Office of Public Sector Information
148.Subsection (6) sets out that the notice must specify the steps which the person on whom the notice is served must take and the period in which they must be taken. It must also advise the person on whom the notice is served that if the notice is not complied with, then the local authority may take those steps. If, during the period of the notice, the person on whom the notice is served consents, then an authorised officer of the local authority may carry out the steps.
149.This section applies where a notice has been served under section 73 and the period specified in the notice has expired. It provides that an authorised officer of the local authority may enter the premises to determine whether the steps specified in the notice have been taken, may take any other person authorised by the officer, and a constable (if the officer has reasonable cause to expect serious obstruction in obtaining access). The authorised officer entitled to enter premises must show authorisation, if requested. In addition, an authorised officer who enters unoccupied premises must leave the premises as effectively secured against unauthorised entry as the officer found them.
150.This section sets out the actions that an authorised officer of a local authority may take where the owner or occupier of premises on whom a notice under section 73 has been served fails to comply with the notice and the period of the notice has expired. It provides that the authorised officer may enter the premises; may take any other person authorised by the officer, and a constable (if the officer has reasonable cause to expect serious obstruction in obtaining access); may direct that the premises (or any part of them) or any thing in or on them is left undisturbed for as long as the officer considers appropriate; may take the steps specified in the notice and any other steps considered necessary; and may remove any thing from the premises for the purpose of taking any steps (disinfection, decontamination or disinfestation) at another place.
151.Subsection (3) provides that an authorised officer who enters any unoccupied premises by virtue of this section must leave the premises as effectively secured against unauthorised entry as the officer found them.
152.This section provides that a local authority may take the steps set out in the notice served on a person under section 73 if it appears to the local authority that it is not reasonably practicable for that person to take those steps.
153.In order to do so, the authority must serve notice on the occupier of the premises or, where the premises are unoccupied, on the owner of them, requiring the person to given an authorised officer access to undertake the steps. Where a notice is served under this section on the occupier of the premises, this should be copied to the owner, if that is not the same person. The notice may be served only if the local authority competent person certifies that the relevant criteria have been met.
154.Subsection (5) sets out that the notice must specify the steps which must be taken and the period in which they must be taken. Under subsection (6), the authorised officer may enter the premises; may take any other person authorised by the officer (and a constable if the officer has reasonable cause to expect serious obstruction in obtaining access); may direct that the premises (or any part of them) or any thing in or on them is left undisturbed for as long as the officer considers appropriate; may take the steps specified in the notice, and may remove any thing from the premises for the purpose of taking any steps at another place.
155.Subsection (7) provides that an authorised officer who enters any unoccupied premises by virtue of this section must leave the premises as effectively secured against unauthorised entry as the officer found them.
156.This section sets out the conditions under which an authorised officer may exercise a power of entry under this Part in relation to a dwellinghouse. The first condition is that an officer must give 48 hours’ notice to the occupier of the dwellinghouse. The second is that the person who appears to be the occupier of the dwellinghouse has consented or entry is effected under a warrant issued under section 78. The term ‘dwellinghouse’ as used in this Part is defined in section 26(4).
157.This section provides that a local authority may apply for a warrant from a sheriff or a justice of the peace to enter and take steps where an authorised officer has been refused entry or can reasonably anticipate such refusal; the premises to which the authorised person is entitled to enter are unoccupied; the occupier of the premises is temporarily absent and there is urgency; or a person entitled to enter the premises has been prevented from taking the authorised steps, or reasonably anticipates such prevention.
158.Subsection (2) allows a sheriff or justice of the peace to authorise an officer of the authority to enter the premises, to take any other person authorised by the officer and a constable, if the officer has reasonable cause to expect any serious obstruction in obtaining access; to direct that the premises (or any part of them) are, or any thing in or on them is, to be left undisturbed for so long as the officer considers appropriate; and to take any steps mentioned in section 73.
159.Subsection (3) states that a warrant in relation to a dwellinghouse must not be granted unless the sheriff or justice is satisfied that 48 hours’ notice has been given and that period has expired. Subsection (4) provides that the power of entry may be exercised at any time and includes power to use reasonable force.
