Unopposed Bill Committee Minutes of Evidence

Sections 380-399

London Local Authorities Bill [HL]

Tuesday 18 February 2003

380. We are also not convinced about the way in which setting the level of fixed penalties is dealt with in the Bill. A particular concern is that the Secretary of State has been given some reserved powers in which it is possible that when we draft a clause the Secretary of State may well have reserved powers but we do not consider powers that are given in the Local London Authorities Bill workable, they look maybe slightly more impressive than they really are. We think that they would not provide a proper long­term way of dealing with this problem. For example there is a possibility that a long running battle could turn out to be forged in relation to the level of a fixed penalty if under the Local Authority Bill, my Lords, a local authority sets a level of penalty which the Secretary of State considers excessive. The Secretary of State is given the power to object to that, and indeed she can then make regulations which will set a different, lower penalty.

381. Notwithstanding that Parliament will then have the power to annul those regulations and therefore if they do not annul them it can be taken they are content with the level of penalty set by the Secretary of State, and the local authority as soon as one month later can come back and set up another penalty which is higher than that which was set by the Secretary of State and implicitly approved by Parliament.

382. It is possible that you could have a position where the fixed penalty is going up and down if neither side is willing to back down, you could have a farcical situation where the fixed penalty is going up and down every 12 months, which does not seem like an appropriate way of dealing with the problem.

383. We also think that the Secretary of State's power to make regulation could add significantly to the amount of legislation in this area in a way which is probably not appropriate because of the time limit which is given under which the Secretary of State is required to make regulations, within a month of receiving notification of the levy of fixed penalty from the local authority, it would be most likely impossible for the Secretary of State to deal with more than one or two local authorities in a single instrument, which would mean that the Secretary of State may have to make quite a few, potentially dozens of sets of regulations, and given that there are 30 councils in London this could lead to a significant increase in the amount of legislation which is required to be scrutinised by Parliament and also the amount of legislation that is actually made in this country.

384. We always keep an eye on the amount of regulation which we make to a sensible level and any unnecessary increase in the level of statutory instruments is not particularly welcome.

385. I referred earlier to the one month time limit which the Secretary of State will have to make to regulations once she receives notification from a local authority that they want to set up a fixed penalty level. We do not consider that this is really workable. There is going to be virtually no time for the Department to consider the level of fixed penalty and also to consider whether or not any consultation is necessary on any replacement level of fixed penalty.

386. The drafting of the regulations will inevitably be very rushed, which could lead to poor legislation. The problems would be particularly severe should notification be given before Christmas when everybody inevitably will be on holiday, at least many people may be.

387. We do not think that that time limit is realistic. There are also a rather odd selection of publicity requirements in relation to this procedure, for example the local authority is required to give publicity to the level at which a fixed penalty is set but there is no similar requirement on the Secretary of State to give publicity to any objection that you may give to that level, so that may lead to confusion. Although the Secretary of State may choose to try and prevent this confusion by doing something discretionary it seems rather odd there should be some compulsory requirement of consultation on publicity in some areas and not in others.

388. I think you can see that we do have a number of relatively dry procedural objections to some of this but it all adds up to a system that we do not think has been thought through sufficiently thoroughly to actually deal with this in a way that will work well long­term.

389. We are not content with the Bill as it stands at the moment.

390. MR SAUNDERS: Can I raise a point, you said that the Secretary of State has only one month, that is before he makes his objection, in which to object, once he has objected the new levels set by the local authority do not come into force until the objection has been withdrawn, so there is an absolute stay and he has all of the time he wants to make his regulations and get them right.

(Mr Jones) In Clause 29(4) it says, "If, at any time before the levels of fixed penalties required to be notified under subsection (1) above to the Secretary of State have come into force..."

391. MR SAUNDERS: Indeed. Subsection (3) says that they do not come into force until the objection has been withdrawn. You make your objection and that holds everything, then you can make your regulations as and when you pleas.

392. CHAIRMAN: Is that how the Promoters see it?

393. MR LEWIS: My Lord, that is exactly how the Promoters see it. It might be useful on clauses 28 and 29, but more to the point clause 29, that they have been described as unworkable. These are lifted straight from the Road Traffic Act 1991, a piece of Government legislation, dealing with the level of parking fines. Mr Lester is the expert.

394. I believe that the equivalent provisions in the 1991 Act have not had to be used, which perhaps indicates that the London boroughs have been setting the levels of parking fines since the 1991 Act sensibly. We are not aware of any moves from the Department of Transport to alter what are — I do not have the relevant section here but remember back to drafting this Bill and I am pretty sure that they are lifted almost word for word from the existing Government legislation dealing with default powers of the Secretary of State in respect of parking fines.

(Mr Jones) In response I would say that that provision seems to me pretty much a waste of time; in that the net result is, that on receiving notification and the Secretary of State has actually lodged a formal objection, he may then withdraw when he has had proper time to consider it,. It will be a pretty meaningless requirement and does not seem worth having in the first place.

395. LORD TORDOFF: I thought you were arguing that there was going to be a roller coaster whilst this was happening. It seems to me that 29(3) rules that out?

(Mr Jones) The roller coaster was the possibility that a local authority could be in dispute with the Secretary of State and there would be ultimately no way of resolving the dispute in a satisfactory manner because the local authority would be able to continue slapping in its requests for a higher penalty, and the Secretary of State, if he disagrees with that, would be able to continue making regulations which would overturn it.

396. MR LEWIS: Could I intervene here. 29(6) does not preclude the councils from having another go; but they cannot do it for another 12 months.

(Mr Jones) I was not suggesting anything otherwise, but every 12 months there may be a change. That is as I said earlier.

397. CHAIRMAN: Maybe we are becoming slightly bogged down in the detail of things at the level at this moment. It is an important point. Can I just be clear, what the Government is really saying is you are legislating at the moment in the Local Government Bill, which is currently in the Commons, along some of these lines; or what does that Local Government Bill cover which is or is not in here?

(Mr Jones) The clause which we have in the Local Government Bill, clause 116, enables all local authorities in England and Wales to retain the money they get from fixed penalties and to be able to spend it on at least their statutory litter and dog fouling functions, with the possibility of regulations to extend their powers to spend it. That is similar.

398. It is the meat of these clauses?

(Mr Jones) Yes, it is. The difference is that we have not yet introduced any legislation which deals with allowing local authorities to set the level of fixed penalty. That is something we are still considering and consulting on.

399. CHAIRMAN: I do not know if this is really relevant or not, but this new idea of a high performing local authority, who is going to decide? Presumably the Secretary of State will decide? Or is there a list of things you have to do to qualify?

(Mr Jones) There is a corresponding provision that we include in the Local Government Bill which enables us to link in with the classification of authorities in clause 117, that is one possibility. The policy on that has not been completely resolved as yet.

(Mrs McGregor) That is the Comprehensive Performance Assessment undertaken by the Audit Commission which reported in December last year on the Highways Authorities, which includes London boroughs. I have a list here.

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