(a) as to the procedure for entering into an enforcement undertaking,

(b) as to the terms of an enforcement undertaking,

(d) as to variation of an enforcement undertaking,

(e) as to circumstances in which a person may be regarded as having complied with an enforcement undertaking,

(f) as to monitoring by SEPA of compliance with an enforcement undertaking,

(g) as to certification by SEPA that an enforcement undertaking or any part of it has not been complied with,

(h) for appeals against such certification,

(i) in a case where a person has given inaccurate, misleading or incomplete information in relation to an enforcement undertaking, for that person to be regarded as not having complied with it,

(j) in a case where a person has complied partly but not fully with an enforcement undertaking, for that partial compliance to be taken into account in the imposition of any criminal or other sanction on the person,

(k) for the purpose of enabling criminal proceedings in respect of an act or omission in relation to which SEPA has accepted an enforcement undertaking to be commenced against a person who has not complied with the undertaking or any part of it, for the period mentioned in subsection (6) not to be counted in calculating any period within which such proceedings must be commenced.

(6) The period is that beginning with the day on which the enforcement undertaking is accepted and ending with—

(a) the day on which SEPA certifies, under provision made in pursuance of subsection (5)(g), that the undertaking or any part of it has not been complied with, or

(b) where an appeal against such a certification is taken, the day on which the appeal is finally determined.

(7) The reference in subsection (4)(a) to criminal proceedings being commenced is to be read as if it included a reference to—

(a) a warning being given by the procurator fiscal,

(b) a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995) being sent,

(d) a combined offer under section 302B of that Act being sent, and

(e) a work order under section 302ZA of that Act being made.

(8) References in this section to taking action specified in an enforcement undertaking include references to refraining from taking such action.

Operation of penalties and cost recovery

Combination of sanctions

28

(1) Provision may not be made by order under section 20 and section 23 conferring powers on SEPA in relation to the same offence unless it secures that—

(a) SEPA may not serve a notice of intent referred to in section 21(2)(a) on a person in relation to an act or omission where a variable monetary penalty has been imposed on that person in relation to the act or omission, and

(b) SEPA may not serve a notice of intent referred to in section 24(2)(a) on a person in relation to any act or omission where—

(i) a fixed monetary penalty has been imposed on the person in relation to the act or omission, or

(ii) the person has discharged liability for a fixed monetary penalty in relation to that act or omission pursuant to section 21(3).

(2) Provision under section 20 must secure that in a case where a notice of intent referred to in section 21(2)(a) is served on a person—

(a) SEPA may not, before the end of any period in which the person may discharge liability to the fixed monetary penalty pursuant to section 21(3), impose a variable monetary penalty on the person in respect of the act or omission to which the notice relates, and

(b) SEPA may not, if the person so discharges liability, impose a variable monetary penalty on the person in respect of that act or omission.

(3) Provision under section 20 must also secure that in a case where a fixed monetary penalty is imposed on a person, SEPA may not impose a variable monetary penalty on the person in respect of the act or omission giving rise to the penalty.

(4) Provision under section 20 must also secure the result that a fixed monetary penalty in respect of an offence constituted by an act or omission may not be imposed on a person if, in respect of that offence as constituted by that act or omission—

(a) criminal proceedings have been commenced against the person,

(b) the person has been given a warning by the procurator fiscal,

(c) the person has been sent a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by procurator fiscal)),

(d) the person has accepted, or is deemed to have accepted, a compensation offer issued under section 302A of that Act (compensation offer by procurator fiscal),

(e) the person has accepted, or is deemed to have accepted, a combined offer issued under section 302B of that Act, or

(f) a work order has been made against the person under section 303ZA of that Act (work orders).

(5) Provision under section 23 must also secure the result that a variable monetary penalty in respect of an offence constituted by an act or omission may not be imposed on a person if, in respect of that offence as constituted by that act or omission—

(a) criminal proceedings have been commenced against the person,

(b) the person has been given a warning by a procurator fiscal,

(c) the person has been sent a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by procurator fiscal)),

(d) the person has accepted, or is deemed to have accepted, a compensation offer issued under section 302A of that Act (compensation offer by procurator fiscal),

(e) the person has accepted, or is deemed to have accepted, a combined offer issued under section 302B of that Act, or

(f) a work order has been made against the person under section 303ZA of that Act (work orders).

