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First Standing Committee
on Delegated Legislation
The Committee consisted of the following Members:
Chairman:
Mr. Christopher Chope
†Afriyie, Adam (Windsor) (Con)
Battle, John (Leeds, West) (Lab)
†Benyon, Mr. Richard (Newbury) (Con)
†Bradshaw, Mr. Ben (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
†Cryer, Mrs. Ann (Keighley) (Lab)
†Cunningham, Tony (Workington) (Lab)
†Dobbin, Jim (Heywood and Middleton) (Lab/Co-op)
Foster, Michael Jabez (Hastings and Rye) (Lab)
†Harris, Mr. Tom (Glasgow, South) (Lab)
†Howarth, David (Cambridge) (LD)
†Kidney, Mr. David (Stafford) (Lab)
Main, Anne (St. Albans) (Con)
†Rogerson, Mr. Dan (North Cornwall) (LD)
†Rosindell, Andrew (Romford) (Con)
†Short, Clare (Birmingham, Ladywood) (Lab)
†Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
†Wiggin, Bill (Leominster) (Con)
Mark Etherton, Mark Oxborough, Committee Clerks
† attended the Committee
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Monday 6 March 2006
[Mr. Christopher Chope in the Chair]
Draft Dog Control Orders
(Prescribed Offences and Penalties, etc.)
Regulations 2006
4.30 pm
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Mr. Ben Bradshaw): I beg to move,
That the Committee has considered the draft Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2006.
The Chairman: With this it will be convenient to consider the draft Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2006.
Mr. Bradshaw: The two sets of regulations are necessary to implement two aspects of the Clean Neighbourhoods and Environment Act 2005. The Act is an integral part of the Government’s efforts to tackle antisocial behaviour that degrades the local environment, such as fly-tipping, dropping litter and fly-posting. It provides a range of new powers to help local authorities and other enforcement agencies to deal with those and similar problems. A number of the Act’s provisions have already come into force, and we intend to commence virtually all the remaining provisions on 6 April.
A key element of the Act is an increase in the number of offences for which fixed penalties may be imposed. If used properly, fixed penalties are a cost-effective way of dealing with antisocial behaviour that degrades our environment. They avoid the costs of prosecution while making it clear to the public that behaviour such as littering will not be tolerated. They also allow people to avoid receiving a criminal conviction for what may have been a temporary lapse.
The Act provides local authorities with new powers to set fixed penalty rates at levels appropriate to their areas. In addition, for the first time parish councils will be able to issue fixed penalty notices for some offences, and local authorities and parish councils will be able to retain the receipts from the fixed penalties that they impose. That will help them to meet the costs of enforcing the legislation.
Two sets of regulations are needed to implement the provisions. The Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2006 concern the way in which local authorities and parish councils use their fixed penalty receipts. The Act provides for local authorities to use receipts to fund enforcement functions related to the offence for which the fixed penalties were imposed. However, it also provides the Secretary of State with a power to allow, subject to the approval of Parliament, receipts to be used to fund
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other functions. The regulations make use of that power to allow high-performing local authorities—those categorised as excellent or good following comprehensive performance assessment—to spend receipts for litter-related, graffiti, fly-posting and dog control order offences on any of their functions.
David Howarth (Cambridge) (LD): Has the Department made any assessment of how much money will be raised by the penalties overall? If so, what degree of incentive does the Minister believe the differentiation between excellent and good authorities and other authorities will provide? It seems to me that the incentive will be rather small and perhaps not a tremendously good use of Government time.
Mr. Bradshaw: The incentive is small but useful. I think that hon. Members on both sides of the House would support the measure, because it gives more autonomy and power to high-performing local authorities. We all share the ambition to give local authorities with a good record more freedoms to use in any way they like the funds that they raise. My personal hope is that they will use the funds on the environmental services that we are considering. The evidence shows that local authorities issuing fixed penalties and following up payment makes a significant improvement in the quality of the local environment.
Of course, the sums involved are not huge. This is not a money-making exercise for local authorities. It is about changing people’s behaviour, providing the powers that authorities have asked for repeatedly—they are not forced to use the powers, but they are now free to use them—and the impact that that can have on behaviour and therefore on the quality of the local environment, which can be fairly significant.
