Public Health (Wales) Act 2017

(introduced by sections 27 and 49)

SCHEDULE 1 FIXED PENALTIES

Interpretation

1 In this Schedule—

• “authorised officer” (“swyddog awdurdodedig”)—

  (a)

  in relation to a fixed penalty notice given under section 27, means an authorised officer within the meaning given by section 18(5), and

  (b)

  in relation to a fixed penalty notice given under section 49, means an authorised officer within the meaning given by section 39;

• “issuing authority” (“awdurdod dyroddi”)—

  (a)

  in relation to a fixed penalty notice given under section 27, means an enforcement authority authorised by virtue of section 18, and

  (b)

  in relation to a fixed penalty notice given under section 49, means a local authority.

Contents of fixed penalty notice

2 A fixed penalty notice must—

(a) state the alleged offence, and

(b) give particulars of the circumstances alleged to constitute it.

3 A fixed penalty notice must also state—

(a) the name and address of the issuing authority on whose behalf the notice is given;

(b) the amount of the penalty and the period for its payment;

(c) the discounted amount and the period for its payment;

(d) the effect of paying the penalty or the discounted amount before the end of the period mentioned in paragraph (b) or (c);

(e) the consequences of not paying the penalty or the discounted amount before the end of the period mentioned in paragraph (b) or (c);

(f) the person to whom, and the address at which, payment may be made;

(g) the method by which payment may be made;

(h) the person to whom and the address at which any representations relating to the notice may be made.

4 A fixed penalty notice must also—

(a) inform the person to whom it is given of that person’s right to ask to be tried for the alleged offence, and

(b) explain how that right may be exercised.

5 Regulations may make further provision as to the content and form of a fixed penalty notice.

Amount of penalty and period for payment

6 The penalty is such amount as is specified in regulations.

7 The period for payment of the penalty is the period of 29 days beginning with the day on which the fixed penalty notice is given.

Discounted amount and period for payment

8 (1) A discounted amount is payable, instead of the amount specified in regulations under paragraph 6, if payment is made before the end of the period for payment of the discounted amount.

(2) That period is the period of 15 days beginning with the day on which the notice is given, unless the 15th day is not a working day.

(3) If the 15th day is not a working day, that period is the period beginning with the day on which the notice is given and ending with the expiry of the first working day following the 15th day.

(4) In this paragraph, “working day” means any day which is not Saturday, Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 (c.80).

9 The discounted amount is such amount as is specified in regulations.

Effect of notice and payment

10 (1) Proceedings for the offence in respect of which a fixed penalty notice was given may not be brought before the end of the period for payment of the penalty.

(2) Sub-paragraph (1) does not apply if the person to whom the notice was given has asked in accordance with paragraphs 15 and 16 to be tried for the alleged offence.

11 If the penalty is paid in accordance with the penalty notice before the end of the period mentioned in paragraph 10(1), no proceedings for the offence may be brought, and paragraph 15 does not apply.

12 If the discounted amount is paid in accordance with the penalty notice before the end of the period for payment of the discounted amount, no proceedings for the offence may be brought, and paragraph 15 does not apply.

13 If proceedings have been brought pursuant to a request under paragraph 15, but then the penalty or discounted amount is paid as mentioned in paragraph 11 or 12, those proceedings must not be continued.

14 In any proceedings, a certificate documenting payment of a penalty or discounted amount is evidence of the facts which it states if it—

(a) purports to be signed by or on behalf of the person responsible for the financial affairs of the issuing authority on behalf of which the authorised officer who gave the penalty notice was acting, and

(b) states that payment of the fixed penalty or discounted amount in pursuance of the notice was or was not received by a date specified in the certificate.

Trial

15 If the person to whom a penalty notice has been given asks to be tried for the alleged offence, proceedings may be brought against that person.

16 Any request to be tried must be made—

(a) by notice given to the issuing authority in question before the end of the period for payment of the penalty;

(b) in the manner specified in the fixed penalty notice.

