Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018
Baroness Vere of Norbiton
That the draft Regulations laid before the House on 21 December 2017 be approved.
Baroness Vere of Norbiton (Con)
My Lords, I am pleased to introduce these regulations in your Lordships’ House today. I must begin by thanking my noble friend Lord Marlesford for his tireless campaigning over several years to bring these regulations to the statute book. I know from previous debates on this subject how strongly Members of this House feel about litter and littering. We launched the first ever litter strategy for England in April last year, which sets out our aim to clean up the country and deliver a substantial reduction in litter and littering within a generation. While improvements in education and disposal infrastructure are essential elements of our strategy, we must also ensure that councils have appropriate enforcement powers to back up the fundamental message that littering is not acceptable.
This brings me to the regulations before your Lordships’ House today. The purpose of these regulations is to make it easier for councils to take appropriate enforcement action to tackle littering from vehicles, by holding the keeper of the vehicle responsible. These regulations will give powers to councils in England, outside London, to issue a civil fixed penalty notice to the keeper of a vehicle when an enforcement officer has reason to believe that a littering offence has been committed from the vehicle. As set out in the underlying primary legislation, these powers may be given only to bodies that are under a statutory duty to keep their relevant land clear of litter and refuse. The powers will therefore be conferred on district councils—or the county council in an area for which there is no district council—in England, outside London, as well as the Council of the Isles of Scilly. In this context, a district council includes authorities that may call themselves district, metropolitan, borough, unitary or any other name; it simply means the council for that district. London boroughs, as your Lordships know, already have similar powers under private legislation.
I emphasise that the person liable to pay the penalty is the keeper of the vehicle from which litter is thrown at the time of the offence. This is presumed to be the registered keeper unless proven otherwise: for example, because the vehicle has been sold or stolen, or was hired out to someone else. Vehicles such as buses, taxis and private hire vehicles are exempt from liability if the offence is committed by a passenger.
The penalty amount payable is set by the litter authority and must be the same as the level of fixed penalty for littering in the area. From 1 April 2018, the Environmental Offences (Fixed Penalties) (England) Regulations 2018 will increase the maximum fixed penalty for littering from £80 to £150, with an increase in the default level of penalty from £75 to £100. From April 2019, the minimum fixed penalty for littering will also increase, from £50 to £65. The regulations on littering from vehicles therefore reflect these higher penalty amounts.
If the penalty is not paid within 28 days, and the recipient has not made any representation against the penalty notice, the regulations provide for the amount of the penalty to be increased by 100%—in other words, to double. If it is still unpaid, it can be recovered by the litter authority in the county court. Similarly, the regulations enable litter authorities to encourage prompt payment by offering a discount if the penalty is paid within 14 days. However, the discounted penalty must not be less than £50.
The penalty notice must give details of the alleged offence, the amount of the penalty and deadlines for payment, and information about what will happen in the case of late payment. It must also set out how the recipient may make representations or appeals against the penalty notice. It is of course crucial that any enforcement action is proportionate and in the public interest. The regulations provide for a number of grounds on which the recipient of a penalty notice may make representations to the litter authority against the issue of a penalty. If the recipient makes representations to the litter authority on one of the listed grounds, the authority must consider the representations and respond. If it agrees, it must cancel the penalty notice—and if it rejects the representations, it must also advise the recipient of the penalty that they have a right to appeal that decision to an independent adjudicator within 28 days. We are grateful to the Traffic Penalty Tribunal for agreeing to hear these appeals.
By giving councils this additional power to take action, we believe that these regulations will operate as a greater deterrent to those who may be tempted to litter and will reduce the build-up of litter on our roadsides and verges. I commend the draft regulations to the House.
Lord Marlesford (Con)
My Lords, obviously I welcome this very small step in the battle against litter and I am most grateful to my noble friend for introducing it. There are several lessons in it. It has taken an awfully long time. This requirement was introduced in the then Anti-social Behaviour, Crime and Policing Bill, which received Royal Assent on 18 March 2014—so it is now nearly four years old. That must be nearly a record for slowness in complying with the will of Parliament. It is, of course, a long way from the record of 10 years achieved when I persuaded this House, when I first arrived here, to introduce a requirement for an electronic central register of firearms. It was 10 years before that happened. The department did not like it and decided to ignore it for as long as it could. I had support from all parties and 10 years later it happened. That was about 12 years ago and it works extremely well—but that is beside the point.
