Draft Regulations laid before Parliament under section 22A(7) of the Aviation Security Act 1982, for approval by resolution of each House of Parliament.
Draft Statutory Instruments
Civil Aviation
Made
2015
Coming into force
2015
The Secretary of State makes the following Regulations in exercise of the power conferred by section 22A of the Aviation Security Act 1982(1).
In accordance with section 22A(7) of that Act, a draft of these Regulations has been laid before and approved by a resolution of each House of Parliament.
1.—(1) These Regulations may be cited as the Aviation Security Act 1982 (Civil Penalties) Regulations 2015.
(2) These Regulations come into force on the 21st day after the day on which they are made.
(3) These Regulations cease to have effect at the end of the period of seven years beginning with the day on which these Regulations come into force.
2. In these Regulations—
“the ASA 1982” means the Aviation Security Act 1982;
“inbound flight” means a flight originating outside the United Kingdom that is due to fly into the United Kingdom;
“notice of objection” has the meaning given in regulation 6;
“penalty notice” has the meaning given in regulation 5.
3.—(1) This regulation applies to a person who—
(a)is the operator of one or more aircraft registered or operating in the United Kingdom, and
(b)has been required by a notice under section 11 of the ASA 1982 (power to require information) to provide information relating to an inbound flight.
(2) The Secretary of State may require the person to pay a penalty if the Secretary of State is satisfied, on a balance of probabilities, that the person—
(a)has failed to comply with a requirement imposed by the notice, or
(b)has, in providing any information so required, intentionally or recklessly made a statement that is false in a material particular.
(3) But—
(a)the Secretary of State may not require a person to pay a penalty under paragraph (2)(a) if—
(i)the person shows that there was a reasonable excuse for the failure, or
(ii)proceedings have been instituted against the person under section 11(5)(a) of the ASA 1982 in respect of the same failure;
(b)the Secretary of State may not require a person to pay a penalty under paragraph (2)(b) if proceedings have been instituted against the person under section 11(5)(b) of the ASA 1982 or under section 5 of the Perjury Act 1911(2) (false declarations etc, to obtain registration, etc) in respect of the same false statement.
(4) A penalty imposed under this regulation may not exceed £50,000.
(5) The penalty is payable to the Secretary of State on demand.
4.—(1) This regulation applies to a person who—
(a)is the operator of one or more aircraft registered or operating in the United Kingdom, and
(b)has been given a direction under section 12(1)(b) (power to impose restrictions in relation to aircraft) or section 14 of the ASA 1982 (general power to direct measures to be taken) that—
(i)relates to an inbound flight, and
(ii)requires the person not to cause or permit an aircraft to fly in or into the United Kingdom unless certain things have, or have not, been done.
(2) The Secretary of State may require the person to pay a penalty if the Secretary of State is satisfied, on a balance of probabilities, that the person has failed to comply with the direction.
(3) But the Secretary of State may not require a person to pay a penalty if—
(a)the person shows that there was a reasonable excuse for the failure, or
(b)proceedings have been instituted against the person under section 12(9) or 14(7)(a) of the ASA 1982 in respect of the same failure.
(4) A penalty imposed under this regulation may not exceed £50,000.
(5) The penalty is payable to the Secretary of State on demand.
5.—(1) If the Secretary of State decides to require a person to pay a penalty under these Regulations, the Secretary of State must give the person a penalty notice.
(2) A penalty notice must—
(a)be in writing,
(b)state the Secretary of State’s reasons for deciding to require the person to pay a penalty,
(c)state the amount of the penalty,
(d)specify the date on which it is given,
(e)specify the date, at least 28 days after the date specified in the notice as the date on which it is given, before which the penalty must be paid,
(f)specify how a penalty must be paid,
(g)include an explanation of the steps that the person may take if the person objects to the penalty (including specifying the manner and form in which any notice of objection must be given to the Secretary of State), and
(h)include an explanation of the steps the Secretary of State may take to recover any unpaid penalty.
(3) Section 24 of the ASA 1982 (service of documents) applies in relation to a penalty notice as it applies in relation to a notice authorised or required to be served on or given to a person under Part 2 of that Act.
6.—(1) The recipient of a penalty notice (the “recipient”) may object to the penalty notice by giving a notice of objection to the Secretary of State.
(2) A notice of objection must—
(a)be in writing,
(b)give the reasons for the objection,
(c)be given to the Secretary of State in the manner and form specified in the penalty notice, and
(d)be given before the end of the period of 28 days beginning with the date specified in the penalty notice as the date on which it is given.
(3) Where the Secretary of State receives a notice of objection, the Secretary of State must consider it and—
(a)cancel the penalty,
(b)reduce the penalty,
(c)increase the penalty, or
(d)determine not to alter the penalty.
(4) After reaching a decision as to how to proceed under paragraph (3), the Secretary of State must notify the recipient of the decision in writing.