Withdrawal of notices

17 (1) This paragraph applies if an issuing authority considers that a fixed penalty notice which an authorised officer acting on its behalf has given to a person (“P”) ought not to have been given.

(2) The issuing authority may give notice to P withdrawing the fixed penalty notice.

(3) If it does so—

(a) it must repay any amount which has been paid by way of penalty in pursuance of the fixed penalty notice, and

(b) no proceedings may be brought or continued against P for the offence in question.

Fixed penalty receipts

18 (1) An enforcement authority which is a local authority may use amounts received by it in pursuance of notices under section 27 only for the purpose of its functions relating to the enforcement of provisions of Chapter 1 of this Part and regulations made under it.

(2) A local authority may use amounts received by it in pursuance of notices under section 49 only for the purpose of its functions relating to the enforcement of provisions of Chapter 2 of this Part and regulations made under it.

(introduced by section 29)

SCHEDULE 2 SMOKING: CONSEQUENTIAL AMENDMENTS

Health Act 2006 (c.28)

1 The Health Act 2006 is amended as follows.

2 In the heading to Chapter 1 of Part 1 after “vehicles” insert “in England”.

3 In section 1 (introduction), in subsection (1) after “vehicles” insert “in England”.

4 In section 2 (smoke-free premises)—

(a) in subsection (1) after “Premises” insert “in England”;

(b) in subsection (2) after “Premises” insert “in England”;

(c) in subsection (5) for “appropriate national authority” substitute “Secretary of State”.

5 In section 3 (smoke-free premises (exemptions)), in subsection (1)—

(a) for “appropriate national authority” substitute “Secretary of State”;

(b) after “premises” in both places insert “in England”.

6 In section 4 (additional smoke-free places)—

(a) in subsection (1)—

(i) for “appropriate national authority” substitute “Secretary of State”;

(ii) after “place” in both places insert “in England”;

(b) in subsection (3)—

(i) for “appropriate national authority” substitute “Secretary of State”;

(ii) for “authority’s” substitute “Secretary of State’s”.

7 In section 5 (vehicles), in subsection (1)—

(a) for “appropriate national authority” substitute “Secretary of State”;

(b) after “vehicles” insert “in England”.

8 In section 6 (no-smoking signs), in subsections (2), (3) and (4) for “appropriate national authority” substitute “Secretary of State”.

9 In section 8 (offence of failing to prevent smoking in smoke-free place), in subsection (3) for “appropriate national authority” substitute “Secretary of State”.

10 In section 9 (fixed penalties), in subsection (1A) for “appropriate national authority” substitute “Secretary of State”.

11 In section 10 (enforcement)—

(a) in subsection (1) for “appropriate national authority” substitute “Secretary of State”;

(b) in subsection (4) for “appropriate national authority” in both places substitute “Secretary of State”.

12 In section 11 (obstruction etc of officers), in subsection (5) for “appropriate national authority” in both places substitute “Secretary of State”.

13 In section 12 (interpretation and territorial sea)—

(a) in subsection (2) for “appropriate national authority” substitute “Secretary of State”;

(b) omit subsection (3)(b).

14 In section 82 (interpretation), in subsection (1) omit the definition of “the appropriate national authority”.

15 In Schedule 1 (fixed penalties), in paragraphs 4 and 17 for “appropriate national authority” substitute “Secretary of State”.

16 In Schedule 2 (powers of entry, etc), in paragraph 10 for “appropriate national authority” in both places substitute “Secretary of State”.

Children and Families Act 2014 (c.6)

17 In section 91 of the Children and Families Act 2014 (purchase of tobacco, nicotine products etc on behalf of persons under 18), in subsection (5), after paragraph (b), insert —

“(c) in relation to Wales—

(i) the reference to the Secretary of State in paragraph 4 of Schedule 1 to the Health Act 2006 is to be read as a reference to the Welsh Ministers;

(ii) the power of the Welsh Ministers to make regulations under paragraph 4 of Schedule 1 as so applied is to be exercised by statutory instrument;

(iii) a statutory instrument containing such regulations made by the Welsh Ministers is to be subject to annulment in pursuance of a resolution of the National Assembly for Wales.”