160.Subsection (5) provides that an authorised officer who enters any unoccupied premises by virtue of this section must leave the premises as effectively secured against unauthorised entry as the officer found them. A warrant under this section continues in force until the purpose for which it is issued is fulfilled.
161.This section provides that where an officer authorised to enter premises under this Part, considers, on reasonable grounds, that there is an emergency, the officer may exercise the power of entry at any time, and may use reasonable force. If the premises are a dwellinghouse, the conditions in section 77 need not be satisfied.
162.The authorised officer may, on entering the premises, take any other person authorised by the officer and a constable, if the officer has reasonable cause to expect any serious obstruction in obtaining access; direct that the premises (or any part of them) are, or any thing in or on them is, to be left undisturbed for as long as the officer considers appropriate; take any step mentioned in section 73(2); and remove any thing from the premises for the purpose of taking any such step at any other place.
163.Subsection (7) provides that an authorised officer who enters any unoccupied premises by virtue of this section must leave the premises as effectively secured against unauthorised entry as the officer found them.
164.Subsection (8) states that the use of powers in emergencies is available even if an appeal has been made under section 83(1). Subsection (9) defines “emergency”.
165.Any person who, without reasonable excuse, obstructs an authorised officer, or any other person, in the exercise of powers under this Part, will be guilty of an offence and liable to a penalty, as outlined in section 120.
166.This section provides that a local authority may recover any reasonable expenses it incurs in doing anything it is entitled to do under this Part of the Act from the person on whom a notice is served. If no notice is served, the authority may recover the expenses from the occupier, or where the premises are unoccupied, the owner of them. The local authority may also recover any administrative expenses incurred in connection with the thing to which the expenses relate. The local authority may accept payment of sums recoverable by instalments. In the event of non payment, the local authority may recover sums due through normal civil recovery procedure.
167.Subsection (1) provides that a local authority must compensate any person who suffers loss or damage caused by any person doing (or failing to do) anything which that person is entitled (or required) to do under section 73, 75, 76, 78 or 79. Subsection (2) states that compensation under this section is not available where the loss or damage is attributable to the fault of the person who suffered the loss or damage. Compensation is not available for loss or damage which relates to any infected, infested or contaminated premises which are damaged as a result of disinfection, disinfestation or decontamination of the premises or anything in or on them. Nor is compensation available for the damage or destruction of any thing as a result of disinfection, disinfestation or decontamination of the thing or premises.
168.Subsection (3) provides that any dispute as to a person’s entitlement to compensation under this section or the amount of compensation is to be determined by a single arbiter appointed by agreement between the authority and the person claiming loss or damage or, if such agreement cannot be reached, by an arbiter appointed by the sheriff.
169.This section provides that any person on whom a notice is served under section 73 or 76 may appeal to the sheriff against the notice or any requirement in it. Such an appeal must be made within 14 days of the notice being served. On an appeal, the sheriff may confirm or revoke the notice; remove or vary any requirement specified in the notice; and make such other order as the sheriff considers appropriate.
170.This section provides that a person who appealed under section 83 may, with the leave of the sheriff, appeal to the sheriff principal against the sheriff’s decision to confirm the notice or not to remove or vary any requirement in the notice. Subsection (3) states that a local authority may also, with the leave of the sheriff, appeal against a decision of the sheriff to revoke the notice or remove or vary any requirement specified in the notice.
171.Subsection (5) provides that on an appeal under this section, the sheriff principal may confirm the decision appealed against, modify that decision, quash the decision, or make such other order as the sheriff principal considers appropriate.
172.This section provides that a person who appealed under section 84 may, with the leave of the sheriff principal, appeal against the sheriff principal’s decision to the Court of Session. Such an appeal may be made on a point of law only.
173.Subsection (3) provides that on an appeal under this section, the Court of Session may confirm the decision appealed against, modify that decision, quash the decision, or make such other order as the Court considers appropriate. The decision of the Court on an appeal under this section is final.
