Clause 19 - Litter offence: fixed penalty notices

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee at 2:30 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 2:30 pm, 20th January 2005

I beg to move amendment No. 68, in clause 19, page 15, line 36, at end insert—

'(7A) The Secretary of State may, by regulations, allow a litter authority to which a fixed penalty is payable under this section to treat it as having been paid if a period of community service related to environmental protection is completed.'.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

With this it will be convenient to discuss amendment No. 63, in clause 28, page 27, line 21, at end add—

'(7) The Secretary of State may, by regulations, allow a local authority to which a fixed penalty is payable under this section to treat it as having been paid if a period of community service related to environmental protection is completed.'.

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

In principle, the giving out of fixed penalty notices is welcome; it has been recommended, as it immediately links the crime to the response that it is wrong. As we discussed earlier with regard to chewing gum, when we see a perpetrator committing a crime, someone should make that clear to them, there and then. Fixed penalty notices therefore have a use.

The purpose of the amendments is to identify when a financial penalty may not be the right penalty for a person on a particular income. Local authorities and others incur costs attempting to recover a penalty from someone who might not have been able to pay within the normal period. We propose that there should be other ways in which such people can meet their responsibilities—perhaps they can be given community service instead of a fixed penalty notice. The Law Society has already expressed concern about the use of fixed penalty notices. Were I, in a moment of aberration, to drop chewing gum—although I deny that I would ever do so—I could afford to pay a fixed penalty notice, although it might grieve me that I had to pay it. It would not greatly affect my ability to buy the basics for day-to-day living, although it might affect what I spent on other things. However, the financial situation of more deprived members of society might be made worse by the penalty. A fine of that the proposed level for someone on benefits is a huge proportion of their income, which should be spent on food, shelter, heating and the like. Although we, society—whose views were expressed in the consultation—and the Environment Audit Committee all agree that fines and the fact that dropping litter is a crime need to be made clear, some people would be disproportionately affected by the proposed penalty.

We want to give the Secretary of State the opportunity to allow councils to impose community service orders instead. We want those orders to be related to environmental problems and antisocial behaviour, and to link them to the opportunity to clear   litter and graffiti. Councils often have rubbish-clearing events to give a much higher profile not only to the problems of rubbish, but to the fact that someone has to clear it up. There is nothing like being one of a rubbish-clearing team to bring home the impact of one's own and everyone else's litter-dropping. Time spent clearing up rubbish rather than doing something that they would prefer to do might bring home to people the fact that throwing away rubbish in the street is a bad thing.

We therefore propose community service orders, which would have to be proportionate to the fine in a fixed penalty notice to which they would be an alternative. There needs to be consultation with local authorities and the probation services on the best way of doing that, so that people are made to pay for their crime but in the best way possible. We do not prescribe how that would be done, but we want the Government to consider the social impact of such penalties.

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

I regard the amendment, which was tabled by the hon. Member for Ludlow (Matthew Green) and moved by the hon. Member for Guildford (Sue Doughty), as an entirely constructive suggestion. However, introducing such provisions formally would lead us on to the hierarchy of penalties that are involved in court sentencing procedures. Also, the costs involved in supervising a community service order as an alternative to payment of a fine would fall on the public services. There would be problems with such an arrangement.

We must be clear in our sentencing system. I have been involved in the issue practically, both as a sentencer during the years I sat in the magistrates courts in Cardiff, and in the supervision of people under community service orders. I am a great fan of the idea of reparation, because it engages the offender in doing something about the outcome of their offence. However, one thing that I have learnt in dealing with criminal justice policy is that one must be clear what the sentence is, what the consequences are, how it will be administered and what the expectations of the person being sentenced are. We cannot stray into that area, almost accidentally, by accepting the amendment.

