House of Commons Hansard Debates for 10 July 2013 (pt 0005)

“take any reasonable steps to”

secure that various precautions are taken, rather than simply if they do not secure that they are taken, as the Bill currently proposes. That is just common sense. The owner could have done everything possible to ensure that the skip was “properly lighted”, for example, but someone could come along in the middle of the night when they are fast asleep and vandalise the lighting. The local authority could then impose a fine, even though the skip had been perfectly well lit. I do not see how the owner could have been expected to do more. If amendment 14 is not accepted, however, that person could find themselves in the ludicrous situation of having to pay a penalty. That cannot be right. It flies in the face of common sense.

I appreciate that my hon. Friend the Member for Harrow East is a sensible, moderate chap, and he personally would apply all these rules with the proper discretion

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and common sense, but we cannot pass legislation that is reliant on people doing that. If we do so, we will end up with perversities in the law. We need to avoid that. It seems perfectly sensible to ask people to take “reasonable steps” to do things. That should be sufficient. We cannot ask them to do things that are, in essence, beyond their control. That is the problem with the Bill as it stands at the moment. I hope that my hon. Friend the Member for Christchurch will find a way to divide the House on amendment 14 if it is not accepted by the promoters, because it represents a common-sense approach.

I see amendment 16 as a natural consequence of amendment 14. As I understand it, if amendment 14 were accepted, the whole issue of clause 9(8) would become redundant. I therefore hope that, if amendment 14 were accepted, amendment 16 would be accepted as well. I hope that my hon. Friend the Member for Christchurch will concentrate his fire on amendment 14, because it is a sensible proposal that would improve the Bill.

My hon. Friend the Member for Harrow East suggested that amendment 14 would water down the Bill, but it would not. In clause 9(6), the promoters of the Bill are trying to deal with the issues that my hon. Friend the Member for Christchurch and I have raised. Paragraph (d) states that people may appeal against a penalty charge if, for example, the contravention

“was due to the act or default of another person and…he took all precautions and exercised all due diligence to avoid the contravention by himself of another person under his control.”

There, the promoters are trying to do exactly what my hon. Friend the Member for Christchurch is seeking to do in amendment 14. Having tried to deal with these anomalies, however, they muddy the waters with clause 9(8), which introduces yet another condition to make it difficult for the owner to achieve what is required. The amendment would not water down the Bill, as my hon. Friend the Member for Harrow East suggests; it would make clear the purpose of the legislation. In my opinion, it clarifies the Bill.

I would hope that the scenario I have given—of somebody who properly lights a skip, goes to bed with it properly lit and finds it vandalised in the middle of the night—would persuade my hon. Friend the Member for Harrow East that the person should not be prosecuted. I hope he would accept that; I am sure he does, because he is a reasonable man. The legislation as it stands would not necessarily prevent that person from being prosecuted; the only thing that would do so is amendment 14, tabled by my hon. Friend the Member for Christchurch. Because my hon. Friend the Member for Harrow East and I agree that such a person should not be prosecuted, I hope that he will follow through the logic of that position and accept amendment 14, which will deliver what both he and I think should be the case.

Mr Chope: I am grateful to my hon. Friend for his support of my amendment. Does he accept that exactly what he is asking for is in a sense reflected in clause 9(3)(b)(iv), which provides that

“the skip is removed as soon as practicable after it has been filled”?

It does not say that it should be removed as soon as it has been filled, but as soon as is practicable. That has been accepted by the promoters, but not extended to other provisions.

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Philip Davies: My hon. Friend makes a very good point. His amendment goes with the flow of the legislation rather than against it, and I think this is a genuine improvement.

On amendment 15, I agree with my hon. Friend the Member for Harrow East. Making the provisions for London much more onerous than in other parts of the country would be unfair. The only thing I will say—and here I hope my hon. Friend will forgive me if I tease him somewhat—is that his point about not providing different rules for London than obtain in other parts of the country is the argument that we have been making in respect of virtually every other part of this particular Bill. He has refused to accept that particular logic with all the other provisions, so it seems to me ironic that he was prepared to pull that argument out of the hat when it suited him, when he has denied it in respect of lots of other amendments on this legislation. I hope he will forgive me for teasing him in that way.

On the final three amendments—amendments 17, 18 and 19—I thought my hon. Friend for Christchurch made a very good point in his usual engaging and amusing way in saying that if a skip is causing a particular problem in a local community, it is surely the wrong solution to immobilise it and keep it there unnecessarily for even longer. I am not entirely sure that my hon. Friend the Member for Harrow East answered that point to my satisfaction, because there is an unerring logic to what my hon. Friend the Member for Christchurch was saying. It may well be that there are occasions when immobilisation is the best solution, although my hon. Friend the Member for Christchurch and I cannot think of them. I am prepared on that basis to give my hon. Friend the Member for Harrow East a rather dubious benefit of the doubt.