174.This section applies where a local authority or any other person has functions under any other enactment in relation to premises or things which are infected, infested or contaminated. This is referred to as an “existing function”.
175.Subsection (3) provides that a local authority may not exercise a function conferred on it by virtue of this Part if the authority or any other person is exercising an existing function or the authority is aware that another person is likely imminently to exercise an existing function in relation to the infected, infested or contaminated premises or things. Section 72 (which is the duty for a local authority to provide facilities for disinfecting etc.) continues to apply despite section 86.
176.This section requires each local authority to provide or ensure the provision for its area of the premises and facilities it considers appropriate for the reception and temporary storage of the bodies of persons who die in the authority’s area and the post-mortem examination of such bodies. Local authorities need not provide such premises and facilities for hospital-related deaths. Health boards are required to provide premises and facilities for such bodies under section 88. Local authorities are required to provide or ensure the provision for its area of facilities for bodies in relation to which the Crown Office Procurator Fiscal Service (COPFS) are carrying out investigations.
177.Local authorities need not provide the facilities themselves, but may enter into agreements with any person or organisation, including a health board, for the provision of such facilities. The premises and facilities referred to in this section need not be in the area of the local authority ensuring their provision.
178.This section requires each health board to provide or ensure the provision for its area of the premises and facilities it considers appropriate for the reception and temporary storage of the bodies of persons who die in a hospital in the board’s area or who die elsewhere and whose bodies are brought to such a hospital and for the post-mortem examination of such bodies.
179.This section places a duty of co-operation on local authorities and health boards in complying with the duties placed on each of them by sections 87 and 88.
180.This section deals with the circumstances whereby a health board may require the retention of an infected or contaminated body in hospital. It sets out that this must be by direction specifying that the body cannot be removed (except to a mortuary or similar premises for a post-mortem examination) until written authorisation is given to a named person for the purposes of immediate disposal, which may include preparation of the body for disposal. That direction can be made only where a health board competent person certifies that a defined set of circumstances applies. These circumstances, set out in subsection (1), are that a person has died of an infectious disease, had such a disease immediately before dying (but died of another cause) or was contaminated immediately before dying (whether the contaminant caused the death or not). If any of those circumstances applies and the competent person considers that there is also a significant risk to public health and it is necessary to retain the body to avoid or minimise that risk (until the health board is satisfied regarding the arrangements for disposal), a direction may be made.
181.Subsection (4) places a duty on a health board, where it makes such a direction, to explain to persons responsible for handling the body that there is significant risk to public health, the nature of that risk, any precautions the person should take and any other appropriate information. This does not apply where an explanation has already been given under section 91 to anyone who appears to be responsible for the disposal of the body. Subsection (6) states that a person who breaches a direction given under this section without reasonable excuse commits an offence.
182.This section places a duty on a health board (where it knows a person in its area has died of an infectious disease, had such an infectious disease before dying, or was contaminated) to explain to any person who appears to be responsible for the disposal of the body the nature of any risk, the precautions that should be taken and any other appropriate information. This does not apply where an explanation has been given under section 90.
183.This section applies where the body of a person is being retained in premises and the local authority feels that appropriate disposal arrangements have not been made. The authority may apply to the sheriff for an order under section 93 seeking authority to dispose of the body appropriately. An application may only be made where a local authority competent person certifies, among other things, that there is a significant risk to public health and that appropriate disposal is necessary to avoid or minimise that risk.
184.This section allows the sheriff, if satisfied that there is a significant risk to public health, to make an order authorising the local authority to remove the body of a person mentioned in section 92 to a mortuary or other similar premises and to dispose of the body within the period set out in the order. If the sheriff is satisfied that the risk to public health is such that the body must be disposed of immediately, disposal by the local authority may be ordered as soon as reasonably practicable.