David Howarth: I am grateful to the Minister for allowing me a second go. My question was this: is it really worth restricting the right to use the funds in all aspects of local government services to the excellent and good authorities? The comprehensive performance assessment, which is being used for this purpose, does not differentiate on the basis of particular services, but is an overall assessment. So the provisions do not say that authorities that are good at this function should be allowed to spend the money more widely; they just say that such authorities are good at all sorts of other things.
Mr. Bradshaw: We have taken the view—it was supported when the 2005 Act went through Parliament—that it is important to have incentives for local authorities and to grant them extra freedoms in return for good standards and good practice. People would be concerned if they felt that their local authority was poorly performing, but we were giving it extra freedoms and it was levying fines on people without spending the money raised on improving the quality of the local environment. That was certainly the feeling as the Bill went through the House.
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May I ask for clarification from you, Mr. Chope? Will injury time be added to my six minutes if I take interventions? If not, I cannot take any more interventions.
The Chairman: The Minister can speak for as long as he likes up to the maximum of one and a half hours.
Mr. Bradshaw: Thank you, Mr. Chope.
As I was just saying, the measures are fully in line with the Government’s policy of rewarding high-performing local authorities by giving them extra freedoms and flexibilities. That policy was set out in the 2001 White Paper, “Strong Local Leadership—Quality Public Services”. Following assessment in the comprehensive performance assessment, English local authorities are categorised as either excellent, good, fair, weak or poor.
The Environment Offences (Use of Fixed Penalty Receipts) Regulations 2006 also make provision for parish council fixed penalty receipts. Section 97 of the 2005 Act requires the Secretary of State to make provision by regulations for the use by parish councils of their fixed penalty receipts. Those regulations will allow parish councils to retain the receipts to fund their enforcement functions. In addition, parish councils with quality status, which is the parish council equivalent of good or excellent, will be able to spend fixed penalty receipts on any of their functions. As with local authorities, should any parish councils lose their status, they will have one year from the date on which the loss of status has effect in which they can continue to spend receipts on any function. The regulations also require parish councils to supply information relating to fixed penalty receipts to the Secretary of State.
Adam Afriyie (Windsor) (Con): If the fines are extensive or numerous, many people may regard them as a tax-raising mechanism rather than a deterrent against fouling the environment. Does the Minister feel that the instruments are open to that kind of accusation?
Mr. Bradshaw: An opposite accusation was made earlier by the hon. Member for Cambridge (David Howarth). As I explained, the maximum fine is £80, so the fines could not be seen as a revenue-raising measure. The complaint that one often hears from local authorities is that the expense of chasing non-payment through the courts is disproportionate to the amount of money raised. As I said earlier, the approach is not about raising money for local authorities—it is important that the 2005 Act enabled them to recover their costs, as they were a disincentive to clearing up the environment—but about behaviour change. There is clear evidence from around the country that local authorities that use and enforce their powers see quite dramatic improvements in the quality of their local environment.
Adam Afriyie: If there is not an explicit cap on the net benefit raised from the fines, surely there must be accusations that this is another local tax-raising power, certainly if it is not going to be revenue neutral?
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Mr. Bradshaw: I am not sure that I heard the hon. Gentleman’s question correctly. There is a cap—
Adam Afriyie: But what if there is no cap?
Mr. Bradshaw: There is a cap—a maximum of £80. That is an increase from the current level of £50. I hope that that reassures the hon. Gentleman.
The regulations will be complemented by other regulations, which will be subject to negative procedure and will contain a number of other provisions relating to fixed penalties. They will, for example, prescribe the range within which local authorities and parish councils may set fixed penalty amounts and the minimum amount that can be offered as a discount for early payment. Another significant aspect of the 2005 Act is the introduction of dog control orders, which will replace local authority and parish council powers to make dog byelaws. That change is being introduced because the procedure for making dog byelaws, which require confirmation by the Secretary of State, was over-complicated, and byelaws submitted for approval were often rejected and returned to be remade, which placed a considerable burden on local and central Government.
Under the new arrangements, local authorities and parish councils may make dog control orders relating to four matters: the fouling of land by dogs and removal of dog faeces; keeping dogs on leads; excluding dogs from one particular area; and limiting the number of dogs that one person may take on to specific areas, in order to deal with the problem of mass dog walking, particularly in London.
The offence provided for in a dog control order must be prescribed in regulations, and such regulations may also specify the wording to be used in a dog control order and the form of the order.
