2. Introductory information
2.1 Summary of proposal
The Bill will give a local authority the power to introduce and administer a VL in all or part of their area. The levy will apply to all overnight accommodation.
A local authority, should they wish to introduce a levy, will design a scheme including when and where a VL will apply, alongside any local exemptions it wishes to introduce. Prior to the introduction of a VL a local authority would be required to consult with communities and relevant stakeholders.
The use of personal data in the policy relates to a local authority’s assessment for liability of and/or collection of a levy. Personal data may be used in four aspects:
1. The power for a local authority to create a register of accommodation providers, for the purposes of administering the levy;
2. The power for a local authority to request information from eligible accommodation providers, and third parties (through an information notice), where the information is reasonably required for the purpose of checking an accommodation provider’s liability for a VL;
3. The power for a local authority to disclose relevant information to a person authorised by the local authority to carry out functions relating to administration and enforcement; and
4. The administration of any local exemptions a local authority chooses to introduce to a VL. The Bill will not contain any national exemptions, and the intention is that a local authority may choose to create appropriate exemptions, taking into account national guidance. As an additional measure the Bill will include a power for Scottish Ministers to set national exemptions through secondary legislation, for use if required.
2.2 Description of the personal data involved
Please also specify if this personal data will be special category data, or relate to criminal convictions or offences
For the purposes of creating a register for local authorities, personal data of accommodation providers to be held by local authorities may include: name, address, postcode, phone number.
For enforcement purposes, a local authority may request the following additional personal data from an accommodation provider: bank account information, company or sole trader records. This information will only be considered personal data if the information relates to the sole trader, partner or company director as an individual rather than as the representative of a legal person.
For administering local exemptions set by local authorities for a VL scheme, local authorities may also require access to personal data. The extent to which this will be required will be determined by the local authority in setting any local exemptions, and by Scottish Ministers if they exercise their power to create national exemptions.
2.3 Will the processing of personal data as a result of the proposal have an impact on decisions made about individuals, groups or categories of persons?
If so, please explain the potential or actual impact. This may include, for example, a denial of an individual’s rights, or use of social profiling to inform policy making.
For the purposes of creating a register of accommodation providers, the processing of personal data is not expected to have an impact on decisions made about individuals, groups or persons. For those accommodation providers liable for Non-Domestic Rates, the local authority will already hold this information. For accommodation providers subject to short-term lets legislation, local authorities are in the process of registering these providers which will result in them holding this information.
For the purposes of requesting an information notice from an accommodation provider to assess liability to a VL, the processing of personal data is not expected to have an impact on decisions made about individuals, groups or persons. For accommodation providers registered for non-domestic rates, local authorities have existing powers to request information that is “reasonably required” for the purpose of issuing any demand or other document relating to non-domestic rates. The Bill effectively extends these powers to all accommodation types liable for a VL for the purposes of checking eligibility.
The Bill sets out that information should only be provided in an Information Notice if information or a document is reasonably required for the purpose of checking the liable person's liability to pay the levy, and it is reasonable for the person to be required to provide the information or to produce the document.
The Bill also sets out the types of information that that are not required to be included in information notices. This includes; journalistic material; privileged information; and any personal records as defined in Section 33 of the Bill.
Disclosing information to third parties
For the purposes of disclosing relevant information to another local authority (with which the relevant local authority has introduced a joint VL scheme with) or a person authorised to carry out the functions of the local authority, the processing of personal data is not expected to have an impact on decisions made about individuals, groups or persons. The Bill sets out that such information can only be disclosed to enable the local authority to carry out its functions in relation to administering a VL. The Bill provides a definition of ‘relevant information’, which includes the names and addresses of persons offering overnight accommodation that are liable for the levy; the addresses (or other descriptions) of all overnight accommodation liable for a VL; any information or representations provided to the relevant local authority by or on behalf of a liable person in connection with any review or appeal; and any such information as the local authority considers necessary to carry out its functions under the Bill. The Bill specifically states that it does not authorise a disclosure of information that would be in contravention of the data protection legislation.
For the purposes of administering exemptions, the processing of personal data will be dependent on the extent and scope of the exemption. In processing data a local authority will be required to adhere to existing data protection legislation. In establishing a VL scheme a local authority as a public body will be required to carry out its own data protection impact assessment if the processing of data is likely to result in a high risk to the rights and freedoms of individuals.
2.4 Necessity, proportionality and justification
Legislating for a VL levy is a well‑considered, necessary and proportionate measure to support Scotland’s tourism ambitions and to provide local authorities with a new fiscal lever they can use if they choose to do so. A VL has been a longstanding ask from local government, and legislating for a new local power is an example of our commitment to increase fiscal flexibilities.
The Bill has been designed to ensure that any data processing requirements on local authorities replicate existing information gathering powers.
As a discretionary power, it will be up to local authorities to demonstrate compliance with data protection legislation prior to the introduction of a VL scheme.
2.5 Will the implementation be accompanied by guidance or by an associated Code of Conduct?
To support local authorities in using their discretionary power, we are committed to developing national guidance in collaboration with local government and the tourist industry. This guidance will aim to provide best practice on the processing of data by local authorities for the purposes of administering the levy.
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