None the less, I have been exercising my imagination and wondering whether it would be possible for local authorities that wanted to adopt the approach that the hon. Lady suggests to do so; I think that it would be. It would be open to local authorities to establish voluntary schemes for people to undertake work for the improvement of the environment—indeed, many local authorities have such schemes or co-operate with voluntary organisations in their areas in order to introduce them. A few weeks ago I spent some time with a group of volunteers in St. Mellons in my constituency. Some of them were from the hostel for the homeless in south Cardiff and some were from the Fairbridge project, which works with young people in the city. They are two excellent projects, albeit not ones that would normally be associated with litter, but they were running a scheme in which quite a few   people, some young, some older, were doing something useful, engaging socially and learning about litter and fly-tipping in consequence.

If there were such a scheme, it would be possible for a local authority to make it clear that it would not serve a fixed penalty notice, or to offer to withdraw the notice, if the perpetrator was willing to put some time in. I do not think that we could create such a structure in the Bill, but I think that there is merit in the hon. Lady's suggestion, which might bring benefits, with a little lateral thinking locally,. The fixed penalty could, in effect, be the standard penalty, which would allow the offender to avoid going to court, but other options might be offered.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities 2:45 pm, 20th January 2005

May I clarify one point? If a council issues a fixed penalty notice, will it be entirely at the council's discretion to commute it into some form of payment in kind—reparation might be one possibility—rather than insisting on payment? That seems to be what the Minister is saying, but I want to be absolutely clear.

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

The point is that the local authority has two alternatives: either it gets the money from the offender or it prosecutes; it is not a question of not pursuing the fixed penalty. It would be perfectly open to the authority to say, ''Ok, if you do a bit of work, we won't prosecute.'' The form of words used would be slightly different, but the end result might be the same. The point, however, is that there would be an opportunity to do something a little different. It would need quite a bit of thinking through in terms of the messages that were being given, but it would not be impossible for a local authority that really wanted to do so to put something constructive in place in its area to encourage engagement in clearing up, instead of taking people to court.

I am trying to respond positively and constructively to what is behind the amendment. There is, however, no possibility of accepting it, because it would muddle the fixed penalty notice with sentences of the court and the hierarchy of ways of dealing with offenders through the formal court and criminal justice system. However, there might be something in the proposal that a local authority could pick up as a way of designing local provisions, which might have the benefits outlined by the hon. Member for Guildford, as well as benefits in terms of engagement and education about the impact of litter on an area.

I hope that the hon. Lady will withdraw her amendment, because even though I cannot accept the amendment, we do not disagree about wanting to achieve greater engagement and flexibility in dealing with offences. I hope that the hon. Lady accepts that I am trying to meet her halfway and to be constructive about her suggestions.

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

I thank the Minister for his positive approach to the amendments. This is an important point. When the Environmental Audit Committee   produced its report ''Environmental Crime and the Court'', two concerns emerged loud and clear from witness after witness, and from the memorandums that the Committee received. The first, which is not relevant to this debate, was that people thought that the fines given in court were not high enough and that courts were not sentencing to the level that they were allowed to. Secondly, however, people were concerned that fines were sometimes a blunt instrument, which did not take account of income and ability to pay.

I very much appreciate the Minister's points and I shall withdraw the amendment, but before I do, I want to press him a little further. Given what he said about considering a more creative approach, when the Bill becomes law will he be able to incorporate in his guidelines something along the lines of our amendment and others that will be tabled later?

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

It might be difficult formally to include in guidelines something that is not in the Bill, although one might find ways of signposting such suggestions. A community service order would be required for someone formally to undertake a period of community service, and of course it is open to the court to impose such an order instead of a fine when the person is prosecuted and taken before it. There is therefore an avenue in the criminal justice system by which one can reach the community service order. We encourage local authorities to consider imaginative schemes and to think laterally. We are trying to avoid putting new burdens on them, but working with them to make use of opportunities. Our discussions are not just about how we implement legislation, but about how we set legislation in the wider context of doing things differently and better, and of engaging the public, including those who offend. We are trying to create a better situation for the future. My answer to the spirit of what the hon. Lady is saying, rather than to the particulars, is yes.