Monetary penalties

29

(1) An order under this Chapter which confers power on SEPA to require a person to pay a fixed monetary penalty, a variable monetary penalty or a non-compliance penalty may include provision for—

(a) early payment discounts,

(b) the payment of interest or other financial penalties for late payment of the penalty (such interest or other financial penalties not in total to exceed the amount of the penalty),

(2) Where such provision is included, it may also provide for—

(a) SEPA to recover the penalty, and any interest or other financial penalty for late payment, as a civil debt,

(b) the penalty, and any interest or other financial penalty for late payment, to be recoverable as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by a sheriff of any sheriffdom.

Costs recovery

30

(1) Provision under section 23 may include provision for SEPA to require a person on whom a variable monetary penalty is imposed to pay the costs incurred by SEPA in relation to the imposition of the penalty up to the time of its imposition.

(2) Where such provision is included, it must secure that—

(a) a requirement to pay the costs is imposed by notice,

(b) the notice specifies the amount required to be paid,

(d) the person required to pay costs may appeal against—

(i) the decision of SEPA to impose the requirement,

(ii) the decision of SEPA as to the amount of the costs (including that some or all of the costs were unnecessarily incurred),

(e) SEPA is required to publish guidance about how it will exercise the power conferred by the provision.

(3) In subsection (1), the references to costs include in particular—

(a) investigation costs,

(b) administration costs,

(4) Subsections (1)(b) and (c) and (2) of section 29 apply to costs required to be paid by virtue of subsection (1) of this section as they apply to a fixed monetary penalty, a variable monetary penalty or a non-compliance penalty.

Guidance

Guidance as to use of enforcement measures

31

(1) The Lord Advocate may issue, and from time to time revise, guidance to SEPA on the exercise of its functions relating to enforcement measures.

(2) SEPA must comply with such guidance or revised guidance in exercising those functions.

(3) In this section, an “enforcement measure” means a fixed monetary penalty, variable monetary penalty or enforcement undertaking (and any references in this Chapter to the imposition of an enforcement measure include acceptance of an enforcement undertaking).

(4) Where power is conferred on SEPA by virtue of this Chapter to impose an enforcement measure in relation to an offence, the provision conferring the power must secure the results in subsection (5).

(5) The results are that—

(a) SEPA must publish guidance about—

(i) how the offence is enforced,

(ii) the sanctions (including criminal sanctions) to which a person who commits the offence may be liable,

(iii) the action which SEPA may take to enforce the offence, whether by virtue of this Chapter or otherwise,

(iv) the circumstances in which SEPA is likely to take any such action,

(v) SEPA's use of the enforcement measure,

(b) in the case of guidance relating to a fixed monetary penalty or variable monetary penalty, the guidance must contain the relevant information, and

(6) In the case of guidance relating to a fixed monetary penalty, the relevant information referred to in subsection (5)(b) is information as to—

(a) the circumstances in which the penalty is likely to be imposed,

(b) the circumstances in which it may not be imposed,

(d) how liability for the penalty may be discharged and the effect of discharge, and

(e) rights to make representations and rights of appeal.

(7) In the case of guidance relating to a variable monetary penalty, the relevant information referred to in subsection (5)(b) is information as to—

(a) the circumstances in which the penalty is likely to be imposed,

(b) the circumstances in which it may not be imposed,

(c) the matters likely to be taken into account by SEPA in determining the amount of the penalty (including, where relevant, any discounts for voluntary reporting of non-compliance), and

(d) rights to make representations and rights of appeal.

(8) SEPA may from time to time revise guidance published by it by virtue of subsection (5).

(9) The references in subsections (5) to (7) to guidance include references to any revised guidance under subsection (8).

(10) Before publishing any guidance or revised guidance by virtue of this section, SEPA must consult—

(a) the Lord Advocate, and

(b) such other persons as it considers appropriate.

Publication of enforcement action

32

(1) Subsection (2) applies where the Scottish Ministers make provision by order under—

(a) section 20 as to the imposition by SEPA of a fixed monetary penalty,

(b) section 23 as to the imposition by SEPA of a variable monetary penalty, or

(2) The order may require SEPA to publish such information as may be specified in the order as regards cases in which it has done what the order permits it to do.