Bill Wiggin (Leominster) (Con): I am curious about what the Minister means by the problem of mass dog walking.
Mr. Bradshaw: The hon. Gentleman is not a London Member, so he may not be aware of the phenomenon. However, I am surprised that his London colleagues have not raised with him the matter of professional dog walkers who earn quite a lot of money taking up to 25 dogs to parks such as Battersea and Hyde park. There is no chance of their being able to control those dogs, and it is quite a challenge to clear up after them. The drive for the proposal has come from at least one Conservative-controlled local authority in London.
Bill Wiggin: So the problem is fouling rather than mass dog walking. It is the failure to clear up after the dogs that is the problem.
Mr. Bradshaw: It is both. It is a growing problem that an increasing number of people are taking out a large number of dogs.
The Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2006 duly prescribe the offences for which dog control orders may be made and provide model forms for each type of order. As well as the matters already mentioned, they make it an offence under a dog control order not to put a dog on
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a lead when required to do so by an authorised officer of a local authority or a parish council. The regulations also provide the maximum penalty for all five offences: a fine not exceeding level 3 on the standard scale, which is currently £1,000.
4.42 pm
Bill Wiggin: It is a pleasure to serve under your chairmanship, Mr. Chope. I am pleased that the Minister and his full team are present, because I have a series of detailed questions on both sets of regulations. If he cannot answer them now, I hope that he will write to me if that is more appropriate.
First, I want to know what is happening to the proposed dog control order procedure regulations, given their relevance to the regulations we are scrutinising. Why are not we scrutinising those regulations, too? When does the Minister plan to introduce them to the House?
The regulations before us provide powers to the authorities to prosecute for five offences relating to dog control, two of which are new. Consequently, authorities wishing to implement dog control orders will have a costly administrative burden. Has the Minister discussed with the Treasury the likelihood of extra funds being made available for those laws to be implemented? I guess that there is not much in the kitty for dog control.
On Second Reading of the Clean Neighbourhoods and Environment Bill, when the Secretary of State for Environment, Food and Rural affairs was pressed on the effect that the costs of using these powers would have on local authorities, she said:
“I have little doubt that unless they believe that the exercise of such powers would be cost-effective they will not choose to do so.”—[Official Report, House of Commons, 10 January 2005; Vol. 429, c. 53.]
The Local Government Association stated that to implement the measures authorities would require additional funding. Does the Minister know how much impact the financial constraints will have on authorities issuing dog controls? The Secretary of State also said on Second Reading that the measures in question are powers for local authorities, not duties. They are not required to exercise those powers. Will the Minister let us know whether the Government have any plans in future to make them compulsory? Although I enjoy spending the afternoon with him, I cannot help but wonder whether any of these dog orders are likely to be enacted.
There are a number of practical problems with the regulations. Has the Minister considered how many notices authorities wishing to implement the orders will have to put up? For example, an authority might want to provide in a certain area of land for three offences such as failing to remove dog faeces, not keeping a dog on a lead or restricting the number of dogs. Will such an authority need to put up three separate notices?
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Moreover, has the Minister’s Department issued any guidance about the positioning of dog control order notices? I am aware that the dog control orders procedure regulations will deal with the provisions in section 56(5)(b) of the Clean Neighbourhoods and Environment Act 2005, but I am keen to know whether the Minister plans to collate all draft dog control orders that authorities have put out for consultation, so that dog owners have easy access to the nationwide list. The Kennel Club has brought that point to my attention, and it is important, not least as many dog owners take their dogs with them to open spaces many miles from where they live and would not necessarily know whether a consultation that was taking place might affect them. Such provision would also mirror the Countryside Agency website, which has a nationwide map indicating restrictions on dogs in relation to Countryside and Rights of Way Act 2000 access land.
Back in November 2004, the Minister’s former colleague, now the Minister for Industry and the Regions, reported to the House that in 2002–03, there had been a 27 per cent. decrease in dog fouling, following a successful campaign by ENCAMS. The decrease was down not to punitive regulative measures, but to education. On that basis, would not it have been far better to have channelled resources into non-regulatory measures and introduced more facilities to dispose of dog faeces? The problem with that aspect of the law is not the current legal instruments, but their often ineffective implementation, coupled with an inconsistent approach to the significantly more important aspect of non-regulatory measures. For example, the Government’s policy does not include the issuing of guidelines for authorities regarding the implementation of dog fouling offensives. Does the Minister plan to change that policy and issue to authorities specific guidelines about how to implement the offence of failing to remove dog faeces?