(introduced by section 59)

SCHEDULE 3 FURTHER PROVISION IN CONNECTION WITH SPECIAL PROCEDURE LICENCES

Application for special procedure licence

1 An application for the issue of a special procedure licence may relate to one special procedure, or more than one.

2 An application for a licence authorising the performance of a special procedure is to be made—

(a) if the applicant believes that the procedure is likely to be carried out by the applicant in the area of one local authority only, to that local authority;

(b) if the applicant believes that the procedure is likely to be carried out by the applicant in the areas of different local authorities, to one of those local authorities.

3 (1) An application—

(a) must specify the procedure to which it relates;

(b) must give whatever details the authority to which it is made may require about the basis on which the procedure is to be performed (for instance, whether it is to be performed on a peripatetic basis, on a fixed site basis, on a mobile basis, on a temporary basis, or otherwise);

(c) must state whether or not it is an application for a temporary licence.

(2) An application—

(a) is to be made in whatever way the authority to which it is made may require;

(b) is to be accompanied by whatever fee is set by the authority.

(3) That fee (if any) is to be set by the authority having regard to the costs incurred or expected to be incurred by the authority in connection with dealing with applications.

4 (1) An application must include the following information—

(a) the full name, date of birth and usual residential address of the applicant;

(b) any proposed trading name;

(c) the telephone number and e-mail address (if any) of the applicant;

(d) in the case of an application for the issue of a licence authorising the performance of a procedure at premises within section 59(3) (premises or vehicle occupied by or under control or management of certain persons), the address of each of the premises at which the performance of the procedure is to be authorised by the licence;

(e) in the case of an application for a licence authorising the performance of a procedure in a vehicle within section 59(3) that has a registration number, the registration number of the vehicle;

(f) in the case of an application for a licence authorising the performance of a procedure in a vehicle within section 59(3) that does not have a registration number, whatever identifying details of the vehicle the authority considers appropriate;

(g) any other information that the authority concerned may require, which may, for instance, include information about any offence of which the applicant has been convicted (whether or not committed under the law of England and Wales).

(2) At any time after receiving but before determining an application, an authority may require the applicant to provide it with any further information that it considers necessary to enable it to determine the application.

(3) That further information may include any information that the authority considers necessary for the purpose of verifying the identity of the applicant.

(4) Regulations may—

(a) make provision about the way in which a local authority is to determine the amount of the fee that is to accompany an application made to it;

(b) make further provision about applications (including, among other things, about the way in which an application is to be made, the information to be provided, and the way in which an application is to be dealt with by an authority).

Contents of special procedure licence

5 (1) A special procedure licence must—

(a) state the name of the licence holder;

(b) bear a photograph of the licence holder;

(c) specify a residential or business address for the licence holder;

(d) name the authority by which the licence is issued;

(e) specify each procedure the performance of which is authorised by the licence;

(f) specify the licence period and, in the case of a temporary licence, state that it is a temporary licence.

(2) A licence that is required, by section 59(3), to identify premises or a vehicle must (as the case may be)—

(a) specify the address of the premises;

(b) in the case of a vehicle that has a registration number, state the registration number;

(c) in the case of a vehicle that does not have a registration number, identify the vehicle in whatever way the authority issuing the licence considers appropriate.

(3) Regulations may make further provision about the form and content of special procedure licences (including, among other things, about the inclusion of information about the applicable mandatory licensing conditions).

Copy of licence

6 (1) If a special procedure licence is mislaid, stolen, or damaged, the licence holder may apply to the authority by which it was issued for a copy.

(2) An application under sub-paragraph (1)—

(a) is to be made in whatever way the authority concerned may require, and

(b) is to be accompanied by whatever fee is set by the authority.

