Clause 23 - Controls on free distribution of printed matter

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee at 3:30 pm on 20th January 2005.

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Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs 3:30 pm, 20th January 2005

I beg to move amendment No. 74, in page 20, leave out lines 25 and 26.

A situation that we have had in Guildford illustrates the points on which we seek clarity. This is a probing amendment that is, on the face of it, simple and straightforward, although in practice there might be further complications. In the local government elections of the year before last, a local business man created his own political party. It was generally felt locally, and it was entrenched in his manifesto, that he thought that the Conservatives would give him a better planning deal than the Liberal Democrats. He had aspirations to build a large casino and various other things.

In fairness to the Conservatives, I should say that there is no indication that they had ever said that they would give him a better answer on planning than the Liberal Democrats had. However, the business man formed a political party—Trinity—that campaigned in marginal wards to try to drive in a wedge, so that Liberal Democrat seats would be lost. I bring the matter up because that individual regularly takes the council to court for everything possible. That is why I seek clarity.

That person runs a political party—from time to time, as the need occurs—and is a local business man, pursuing business interests. He may also be running a campaign to open a football stadium, which may be connected with his desire to set up a casino. We could have only a very blurred idea of what would go on his leaflets. In other words, he might have one piece of paper, but be caught by others when he is issuing leaflets for his very large nightclub in the middle of Guildford—another thing that he gets up to.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I seek further clarity on this as well. I know that a number of people put out what could be termed political leaflets outside election times. They contain advertisements for all sorts of things, which I assume are to the benefit of those parties. They would fall foul of this proposal would they not?

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

That is a very helpful intervention. I believe that the answer is yes. If the Trinity party were to put out printed matter containing a slogan, such as ''The best thing for town planning'', ''Free drinks at The Drink on Wednesdays, Thursdays and Fridays'' or whatever it might be, that would precisely illustrate the problem.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley 3:45 pm, 20th January 2005

I am not talking about people who invent political parties, but about traditional political parties that utilise advertisements from local business men. Without the funding such parties perhaps would not be able to distribute their political literature in the first place. I am thinking about the Liberal Democrats as much as any other party.  

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I quite accept that point. I have seen such things on literature from the three political parties that I regularly come across in addition to Trinity, which appears and disappears on a regular basis. We tabled a probing amendment and recommended a deletion because the position is untenable. We look forward to the Minister telling us how we could get round the problem.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I am sorry to break it to the hon. Lady, but it is not always possible to solve every problem in legislation. Legitimate political activity almost invariably has a fringe. There is a great danger of trying to cut the fringes off and damaging the mainstream of political activity.

I can understand the hon. Lady wanting to raise her local issues and doing so with a probing amendment. If it were a serious amendment, I would quite robustly say that it would be unthinkable to accept it. The purpose of the exception is to ensure that the human rights of individuals and their legitimate political and democratic activities are not affected by the provisions.

When we started talking about the provision and learning from the experience in London of trying to avoid excessive free literature, I was worried that it might be difficult to phrase the clause in a way that would protect rights. I believe that we have achieved that protection. Consultation raised the same concern that immediately came to my mind, which was that the control of free literature distribution could impinge on the freedom of speech and both religious and political canvassing.

By allowing the exemptions, we protect the rights of freedom of expression and freedom of thought, conscience and religion. They are enshrined under the European convention on human rights and, now, in our law under the Human Rights Act 1998. Even if they were not enshrined there, most of us would say immediately that we do not want to see a restriction on political and religious debate. That would be implied by the proposed deletion from the Bill. We must put up with some things in order to maintain the integrity of our political structures.

I understand what the hon. Lady means about campaign advertisements. Somebody stood in one general election under the title of New Labour before we wisely took control of Government and inserted clauses to stop that sort of thing happening. As she might imagine, I was in support of that measure when we started to draft it at the Home Office.