Interpretation of Chapter 2

33

In this Chapter—

“early payment discounts” means early payment discounts included in an order under this Chapter by virtue of section 29(1);

“enforcement undertaking” has the meaning given in section 27;

“fixed monetary penalty” has the meaning given in section 20;

“late payment penalties” means a requirement to pay interest or other financial penalties for late payment of a fixed monetary penalty, a variable monetary penalty or a non-compliance penalty included in an order under this Chapter by virtue of section 29(1);

“non-compliance penalty” has the meaning given in section 26(1);

“variable monetary penalty” has the meaning given in section 23.

CHAPTER 3 — COURT POWERS

Compensation orders

Compensation orders against persons convicted of relevant offences

34

(1) Where a person is convicted of a relevant offence, subsection (1) of section 249 of the Criminal Procedure (Scotland) Act 1995 (compensation order against convicted person) has effect in relation to the conviction subject to the modification in subsection (2).

(2) The modification is that the reference to payment of compensation in favour of the victim for any loss or damage caused directly or indirectly to the victim is to be read as if it included a reference to payment of compensation to a relevant person for costs incurred or to be incurred by the relevant person in preventing, reducing, remediating or mitigating the effects of—

(a) any harm to the environment resulting directly or indirectly from the offence,

(b) any other harm, loss, damage or adverse impacts so resulting from the offence.

(3) In subsection (2), the reference to costs does not include any costs which the relevant person has already recovered by virtue of—

(a) regulations under section 18 made in pursuance of paragraph 18(1) or 20 of schedule 2, or

(b) any other enactment.

(4) Where a compensation order (within the meaning of subsection (1) of section 249 of the 1995 Act) is made in respect of costs mentioned in subsection (2), that section has effect as if—

(a) the reference in subsection (8)(a) to the prescribed sum were, in relation to those costs, a reference to £50,000, and

(b) subsection (8A) were omitted.

(5) The Scottish Ministers may by order substitute a different sum of money for the one for the time being specified in subsection (4)(a).

(6) In this section—

“the 1995 Act” means the Criminal Procedure (Scotland) Act 1995,

“relevant person” means—SEPA,a local authority, oran owner or occupier of land—to which the harm, loss or damage mentioned in subsection (2) was caused, oron which there was an adverse impact as mentioned in that subsection,

“owner”, in relation to any land in Scotland, means a person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who would, if the land were let, be entitled to receive the rents of the land, and includes a trustee, factor, guardian or curator; and in the case of public or municipal land includes the persons to whom the management of the land is entrusted.

Fines

Fines for relevant offences: court to consider financial benefits

35

(1) Subsection (2) applies where—

(a) a person is convicted by a court of a relevant offence, and

(b) the court proposes to impose a fine in respect of the offence.

(2) In determining the amount of the fine, the court must in particular have regard to any financial benefit which has accrued or is likely to accrue to the person in consequence of the offence.

Publicity orders

Power to order conviction etc. for offence to be publicised

36

(1) This section applies where a person is convicted by a court of a relevant offence.

(2) The court may, instead of or in addition to dealing with the person in any other way, make an order (a “publicity order”) requiring the person to publicise in a specified manner—

(a) the fact that the person has been convicted of the relevant offence,

(b) specified particulars of the offence,

(3) A publicity order is to be taken to be a sentence for the purposes of any appeal.

(4) The court may make a publicity order—

(a) at its own instance, or

(b) on the motion of the prosecutor.

(5) In deciding on the terms of a publicity order that it proposes to make, the court must have regard to any representations made by the prosecutor or by or on behalf of the person.

(6) A publicity order—

(a) must specify a period within which the requirement to publicise the matters mentioned in paragraphs (a) to (c) of subsection (2) are to be complied with, and

(b) may require the convicted person to supply SEPA, within a specified period, with evidence that that requirement has been complied with.

(7) In subsections (2) and (6), “specified”, in relation to a publicity order, means specified in the order.

(8) A person who fails to comply with a publicity order commits an offence.

