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Session 2006 - 07
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Public Bill Committee Debates

Draft Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2007

The Committee consisted of the following Members:

Chairman: Mr. Peter Atkinson
Barker, Gregory (Bexhill and Battle) (Con)
Barlow, Ms Celia (Hove) (Lab)
Bradshaw, Mr. Ben (Minister for Local Environment, Marine and Animal Welfare)
Burrowes, Mr. David (Enfield, Southgate) (Con)
Carswell, Mr. Douglas (Harwich) (Con)
Cash, Mr. William (Stone) (Con)
Clarke, Mr. Charles (Norwich, South) (Lab)
Farrelly, Paul (Newcastle-under-Lyme) (Lab)
Goodwill, Mr. Robert (Scarborough and Whitby) (Con)
Horwood, Martin (Cheltenham) (LD)
Huhne, Chris (Eastleigh) (LD)
Jones, Helen (Warrington, North) (Lab)
Southworth, Helen (Warrington, South) (Lab)
Todd, Mr. Mark (South Derbyshire) (Lab)
Watts, Mr. Dave (Lord Commissioner of Her Majesty's Treasury)
Wood, Mike (Batley and Spen) (Lab)
Wyatt, Derek (Sittingbourne and Sheppey) (Lab)
Mark Oxborough, Committee Clerk
† attended the Committee

Third Delegated Legislation Committee

Wednesday 7 March 2007

[Mr. Peter Atkinson in the Chair]