I do not want to extend my remarks any further, but I reiterate my hope that if the opportunity allows it, my hon. Friend the Member for Christchurch will seek to press his amendment 14, which is the strongest of his amendments and the one that would improve this legislation without doubt.

Mr Nuttall: If I may, I will start where my hon. Friend the Member for Shipley (Philip Davies) left off, and work in reverse order through this set of amendments, presented so ably a short while ago by my hon. Friend the Member for Christchurch (Mr Chope). I am grateful, as ever, for the clarification of what might be termed the case for the defence, so ably made by my hon. Friend the Member for Harrow East (Bob Blackman).

Starting with amendments 17, 18 and 19, I entirely agree that it is somewhat bizarre that the solution to a problem skip is to immobilise it, but I was persuaded by what my hon. Friend the Member for Harrow East had to say on the matter. To be perfectly honest, I have never seen one of these devices, and I can only imagine what they must look like. I understand that they both immobilise and light up the skip at the same time, which seems an eminently sensible idea for dealing with a problem skip. I have always thought that even empty skips are particularly difficult to move, so I would not think that they needed much help to be immobilised, although I am prepared to accept that that may well be a solution in some cases.

I turn to the other easy one—amendment 11, which has sensibly been accepted by my hon. Friend the Member for Harrow East and the promoters. That

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demonstrates the sense and worth of the work done by my hon. Friend the Member for Christchurch in going through the Bill in some detail and tabling the amendments. The promoters have accepted that the correct period is 14 rather than three working days.

I turn to the slightly more contentious amendments. I looked at amendment 10 and thought it was merely a clarification. There would be no point in criminalising someone or causing them to commit an offence if the information was patently obvious from looking at the side of the skip, in accordance with clause 9. Apparently, the promoters think otherwise. Personally, I would support amendment 10.

We now move neatly into the debate about decriminalisation. We are not really decriminalising these things, just moving the responsibility for taking action from one authority, the police, to another authority, the local authority. The net result is the same. Anyone reading language such as “commits an offence” would think, “Crikey! They mean a criminal offence.” Apparently, however, the measure represents decriminalisation. I humbly suggest that if clause 8 had read, “A person on whom a requirement is imposed under this section shall be liable to a civil penalty,” that would have been more appropriate if the intention was to decriminalise.

I entirely agree with what my hon. Friend the Member for Shipley said about amendment 14. It is entirely right that when it comes to the liability of someone who has committed a skip offence, to use some shorthand—[Interruption.] Not a skipping offence, but a builder’s skip offence. When it comes to such a person’s liability, the inclusion of the words

“take any reasonable steps to”

is entirely sensible. Although it might look as though one of those specific offences was being committed, there could be a whole host of reasons why a person ought not to be held liable.

The issue of criminalisation is important when considering the question of proof. If the offences are to remain criminal, the burden of proof is “beyond all reasonable doubt”. However, if they are to be dealt with according to a civil burden of proof, “the balance of probabilities” applies—it could be 51:49. There is a whole host of difference between liability in criminal and civil cases. The matter needs to be nailed down. We need to be absolutely clear about whether we are decriminalising this. Is it going to be a criminal offence, or is it going to be a civil offence and is it going to be dealt with under the civil law? That will affect the burden of proof required of those who seek to enforce these requirements.

9.45 pm

Let me make it clear that I entirely agree that these are sensible laws to have. I remember a case from some years ago—the 1980s—when I was acting for someone who ran into a skip that was not lit. That does happen, and it is a serious matter. As my hon. Friend the Member for Christchurch said, some of these amendments seek to strengthen the Bill, as, indeed, does amendment 15. I, too, found it somewhat ironic to hear an argument that we have often deployed, which is that the law in London should not be different from the law in the rest of the United Kingdom.

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On amendment 15, I think it is sensible to have something other than just a telephone number or the address, because there is a danger that many skip operators will opt to have an address that might be a PO box or the registered office of a limited company which turns out to be a huge office block in London with hundreds of other offices, and which is in fact the office of an accountant or a lawyer, and not the place of work of the skip owner. I therefore think amendment 15 is entirely sensible. Although I appreciate what my hon. Friend the Member for Harrow East said, it may well be an idea for a private Member’s Bill to at some point bring in on a national basis the requirement that all skips should bear the name, address and telephone number, so that if there is a problem, the person who is responsible for putting the skip there can easily be found.