185.Subsection (2) gives powers to local authority officers or other persons authorised by local authorities (in either case an “authorised officer”) to enter premises, to take other persons and, if the authorised officer has reasonable cause to expect any serious obstruction in obtaining access, a constable, and take any other steps reasonably required in connection with removing and disposing of the body. In entering premises, the authorised officer may use reasonable force and enter at any time. This section of the Act does not affect any other legislation which regulates or authorises burial or cremation, and the requirements of the Cremation (Scotland) Regulations 1935 (as amended) continue to apply.
186.Any reasonable expenses incurred by the authority in carrying out a function authorised by an order under this section can be recovered from the estate of the deceased person. Any person who, without reasonable excuse, intentionally obstructs an officer of the local authority or another authorised person from carrying out any functions authorised by this section commits an offence and will be liable to a penalty, as outlined in section 120.
187.The International Health Regulations 2005 (IHR 2005) are a legally binding international agreement intended to prevent, protect against, control and respond to the international spread of disease without unnecessary interference with international traffic and trade. Section 94(1) allows the Scottish Ministers to make regulations for the purposes of, or in connection with, giving effect to IHR 2005 (and recommendations under IHR 2005) as well as other international agreements relating to the spread of infectious disease and contamination, so far as they have effect in or as regards Scotland. Regulations may also be made to protect public health from risks arising from vehicles arriving in, or leaving, Scotland. This will enable the Scottish Ministers to replace the Public Health (Ships) (Scotland) Regulations 1971 (as amended) and the Public Health (Aircraft) (Scotland) Regulations 1971 (as amended), made under the powers in the Public Health (Scotland) Act 1945, which are repealed by this Act. Regulations made under section 94 will be made by affirmative procedure except where the Scottish Ministers consider that they need to be made urgently, in which case subsections (6) to (10) of section 122 apply.
188.Subsection (5) sets out the maximum penalties that may be imposed for committing an offence under the regulations. Subsection (6) defines ‘International Health Regulations’ for the purposes of the Act and regulations made under it.
189.This section bans allowing the use of sunbeds by under 18s on commercial premises. An operator who allows a person who is under 18 to use a sunbed on sunbed premises commits an offence.
190.Subsections (2) and (3) provide a defence for the operator. Subsection (4) lists the documents that may be used to demonstrate proof of age. Subsection (5) allows the operator to rely on steps taken by an employee or agent.
191.This section bans the sale or hire of sunbeds to persons under 18.
192.Subsection (1) sets out the offence of sale and subsection (2) sets out the offence of hire. Subsection (3) provides a defence for a seller or hirer, if the seller or hirer believed a person to be 18 or over and had taken reasonable steps to establish a person’s age.
193.Subsection (5) provides a list of documents that can be used to demonstrate proof of age. Subsection (6) allows the operator to rely on steps taken by an employee or agent.
194.This section concerns the situation where a sale or hire of a sunbed takes place in circumstances where the premises that receive an order are not the same as the premises from which the sunbed is despatched for sale or hire. Subject to subsection (3), the sale or hire is to be treated as taking place on the premises where the order was taken. Subsection (3) provides that, whereas the premises where the order is taken are not in Scotland but the premises from which the sunbed is despatched are in Scotland, the sale or hire is to be treated as taking place on the premises from which the sunbed is despatched.
195.This section prohibits allowing the unsupervised use of sunbeds. It is an offence for an operator of a sunbed premises to allow a person to use a sunbed on those premises without supervision, unless the operator can provide a reasonable excuse.
196.Under subsection (2) sunbed premises are regarded as being supervised if the operator or an employee or agent of the operator is present on the sunbed premises at any time a person is using a sunbed on those premises.
197.This section allows the Scottish Ministers to make regulations in relation to sunbeds used for medical purposes. This future proofs the legislation against the possibility that operators may try to circumvent the provisions by offering ‘medical devices’, which produce tanning of the skin, rather than ‘sunbeds’. Subsection (2) sets out that the regulations may make provision regarding what is to be considered a sunbed or sunbed premises as well as the circumstances in which the provisions of this Part do and do not apply. Regulations will be made by affirmative procedure.