(3) The authority must grant the application if it is satisfied—

(a) that the licence has been mislaid, stolen or damaged, and

(b) that where the licence has been mislaid or stolen, the loss or theft has been reported to the police.

(4) As soon as reasonably practicable after granting an application under sub-paragraph (1), an authority is to issue a copy of the licence to the applicant.

7 A copy of a licence issued by an authority under paragraph 6 is—

(a) to be certified by the authority as a true copy, and

(b) to be treated for the purposes of this Part and any requirements imposed by or under it as being the original licence.

Expiry of licence

8 (1) A special procedure licence is to be treated for the purposes of this Part as expiring with whichever is the earliest of—

(a) the end of the licence period;

(b) the date with the expiry of which revocation of the licence has effect;

(c) the date with the expiry of which the licence ceases to have effect under paragraph 14(3) (voluntary termination of licence);

(d) in the case of a licence authorising the performance of a procedure by an individual who is designated under section 61 in respect of that procedure, the date on which any withdrawal of the designation takes effect.

(2) But sub-paragraph (1) is subject to paragraph 10.

Renewal of licence

9 (1) A local authority may, on an application by the licence holder, renew a special procedure licence.

(2) An application for renewal of a licence is to be made to the authority that granted the licence.

(3) An application for renewal—

(a) is to be made in whatever way the authority concerned may require,

(b) is to include whatever information the authority concerned may require, and

(c) is to be accompanied by whatever fee is set by the authority.

10 If an application to renew a licence is received before the licence would but for this paragraph be treated as having expired, the licence is not to be treated as having expired while—

(a) the application for renewal is pending;

(b) an appeal may be brought under paragraph 18 or 19 in respect of the application;

(c) an appeal brought in respect of the application under paragraph 18 or 19, within the period for bringing an appeal under that paragraph, remains to be determined.

Variation of licence

11 (1) A local authority may, on an application to this effect by a licence holder, vary a special procedure licence issued by it.

(2) The effect of a variation may be such as to (among other things)—

(a) add, amend or remove a description of special procedure the performance of which is authorised by the licence;

(b) subject to section 59(4) (requirement that premises or vehicle be identified in licence, and approved) authorise the performance of a special procedure at premises or in a vehicle not previously identified in the licence for this purpose;

(c) remove a reference to premises or a vehicle previously identified in the licence.

(3) A licence must not be varied under this paragraph so as to—

(a) transfer the licence from the licence holder to another individual;

(b) extend the licence period.

12 (1) An application to vary a special procedure licence—

(a) is to be made in whatever way the authority concerned may require, and

(b) is to be accompanied by whatever fee is set by the authority.

(2) An application must include—

(a) particulars of the changes proposed to be made to the licence, and

(b) any other information that the authority concerned may require.

13 (1) An application to vary a special procedure licence by adding a description of special procedure the performance of which is to be authorised by the licence—

(a) must specify the procedure concerned, and

(b) is to be treated for the purposes of this Part as being an application for the issue of a special procedure licence authorising the performance of that procedure (and the date of the variation is to be treated, for the application of this Part in respect of that procedure, as being the date of the issue of a licence authorising the performance of the procedure).

(2) But sub-paragraph (1)(b) does not apply for the purposes of the determination of the licence period.

Voluntary termination of licence

14 (1) Where a licence holder wishes a special procedure licence to cease to have effect, the licence holder may give notice to that effect to the authority that issued the licence.

(2) The notice must state the date with which the licence is to cease to have effect.

(3) Subject to any earlier expiry under paragraph 8(1)(a), (b) or (d), the licence ceases to have effect with the expiry of the date stated under sub-paragraph (2).

Right to make representations

15 (1) This paragraph applies if a local authority proposes—

(a) to give notice to an applicant under section 65(2) or 66(6) of refusal of an application (including under any of those provisions as applying in respect of the application by virtue of section 67 or paragraph 13(1)(b)),

(b) to give notice to a licence holder under section 68 of revocation of a licence (including under that section as applying in respect of the application by virtue of section 67 or paragraph 13(1)(b)), or

(c) to give notice to an individual under section 61(1), designating that individual in respect of a special procedure.