Draft Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2007

2.30 pm
The Minister for Local Environment, Marine and Animal Welfare (Mr. Ben Bradshaw): I beg to move,
That the Committee has considered the draft Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2007.
The regulations make a change to current regulations to reflect changes in the categorisation of local authorities in the comprehensive performance assessment. In December 2005, the Audit Commission published its revised CPA framework, under which single-tier and county councils are now categorised in a range from zero to four stars. District councils currently remain under the existing system. The new system replaced the former categories of county and unitary councils—excellent, good, fair, weak and poor—with categories of four, three, two, one and no stars. District councils remain classified as excellent, good and so on.
The regulations have been remade to ensure that the freedoms in relation to the Clean Neighbourhoods and Environment Act 2005 given to excellent and good authorities continue to be given to four, three and two-star authorities. I therefore commend them to the Committee.
2.31 pm
Gregory Barker (Bexhill and Battle) (Con): I commend the Minister on his brevity, but I am afraid that my remarks will go on slightly longer.
I say at the outset that we broadly welcome the regulations. The British system of environmental regulation is known for being pragmatic, and where it works best it is flexible, informal and based on a relatively large degree of discretion exercised by the regulatory agencies in interpreting and applying legislation and Government policy guidance. That occasionally goes wrong, and there have been some absurd cases in the national press from time to time, but they are the exception rather than the rule. The regulations will maintain that workable and pragmatic approach to environmental crime enforcement.
As the Committee will know, environmental regulation draws from a toolbox of enforcement mechanisms ranging from warning letters to the suspension of licences and, in the most extreme cases, prison sentences. Fixed penalty notices were introduced in 2001 to tackle a wide range of low-level environmental offences. The regulations revoke the Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2006 and empower local government, giving parish councils the power to issue fixed penalty notices under the 2005 Act. Such regulations can only be a positive development in the fight against an increase in environmental crime at the most local level. That is good, and we welcome it.
Although important, the regulations are largely technical and relate to the current regime for the use of money from environmental fixed penalties by local authorities, which was introduced in April 2006. They seem both proportionate and sensible and will not undermine the important objectives and targets of the 2005 Act as a whole. Indeed that Act, which amended the Environmental Protection Act 1990, introduced by the Conservatives, has so far proved largely successful in tackling a continuum of behaviour ranging from comparatively low-level environmental offences such as dropping litter and fly-posting to the more serious damage such as sprayed graffiti, vandalism and criminal property damage. The regulations will help to enhance the local authority powers in the Act, ensuring that a degraded local environment does not give people the message that low-level environmental crime does not matter. In particular, the inclusion of quality parish councils, which will now come within the scope of the fixed penalty notice regulations, is much needed to help to speed up the enforcement of environmental law at the most local level.
Along with the various powers exercised by the Environment Agency for tackling fly-tipping and waste disposal infringements, the regulations should help to ensure that local democratic structures can play their part in creating cleaner, safer and greener communities. I acknowledge the fact that the Government have worked closely with councils and the Local Government Association on the regulations in some areas. The Conservative-controlled LGA has helped to monitor the effectiveness of the 2006 regulations since they were introduced last year. It is important to point out that the new regulations do not address the concern raised by many local authorities about their fixed penalty notice powers to deal with litter thrown from vehicles.
In particular, the Minister’s Department has been asked previously to consider whether responsibility could be placed on the registered owner or keeper of a vehicle for any litter thrown from it. That is something that the Conservatives would welcome, in principle, as long as any amendment did not undermine the function of fixed penalty notices as a quick, immediate and effective alternative to prosecution. Can the Minister therefore update the Committee about whether there has been a detailed examination of the existing legislation to see if an amendment can be made to address the issue? It is easy to think of an irresponsible parent who allows his children or others to behave irresponsibly in the car.
The majority of the 2007 regulations that we are considering today are the result of the Audit Commission’s corporate performance assessment framework for England’s 150 single-tier and county councils. It introduced the harder test framework under which councils receive an overall performance category ranging from nought to four stars, with four stars being the highest, as the Minister has set out.
In many cases, councils, particularly those that are Conservative controlled, are rising to the challenge with innovative new ways in which to improve the local environment for everyone. For example, Westminster city council has long had an excellent reputation for pioneering new ways of tackling environmental crime. It introduced the fixed penalty litter ticket in the early 1980s. Indeed, as an advocate of the principle of fixed penalties for litter offences, particularly chewing gum litter, the council issued more fixed penalties than any other United Kingdom council last year.
However, fixed penalties are only part of the solution. They are not a panacea. They have a place in tackling low-level environmental crime, but only as part of a wider strategy of environmental law enforcement. Such a strategy seems to be currently lacking at the Minister’s Department and many people way beyond this Committee room will want to know why the Government are being so timid about getting to grips with environmental crime as a whole. Should there not be tougher measures in the regulations to deter persistent offenders? Indeed, the Government’s timid approach to environmental crime has been highlighted by the UK Environmental Law Association in a written submission to the Environmental Audit Committee’s latest inquiry into environmental crime. It said:
“Some sentencing for environmental crime is generally too low to be a deterrent and some crimes are in any event not prosecuted at all”.
UKELA’s concerns are reflected at a local level aswell. For example, in practice excellent or four-star authorities have experienced some problems in their use of fixed penalty notices. Westminster council has found it almost impossible to detect some offences, such as graffiti, as by their very nature they are often not committed in front of council officers. That is a significant concern since the removal of graffiti in London alone is reported to cost about £23 million per annum. That is not what is spent by local authorities, but what it costs London residents and business to clean it up. Indeed, that figure could be inflated further if we were to take into account the damage to property values and the adverse effect on property generally.
If graffiti is to be tackled most effectively, a certain degree of intelligence gathering is required, such as detecting the whereabouts of graffiti artists or conducting joint work with other law enforcement agencies in bringing prosecutions against serious offenders. In 2005, London boroughs spent on average about £200,000 on the removal of graffiti, and the authority in Newcastle estimates that it costs £100 each time that it is called out to deal with the problem. Will the Minister explain why the regulations do not even begin to address those weaknesses in the fixed penalty notice legislation?
There remain other questions about the regulations to which I should appreciate the Minister’s answer. The financial effect of extra training and guidance for the council officers who will implement the regulations could be quite significant. Will the Minister say what calculations have been made as to the costs of policing fixed penalty notices and putting on to the streets the officers who will issue them, and as to the extra working capacity requirements for councils that will implement and manage the new regulations?
We welcome the new measures, particularly those that give parish councils greater power to take action on environmental crime. However, it is worth asking how far down the road of summary justice we are prepared to go. Of course we need to come down on problems such as graffiti, dog fouling and litter from chewing gum; indeed, most law-abiding citizens would be supportive of the plan for local authorities and parish councils to gain such new powers. However, we need to know whether sufficient safeguards will be put in place to deal with miscarriages or overzealous enforcement. There have already been cases in which people who have mixed up their recycling, or who have accidentally put out their bins on the wrong day, have been fined. Sometimes, such cases are blown out of all proportion in the media, but we need to ensure that the powers are proportionate to the offences.
Regulation of low-level environmental crime should also involve magistrates courts as a means of delivering prompt, local justice. That approach would ensure that there was the additional safety net of giving defendants a fair say, while keeping enforcement local.
In conclusion, the Opposition are broadly happy with the regulations as far as they go—although there might be a missed opportunity for them to address a number of weaknesses—particularly in the effectiveness with which certain current offences are used. If the correct balance is achieved between the crime and the penalty, the regulations will receive wide public support. However, the Opposition want the Government to be far more ambitious in their implementation.
2.41 pm
Martin Horwood (Cheltenham) (LD): It is good to be serving under your chairmanship, Mr. Atkinson, despite the Committee being called on to consider legislation that is almost a definition of how spectacularly and ludicrously centralised this country has become. It would surely astonish most informed observers from democracies around the world that a Government Minister is really spending his time deciding how local councils—even parish councils—can spend the money that they take from fines concerning litter or dog poo. The problems that underlie the regulations are serious, and I entirely support the comments of the hon. Member for Bexhill and Battle in that respect. However, local councils should have the freedom to innovate and to determine their own solutions on matters of such detail, and it seems insane that we have met to discuss such things.
There is even an economic argument for that position. The hon. Member for Bexhill and Battle rightly drew attention to the cost of clearing up graffiti. When one considers the national picture, the costs add up to a quite staggering amount. The Keep Britain Tidy campaign estimates that £540 million is spent on clearing up litter, and that perhaps as much as £1 billion is spent by UK local authorities on cleaning up graffiti. The revenue from fixed penalty notices for environmental crimes, however, adds up to only £1 million for 2005, according to the statistics from the Department for Environment, Food and Rural Affairs. The income that is gathered from tackling such offences is therefore utterly outweighed by the cost to local authorities of tackling them.
Such centralisation leads inevitably to inefficiency and waste. The statutory instrument slightly and grudgingly enhances quality assurance, democracy and independence for local councils. However, what is it that the 24 or 25 of us in total in the Committee—you, Mr. Atkinson, the MPs, the Clerks and the officials—have gathered together to do? The answer is to change the word “excellent” to the number four, and to make a couple of other similar amendments.
It beggars belief that government has reached the stage at which a Committee needs to meet to make such minor changes. I know that the so-called harder test reflects the change in the Audit Commission’s recommendations on how the comprehensive performance assessment system is carried out. However, the constant change in assessments, changes and ratings is very debilitating. There are parallels in the NHS in which, until very recently, the primary care trusts and the NHS trusts had a two, three or four-star rating, but that was abolished after only a couple of years. Now this system has been changed and the harder test regime has come in. However, looking at DEFRA figures, it does not appear to be a harder test after all. In 2005, 216 authorities out of 388—just over 55 per cent.—qualified for a more relaxed regime. Following the introduction of the harder test, that number went up to 254 out of 388, or 65 per cent.