198.Under this section sunbed operators must provide sunbed users with information on the effects on health of sunbed use. It is an offence to fail to provide the information but subsection (4) provides a defence. Subsection (2) states that the information to be provided must be the information prescribed by the Scottish Ministers in regulations. This information is to be provided on each occasion a person uses a sunbed on sunbed premises. Under subsection (5), the Scottish Ministers may prescribe the information that is to be provided and the form and manner in which it is to be provided.
199.This section requires sunbed operators to display an information notice on sunbed use in a position which is clearly visible to anyone proposing to use a sunbed on the premises. The notice must contain the information prescribed by the Scottish Ministers in accordance with subsection (4). It is an offence to fail to display the notice but subsection (3) provides a defence. Under subsection (4), the Scottish Ministers may prescribe the information that the notice is to contain and the form and manner in which the information is to be provided.
200.This section gives authorised officers of the local authority power to enter and inspect premises in order to ascertain whether or not an offence under section 95, 96, 98, 100 or 101 has been or is being committed. Subsections (2) and (3) require that entry must take place only at a reasonable time and that documentation showing the authority of the local authority officer must be produced if requested.
201.Subsection (4) enables the authorised officer to be accompanied by a police constable if there is reasonable cause to expect serious obstruction in obtaining access. Subsection (5) enables the officer to have access to, and inspect any relevant records as part of the investigation. However this does not extend to documents which carry legal privilege, which are defined in subsection (7). Subsections (8) and (9) create offences of obstructing an officer and failure to comply with a requirement made under subsection (5), and a defence to such offences.
202.This section places a further condition on the exercise of the power of entry in section 102 where the premises are a dwellinghouse. Subsection (2) requires the authorised officer to obtain a warrant from the sheriff. Entry under the warrant must take place within a month of the warrant being obtained.
203.Subsection (3) provides that the sheriff may only issue a warrant if satisfied by evidence on oath that there are reasonable grounds for suspecting that an offence under section 95, 96, 98, 100 or 101 has been, or is being, committed, and that evidence of the commission of that offence may be found in the dwellinghouse.
204.In the event of a local authority officer having reason to believe an offence under section 95, 98, 100 or 101 has been, or is being committed, this section enables the local authority officer to require any person on the sunbed premises to give the name and address of the operator. Failure to do so, without reasonable excuse, is an offence.
205.This section enables the local authority officer to issue a fixed penalty notice to the operator of the premises where the officer has reason to believe an offence has taken place under section 95, 98, 100 or 101. The fixed penalty notice gives the operator the opportunity of discharging liability to conviction for that offence by payment of the fixed penalty.
206.Subsections (2) and (3) set out the details the fixed penalty notice must contain. The fixed penalty notice must identify the offence to which it relates, give reasonable particulars of the circumstances of the alleged offence and details in relation to payment. Subsection (4) states the amount of the fixed penalty fine: £100 for an offence under section 95 (allowing use of sunbeds by persons under 18); and £50 for an offence under section 98, 100 or 101. Subsection (5) provides the period for payment of the fixed penalty, which is 28 days beginning with the day on which the notice was given. Subsection (6) sets out that a local authority may extend the period for payment of the fixed penalty if appropriate, by giving notice to the operator. Subsection (7) prohibits proceedings for an offence under section 95, 98, 100 or 101 from commencing before the end of the period for payment of the fixed penalty.
207.Subsection (11) gives the Scottish Ministers the power to make regulations, by affirmative procedure, to amend the fixed penalty scheme in relation to the circumstances in which FPN`s may not be given, the form of a FPN and the method for payment of fixed penalties. It also enables Scottish Ministers to make regulations to modify the amount of fixed penalty (subject to a maximum of £500), to alter the period in which the penalty may be paid, and to provide for the keeping of accounts etc. by local authorities in relation to fixed penalties under this section.
208.Under this section, following representations on behalf of a recipient of a fixed penalty notice a local authority may decide to withdraw a notice. In doing so it must inform the person to whom the fixed penalty notice was given and repay any amount that may have already been paid and no proceedings may be taken against that person in connection with that offence.