I suspect the reason the department has delayed this provision for so long is that neither the Home Office nor the environment department wanted it. Eventually I obtained help from the then Home Secretary—now my right honourable friend the Prime Minister—and the then excellent Environment Secretary, the right honourable Owen Paterson, who personally intervened. Indeed, my noble friend the present Chief Whip of your Lordships’ House was the Minister who put it into practice—for which I am extremely grateful. But it has taken an awfully long time. The essence of this is that for a long while it has been a criminal offence to throw litter out of a car—but nothing is ever done about it because you have to prove who threw the litter.
I pay tribute to CPRE, of which I was chairman for five years some years ago, for campaigning for this measure from 2008. It will operate like a parking offence. If I lend you my car and you park it in the wrong place, I will get the parking ticket. That is sensible. There is no dispute and I can then, I hope, get the money back from you. Another plus of these regulations is that they decriminalise this offence. Previously, it was a criminal offence, which was virtually never successfully prosecuted. Now it is a civil offence with a civil penalty, which I hope will work. The penalty is actually very low. We have heard about the £100 basic penalty. This can go up if people do not pay it and can be halved if they pay it quickly. It is a small sum.
The Minister referred in particular to proportionality. It is important to administer this penalty proportionately. We do not want to discredit it by applying it to someone throwing a matchstick out of a car; we want to catch people who throw out containers, Big Mac packs and all that stuff. Another way of tackling this, which I hope the Government will soon introduce, is to bring in rules about deposits on returnable containers. This was introduced in the United States 30 years ago, originally in Oregon, and works very well because when the affluent discard these containers the less affluent pick them up and hand them into shops to collect the money.
Lord Bassam of Brighton (Lab)
My Lords, I was not going to intervene in this discussion but I am fascinated by this debate on littering. The noble Lord, Lord Marlesford, is a wonderful chap. I love his persistence. I well remember the guns registration issue because he rightly hounded me on it for two years. As he said, the then Government eventually sorted it out. He was right to say that that measure was obstructed inside the then Government.
I have a beef and it is called the A27. I am delighted that my noble friend Lady Jones is on our Front Bench because the A27 is the litter epicentre of the south-east. What grieves me most is that it is clear that someone there is failing to take responsibility for clearing it up properly. I would like to know who that is. I think the responsibility rests with the Highways Agency as I am sure that I have seen its contractors tackling this but they appear only once a year. In the intervening period, that road is a haven for rubbish and litter. That is not good enough. One of the reasons for the litter is that the road is not cleared frequently enough and a contract to do so is not let over sufficient phases of the year. I believe that this has a lot to do with the fact that contracts are not let in that way and that contractors do not have an obligation to clear the road when it becomes badly littered.
I have a serious question about this legislation, which I am sure is very well intentioned: what is the incentive for a district council to become involved in proceedings—civil proceedings at that—and follow up complaints made to it? Where is the incentive for it to deploy the “person power” to enforce this legislation? There are already enough financial pressures on local councils regarding all the other things they are supposed to enforce, so I cannot see that they will want to chase complaints and complainants of this sort. No doubt this is a very well-meaning measure but I guess that it will be barely enforced, as has been the case with all other litter legislation in the past. Will the Minister do some research on this and tell your Lordships on how many occasions people have been brought before the courts and fined for littering offences in the last two or three decades? My mind goes back to the time when Margaret Thatcher was Prime Minister. She introduced legislation by which she tried to grade the litter acceptability of land, and we were told that it would solve the problem. The problem is still with us and, until we get regular cleaning of the waysides and footpaths along roads and highways, it will not be solved.
This legislation is clearly well-meaning, but we need to know a lot more about the incentives to local government and the level of activity that has been employed so far in enforcing legislation in the past.
Baroness Stowell of Beeston (Con)
My Lords, I will make a brief contribution to this debate. I welcome these regulations, which tackle an important matter. However, I will use this opportunity to say something a bit more broadly about the topic of litter. While it is important that regulations are available to local authorities to go after people who commit these offences—doing things that are so unacceptable to us—it is also worth thinking about what more we can do to prevent litter in the first place.