The Minister says it is about getting better, but to be honest, I am not sure how he can tell. If the system is constantly changed, it is impossible to compare like with like. Therefore, it makes it more difficult to determine whether authorities are getting better. If they were getting better under the original system, it raises the question of why we are having to change it. In fact, if the new system is so much better, it raises the question of why district councils are not being asked to use it as well.
However, I am going to end on a more positive note. I welcome the fact that the legislation takes accountof the role of parish councils. I have represented constituents at a number of different levels. I have been a parish councillor, a district councillor—
Helen Jones (Warrington, North) (Lab): We can tell. [Laughter.]
Martin Horwood: And I am now a Member of Parliament. I was more in touch with my constituents as a parish councillor than I think perhaps some hon. Members of the Committee might be with their constituents, but I would not dare to make such an ungentlemanly assertion. Certainly, I was more in touch with my constituents as a parish councillor than I was as a district councillor because the parish meetings took place in the community. If I took the wrong decision, I would hear about it from my constituents immediately afterwards in the pub. Parish councils are a very immediate and effective form of local government. Their inclusion in the legislation is very welcome and I hope that they can be given more powers in other areas as well.
I have very active parish councils in and around my own constituency in Leckhampton, Up Hatherley, Charlton Kings, Swindon Village and Prestbury. They might find the designation of quality parish council a little patronising. However, I welcome the fact that the role of democratic town, parish and community councils is being extended. The terminology there is important. We are always talking about parish councils, but I am afraid that the term “parish council” is widely misunderstood as being purely something to do with rural areas and churches. I am afraid that “The Vicar of Dibley” has a lot to answer for, which is surprising given that the writer should have known better because his wife was a Liberal Democrat town councillor.
There is far too little independence and freedom of action for local authorities and parish councils. If the statutory instrument lifts even slightly the dead hand of central Government, it has to be welcomed.
2.48 pm
Mr. David Burrowes (Enfield, Southgate) (Con): I am pleased to follow the words and support the comments of my hon. Friend the Member for Bexhill and Battle and also to support the sceptical note struck by the hon. Member for Cheltenham. The Government talked big about devolving powers to local councils, but in many ways they act small. I am a member of the Committee currently considering the Local Government and Public Involvement in Health Bill, and certainly the reality of devolution in that Bill is relatively small. The Government’s ambitions are certainly not met by any action.
Everyone can be in favour of devolution and, in terms of these regulations, of making use of fixed penalty receipts, but we must ask why the principle of devolution—a fine principle to which we all aspire—is conditional on the quality of the council. Surely we should be supporting the first principles of devolving that responsibility without making it conditional on a council’s assessment and quality. If we want councils to make use of those receipts and improve the quality of their services, that will come from our giving them the freedom to do that, rather than making them jump through the hoops of assessment processes and inspection regimes. We should allow them the proper freedom to make use of receipts without aligning that to the fact that they have to have a number of stars to their name. Would not allowing councils with one star the freedom to use receipts be an important element of ensuring that they could improve?
Secondly, as the Minister is no doubt aware, the Local Government and Public Involvement in Health Bill allows councils more freedom to create byelaws and, subject to the approval of the Secretary of State, enforce them by way of fixed penalty notices. The concern raised in the Public Bill Committee that I ask the Minister to address here is that that power is prescribed to the Secretary of State for Communities and Local Government. It is not currently in the remit of this Minister’s Department. Does he support any extension to the ambit of those byelaws to involve his Department in their creation? That would have implications for the enforceability of fixed penalty notices, and the use of receipts from such notices—the subject of the regulations.
2.51 pm
Mr. Robert Goodwill (Scarborough and Whitby) (Con): Speaking as another former parish councillor—although I must admit that most of my close relatives thought that I was well out of my depth even at that level of local government—I have just one question, which I hope is not too much of an anorak’s question.
Around the country are a number of areas where unitary authorities are being considered. Where I live in North Yorkshire, for example, the county council has made a bid for unitary status. What is the situation when a number of boroughs or districts in a county do not meet the requirements for the freedom to spend the money as they see fit, but the county does, or vice versa? What will be the interim situation when a new local authority does not have a star status or an excellent or good status? Will it be averaged up or down? Has the Minister thought about that? The people of North Yorkshire would certainly be interested to know whether by moving to unitary status they are likely to be given more or less freedom.
2.52 pm
Mr. Bradshaw: I shall start with the comments made by the Liberal Democrat spokesman, the hon. Member for Cheltenham, who complained that we were having to debate the regulations and then did not follow my example of brevity. I was brief because these are technical amendments forced on us by the independent Audit Commission.
The substance of the hon. Gentleman’s criticisms was that the regulations are somehow centralising. The Clean Neighbourhoods and Environment Act 2005 gave powers to local authorities that did not exist before, quite contrary to his accusation that the regulations, either before or as amended, were somehow centralising. That is the opposite of the truth. The new powers were asked for by local government. We gave them to local government, and we gave local authorities the freedom to spend fixed penalty notice receipts, which they did not have before. These are new freedoms. This is a decentralising measure. Does he understand?