(2) In this paragraph and paragraphs 16 and 17, the applicant or licence holder is referred to as “A”.

(3) The authority must give A a notice (a “warning notice”) that sets out what the authority proposes to do and why.

(4) A warning notice must state that, within a period specified in the notice, A may either—

(a) make representations about the proposal, or

(b) inform the authority that A wishes to make representations.

(5) The period specified in the warning notice must not be less that 14 days beginning with the date of the notice.

(6) The authority may take the steps specified in the warning notice, if—

(a) within the period specified in the warning notice, A informs the authority that A does not wish to make representations, or

(b) the period specified in the warning notice expires and A has neither made representations nor informed the authority that A wishes to do so.

(7) If, within the period specified in the warning notice, A informs the authority that A wishes to make representations, the authority—

(a) must allow A a further reasonable period to make representations, and

(b) may take the steps specified in the warning notice, if A fails to make representations within that further period.

(8) If A makes representations (either within the period specified in the warning notice or within the further period allowed under sub-paragraph (7)(a)), the authority must consider the representations.

(9) The representations made by A under this paragraph may be made orally or otherwise; and in the case of oral representations, may be made either by A or by A’s representative.

Notice of decision

16 (1) This paragraph applies if, having complied with the requirements of paragraph 15 in respect of a proposed notice under section 65(2), 66(6) or 68, a local authority decides to take the action set out in the warning notice.

(2) The notice given under section 65, 66 or 68 (as the case may be) must set out the authority’s reasons for giving it.

(3) The notice must also state—

(a) that A may appeal under paragraph 18 against the decision,

(b) the period within which an appeal may be brought, and

(c) in the case of revocation under section 68, the date on which (in the absence of an appeal under paragraph 18) the revocation is to take effect.

17 If, having complied with the requirements of paragraph 15, a local authority decides not to take the action set out in the warning notice, the authority must give notice of the decision to A.

Appeals

18 (1) An applicant may appeal to a magistrates’ court against—

(a) the refusal of an application for a special procedure licence;

(b) the refusal of an application to vary a special procedure licence;

(c) the refusal of an application to renew a special procedure licence.

(2) A licence holder may appeal to a magistrates’ court against a revocation under section 68.

(3) An individual to whom notice has been given under section 61(1) (designation of a person for the purposes of section 58) may appeal to a magistrates’ court against the decision to give the notice.

(4) An appeal is to be made within the period of 21 days beginning with the date of—

(a) in the case of an appeal under sub-paragraph (1) or (2), the notice of the decision to refuse the application or of the decision to revoke;

(b) in the case of an appeal under sub-paragraph (3), the notice under section 61(1).

(5) An appeal is to be by way of complaint for an order, and in accordance with the Magistrates’ Courts Act 1980 (c.43).

(6) For the purposes of the time limit for making an appeal, the making of the complaint is to be treated as the making of the appeal.

(7) On an appeal, the magistrates’ court may—

(a) confirm the decision of the local authority appealed against, or

(b) quash or vary the decision appealed against,

and may make such order as to costs as it thinks fit.

(8) If the magistrates’ court quashes or varies the decision appealed against, it may remit the case to the local authority to dispose of in accordance with directions given by the court.

19 (1) An appeal by either party against the decision of a magistrates’ court under paragraph 18 may be brought to the Crown Court.

(2) On an appeal to the Crown Court, the Crown Court may—

(a) confirm, vary or reverse the magistrates’ court’s decision;

(b) remit the case to the magistrates’ court or the local authority to dispose of in accordance with directions given by the Crown Court.

20 (1) Where on an appeal under paragraph 18 or 19 a court varies or reverses a local authority’s decision, the court may order the local authority to compensate the applicant, licence holder, or person within paragraph 18(3) (as the case may be) for loss suffered as the result of the decision.