(5) A notification under paragraph (4) must be given before the end of the period of 70 days beginning with the date specified in the penalty notice as the date on which it is given, or such longer period as the Secretary of State may agree with the recipient.
(6) A notification under paragraph (4), other than one notifying the recipient that the Secretary of State has decided to cancel the penalty, must—
(a)state the amount of the penalty following the Secretary of State’s consideration of the notice of objection,
(b)state the Secretary of State’s reasons for the decision under paragraph (3),
(c)specify the date, at least 28 days after the date on which the notification is given, before which the penalty must be paid,
(d)specify how the penalty must be paid,
(e)include an explanation of the recipient’s rights of appeal, and
(f)include an explanation of the steps the Secretary of State may take to recover any unpaid penalty.
(7) Section 24 of the ASA 1982 (service of documents) applies to a notification under paragraph (4) as it applies in relation to a notice authorised or required to be served on or given to a person under Part 2 of that Act.
7.—(1) A person (the “appellant”) may appeal to the court against a decision to require the person to pay a penalty under these Regulations.
(2) An appeal may be brought only if the appellant has given a notice of objection and the Secretary of State has—
(a)reduced the penalty under regulation 6(3)(b),
(b)increased the penalty under regulation 6(3)(c), or
(c)determined not to alter the penalty under regulation 6(3)(d).
(3) An appeal must be brought within the period of 28 days beginning with the date on which the person is notified of the Secretary of State’s decision on the notice of objection under regulation 6(4).
(4) On appeal, the court may—
(a)allow the appeal and cancel the penalty,
(b)allow the appeal and reduce the penalty, or
(c)dismiss the appeal.
(5) An appeal—
(a)is to be a re-hearing of the Secretary of State’s decision to impose a penalty, and
(b)may be determined having regard to matters of which the Secretary of State was unaware.
(6) Paragraph (5)(a) has effect despite any provision of rules of court.
(7) In this regulation, a reference to “the court” is a reference—
(a)in England and Wales, to the county court,
(b)in Scotland, to the sheriff, and
(c)in Northern Ireland, to a county court.
(8) But—
(a)the county court in England and Wales, or a county court in Northern Ireland, may transfer proceedings under this regulation to the High Court, and
(b)the sheriff may transfer proceedings under this regulation to the Court of Session.
8.—(1) This regulation applies where a sum is payable to the Secretary of State as a penalty under these Regulations.
(2) In England and Wales the penalty is recoverable as if it were payable under an order of the county court in England and Wales.
(3) In Scotland the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
(4) In Northern Ireland the penalty is recoverable as if it were payable under an order of a county court in Northern Ireland.
(5) Where action is taken under this regulation for the recovery of a sum payable as a penalty under these Regulations, the penalty is—
(a)in relation to England and Wales, to be treated for the purposes of section 98 of the Courts Act 2003(3) (register of judgments and orders etc) as if it were a judgment entered in the county court;
(b)in relation to Northern Ireland, to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981(4) (register of judgments) as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order.
Signed by authority of the Secretary of State
Name
Parliamentary Under Secretary of State
Department
Date
(This note is not part of the Regulations)
These Regulations set out the civil penalty regime applicable to information requests or aviation security directions, made under the Aviation Security Act 1982, for civil flights which are inbound to the United Kingdom.
In accordance with regulation 3, where the operator of an aircraft inbound to the UK is required to provide information to the Secretary of State or the Civil Aviation Authority under the Aviation Security Act 1982 and that operator does not comply with the request or intentionally or recklessly provides false information, the Secretary of State may require the operator to pay a penalty. A reasonable excuse defence is available to operators who fail to comply with a request.
In accordance with regulation 4, the operator of an aircraft inbound to the UK may also be required by the Secretary of State to pay a penalty where the operator does not comply with the relevant aviation security directions made under the Act. A reasonable excuse defence is available to operators who fail to comply with directions.
No civil penalty imposed by the Secretary of State under these Regulations may exceed £50,000.
Regulation 5 contains provision about the contents of a penalty notice.
Regulations 6 to 8 deal with matters relating to objection, appeal, enforcement and service of documents.
No impact assessment has been prepared for these Regulations but an Explanatory Memorandum is published alongside these Regulations on www.legislation.gov.uk.
1982 c. 36; section 22A was inserted by the Counter-Terrorism and Security Act 2015 (c.6), section 25(3) and Schedule 5, Part 2.
1911 c.6; see also the Criminal Justice Act 1948 (c.58), section 1(2) which provides for the abolition of hard labour.
2003 c.39; section 98 has been amended by the Tribunals, Courts and Enforcement Act 2007 (c.15), section 106(2), Schedule 16, paragraph 15, section 48(1), Schedule 8, paragraph 55(1), (2), (3)(a) and (b) and the Crime and Courts Act 2013 (c.22), section 17(5), Schedule 9, Part 2, paragraph 40(a) and (c). Further amendments made by the Tribunals, Courts and Enforcement Act 2007 have yet to be brought into force.