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

I appreciate those comments, which go a long way to getting on the record the opportunities that are available to councils. We are not trying to make life over-arduous for councils, but in the end persistent offending is a cost to them, as is clean-up. We are all trying to obtain practical, common-sense solutions. I hope, as a result of this debate, that the Minister will take any opportunities available to use the guidance given to councils and to the courts to tell them that it is available. There is a slew of areas in which we are looking for legislative remedies to environmental crime, so anything further that the Government can do will be appreciated. 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. 69, in clause 19, page 16, line 7, after 'council', insert

'with accreditation under the Quality Council Scheme'.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

With this it will be convenient to discuss amendment No. 72, in clause 19, page 16, line 24, after 'section', insert

'; or for conferring authorisation to give notices under this section onto his employees.'. 

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

We touched on the content of amendment No. 69 on Second Reading, but we tabled it in Committee to elicit clarification and to ensure that the subject is clearly understood. We are concerned about parish councils—those that might not be fully elected and rely on co-option—that might take upon themselves responsibilities greater than they should reasonably be given. If we are to have democratically elected councils using powers in the Bill as proposed, that must go right down to parish level. We have looked at the accreditation within the quality council scheme and are recommending that that be incorporated.

Amendment No. 72 deals with people who are not council employees. We are concerned that people who are employed by the council to carry out environmental services, such as waste contractors, are not telling people such as dustbin men, ''You actually have the ability to issue fixed penalty notices.'' The amendment is designed to obtain clarification about council employees and contractors; we hope that the Minister will be able to confirm that that the provision does not mean that a council can discharge its responsibilities through its waste contractors. There should be greater clarity about which people the council might appoint to issue fixed penalty notices.

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

I am grateful for the hon. Lady's explanation of her amendments and for making it clear that they are probing. I will respond in a similar manner.

I have some sympathy with the first amendment and the promotion of the quality parish and town council scheme. The scheme recognises the effort put into achieving qualifications and quality, and an essential part of achieving its requirements is to have elected councillors. The reference to quality councils is therefore entirely appropriate, but the provision is a little too restrictive to be in the Bill. I personally expect it to be the quality town and parish councils that take up the powers and that have the capacity to do so. I considered such an approach of limiting the provision to quality councils when we were looking at the design of the Bill, but concluded that that was not appropriate, partly because a quality council may be very small or very large, and the difference in capacity could make a difference. In discussions with the Local Government Association and the National Association of Local Councils, the general feeling was that a common-sense approach will be adopted: those councils that have the necessary employees and capacity will go for it. By and large, the councils that are ambitious to do the best for their local area are the ones that are going through the quality process. That is becoming increasingly popular and regarded as an encouragement by local authorities.

The Bill allows regulations to be made. We envisage that they will prescribe the conditions that authorised officers of parish councils need to meet before issuing penalties. We undertake to look at the issues that the hon. Lady raises in relation to those regulations. The regulations can set out qualifying standards that have to be met before parish councils can retain the receipts from fixed penalties. Again, that will encourage parish   councils to achieve the higher standards. To complete the circle, achieving higher standards is best reflected in the award of quality status.

The provision to prescribe conditions that have to be met by those authorised by parish councils to issue penalties applies to anybody who is authorised to issue a fixed penalty notice on behalf of parish councils, including employees of other bodies. I should make it clear that anyone who issues a fixed penalty notice on behalf of a parish council has to be authorised in writing to do so by the council itself. For that reason amendment No. 72 is unnecessary.

I welcome the thrust of what is being said about those who undertake the work, who must be appropriate people and should be encouraged to be properly trained. However, the hon. Lady should not to be too dismissive of dustmen. My teacher at Sunday school in the chapel was a street cleaner and he was a wise and far-sighted man. The general public in Llandudno would have been well served had he been given these powers. Let us not be too dismissive of the individuals who might be given them.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

When the Minister is talking about the people a council can authorise, will he make it clear that the council cannot authorise its own elected members to issue fixed penalty notices? There appears to be nothing in the Bill that would stop a quality parish council giving the parish council chairman the ability to issue a fixed penalty notice. I hope that that will be ruled out in secondary legislation.

