Marine (Scotland) Act 2010

Marine (Scotland) Act 2010

2010 asp 5

The Act

Schedule 2 – Further Provision about Civil Sanctions under Part 4 (Marine Licensing)

Interpretation

278. Paragraph 1 states that “civil sanction” means a fixed or variable monetary penalties.

Fixed monetary penalties: other sanctions

279. Paragraph 2 indicates that the imposition of a fixed monetary penalty removes the person's liability to criminal prosecution for the relevant offence in respect of the act of non-compliance in question. Liability to criminal prosecution is also removed if the person has discharged their liability to a fixed monetary penalty within a time period set under section 47(2)(b).

280. The Scottish Ministers cannot issue a compliance or remediation notice as well as a fixed monetary penalty to a person for the same offence.

Variable monetary penalties: other sanctions

281. Paragraph 3 indicates that the imposition of a variable monetary penalty removes the person's liability to criminal prosecution for the relevant offence in respect of the act of non-compliance in question.

282. The Scottish Ministers cannot issue a compliance notice and a variable monetary penalty to a person for the same offence.

Combination of sanctions

283. Paragraph 4 indicates that the Scottish Ministers can only combine sanctions for the same offence in certain ways. In addition to the combinations prohibited by paragraphs 2 and 3, they cannot take the following action in relation to the same offence:

(a)

impose a fixed monetary penalty where a variable monetary penalty has been imposed;

(b)

impose a variable monetary penalty where a fixed monetary penalty has been imposed;

(c)

impose a variable monetary penalty or stop notice where the person has discharged liability for a fixed monetary penalty under section 47(2)(b);

(d)

impose a fixed monetary penalty where a stop notice has been issued;

(e)

issue a stop notice where a fixed monetary penalty has been imposed.

All other permutations are possible.

Monetary penalties

284. Paragraph 5 allows an order made under section 46 or 48 to make provision for discounts for early payment of a monetary penalty and for the payment of interest or a financial penalty for late payment of the original penalty. The total amount of any late payment penalty must not exceed the total amount of the penalty imposed.

285. This paragraph also provides as to the enforcement of unpaid penalties (and any interest or late payment charges) through the civil courts. It allows an order to create a process of recovery by treating the penalty as if it were payable under a court order.

Recovery of expenses

286. Paragraph 6 allows an order under section 48 to include requirements that a person on whom a variable monetary penalty has been imposed must pay the costs the Scottish Ministers have incurred up to the point of imposing that penalty. Such costs may include investigation costs, administration costs, and costs of obtaining expert advice. A person receiving a notice for payment may appeal against its imposition and the amount required to be paid.

Appeals

287. Paragraph 7 enables any order under section 46 or 48 to make detailed provision regarding an appeals mechanism. Paragraph 7(1) and (2) outlines the powers which may be conferred on a sheriff hearing an appeal.

Consultation

288. Paragraph 8 indicates that, if the Scottish Ministers intend to make an order under section 46 or 48, they must consult with appropriate persons and such organisations as they consider represent the interests of persons substantially affected by the proposals.

289. If, as a result of the consultation exercise, there are substantial changes to any part of the proposals, the Scottish Ministers are required to undertake further consultation on the revised proposals.

Guidance as to use of civil sanctions

290. Paragraph 9 indicates that the Scottish Ministers may not make an order enabling the imposition of fixed or variable monetary penalties, unless they have published guidance in relation to the use of these powers. The Scottish Ministers may be required to consult specified persons before publishing or revising the guidance on penalties. The Scottish Ministers must have regard to the guidance on penalties when carrying out their functions. The guidance on penalties must contain information about the circumstances in which a sanction is likely to be imposed (or may not be imposed) and the person’s rights of appeal.

Guidance as to enforcement of offences

291. Paragraph 10 requires that, where the Scottish Ministers make an order enabling the imposition of fixed or variable monetary penalties, they must prepare and publish guidance regarding the manner in which the offence to which the power relates is to be enforced.

292. The Scottish Ministers may revise their guidance periodically. The Scottish Ministers must consult with such persons as they consider appropriate before publishing or revising the guidance.

Publication of enforcement action

293. Paragraph 11 indicates that any order made under section 46 or 48 establishing a civil sanction regime must make provision for the publication of certain information relating to enforcement actions. The information is listed in paragraph 11(2).

Disclosure of information

294. Paragraph 12 permits those listed in sub-paragraph (2) to disclose information to the Scottish Ministers. Information may only be disclosed for the purposes of the Scottish Ministers exercising one of the powers relating to the issue of fixed and variable monetary penalties.