Despite the fact that 94 per cent. of councils employ at least one dog warden, about one quarter of authorities do not issue fines under the present laws. Authorities are either reluctant to do so or unable to pursue the owners who do not clean up after their dogs. How will the regulations change that? By what percentage does the Minister think the number of dog control orders will increase in comparison with the situation under the existing legislative and regulatory framework? What is the precise number of primary and secondary authorities that will implement the new orders, and how many more will that be than the previous figure?
Are the existing laws to cope with dog fouling failing? The 1996 regulations, which will be repealed along with the accompanying fixed penalty orders, appear to be working well and applied effectively where they are in operation. In 2001–02, there were 2,227 fines nationally for dog fouling and 2,742 fixed penalties. How many more fines, fixed penalty notices and convictions does the Minister anticipate under the new orders? The regulatory impact assessment gave me the impression that, including the new offences,
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about 2,000 fixed penalty notices would be issued every year—fewer than at present. With that in mind, may I ask how issuing fewer fixed penalty notices will help reduce the problem of dog faeces?
The regulations cover more than dog fouling. The four new offences detailed in schedules 2 to 5 of the draft Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2006 present further problems. Schedule 2 deals with the new offence of not keeping a dog on a lead. Does the Minister share my concern that if the measure is implemented, it could affect a dog’s welfare? For example, if an authority decided to issue a dog control order throughout an entire park, it would affect the ability of local dog owners to permit their dogs to run around freely and exhibit normal behaviour patterns. The Minister will no doubt talk in detail about that issue shortly when the Animal Welfare Bill is considered on Report.
As to the schedule 3 offence of not putting and keeping a dog on a new lead under direction, the provision is to be used in case a dog poses a danger or a nuisance to the public. If that is the case, I am concerned that an over-zealous park warden or police officer will ask an owner to put a lead on a dog even where there is no danger. Moreover, there is no provision in schedule 3 for an authorised officer of the authority to give a reason for issuing such an instruction. Does the Minister agree that a provision should be included to require an authorised officer to state why they are issuing the order? People do not like being told what to do without good reason.
Schedule 4 introduces an offence of permitting a dog to enter land from which it is excluded. However, there is no guidance on what land is eligible to be included or what land is exempt. For example, can the Minister foresee a whole street or an entire park being placed off limits for dogs? Concerns have already been expressed to me that some authorities are planning to ban dogs from being exercised on beaches. What is his view on that?
The final offence is that of taking more than a specified number of dogs on to land. I have two concerns about that offence. First, considering the diverse nature of dog breeds, how does the Minister propose that authorities set an arbitrary number? For example, a three-dog limit could be quite a handful for someone with Great Danes, but not particularly problematic for owners of dachshunds or poodles. Secondly, I am concerned about when families take their dogs for walks. A family might own four dogs, and if an adult and their child took all four dogs to a park where the limit was two per owner, how would the law apply?
While the draft Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2006 are rightly intended to unshackle authorities to spend their fixed penalty receipts as they wish, they still pose a number of important questions, and I should be grateful if the Minister could answer them.
First, on a technical point, perhaps the Minister could explain why this statutory instrument is not being discussed along with the draft Environmental Offences (Fixed Penalties) (Miscellaneous Provisions)
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Regulations 2006, which accompany the set of regulations that we are discussing today. We want to know when those regulations will be laid before the House.
I want to touch on concerns regarding the consultation process for the statutory instrument, as it may not have fulfilled the consultation requirements laid down in the parent Act. Section 96(9) of the Clean Neighbourhoods and Environment Act 2005 states that before making the regulations, the appropriate person—the Secretary of State—must carry out consultation. That consultation was part of DEFRA’s draft guidance on the Clean Neighbourhoods and Environment Act 2005 consultation document, and as I am sure the Minister is aware, page 172 contains three consultation questions relating to fixed penalty notices in general.
Questions 34, 35 and 36 of that document ask about the fees that should be charged and the models for fixed penalty notice forms, but crucially in terms of the regulations before us, they did not ask for readers’ views on what should be done with fixed penalty receipts. While I appreciate that a draft copy of the statutory instrument was included in the consultation document, may I ask why no questions were asked about what to do with fixed penalty receipts? In addition, page 74 of the regulatory impact assessment analyses the case for parish and town councils to be empowered under the instrument. Why do that regulations give only parish councils that have achieved quality status, and not town councils, the power to spend their fixed penalty receipts as they wish?