On amendment 16 and the question of effectively making the accused, whether of a criminal offence or a civil liability, guilty unless they prove themselves innocent, I again entirely agree with my hon. Friend the Member for Shipley that if amendment 14 were accepted, to give them a “get out of jail free card”—if one can describe it as that—by saying that if they had taken reasonable steps, they would not be liable, would negate this rather draconian step of saying, “Look, once we’ve served you with this notice, it is your responsibility to come up with some other person who is more guilty than you are.” It seems a very strange way of setting up a legal system, and it seems to me to be entirely alien to all the principles of English law. I can well see that at some future point there may be many a legal case fought over clause 9(8), as people say, “How can it be fair that I have been picked on? I have got nothing to do with this, yet I have been victimised and made to pay this penalty.”

Mr Chope: Does my hon. Friend agree that one of the big problems is that local authorities have already demonstrated through the use of decriminalised penalty notices that they can be over-zealous and keen to get the maximum amount of revenue irrespective of the justice of a situation, which is why we hear all these stories of traffic wardens hiding and then creeping up on unsuspecting motorists so that they can get extra penalty points imposed and extra fines for themselves and their local authority?

Mr Nuttall: My hon. Friend makes a good point, as that is one reason why one is slightly sceptical about this sort of clause. Just this day I received a letter from a constituent raising exactly that point about the behaviour of traffic enforcement officers in Bury; it detailed how they have been served with a penalty notice in circumstances where it would have been easy to deal with the matter in another way if more common sense had been applied. That would have avoided having to give a local resident a penalty notice. Such examples make me want to agree with my hon. Friend’s proposition that people will be suspicious that this provision is there to make it easy for the local authority officer to find somebody. It does not matter who they find on this basis; they can give the notice to almost anybody and they will be able to say, “We have done what we can. It is now your problem. If you weren’t responsible, it is now your responsibility to find somebody who was.” I humbly submit that that is clearly not the right way for things to be done. It should be the responsibility of the responsible officer of the local authority to find out who is responsible, rather

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than expecting a person on whom a notice has been served to identify that other person for the purposes of determining who has committed the offence.

If I were to enter this little competition of saying which amendment I would press, I would opt for amendment 14, as it is entirely reasonable that where someone has taken reasonable steps to avoid committing an offence, they should not be held liable under this part of the Bill. With that, I will wait to hear what others have to say.

Mr Chope: In summing up an excellent debate, may I thank my hon. Friend the Members for Bury North (Mr Nuttall), for Shipley (Philip Davies) and for Harrow East (Bob Blackman) for their contributions? If the Minister had contributed, the debate would have been even better, as indeed it would have been had the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) spoken—they demonstrated unusual self-restraint on these important issues, particularly on the issue of “national versus local”.

As my hon. Friend the Member for Shipley said, the promoters of the Bill are now saying that it would be unreasonable potentially to impose on operators from outside London a requirement to put their name, telephone number and address on a skip, given that the legislation that applies outside London requires only the telephone number or the address. Clearly, there is an inconsistency between the approach of the promoters to those of us who argue that we should have national legislation on these issues rather than localised legislation.

Mr Nuttall: I appreciate that my hon. Friend is summing up, but are we not talking about the same case that was made earlier in respect of amendment 20 and gated roads?

Mr Chope: Exactly the same point applies in relation to gated roads, which is why it is a pity that we have not heard from the two Front-Bench spokespeople on where they think the balance should be between individual local authorities, or groups of local authorities, legislating in this area and a responsibility for the Government to try to introduce a national regime.

My hon. Friend the Member for Harrow East has gone through each of the amendments seriatim and tried—

Stephen Pound (Ealing North) (Lab): Seriatim!

Mr Chope: I am delighted that the hon. Gentleman is joining in with the debate, albeit from a sedentary position, because he has been referred to already in dispatches, as he might know. We had been hoping to hear from him on immobilisation devices, but he has now put on record his enthusiasm for the word “seriatim”.

Let me take the amendments one by one for the benefit of the hon. Member for Ealing North (Stephen Pound). My hon. Friend the Member for Harrow East said that he did not think that amendment 10 would be appropriate because of the conflict between the national and local legislation. This is an opportunity for London to lead the field so that others can follow. It would be sensible, taking amendments 15 and 10 together, to require that in London skips should have the name, address and telephone number of the owner clearly and

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indelibly marked on them. I am disappointed that the promoters are not interested in accepting those amendments but I am delighted that amendment 11 is to be accepted.

On amendments 12 and 13, I am grateful to my hon. Friend for drawing to our attention that there is a proposal to increase fourfold the maximum fine levels on the standard scales. I think that would have quite a significant impact on the cost of living of the criminal classes. It would also put into a negative position all those provisions where the maximum fine is level 3—£1,000, which is reasonable—

9.57 pm

Three hours having elapsed since the start of proceedings, thebusiness was interrupted (Order, 3 July).

Bill to be further considered on Tuesday 16 July.