(9) A person who commits an offence under subsection (8) is liable—

(a) on summary conviction, to a fine not exceeding £40,000,

(b) on conviction on indictment, to a fine.

Corporate offending

37

(1) Subsection (2) applies where—

(a) an offence under section 36(8) is committed by a relevant organisation, and

(b) the commission of the offence involves the connivance or consent, or is attributable to the neglect, of a responsible official of the relevant organisation.

(2) The responsible official (as well as the relevant organisation) commits the offence.

(3) In this section—

“a relevant organisation” means—a company,a limited liability partnership,a partnership (other than a limited liability partnership), oranother body or association,

“a responsible official” means—in the case of a company, a director, secretary, manager or similar officer of the company,in the case of a limited liability partnership, a member of the partnership,in the case of a partnership (other than a limited liability partnership), a partner of the partnership, orin the case of another body or association, a person who is concerned in the management or control of its affairs,and in each case includes a person purporting to act in a capacity mentioned in any of paragraphs (a) to (d) of this definition.

CHAPTER 4 — MISCELLANEOUS

Vicarious liability

Vicarious liability for certain offences by employees and agents

38

(1) Subsection (2) applies where a person (“A”) commits a relevant offence while acting as the employee or agent of another person (“B”).

(2) B also commits the relevant offence and is liable to be proceeded against and punished accordingly.

(3) Where B is charged with a relevant offence by virtue of subsection (2), it is a defence for B to show—

(a) that B did not know that the relevant offence was being committed by A,

(b) that no reasonable person could have suspected that the relevant offence was being committed by A, and

(4) Proceedings may be taken against B in respect of the relevant offence whether or not proceedings are also taken against A in respect of that offence.

Liability where activity carried out by arrangement with another

39

(1) Subsection (2) applies where, in the course of carrying on a regulated activity—

(a) a person (“A”) commits a relevant offence,

(b) at the time the offence is committed, A is carrying on the regulated activity for another person (“B”), and

(2) B also commits the relevant offence and is liable to be proceeded against and punished accordingly.

(3) Where B is charged with a relevant offence by virtue of subsection (2), it is a defence for B to show—

(a) that B did not know that the relevant offence was being committed by A,

(b) that no reasonable person could have suspected that the relevant offence was being committed by A, and

(4) Proceedings may be taken against B in respect of the relevant offence whether or not proceedings are also taken against A in respect of that offence.

(5) For the purposes of subsection (1)(b), A is carrying on a regulated activity for B whether A is carrying on the activity—

(a) by arrangement between A and B, or

(b) by arrangement with, or as employee or agent of, any other person (“C”) with whom B has an arrangement under which C is to carry on the regulated activity.

(6) For the purposes of this section, “regulated activity”—

(a) has the meaning given in section 17(3), and

(b) includes activities specified in an order made by the Scottish Ministers for the purposes of this section.

(7) An order under subsection (6) may specify only activities that are environmental activities within the meaning of section 17.

Offence relating to significant environmental harm

Significant environmental harm: offence

40

(1) It is an offence for a person to—

(a) act, or permit another person to act, in a way that causes or is likely to cause significant environmental harm, or

(b) fail to act, or permit another person not to act, in a way such that (in either case) the failure to act causes or is likely to cause significant environmental harm.40

(2) But no offence is committed under subsection (1) by a person who permits another person to act or not to act as mentioned in that subsection if the permission was given by or under an enactment conferring power on the person to authorise the act, or failure to act, that caused or (as the case may be) was likely to cause such harm (however such authorisation may be expressed).

(3) A person who acts, fails to act or permits another person to act or not to act as mentioned (in each case) in subsection (1) commits an offence under that subsection whether or not the person—

(a) intended the acts or failures to act to cause, or be likely to cause, significant environmental harm, or

(b) knew that, or was reckless or careless as to whether, the acts or failures to act would cause or be likely to cause such harm.

(4) For the purposes of subsection (1), a person acts in a way that is likely to cause significant environmental harm, or fails to act in a way such that the failure is likely to cause such harm if, at the time of so acting or failing to act, such harm may reasonably have been considered likely to occur even if it did not (for whatever reason) in fact occur.