209.Any person who commits an offence under Part 8 is liable on summary conviction to a fine not exceeding level 4 on the standard scale, currently £2,500.
210.This section sets out the interpretation of the words “authorised officer”; “operator”; “sunbed” and “sunbed premises”.
211.This section amends section 79 of the Environmental Protection Act 1990 (“the 1990 Act”), and in particular, subsection (1) of that section, which specifies the matters which constitute “statutory nuisances” for the purposes of Part III of that Act. Subsection (2) of section 109 inserts new paragraph (faa) into section 79(1), and provides that any insects emanating from premises and being prejudicial to health or a nuisance constitute a statutory nuisance for the purposes of Part III. Subsection (3) inserts new subsections (5AA) (5AB), (5AC) and (5AD) into section 79 to specify the insects and premises which are exempt from the application of the Part III statutory nuisance regime. New section 79(5AB)(a) excludes Sites of Special Scientific Interest, and new section 79(5AB)(b) enables the Scottish Ministers to make regulations specifying places or descriptions of places in respect of which the statutory nuisance provisions in section 79(1)(faa) will similarly not apply. New section 79(5AC) provides that the Scottish Ministers must consult before making regulations under 79(5AB)(b), in so far as it is reasonably practicable to do so. They must consult such associations of local authorities and other persons as they consider appropriate. Subsection (4) amends the definition of “premises” in section 79(7) in consequence of new section 79(5AB).
212.This section amends section 79 of the 1990 Act. Subsection (2) inserts new paragraph (fba) into section 79(1), and provides that artificial light emitted from premises or any stationary object so as to be prejudicial to health or a nuisance constitutes a statutory nuisance for the purposes of Part III. Subsection (3) provides for an exemption from the artificial light statutory nuisance provisions in section 79(1)(fba) in relation to those premises referred to in section 79(2) (namely, premises occupied for naval, military or air force purposes). Subsection (4) inserts new subsection (5BA) into section 79 to exclude artificial light emitted from lighthouses from the scope of the statutory nuisance regime in Part III.
213.This section amends section 79 of the 1990 Act. It inserts new paragraph (ea) into section 79(1), and provides that any water covering land or land covered with water which is in such a state as to be prejudicial to health or a nuisance constitutes a statutory nuisance for the purposes of Part III of the 1990 Act. A new subsection (5ZA) is inserted into section 79, which provides a list of specific inclusions and exclusions from the meaning of “land” as it is used in new paragraph (ea). A new subsection (5ZB) is also inserted to define some of the terms used in subsection (5ZA).
214.This section further amends the 1990 Act. Subsection (2) inserts new subsection (1ZA) into section 79 of the 1990 Act, and enables the Scottish Ministers to make regulations prescribing additional matters which constitute statutory nuisances for the purposes of Part III, and to enable the statutory nuisance regime to be more generally amended to respond to new or emerging statutory nuisances. This section also introduces new subsections (1ZB) and (1ZC) into section 79 of the 1990 Act. New section 79(1ZB) provides that Scottish Ministers must consult before making regulations under section 79(1ZA), in so far as it is reasonably practicable to do so. They must consult such associations of local authorities and other persons as they consider appropriate.
215.This section makes provision for the issue of fixed penalty notices (“FPN’s”). Subsection (2) inserts new subsection (4A) into section 80 of the 1990 Act. New subsection (4A) provides that where a local authority believes that a person has committed an offence under section 80(4) (failure to comply with any requirement or prohibition imposed by an abatement notice served under section 80(1)), it may give that person a FPN, thereby offering that person the opportunity of discharging liability to conviction for that offence by payment of the fixed penalty.
