Clause 40 - Defence of acting under employer's instructions

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee on 25th January 2005.

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

Photo of David Ruffley David Ruffley Opposition Whip (Commons) 9:25 am, 25th January 2005

I welcome you to the Chair, Mr. Taylor, in a capacity that I am not used to filling. For the benefit of today's proceedings, I am a talking Whip. I am trying to fill the shoes—some would say that it is an almost impossible job—of my hon. Friend the Member for Vale of York (Miss McIntosh), who is unavoidably detained on business elsewhere. Hon. Members may wonder how anything could be more pressing than part 5 of this Bill, and I cannot fathom why she should not want to be here.

The clause needs briefly to be put in context, so I hope that you will not rule me out of order, Mr. Taylor. It covers the defence of acting under employer's instructions, but it is in line with the other clauses of this part of the Bill, which tighten up the penalties for illegal disposal of waste and fly-tipping. Much fly-tipping is prompted by the desire to avoid existing penalties and sanctions. Many unscrupulous people think that the controls and charges associated with the disposal of waste are worth avoiding. They want to avoid paying a fee for collection by a local authority, having to have a waste licence or having to pay landfill tax. Although fly-tipping is a criminal offence, some people are not yet deterred by the penalties attached to it, which can be a fine of up to £20,000 or six months' imprisonment if convicted in a magistrates court, and an unlimited fine or up to two years in prison if convicted in a Crown court.

We all understand why, at United Kingdom and European level, there is a demand for the tightening up of penalties and the drawing of offences. However, before discussing the meat of clause 40, which provides an almost instantaneous and considerable change, we have to be mindful that tightening up the offences and the penalties associated with new offences may make it more attractive for potential transgressors to try to avoid the law. The higher the penalty, the more attractive it may become economically to try to get around the law.

What consideration has the Minister given to the possible intimidation of employees by their employers when asked to carry out unlawful activities? The clause, in effect, repeals section 33(7)(b) of the Environmental Protection Act 1990. Why is there a need to repeal it now? What was the reasoning for that defence for employees? What has changed in the intervening years that means that employees should get less protection? We need to have a better understanding of the position of employees under the clause.

In short, does the Minister agree that it would be unfortunate if employees were unfairly prosecuted if it could be shown that they were under undue pressure and forced to carry out such duties against their will? Are there any other legal dispensations that would give an employee who is being coerced or threatened protection against his employer, because the clause appears to render any necessary protection nugatory? There will be no statutory protection. I look forward to hearing the Minister's comments on those focused points.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs 9:30 am, 25th January 2005

May I start by saying how good it is to see you in the Chair this morning, Mr. Taylor? I always enjoy serving on Committees under your stewardship. May I also welcome the hon. Member for Bury St. Edmunds (Mr. Ruffley) on his guest appearance?

Clause 40 amends section 33 of the 1990 Act under which it is an offence to dispose of waste illegally. The amendment, as the hon. Gentleman rightly states, removes the defence of acting under one's employer's instructions. The hon. Gentleman said that an employee of a company may be threatened and intimidated. That is quite possible. I am sure that was the reasoning for the original provision in the 1990 Act. The problem, as hon. Members may know, is that that is used as an enormous loophole. An employee can use that defence when he has been apprehended for illegal activities. He can argue that he was simply following orders, and we all know the connotations of that. It is too great a loophole.

The court can take a genuine case of intimidation and bullying into account as a mitigating factor. It does not detract from the fact that it is an illegal activity. Someone has carried out an illegal activity, whether or not they were being intimidated or bullied. Those individuals should bear some responsibility, but the intimidation is a factor that could be taken into   account by the court and that could influence the level of fine or other punishment. It is important that we do not allow this loophole to remain. I hope that the hon. Gentleman accepts that the courts can take this into consideration. He made some valid points, but it is important to close the potential loophole.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I understand fully the Minister's argument. If a person could use the excuse that they were operating under orders and got off because of that, and no one was therefore considered to be culpable, clearly that would be useless. We want to see an end to any unlawful depositing of waste.

What guidance will be issued to employees about what rights they have? If they were to say to an employer that they would not do what they were asked, they could risk losing their jobs and their livelihoods.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

Anyone who is involved in the waste business and waste transfer should have a licence, and there is a duty of care that goes with that. Part of that duty of care is the responsibility of the employer to make their employees aware of the law. Each case is different, and if there are mitigating circumstances in relation to the actions of an employee, the courts can take that into account. However, even for well-meaning reasons, we must not allow a potential loophole in the legislation that the unscrupulous can exploit. Sadly, the 1990 legislation has been exploited, which is why it is important that we close that loophole.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I thank the Minister for his response. His point about mitigation relates to sentencing not to liability. If the offence has been committed the employee, even if he or she has been bullied into it, gets the criminal record. The intimidation or bullying is beside the point.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

Does my hon. Friend agree with me that if an employee has been threatened and feels that his job and livelihood are at stake, that employee should not be in the dock? We want the unscrupulous employer in the dock for harassing their employee to tip waste.