Earlier this week there was a significant debate here in the Chamber about the Government’s environmental plan, and I was disappointed only that I was not able to participate in it. I absolutely share the commitment of the Government—and so many people—to a lot of the initiatives we are adopting to preserve our environment, and it is right that the Government, schools and everybody else use interest in preserving marine life and so on to encourage interest among young people and everybody else in the environmental issues that form part of the Government’s environmental plan. However, in the last few weeks the Government’s litter strategy, published just before the 2017 general election, caught my attention. It is incredibly important.
One thing that is a nuisance for us is the increasing litter we see, not just on our roads and our pavements, outside shops and fast food restaurants, but on public transport. We are not doing enough to encourage ourselves as citizens to take on responsibility for tackling these sorts of things. A few weeks ago I managed to gate-crash a meeting of a local authority about litter and the litter strategy, where I had the huge privilege of meeting the environmental manager for the area I live. This gentleman had worked for the local authority and is now in one of the subcontracted companies, and is responsible for litter. He cared very much about our area and was absolutely passionate about keeping our streets clean. I liked this chap. Through him, we managed to get some additional litter bins on our public roads in the area.
I wanted to have a conversation with one of the local shopkeepers, whose outside area can be rather unkempt and which rather lets us down because of the increasing litter. I spoke to him about the litter outside his shop and said, “You know, you are a very important man in our community. You are responsible for one of the most important hubs of our local environment”. I was able to encourage him and his sense of his importance in keeping our area clean and devoid of litter, and I do not think that he had ever understood and appreciated just how much of an important role he plays in his society.
While it is important that we have regulations that tackle people who adopt these kind of nuisance behaviours, that should not mean that we should avoid encouraging people to accept responsibility. We should acknowledge the importance of people, whether they are shop managers or bus drivers who find people abusing the vehicles that they are proud to drive themselves, and get behind them to support them to maintain the standards that are so important to us. That should prevent these kind of regulations ever having to be deployed.
Viscount Simon (Lab)
My Lords, I will be brief. In many other countries there is no litter on the ground or the roads at all. How come? Their drivers are encouraged to have litter bins in their cars. Why cannot we do the same?
Baroness Bakewell of Hardington Mandeville (LD)
My Lords, I am grateful to the Minister for her introduction to this important piece of legislation. I declare an interest as a district councillor. I was interested in the contributions made by the noble Lord, Lord Marlesford, and the noble Baroness.
We have all seen cars driving past us, or followed cars from which rubbish has been thrown carelessly out of the window. As we have heard, litter is one of the scourges of our throwaway society. When I was growing up, it was very unusual to see the countryside and pavements littered with bottles and packages. Sadly, now it is commonplace. If this issue is not addressed, we will all be knee-deep in litter. As the noble Lord indicated, there appears to be an attitude among some car drivers—but not all—that they do not need to take their rubbish home and dispose of it safely. Winding down the window appears to be a better option for some of them.
In the market town of Yeovil a few years ago on a retail park site, KFC, previously known as Kentucky Fried Chicken, opened a first new outlet. On the day it opened, a free meal was offered to the first batch of customers. The queues of cars to get to the outlet stretched around the site and down to the bypass. I believe that in excess of 6,000 meals were served that day. Sadly, afterwards, the litter from the takeaway meals was strewn for many miles around the town and countryside. The fact that this opening was such a major event in Yeovil says a lot about the level of leisure activities available—but that is another matter.
Fining motorists for discarding their litter from cars is a start to helping to solve this problem. However, it also has to be tackled at source as well. Burger King, McDonald’s and KFC, as well as other outlets of a similar nature, have their part to play: first, in providing incentives and signage, encouraging their customers to dispose of their litter sensibly and with a view to the state of the environment; but also in making their packaging biodegradable, including their drinking cups and straws and the food containers. It will simply not be good enough to say that it is only on “Blue Planet II” that marine life is endangered by plastic. What of the rarely seen hedgehog, the urban and rural fox, and badgers, mice and voles, which are all likely to pick up and try to eat discarded waste that smells so invitingly of food?