Turning to the substance of the regulations, while I am in favour of empowering local authorities, I have some concerns about what that will mean for the enforcement of the laws to which the provisions will apply. Can the Minister inform the Committee how many authorities have achieved excellent or good status and how many he expects to gain such status, and over what period? Moreover, why have only good and excellent authorities been given these powers? Why are not all authorities being empowered to determine how to spend their fixed penalty receipts? A local authority that has not attained good or excellent status might raise a significant amount of revenue with a relatively lower level of enforcement costs. Is there not a danger that with fixed penalty notice receipts being tied up and bound to qualifying functions, an authority might end up financing projects relating to qualifying functions that could be of little benefit in solving the problems?
The regulatory impact assessment conducted under the Clean Neighbourhoods and Environment Act 2005 suggests that there will be a substantial increase in the number of fixed penalty notices issued for various offences. The number of notices issued for street litter offences is expected to rise from one to 1,000. For abandoned vehicles, that number is expected to rise from 121 to 7,500, and for waste left out in the street, it is expected to rise from one to 10,000. Given the cost of enforcing those laws, what offence will be most profitable for authorities to
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enforce, to issue fixed penalty notices for and to prosecute? Does the Minister think that the least profitable crimes will be neglected and ignored?
In addition, does the Minister agree that it would be far better to educate the public in order to change their ways than to rely on them as piggy-banks? For example, if someone has littered, would it not be better to ask them to gather the rubbish and dispose of it appropriately than to punish them with an on-the-spot fixed penalty notice? Does he share my worry that if authorities are setting revenue targets for their fixed penalty notice receipts, instead of a situation in which only people who refuse to co-operate are punished, those who issue the fixed penalty notices, many of whom might not necessarily be police officers, will become the victims of verbal and physical abuse from frustrated members of the public? What can they do to instruct payment if the person has left their wallet at home or gives them a false address?
I am uneasy about authorities becoming dependent on punishing people as a source of income. No doubt we are all aware that in recent years, local councils have increased their revenue through increasing parking charges and the number of speed cameras. Authorities might become too attached to the revenue that they make from fixed penalty notices, which the regulatory impact assessment estimates to be as high as £4.8 million. Obviously, if the public begin to change their ways and abide strictly by the law, those authorities will end up no longer needing to issue fixed penalty notices, which will raise less income for them.
Is the Minister concerned that authorities might begin to set targets for raising money through fixed penalty receipts and rely on them to fulfil their planned and projected spending requirements? It is not clear what measures are in place to check that once an authority has the power under the regulations to spend their fixed penalty notice revenue on any of their functions, the measures in relation to their qualifying functions are not sidelined or neglected. I would be grateful if he could clarify that matter for the Committee.
The revenue raised as a consequence of issuing fixed penalty notices will raised be on the back of crimes that make the lives of members of the local community a misery. I am concerned that those people—the victims of graffiti vandals, for example—might not get the opportunity to say where fixed penalty receipt funds are to be spent. Given that we are dealing with a statutory instrument that cannot be amended, may I ask whether the Minister considered including a provision to require local authorities to publish an annual report concerning the revenue raised by fixed penalty receipts and to invite local residents and businesses to suggest ways in which the revenue should be spent? That would empower local victims to deal with local crime.
With regard to the new powers that parish councils will receive under schedule 4, what advice or assistance will the Secretary of State offer to parish councils that want to use the new powers? The relevant sections in
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the regulatory impact assessment appear on pages 68 to 75. I noticed that page 73 states in respect of benefits for local authorities that they will receive fixed penalty receipts. However, for parish councils, the fixed penalty receipts are not stated as a benefit; instead, page 75 specifies the administration and enforcement of fixed penalty notices as a cost. In the light of that cost analysis in the regulatory impact assessment, does the Minister think that the Secretary of State might have been wrong to make this statement on Second Reading of the Cleaner Neighbourhoods and Environment Bill:
“Certainly, we do not anticipate substantial extra burdens”?—[Official Report, 10 January 2005; Vol. 429, c. 53.]
4.58 pm
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