London Local Authorities Bill [HL]
Tuesday 18 February 2003
340. If I could ask you to turn to Clause 116 in
number 2E in the black bundle, the first thing that that clause
does is to disapply the relevant provisions of the Environmental
Protection Act 1990 and the Dogs (Fouling of Land) Act 1996 which
state that fixed penalties have to be paid by the local authority
to the Secretary of State. On this point the two Bills are the
341. Subsection (2) of Clause 116 provides that the
proceeds of fixed penalties may only be used by a local authority
for "qualifying functions".
342. Subsection (3) lists the qualifying functions,
and they are perhaps not surprisingly functions under Part IV
of the Environmental Protection Act 1990, which deals with litter,
and functions under the Dogs (Fouling of Land) Act 1996. However,
also included are functions of description specified in regulations
made by the appropriate person (ie the Secretary of State as regards
London boroughs). Perhaps more surprisingly is subsection (4)
which provides that those regulations may enable the councils
to apply the income from fixed penalty revenue for the purposes
of any of its functions - which is of course what the London Local
Authorities Bill originally provided and what the initial reports
were seemingly concerned about. However, of course, there is no
guarantee that the regulations would provide that councils could
apply revenue to any of their functions, or that they would apply
to every borough council.
343. The first area where the councils do not find
agreement with the Government is on the issue of how fixed penalty
receipts can be used. In a sense, what the councils are suggesting
- ie, to use the proceeds for the amenity of their area - is actually
more restricted, potentially, than what is proposed in the Local
Government Bill. As I have mentioned, regulations under section
116 of the Local Government Bill could enable some local authorities
to use the fixed penalty income for any of their functions. However,
I used the word "could" because of course the Secretary
of State would first have to make regulations enabling the councils
to do so. There is no guarantee that those regulations would go
quite so far as to allow complete discretion to local authorities
or even to allow for the improvement of the amenity of the area,
as is provided in this Bill.
344. Perhaps most worryingly of all for the Promoters
of this Bill is the idea that some of the local councils might
be able to use the revenue for a wide range of uses, but not others.
In its White Paper the Government suggests that only high-performing
(to use its words) councils would be given the power to keep and
use fixed penalty receipts. It is acknowledged that the Government
has relented somewhat from that position by allowing all councils
to keep the receipts, but the Promoters remain concerned about
the fact that there will be some discrimination between councils
as to how the receipts should be used.
345. The Promoters do not agree with the principle
that there should be this discrimination between them. It may
very well be the case that in the areas of those councils which
the Government believes to be not high-performing there may be
greater problems of litter and dog fouling than in the areas of
those councils which are regarded as high-performing. This may
be due to reasons unconnected with how well the council is performing
in general - there may simply be more dogs. It should also be
borne in mind that a council may have a very high-performing environmental
department but perhaps is not as high-performing in other departments
and so if they are doing particularly well at clearing up dog
faeces and litter they may find themselves penalised because they
are not doing so well, for example, in housing and they are, therefore,
not a high-performing authority in general.
346. The Promoters would argue that the incentive
which these clauses create is exactly what is required in those
areas where perhaps resources are more limited and enforcement
against litter and dog fouling offenders is most needed.
347. What the Promoters also find curious is the
fact that the Government has only reported against these clauses
in respect of dog fouling and litter and not abatement notices,
street trading flyposting and bylaws. In other words it would
seem that rather than concluding that there is something wrong
in principle with the idea that so called low-performing councils
should be able to utilise fixed penalty income in the way proposed
in the Bill as it was deposited (ie, for any purposes it sees
fit) the ideology is that low-performing councils should only
be fettered in respect of dog fouling and litter offences - not
in respect of street trading, abatement notices, flyposting and
bylaws. The Promoters are somewhat at a loss as to how the Government
came to this decision.
348. It should also be noted that the Government
is now consulting on the issue of giving local councils the power
to set levels of fixed penalties themselves, including for litter
and dog fouling offences. If you look at document 2A, my Lord,
which is a recent consultation paper called Living Places;
Powers, Rights, Responsibilities, in the paragraph on the
second page headed "Issue" it says "Centrally prescribed
levels of fixed penalty fines cannot accommodate local circumstances.
For example, a local authority may wish to increase the level
of fine for particularly sensitive areas, or for litter and dumping
of particular items. Some local authorities have asked to be given
the power to set their own fines with the option for allowing
early payment discounts to encourage compliance. Such a regime
could be applied to a variety of existing offences that have the
liability for conviction discharged by payment of a fixed penalty
fine." Thereunder you will see the relevant legislation includes
the first two items, litter and dog fouling.
349. It is, of course, simply a consultation paper.
We are not saying that this is a statement of Government policy
by any means, but it is interesting to note that the Government
is thinking in the same terms as the local boroughs.
350. It seems to the Promoters that the only reason
that the Government departments have reported against these clauses
is because they are inconsistent with the Local Government Bill
which is now in Parliament and which was introduced long after
the Bill before your Lordships today. The Promoters have their
own concerns about consistency. They would argue that it is far
better for the London borough councils to have standardised legislation
for their fixed penalty regimes rather than two potentially different
regimes which will arise if your Lordships accept the arguments
raised in the report.
351. The Promoters would argue that in not reporting
against these clauses as they relate to offences other than dogs
and litter, the Government has accepted what is proposed in principle.
If that is the case the Promoters cannot see and really do fail
to understand why those provisions should not also apply to dogs
352. My Lords, I was not intending to introduce any
evidence in respect of this clause, because it is difficult to
see what evidential point there is. I think it is accepted by
all parties that fixed penalty notices are acceptable in principle,
and all that is between the Promoters and the Departments is the
way in which the proceeds of the fixed penalties could or should
be used, and that is in turn related to the arguments which the
Promoters have against discriminating between different London
353. My Lords, I am happy to leave it at that, but
if you have any questions about the way in which the fixed penalty
regime is intended to work, particularly about the fixing of the
levels of fixed penalties, then Nick Lester could answer your
queries. The methods set out in detail in the Bill for fixing
the levels reflect very closely the existing legislation in relation
to the fixing or parking penalties, and Mr Lester is a world renowned
expert on those matters. That is all I was intending to say in
support of these clauses.
354. CHAIRMAN: Thank you very much. I have just one
question: you talk about these two fixed penalties for dog fouling
and litter in the same breath as parking offences. Surely, in
terms of the amount of money we are talking about, there must
be a huge, huge difference. Parking penalties are absolutely enormous
- we all know that. I would have thought that the number of times
you manage to catch somebody dog fouling or littering would be
355. MR LEWIS: I do not think there is any argument
with that, my Lord. In fact, parking is dealt with under a different
type of regime. In the case of parking, we are dealing with what
used to be offences and have now become decriminalised, as it
were, so the actual mechanics of how it works is slightly different.
All we are, in a sense, copying in this Bill is the method by
which the level of the fixed penalty is set, but I take your point.
356. CHAIRMAN: From the point of view of the level,
yes, but you are talking about spending the proceeds. So what
are the proceeds in a typical London borough of fixed penalty
offences on dogs and litter?
357. MR LEWIS: At the moment, zero because they cannot
358. CHAIRMAN: Right. They cannot keep them but they
still levy them. They may have to hand them over.
359. MR LEWIS: I hope the Departmental representatives
will support me on this but one of the reasons for allowing them
to keep them will, hopefully, incentivise them to carry out enforcement
and, therefore, increase the number of penalties which are issued.
I do take your point. I think it is fair to say that the number
of fixed penalties issued against litter bugs is never going to
reach the heights of those which are dished out to those who park