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 councilsexcellent,
good, fair, weak and poorwith 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 Ministers 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 Commissions corporate performance
assessment framework for Englands 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.
Regulation
2 ensures that, as long as a local authority is categorised as
excellent, good, four stars, three stars or two stars under the harder
test framework, they may use the receipts of fixed penalty notices to
tackle littering,
graffiti, fly-posting and dog fouling offences. Those extra powers are
to be welcomed, not least because such offences are normally local
problems that local authorities are by far the best placed to address.
Indeed, local authorities and parish councils are increasingly at the
forefront in taking the necessary steps to improve the quality of our
immediate environment. That happens locally, when tackling
environmental offences such as gum littera particular problem
in our inner-city streetsgraffiti and fly-posting and, to some
extent, globally as well when confronting some of the causes of climate
change and helping to reduce the carbon footprint of local
services.
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 Ministers
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
Governments timid approach to environmental crime has been
highlighted by the UK Environmental Law Association in a written
submission to the Environmental Audit Committees 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.
UKELAs
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 Ministers 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 goalthough there might be a missed opportunity for
them to address a number of weaknessesparticularly 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 councilseven parish councilscan
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.
Many local
communities might want to go further than the Government are allowing.
During the passage
of the Clean Neighbourhoods and Environment Act 2005, under
which the regulations are being introduced, my hon. Friend the Member
for Lewes (Norman Baker) argued strongly that the polluter
pays principle should be enhanced, that we should perhaps
consider powers to seize vehicles that are used to pollute, and that we
should consider much stronger fines for environmental
offences.
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 Committeeyou,
Mr. Atkinson, the MPs, the Clerks and the
officialshave 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
Commissions 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 388just 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 Governments
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
devolutiona fine principle to which we all aspireis
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 councils 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 Ministers
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 noticesthe subject of the
regulations.
2.51
pm
Mr.
Robert Goodwill (Scarborough and Whitby) (Con): Speaking
as another former parish councilloralthough I must admit that
most of my close relatives thought that I was well out of my depth even
at that level of local governmentI have just one question,
which I hope is not too much of an anoraks 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. Gentlemans 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
decentralisinglifting 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 testagain, that is entirely a matter for the independent
Audit Commissionmore 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 partys 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 incarnationshe 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.
Resolved,
That
the Committee has considered the draft Environmental Offences (Use of
Fixed Penalty Receipts) Regulations 2007.
Committee rose at Three
oclock.