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I agree with my hon. Friend. That is an example of the compassionate Conservatism that we on this side of the Committee now exhibit—[Interruption.] The Minister pays us compliments—at least, I think that they are compliments—from a sedentary position. My hon. Friend and I take seriously the point that unscrupulous employers—unscrupulous and ruthless business men—do a disservice to capitalism. We believe in capitalism and free markets, but we should, without fear or favour, condemn unscrupulous business practice where it occurs.

I return to the point that the Minister raised about mitigation. Mitigation is considered when sentencing takes place; it is not on the merits of the criminal case that is brought against the accused. The Minister talks   about there being a huge loophole. What is the percentage of occasions on which an action has been brought under current legislation, and on which that defence was prayed in aid by an individual or company? If we have that statistic, we can better estimate the size of the loophole and, if we know the hugeness of the loophole—to use the Minister's phrase—we will better understand the need for the clause. I hope that the Minister can furnish me with that information.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

Some of the figures may be difficult to extract. However, I shall respond to the other general points that the hon. Gentleman made. Prosecutions can be taken against the employee and the employer, depending on the circumstances. I would not want him to think that an unscrupulous employer who intimidated an employee into taking part in a criminal action relating to fly-tipping would get away with it, because both can be prosecuted under the law. However, it is not a defence for most offences committed in the course of someone's work that they were under instructions.

I am not unsympathetic to the points made about bullying and intimidation, because that does go on, and what the hon. Gentleman says about mitigation in relation to sentencing is of course true, but the person has committed a criminal offence. It may be easy for those of us who do not know the circumstances or the pressure that people are under to say that, but they should not commit a criminal offence, because of course that makes them liable too. They should report what is happening; there is action that they can take. The hon. Gentleman talked about the unacceptable face of capitalism. I gently remind him that we have of course been advocates of trade unions, whose aim is precisely to protect the interests of people who are put in those circumstances and to give them a defence. There is provision for such people, and steps that they can take.

There is a big loophole. I cannot give the hon. Gentleman detailed information as to the exact number of cases, and it may be very difficult to acquire that information, but I know from discussions with the Environment Agency and local authorities that they have been frustrated by people who have tried to use the defence that they were under instructions. That is why the measure is supported by the Local Government Association and the Environment Agency; because they can see that it will make the legislation more effective.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

As I have already intimated to the Minister, I can see that the current law is fairly ineffective. I imagine that, if we left the law as it is, every time someone was caught putting waste somewhere where they should not, they would plead that they were operating under orders and there was nothing that they could do, and therefore no one would ever be convicted of the offence. I therefore understand why the Minister is advancing the clause, and I am fairly sympathetic towards it. However, we shall discuss sentencing later, and there are hefty fines in relation to clause 40. Indeed, the end result could be   a jail sentence. The clause could lead to someone getting a custodial sentence. That is why we must get the provision right.

I hope that the Minister will give us some assurances. I heard what he said about the licences under which people operate and the fact that there is a duty on the employer to ensure that everyone knows exactly the law under which they operate and the things that they ought not to do. The Minister is one of the more commonsensical Ministers in the Government—a rare breed—and knows the reality of the world in which certain businesses operate. Indeed, we are all realistic enough to know that there are unscrupulous employers and some businesses will say that they are under pressure to turn a profit. Given that the costs of disposing of waste legally are quite high, there may be temptations for unscrupulous employers and businesses working on the margins to dump waste where they ought not to do so. Clearly, however, that should not be allowed.

I therefore hope that the Minister will give us an assurance this morning that, despite the fact that there the employer has a duty of care, sufficient publicity campaigns will be provided. For instance, if an employer had to employ somebody, they would have to have a certificate on the wall to show what they were doing. Health and safety require posters to be displayed in relation to certain practices that have to be followed in a business. I hope that the Minister will assure us that there will be a requirement for publicity campaigns for businesses that deal with any waste, so that employers and employees know where they stand under this clause and clause 41. They must know what breaking the law will entail, what the conviction rate is likely to be, what likelihood there is of imprisonment and what fines will be imposed.

I feel for employees who are put in an almost impossible position because they come under pressure from unscrupulous employers. They risk losing their jobs, or never getting overtime because extra work goes to people who are prepared to dump waste. When employees who know what is going on decide to become whistleblowers—when they blow the gaff, which is what we want to encourage—they should know that they will have some protection, and not end up in the dock themselves. If the employer then decides to give information that the employee—

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

Thank you, Mr. Taylor. I will end now. I am looking for an assurance that when clause 40 becomes law there will be protection, that there will be sufficient publicity, and that guidance will be given to employees about what they should do if they are told to do something that contravenes the clause.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I can certainly give the hon. Gentleman the assurance that we regularly meet trade associations for the waste companies; they take a very responsible   position on these issues. The hazardous waste forum includes the Federation of Small Businesses and many small and medium-sized enterprises. It is true that some companies may not be part of a trade association, but the Environment Agency has programmes for ensuring that people are well aware of the law. I will talk to the hon. Gentleman about ensuring that people are aware of the changes that we are discussing today.

Whistleblowing is not within the remit of the Bill, but measures are being taken to protect the rights of whistleblowers.

Question put and agreed to.

Clause 40 ordered to stand part of the Bill.