216.Subsection (3) inserts new section 80ZA into the 1990 Act after section 80. Section 80ZA makes supplemental provision in relation to FPN`s. Subsection (2) of new section 80ZA requires the FPN to set out the circumstances alleged to constitute the offence so as to give reasonable information about the offence. Subsection (3) of new section 80ZA requires the FPN to state the amount of the fixed penalty, the period in which it may be paid, the person to whom and the address at which the payment may be made, the method of payment and the consequences of not paying within the period for payment specified in the FPN. Subsection (4) sets the fixed penalty, in the case of nuisances relating to industrial, trade and business premises at £400, and at £150 for all other cases. Subsection (5) sets the period for payment of the fixed penalty at 14 days after the day on which the FPN is given and subsection (6) enables that period to be extended by the local authority in circumstances in which it considers it appropriate to do so. Subsection (7) prevents proceedings from being taken under section 80(4) before the end of the period for payment of the fixed penalty and subsection (9) provides that where proceedings have commenced for an offence in which a FPN was given, the FPN is to be considered withdrawn. Subsection (10) provides that any sum which is received by a local authority as a result of a FPN offered under section 80(4A) accrues to that authority.
217.Subsection (11) of new section 80ZA enables the Scottish Ministers to provide in regulations (subject to affirmative procedure) for the circumstances in which FPN`s may not be given, the form of a FPN and the method for payment of fixed penalties. It also enables Scottish Ministers to make regulations to modify the amount of fixed penalty (subject to a maximum of £500), to provide for the amount of the fixed penalty to be different in different cases or descriptions of case, to alter the period in which the penalty may be paid, and to provide for the keeping of accounts etc. by local authorities in relation to fixed penalties. Subsection (12) of new section 80ZA provides that Scottish Ministers must consult before making regulations under section 80ZA(11), in so far as it is reasonably practicable to do so. They must consult such associations of local authorities and other persons as they consider appropriate.
218.Subsection (4) amends subsection (3) of section 81 of the 1990 Act to provide that the powers available to a local authority to abate nuisance are available whether or not a FPN has been given.
219.This section amends section 161 (regulations, orders and directions) of the 1990 Act by inserting a new subsection (2B). The new subsection provides for regulations made under section 79(1ZA) or 80ZA(11) to be subject to affirmative procedure.
220.This section amends section 26 of the Water Services etc. (Scotland) Act 2005 (“the 2005 Act”) to further specify the extent of a local authority’s powers in relation to the monitoring and enforcement of sewerage nuisances under section 26 of the 2005 Act. Subsection (2) provides that a local authority’s functions under Part III of the 1990 Act do not apply to nuisances which constitute a sewerage nuisance and in respect of which a sewerage code (contained in an order made under section 25 of the 2005 Act) applies.
221.Subsection (3) inserts a new subsection (10A) into section 26 of the 2005 Act, to apply the provisions of paragraphs 2, 3 and 5 of schedule 3 to the 1990 Act where a local authority is enforcing a sewerage code under section 26 of the 2005 Act, subject to the modifications specified in paragraphs (a) to (e). A local authority enforcing a sewerage code will acquire the powers of entry to premises set out in paragraph 2 of schedule 3 for the purpose of establishing whether a statutory nuisance exists or carrying out remedial action under Part III of the 1990 Act. Wilful obstruction of the exercise of these powers of entry will constitute a criminal offence, as will disclosure of any trade secret obtained by any person in the exercise of the powers. The local authority and those acting on its behalf will be protected from personal liability in respect of anything done in good faith in furtherance of Part III.
222.This section sets out that the Scottish Ministers, health boards and local authorities, in carrying out their functions under the Act, must do so in a manner that encourages equal opportunities and the observance of equal opportunities requirements, as defined in the Scotland Act 1998. “Equal opportunities” means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions. “Equal opportunity requirements” means the requirements of the law for the time being relating to equal opportunities.
223.This section provides for the circumstances in which a relevant authority may disclose information held by it. Subsection (1) allows disclosure to another relevant authority where this is required to facilitate either authority’s functions under this or any other Act for protection of public health. Subsection (2) allows disclosure to any other person if the authority considers this to be necessary for the protection of public health. Although information may be disclosed under these provisions, despite any prohibition or restriction on such disclosure imposed by or under any enactment or rule of law, the terms of the Data Protection Act 1998 must still be met. A person who discloses information under this section will not be subject to any civil or criminal liability due to the disclosure.
Public Health etc (Scotland) Act 2008