(5) It is a defence for a person charged with an offence under subsection (1) to show that—

(a) the acts or failures alleged to constitute the offence were necessary in order to avoid, prevent or reduce an imminent risk of serious adverse effects on human health,

(b) the person took all such steps as were reasonably practicable in the circumstances to minimise any environmental harm, and

(c) particulars about the acts or failures were given to SEPA as soon as practicable after the acts or failures took place.

(6) It is a defence for a person charged with an offence under subsection (1) to show that the acts or failures alleged to constitute the offence were authorised by or otherwise carried out in accordance with—

(a) regulations made under section 18,

(b) an authorisation given under such regulations, or

(7) A person who commits an offence under subsection (1) is liable—

(a) on summary conviction to—

(i) a fine not exceeding £40,000,

(ii) imprisonment for a term not exceeding 12 months, or

(iii) both,

(b) on conviction on indictment to—

(i) a fine,

(ii) imprisonment for a term not exceeding 5 years, or

(iii) both.

(8) In this section, “environmental harm” has the same meaning as in section 17(2).

(9) For the purposes of this section, environmental harm is “significant” if—

(a) it has or may have serious adverse effects, whether locally, nationally or on a wider scale, or

(b) it is caused or may be caused to an area designated in an order by the Scottish Ministers for the purposes of this section.

(10) An order under subsection (9) may make different provision for—

(a) different areas, or

(b) different types of significant environmental harm in relation to different areas.

Power of court to order offence to be remedied

41

(1) This section applies where—

(a) a court convicts a person of an offence under section 40(1),

(b) it appears to the court that it is within the power of the person to remedy or mitigate the significant environmental harm to which the conviction relates.

(2) The court may, in addition to or instead of dealing with the person in any other way, order the person to take such steps as may be specified in the order to remedy or mitigate the harm.

(3) An order under subsection (2) (a “remediation order”) is to be taken to be a sentence for the purposes of any appeal.

(4) A remediation order must specify a period (“the compliance period”) within which the steps mentioned in that subsection are to be taken.

(5) On an application by the person convicted of the offence, the court may, on more than one occasion—

(a) extend the compliance period within which those steps are to be taken,

(b) vary the steps specified in a remediation order.

(6) An application under subsection (5) must be made before the end of the compliance period.

(7) A person who fails to comply with a remediation order commits an offence.

(8) A person who commits an offence under subsection (7) is liable—

(a) on summary conviction to—

(i) a fine not exceeding £40,000,

(ii) imprisonment for a term not exceeding 12 months, or

(iii) both,

(b) on conviction on indictment to—

(i) a fine,

(ii) imprisonment for a term not exceeding 5 years, or

(iii) both.

Corporate offending

42

(1) Subsection (2) applies where—

(a) an offence under section 40(1) or 41(7) is committed by a relevant organisation, and

(b) the commission of the offence involves the connivance or consent, or is attributable to the neglect, of a responsible official of the relevant organisation.

(2) The responsible official (as well as the relevant organisation) commits the offence.

(3) In this section—

“a relevant organisation” means—a company,a limited liability partnership,a partnership (other than a limited liability partnership), oranother body or association,

“a responsible official” means—in the case of a company, a director, secretary, manager or similar officer of the company,in the case of a limited liability partnership, a member of the partnership,in the case of a partnership (other than a limited liability partnership), a partner of the partnership, orin the case of another body or association, a person who is concerned in the management or control of its affairs,and in each case includes a person purporting to act in a capacity mentioned in any of paragraphs (a) to (d) of this definition.

Offences relating to supply of carrier bags: fixed penalty notices

43

(1) The Climate Change (Scotland) Act 2009 is amended as follows.

(2) After section 88 insert—

(88A) (1) A person authorised for the purpose of this section by an enforcement authority may give a person a fixed penalty notice if the person so authorised has reason to believe that the person to whom the notice is given has committed a relevant offence. (2) In subsection (1), “relevant offence” means an offence provided for in regulations made under section 88. (3) The Scottish Ministers may by regulations make further provision about fixed penalty notices under subsection (1). (4) Subject to section 89, the regulations may in particular include provision about— (a) the enforcement authority in relation to the regulations; and (b) the functions of that authority in relation to fixed penalty notices. (5) Schedule 1A makes further provision about fixed penalties.

(3) After schedule 1 insert—

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