We cannot solve all problems and we must be careful that we do not go too far. I have sympathy with the hon. Lady. Everybody involved in legitimate political activity must do all they can to make it clear where the boundaries are. They should not seek individual, personal or party advantage through these types of intervention. This matter is down to the way we conduct ourselves. It would be extremely dangerous to remove the exemption from the Bill.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I have every sympathy with what the Minister is saying. If it were a case of just trying to get some clarity between the one and the other, I would   fully accept what he is saying. The reality is that the clause is meant to deal with people who, for example, hand out literature outside a nightclub every Wednesday, Thursday, Friday and Saturday. The stuff gets thrown on the ground. We are trying to work out the exceptions. Given that the main line of business of the individual in question is nightclubs and bars and the promotion of them, and that he is one of those whom the clause will affect directly, his instant get out is to say, ''Trinity party''.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

Perhaps I can assist the hon. Lady. If someone purported to put out religious information or political material but was not really doing so—in other words, if they were promoting a business—it would be for the court to decide, as it often is, on the boundaries. The fact that the Bill does not deal with the question explicitly does not mean that someone can get away with claiming to represent a political party.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I take that point, but I am pressing for clarity from the Minister—because our debate will go down on the record—in identifying what the court would do in such a case. The person in question might say in his defence, ''Oh, no, it is Trinity party; it is just that there is an advert for the nightclub.'' Those issues come to court eventually, and I predict such a court case.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I offer a final thought; if an individual claimed in defence that he was putting out political material, it would be for the prosecution to show that that was not true, and for the court to make a judgment. Often when such issues are discussed in theoretical terms it sounds as if it might be easy for someone to get away with breaking the law, but when the evidence is looked at objectively by a court it becomes clear whether something is on the wrong side of the line. We cannot solve the individual case that the hon. Lady has raised this morning unless we table an amendment to insert the formula ''political parties, except for'' the one that she has a problem with. That would be making the Bill a little too specific.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I thank the Minister for that clarification. I should not want to take exception to the activities of one party more than another; the case was a specific one. The Minister's comments about how the court might deal with the matter are helpful. If he can provide any further clarification on Report we should welcome that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

With this it will be convenient to discuss the following amendments: No. 76, in page 21, line 11, at end insert

'; and

(c) post a notice on its proposal on the internet.'.

No. 79, in page 21, line 27, leave out 'and'.

No. 80, in page 21, line 28, after 'land', insert '; and

(c) post a notice of its decision on the internet for the duration of the order.'

No. 82, in page 21, line 41, after 'land', insert '; and

(c) post a notice of any revocation on the internet.'.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

These amendments are much more simple. There is a typo in amendment No. 76; the first instance of the word ''on'' should be ''of''.

We are interested in how people are to get the information that they need about what information they can hand out and where it is legitimate to do so. A lot of young people get involved in handing out literature, sometimes for their own projects and sometimes because they are paid to do it. It is a first port of call for them. Sometimes they get together as a group—they may be students—and book a club and promote their own night.

They tend to know what goes on by consulting the internet, although they are less likely to read the local paper. They might be helping to distribute fliers at a club, by standing outside one that plays the same sort of music that they will play at their event. They need to be able—particularly if that is happening not in their council area but in the next borough or town—to understand what is legitimate there and what is not. By far the easiest way for them to find the correct information and avoid falling foul of the Bill would be to consult the council's website.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I take the point that as technology develops there are other ways of communicating information that are distinct from the traditional requirements. However, I would suggest that the matter is one of best practice. There is a requirement to be met, so it would be minimum practice for information to be provided on the local authority's own website. Otherwise, it is difficult to know exactly where such information should be put, in order to ensure that it is there for those looking for it. There are other ways of communicating, such as press notices, local radio, voluntary organisations and so on, all of which may be appropriate in various circumstances.

We ought to maintain a light touch, ensure a sensible minimum requirement and encourage local authorities through best practice increasingly to use other channels of communication, as people begin to use them more and more. Of course, many people still do not use electronic means of communication—I cannot think that there are any in this Room, Mr. Forth, but you never know. Posting a notice on the internet would be a perfectly reasonable supplement to the minimum requirement, but not something that we would need to include in the Bill, so I would ask that the amendment be withdrawn.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

We are just concerned that often young people do not read newspapers and that newspapers themselves are sometimes extremely parochial. I take the Minister's point that the matter is down to best practice and I hope that local authorities will take note of the advice that he has provided. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn. 

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I beg to move amendment No. 77, in page 21, line 15, leave out '28' and insert '42'.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

With this it will be convenient to discuss the following amendments: No. 78, in page 21, line 19, leave out '14' and insert '28'.

No. 83, in page 22, line 5, after 'paragraph', insert

'must be given in writing by an authorised officer of the authority and'.

No. 84, in page 22, line 11, after 'distribution', insert ';

(e) by requirement to clear any litter resulting from the material distributed'.

No. 85, in page 22, leave out lines 16 to 20.

No. 86, in page 23, line 43, after 'may', insert ', after 28 days,'.

