Unopposed Bill Committee Minutes of Evidence

Sections 340-359

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 same.

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 and litter.

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 boroughs.

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 relatively few.

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 keep them.

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 illegally.

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