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

Again, that is the sort of issue that we would cover in regulations. Undertaking executive duties would be confusing. The possibility had not crossed my mind. An individual might want those powers, but a council might take a rather different view, but I will look at that point in relation to the regulations. I hope that the hon. Lady will feel able to withdraw her amendment.

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

I thank the Minister for his response. On the subject of whether dustmen should be able to issue fines, I take his point about Sunday school teachers. I used to know a dustman who was a poet: he worked as a dustman in order to give himself time off to write poetry. Some of it was very good and some of it was set to music by Emerson, Lake and Palmer. None the less, it did not necessarily qualify him to give out fixed penalty notices. With the Minister's assurances in place, 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. 71, in clause 19, page 16, leave out lines 17 to 19.

No. 88, in clause 23, page 25, leave out lines 4 to 7.

No. 89, in clause 23, page 25, leave out lines 8 and 9.

No. 95, in clause 48, page 44, leave out lines 42 to 45.

No. 96, in clause 48, page 44, leave out lines 46 to 48. 

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

I think we can deal with the amendments fairly quickly. They are along the same lines as the previous group and relate to the contracting out of powers to issue fixed penalty notices to contractors and their employees—we are back to the dustmen, I am afraid.

We are seeking greater clarity. The powers in clause 48 are for dealing with offences relating to the collection of waste, so we consulted the Environmental Services Association, which is a body that often deals with waste collection and disposal. The ESA made it clear that its members do not want to have the power for their employees to issue fixed penalty notices. The association said that as currently worded, clause 48(10)(b) and (c) appear to allow refuse collectors, including employees of the association's members, to issue fixed penalty notices.

Refuse collectors can have a role in offering advice to householders about their legal responsibilities and informing the local authority about badly littered areas. However, although the association recognised that co-ordination between waste contractors, local authorities and the Environment Agency could improve the enforcement of litter laws, it felt that that job should be done by full-time professionals employed by the local authority. The association wants consistency, although it is supportive of the general move and encouraged by the knowledge that the Government take the issue seriously.

3 pm

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

In so far as it is a question of people who are appropriate and have the appropriate training in issuing notices, I agree with the hon. Lady. We will make that very clear in guidance. The problem with the amendments is that they would prevent local authorities from authorising any subcontractor or the subcontractor's employees to issue fixed penalty notices in respect of various litter and waste offences on behalf of the local authority. We feel that it is important that local authorities can decide on the delivery of their services. The clause is consistent with that and with the Government's freedoms and flexibility policy for local authorities.

Local authorities, let us remember, will not be coming to this anew. They have a raft of experience of issuing fixed penalties. We would expect them to authorise only those subcontractors and their employees who are competent to undertake the work and for them to have the appropriate training. Who then undertakes the work for the local authority should be for the local authority to decide.

The clauses will give local authorities greater power to take enforcement action, because they increase the number of officers who can take action against offenders. I take the point entirely that the job needs to be done professionally, but that does not necessarily mean that only a full-time professional can undertake such activity. What is important is that it is someone who is available and competent to do the work and who has the appropriate training for the specific issuing of notices. I am certainly at one with the hon. Lady in what I understand her to be calling for. We will indeed reinforce that in the guidance. 

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

I thank the Minister for that assurance. The amendment was designed to draw out those facts. We would have no problem with people who are trained to do that job, even though it is part of their other duties. 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 clarify a couple of points. I understand that fixed penalty notices will either be set by statute or be subject to a national framework setting maximum and minimum levels. I hope that the Minister can confirm that the local authorities that will have to implement the provisions will be consulted before those levels are set. Does he intend to set out the detail in regulations? I am sure that he will have received representations that the fine levels are set too low to be effective. Will there be a default level?

According to the Library research paper, the default level is set at £75 in unspecified areas. Could the Minister be more specific about that? The note states:

''The Bill enables local authorities to specify the amount of fixed penalty to be applied to an area.''