No. 87, in page 24, line 6, after 'person', insert

', or any such person under whose employ that person was distributing printed matter,'.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

Again, the amendments are clarifying amendments. Amendments Nos. 77 and 78 concern the time scale. The main problem is the 14 days for objecting to a proposed order. In my area there is a weekly newspaper, but someone might be away when it comes out and might not read the small print at the back when they return and catch up with the news, as they are getting on with their lives again. Such things take a while and people have to ensure that they have seen the notice. That is why we want to extend the period, to ensure that everyone has a chance to see the notice. Once the proposal is discovered, the further extension to 42 days proposed by amendment No. 77 will give people a chance to formulate and submit any objections, which is a matter of practical expediency.

Amendment No. 83 proposes that someone who is given consent to distribute printed matter in a designated area may be required to provide written evidence of that consent. Although paragraph 3(6) of proposed schedule 3A to the Environmental Protection Act 1990 states that an authority can impose a requirement to provide written evidence of consent on demand, the best way to avoid any misunderstanding is to ensure that the authority provides written consent in all cases.

Amendment No. 84 concerns clearing litter resulting from material distributed. Given that the powers are designed to tackle litter caused by printed matter, our proposal is to give councils important additional powers over the limitations that they could place on the consent to distribute matter in a controlled area. Councils may wish to have that freedom, which amendment No. 84 would give them.

Amendment No. 85 is a probing amendment. It appears that councils are to be allowed full discretion on granting consents anyway, so why is paragraph 3(4) of proposed schedule 3A to the 1990 Act necessary? We would like the Minister to explain what sort of people are being targeted. Is the intention to stop people who are doing direct marketing for profit from gaining consent? That might be reasonable, but we return to the issue of young people promoting concerts, clubs, exhibitions and other events for all sorts of purposes, perhaps as part of a college or school   project. The requirements on such young people are difficult—one strike and they are out, in trouble for ever more because they made a mistake when they were not up to speed. We would like young people to learn the lesson and understand what the law is, but we think that the Bill as drafted is a little heavy-handed.

Amendment No. 86 again concerns the problem of the time scale and allows a reasonable period for a person whose name and address is not known to contact the authorities to claim the printed matter before it is destroyed.

With amendment No. 87, we are thinking about vulnerable people, often young, who are employed to hand out flyers. Those who work for direct marketing companies generally do so only for the money. The job is not one that people do because they see a career in handing out flyers. Basically, they want some pocket money. We are concerned that such people might not know that they could receive a fixed penalty. Somebody might give them a job handing out flyers about a massive golf sale around the corner and then find it easy to take advantage of them, avoiding liability themselves.

We should also bear in mind that such employers might not be local. They might move from town to town running golf sales, Persian carpet sales or other ad hoc events. Such people can disappear and leave whomsoever they had hired for a minimum wage to be fined and face the music. We are therefore concerned that the provisions might be a little heavy-handed on people who are basically innocent.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs 4:00 pm, 20th January 2005

I do not want to be unkind to the hon. Lady, but with regard to amendments Nos. 77 and 78 the slogan that springs to mind is ''Liberals do things slower''.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I see that I have agreement in some parts of the Room at least.

The problems that we are concerned about can build up in a fairly short period. To extend the period from 28 days to 42 days as a minimum time between giving notice and the coming into force of the designation order seems entirely out of proportion. It should be borne in mind that the local authority has the capacity to revoke such an order at any time. Indeed, it quite often happens that an order is put in place but people then have second thoughts. However, the proposals would prevent a local authority from acting reasonably swiftly on the powers in the Bill. I will resist the amendment, because the proposed increases in the notification objection time would hamper the ability of local authorities to control free literature distribution in an area that was already suffering from serious blight.

Amendment No. 83 is unnecessary because, taking all the relevant provisions into account, it is clear that the notification must be in writing. I also have   problems with the term ''authorised officer'', because I think that it assumes that amendments Nos. 88 and 89 have been accepted.

Amendment No. 84 would allow consent to be accompanied by a requirement to clear any litter resulting from the material distributed. That amendment is not necessary either, because paragraph 3(5) of proposed schedule 3A to the 1990 Act would give the local authority the power to impose such conditions as it considers ''necessary or desirable'' to protect the designated land from defacement. That could include a requirement to clear litter produced as a result of distribution. There is no disagreement with what the hon. Member for Guildford is trying to achieve, but it is already covered in the Bill.