(2) The bringing of an appeal under paragraph 18 or 19 in respect of a decision made by a local authority or notice given by a local authority does not suspend the effect of the decision or notice.

Delegation of functions

21 (1) The functions of a local authority under the following provisions of this Part are by virtue of this sub-paragraph delegated to the licensing committee of the authority established under section 6 of the Licensing Act 2003 (c.17)—

(a) section 65(2) and 66(3) (including as applied by virtue of section 67 and paragraph 13(1)), in a case where representations are made under paragraph 15;

(b) section 68, in a case where representations are made under paragraph 15;

(c) paragraph 15(8);

(d) paragraphs 16 and 17.

(2) The following provisions of the Licensing Act 2003 (c.17) are to apply in relation to a function of an authority delegated to a licensing committee by virtue of sub-paragraph (1) as they apply in relation to a function delegated under that Act, and as if references in them to a licensing authority were to the authority concerned—

(a) section 7(9) (referral back to authority), and

(b) section 10 (sub-delegation).

(3) In the application of section 10(4) of that Act by virtue of sub-paragraph (2), for the list of functions in that section there is substituted the list of functions at sub-paragraph (1)(a) to (d).

(4) Regulations may make provision about the procedures applicable to licensing committees and their sub-committees for the purpose of the exercise of functions under or by virtue of this Part, including (among other things) provision as to—

(a) validity and quorum;

(b) public access;

(c) publicity;

(d) records.

(5) Subject to any provision made under the regulations, each licensing committee may, for the purposes of the exercise of the functions referred to in sub-paragraph (4), regulate its own procedure and that of its sub-committees.

Consequential amendments

22 (1) The Local Government (Miscellaneous Provisions) Act 1982 (c.30) is amended as follows.

(2) In section 13(11) (meaning of “local authority” in Part 8), in paragraph (a) after “district” insert “in England”.

(3) In section 14 (acupuncture)—

(a) in subsection (1) after “any area” insert “in England”, and

(b) in subsection (2) after “any area” insert “in England”.

(4) In section 15 (tattooing etc)—

(a) in subsection (1) after “any area” insert “in England”, and

(b) in subsection (2) after “any area” insert “in England”.

23 In the Local Government Byelaws (Wales) Act 2012 (anaw 2), in each table in Schedule 1 (byelaw making powers) omit the entry relating to—

(a) section 14 of the Local Government (Miscellaneous Provisions) Act 1982 (c.30);

(b) section 15 of the Local Government (Miscellaneous Provisions) Act 1982 (c.30).

(introduced by section 118)

SCHEDULE 4 PROVISION OF TOILETS: CONSEQUENTIAL AMENDMENTS

Public Health Act 1936 (c.49)

1 (1) Section 87 of the Public Health Act 1936 (provision of public conveniences) is amended as follows.

(2) In subsection (1)—

(a) for “A county council, a local authority” substitute “A county council in England, a local authority in England”;

(b) omit “or community”.

(3) In the heading, after “conveniences”, insert “in England”.

Highways Act 1980 (c.66)

2 In section 114 of the Highways Act 1980 (provision of public conveniences for road users), for subsection (4) substitute—

“(4) The powers in subsection (1) are without prejudice to—

(a) section 87 of the Public Health Act 1936 (provision of public conveniences in England);

(b) section 116 of the Public Health (Wales) Act 2017 (local authority power to provide public toilets in Wales).”

Local Government Byelaws (Wales) Act 2012 (anaw 2)

3 (1) In the Local Government Byelaws (Wales) Act 2012, Schedule 1 (byelaws not requiring confirmation) is amended as follows.

(2) In each table omit the entry relating to section 87 of the Public Health Act 1936.

(3) In each table, in the appropriate place insert—

“Section 117 of the Public Health (Wales) Act 2017

Regulating the conduct of persons in toilets

County council, county borough council and community council”