Will the default level be across the board?

I understand that clause 19 will create a new offence of withholding or giving a false name and address to a litter officer. What fixed penalty will be applied to that?

Parish councils and community councils will also be classified as litter authorities, which will give them the power to appoint authorised litter officers. Litter officers will no longer have to be employed by a litter authority. The Conservatives are champions of parish councils; we are delighted to see them involved as far as possible, but the Minister will recognise that parish council budgets are necessarily small, so it would be of some interest to the Committee to know how they are to be expected to pay. Who will the new litter wardens be? Will they be volunteers for the parish council, acting as litter wardens? What level of training will be given to them, and how will it be paid for?

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

I am grateful to the hon. Lady for putting a number of questions, which I am happy to answer. Some answers apply not just to clause 19 but to others. She is right to say that some parishes are very small; indeed, I made that point earlier. That is why this clause is permissive. There is no requirement to undertake action, but if the parish council feels that something is needed in their area, it is not totally dependent on the actions of the district council in order to tackle the problem. Let us also acknowledge that many parish councils and town councils have a lot of experience in that area of activity. They undertake the running of car parks and a variety of other roles in their localities, so they will not be totally devoid of experience.

As I said, when I discussed the provision with the National Association of Local Councils, it was very clear that it expected its members to approach the matter in a common-sense way. It said that it makes sense if there is a problem in their area for councils to   undertake such activities on their own behalf if they have the capacity to do so. Those are exactly the questions that it is sensible for us, having included the provision, to leave for them to decide.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

Are not the only parish and town councils that could take this on those that have employees? Most of the smaller parish councils only employ a clerk to take the minutes four times a year, and are unlikely even to be in a position to think about taking action. Doing so is limited by the size of the council, and that acts as a safeguard.

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

The hon. Gentleman is right, although I would not preclude the possibility of a number of councils employing somebody jointly. I came across one example in one of the national parks; a council had undertaken a positive initiative in conjunction with a couple of other villages, and it was working very well. They were proud of what they were doing. If people at a local level think that it is important enough to put energy and their limited resources into that, I am happy for them to do so. I am equally sure that, to a great extent, the issue will be self-policing and self-limiting by the capacity that people have. I would not entirely rule out a small council, but in general terms, the hon. Gentleman is right.

Most of the answers to the specific questions asked by the hon. Member for Vale of York (Miss McIntosh) are straightforward. Yes, we shall be consulting the local authorities, and they will have an opportunity to comment, and levels will be set in regulations. She is right to point to the default fine level of £75. We want the flexibility for local authorities to go lower or higher than that if they want to. With fixed penalties, there is almost an element of self-regulation, in that if the fine is too high, people will say, ''All right, take me to court then.'' If the penalties are set at a level that people feel is inappropriate, we shall end up with more litigation, which is not the purpose of a fixed penalty notice. Whatever limits we set, I think that things will generally settle down. Some councils will be able to be highly effective by exercising flexibility. I do not want to put a figure on it, but we are certainly not talking about anything like the level 3 fine, which is up to £1,000. We are talking more about something in the order of £75 or £100. As I say, I hesitate even to mention figures, but I hope that that gives an idea of the order of fines.

Should an individual fail to provide a name and address, they would be committing an offence and would be prosecuted for it. A fixed penalty notice would not be issued to them if they failed to provide a name and address; indeed, it would be difficult to so do because the whole point is that a name and address are needed in order to issue the penalty. The person would be taken down the prosecution route. It is important to do that, otherwise certain individuals who have little respect for authority will be tempted to put up two fingers to a request to provide their details. I hope that, with that explanation, the hon. Lady will feel able to support the clause standing part of the Bill. 

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

I am most grateful to the Minister; it is helpful to know the default level and its implications. I should like to place on record the fact that many parish councils will find such action beyond their abilities, but I pay tribute to those whose councillors often act as wardens, giving flood alerts and doing all sorts of activity that one would not normally expect of them.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.