Amendment No. 85 would remove the ability of a local authority to refuse consent if a person had been convicted of an offence or had been issued with a fixed penalty notice for distributing free literature. If that amendment were accepted, it would remove from the Bill the ability of local authorities to refuse consent to those with a history of abusing those provisions. I cannot agree to that. Local authorities are not required to refuse consent, but they should have the right not to give it to individuals who have distributed free literature illegally in the past, thereby completely disregarding the requirements on them in law.

Amendment No. 86 would make changes to the procedure for returning printed matter that has been seized from a person who has committed a free literature offence. When the name and address of a person is not known, proposed schedule 3A allows the printed matter to be disposed of or destroyed by the authority, but amendment No. 86 prevents it from doing so until 28 days have passed, which means additional storage if there is a problem. The amendment is unnecessary because the requirement to return the printed material under section 6(4) and the ability to dispose of, or destroy it, under section 6(5) take effect only at the conclusion of proceedings for the offence or at the end of the period in which proceedings for the offence may be instituted. That acts as a safeguard against the material being disposed of or destroyed before the person from whom it was seized has had the chance to apply for its return.

Amendment No. 87 would change the description of a person on whom a fixed penalty notice can be served for a free literature offence so as to preclude the employer of the person from distributing the material. The hon. Member for Guildford is right about the need to be proportionate; we are resisting the amendment because the purpose of fixed penalty notices is to allow immediate enforcement action against a person who distributes free literature. Anyone who causes another person to distribute free literature, such as an employer, also commits an offence under proposed new paragraph 1(2). However, someone undertaking such activity should not be offered the alternative of paying a fixed penalty; they should be prosecuted. The proportionate response is to prosecute under that provision.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I will not go through the answers point by point, as time is short. I understand the Minister's point on amendment No. 85. The clause states:

''Consent need not be given to any applicant''.

Is the Minister is saying that these things will be proportionate and will not encourage councils to say that someone who has done something once, for pocket money, will not be able to earn pocket money occasionally again because they were in the wrong before? Does the Minister expect councils to be sensible and proportionate?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I assure the hon. Lady that that is what I am suggesting. It is difficult to write proportionality into primary legislation, but I want to ensure that local authorities have the power to deal with a repeat offender. The amendment would remove that capacity.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

In that case, as the Minister has clarified the position, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

I want to press the Minister for clarification on clause 23, which makes it an offence to distribute, commission or pay for the distribution of free printed material in an area designated by a local authority without consent. It has been put to us that the existing powers available to Westminster City council under section 4 of the London Local Authorities Act 1994 have proved insufficient. It seeks the Minister's agreement to recommend that they be developed further to make them effective and to enable their successful extension beyond London. The council believes that the free literature distribution controls have proved to be ineffective, because operators can continue to distribute free literature from private forecourts, many of which are contiguous with and largely indistinguishable from the public footway. Does the Minister know about that problem, and will he look kindly on that suggestion for dealing with it?

I also run past the Minister the conclusion that he reached on page 39 in his Department's regulatory impact assessment, which sets out the quantification of costs and benefits. It states that

''the total set-up cost to local authorities would be between £450,000 and £750,000; and taking account of the costs of enforcement and the cleaning costs saved, on an annual basis there would be somewhere between a net cost of £37,500 and a net cost saving of £525,000.''

It concludes:

''This illustrates that it is not certain whether there would be a net financial cost or benefit to this measure. However, it is important to note that this is a power that Local Authorities would choose whether or not to use. They would only do so where  there is an overall net benefit to using it and this is likely to be in key areas where free literature litter is a particular problem and it is a priority of the authority to deal with it.''

That is quite a negative conclusion to draw, and points to the fact that the Bill is very unlikely to meet its major objectives. Will the Minister satisfy us on those two points?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

We certainly drew on the experience in London when designing the legislation, and discussed it with local authorities that applied the London provisions, as well as with other local authorities that strongly supported the provision of these powers more widely across England and Wales, so they are not precisely the same as the requirements set down in the local government legislation that gave the powers to London.

I am always open to considering suggestions, but the problem of forecourts to which the hon. Lady referred has not been drawn especially to my attention. Perhaps she can give me further and better particulars.

In general, the approach is not at all negative, but extremely positive. It is to extend the powers and the range of options available to local authorities with the message, ''If this helps you, use it, but do not feel that you have to if it does not suit your local circumstances.'' Local authorities have generally been very supportive of the greater flexibility and simplification of various parts of the Bill, which enable them to do what they have been doing up to now but with fewer bureaucratic obstructions, at less cost and with greater ability to nip things in the bud. That, of course, is what we want to achieve.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.