Martin Horwood: The Minister may have misunderstood me; perhaps that is my fault. I welcomed the regulations so far as they are decentralising—lifting “the dead hand of central Government” was my phrase. What I was complaining about is the extent to which we are still a very centralised country, and the fact that we are having to discuss these things at all.
Mr. Bradshaw: That has nothing to do with the regulations. I am glad that the hon. Gentleman acknowledges that they are decentralising and give local authorities powers that they did not have before.
As for the harder test—again, that is entirely a matter for the independent Audit Commission—more local authorities are qualifying for exactly the reason given by the hon. Member for Bexhill and Battle, who acknowledged that performance by local authorities is getting steadily better. The measurements of ENCAMS, which used to be called Keep Britain Tidy, and local authorities’ own monitoring system of local government indicators both show an improvement over the last five years in local environmental quality.
That leads me to the questions asked by the hon. Member for Bexhill and Battle. I am absolutely delighted by the Conservative party’s conversion to supporting the Clean Neighbourhoods and Environment Act 2005. Many of my hon. Friends will remember that the Conservatives opposed it on Second Reading, claiming that there was nothing in it for rural areas. As they have now accepted, it has been incredibly useful legislation. Local councils up and down the country have welcomed it and are using their new powers. Not enough councils are using the powers enough, and some are not yet using them at all. I hope that hon. Members of whatever political party would encourage local authorities to use the new powers, whatever political control the local authority in their constituency is under. The powers have been a success.
On the one hand the hon. Member for Bexhill and Battle criticises the Government for taking a timid approach, and on the other he says that he is worried about summary justice. He cannot have it both ways. The 2005 Act, far from taking a timid approach, has increased the maximum penalty for fly-tipping to a £50,000 fine and a five-year prison sentence, as I am sure he is aware. The Act made fly-tipping a criminal offence that could be prosecuted by the police for the first time. We have made the system much tougher.
The hon. Gentleman was right to raise the concern about litter being thrown from vehicles, which is pernicious. People seem to think that when they are in a car, they are in their own little cocoon, and that what goes on outside does not matter. It is not only in cities that it happens. If one goes for a walk in the countryside, one can see verges strewn with stuff that antisocial drivers and passengers have thrown from cars. They seem to think that it is not their problem, but it is. It is quite difficult to prove who is responsible in all cases, but the hon. Gentleman will have heard of a number of successful prosecutions, including one that made the tabloids because a driver was prosecuted twice, once in each of the council areas whose border he had crossed. Prosecutions such as that are possible. To levy a fixed notice, the person levying has to be confident that they will be able to present a case in court, and quite rightly; otherwise, we would have the kind of summary justice that the hon. Gentleman said he did not want.
Gregory Barker: What I was really trying to ask was why the Minister does not consider making the owner or keeper of the vehicle responsible, rather than having a situation in which the individual responsible has to be identified. Would that not be a simpler way to enforce the law?
Mr. Bradshaw: Disregarding who is driving the car, who is in it and who threw the litter out of it would be very unfair.
Helen Jones: May I suggest that committing an offence requires a guilty mind? Therefore, making only the owner or keeper responsible is a proposition that would never stand up in court.
Mr. Bradshaw: My hon. Friend may have been a lawyer in a previous incarnation—she speaks with much more experience and wisdom than me.
Martin Horwood: Surely there is a parallel with fixed penalty motoring offences, which are in the first instance served on the registered keeper of the vehicle? It is then for that person to defend themselves by saying that someone else was responsible for the offence.
Mr. Bradshaw: One would have to be in a position to satisfy a court that the person throwing a piece of litter out of the car had been identified.
To address another issue raised by the hon. Member for Bexhill and Battle, we are providing training for local authorities to help them train their staff. More and more local authorities, as he acknowledged, are using the powers that the Government have given them.
The whole system has been set up so that local authorities can recover their costs, either from fixed penalty notices or the prosecution of more serious offences such as fly-tipping. To respond to a point made by the hon. Member for Enfield, Southgate, the reason that we are not allowing all local authorities to spend the receipts from fixed penalty notices in whatever way they choose is to retain some sort of incentive within the system to encourage local authorities to improve. Taking that incentive away would remove another weapon in our armoury as regards encouraging local authorities to get better. It is right that we reward well performing local authorities by saying that they do not have to spend the money received through fixed penalty notices on street cleansing and cleaning up litter but can spend it on other things. Of course, local authorities that are not performing so well still get to spend the money, but they are obliged to spend it on street cleansing, or a function that they are not performing as well as they might.
The hon. Gentleman also asked a question about the Local Government and Public Involvement in Health Bill. DEFRA is very supportive of the decentralising initiatives that the Government are taking by allowing local authorities to institute more byelaws and allowing them more freedom to retain more of the receipts from their enforcement.
Question put and agreed to.
That the Committee has considered the draft Environmental Offences (Use of Fixed Penalty Receipts) Regulations 2007.
Committee rose at Three o’clock.

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