This piece of legislation is long overdue. The keeper is responsible for the action of their passengers. It contains exemptions for taxi drivers, who may not be able to control their passengers’ bad habits. The language in the SI makes it very clear what processes will be involved to ensure that those guilty persons are pursued and fined. There are appeal mechanisms and adjudicators.
My concern is that the enforcement falls back on the “litter authority”. As usual, this is a district council, or a county council where there is no district council, and applies only to England and the Council of the Isles of Scilly, as the Minister said. The good point about collecting the fines is that they may be kept by the collecting authority for execution of its duties under the Clean Neighbourhoods and Environment Act of 2005. The number of reasons that the recipient of fines can give as an excuse for not paying the fine are extensive and lean overly towards the offender. I am concerned that many will be able to wriggle out of paying.
I hope that the fines imposed and collected will recompense the local authorities for the work involved. This should send a big message to the public that the country is no longer prepared to accept such loutish behaviour from car drivers and their passengers. I fully support the SI.
Lord Swinfen (Con)
My Lords, I am sorry; I was trying to be polite to my noble friend. I thought he was intending to speak but he has decided not to.
In 1959, which was some time ago, I was on leave in Munich and was warned by my German hosts not to drop even a match when I lit my pipe or I would be fined on the spot, so I did not drop a match. However, the lane that leads to my home in east Kent, where people frequently stop to have their lunch in the middle of the day, is often full of litter. Some of it is biodegradable and some is not, but there is absolutely no need for it to be thrown out of a window. In places where a lot of litter is deposited, we should have cameras, hidden in trees if necessary, to photograph people dropping litter out of their cars.
I also think the fine stipulated in these regulations is far too low. Most people can afford £100 and would not worry too much about that. I think we should have a fine in the region of £1,000 as a preventive measure. The noble Lord, Lord Griffiths, indicates that it should be higher than that. If that is what he wishes, that is fine, but I think £1,000, which might need to be raised in a few years’ time, would be quite sufficient to deter a lot of people. Very often there has to be a deterrent to stop people doing something that they ought not to do. Today, we make it too easy for them. You have only to drive around south-east England to see litter everywhere on minor and main roads and thrown out of windows on motorways. We are far too tolerant of the mess that other people make.
I remember hearing a story many years ago about a farmer who saw someone having a picnic on one of his fields. They left an awful lot of mess. He cleared it up, followed them home and deposited it on their front lawn. I hope it made them think. It would make a lot of other people think as well.
Baroness Jones of Whitchurch
My Lords, I was very interested in the comments of the noble Lord, Lord Marlesford, about the delay in introducing measures. If he had been present at other debates in which I have taken part, he would have seen that the progress Defra makes on legislation is a bit of a running theme and that we have had a bit of an issue with the department about it for some time. I will not dwell on that too much but I have some sympathy with his point.
I am very grateful to the Minister for explaining so clearly the intention behind these regulations. As she said, they form part of the Government’s littering strategy, which was published last year. Of course we welcome that strategy and share its objectives of cleaning up our urban and rural landscapes to make them better places to live and work—a theme that all noble Lords have echoed this afternoon. The strategy makes it clear that litter is not only an eyesore but hugely costly—a point made by the noble Baroness, Lady Bakewell. Street cleaning cost local government £778 million in 2015-16, and we can all think of better ways to spend that money. Clearly, dropping litter from vehicles adds to the overall litter challenge, so it is important—again, this is a point all noble Lords have made—that we create a culture where dropping litter is simply considered unacceptable and communities and individuals learn to value their local environment.
In principle we do not have a problem with extending to other councils across England the powers already granted to London councils to fine those who litter from vehicles. It is very clear from the consultation carried out by Defra that this extension has received broad support from the Local Government Association and organisations such as Keep Britain Tidy. However, I have a number of questions about the detail that I would like the Minister to address.
First, what lessons have been learned from the London experience? London has had these powers for five years but what discernible difference has it made? My noble friend Lord Bassam made a very good point in this regard. What are councils doing to take up these powers? Defra’s scoping study of November 2015 showed a marked reluctance from London boroughs to participate in a pilot study of the scheme’s effectiveness. As the scoping study identified:
“The London boroughs have been slow to enforce their ‘litter from vehicles powers’, but there is a lack of robust empirical evidence to help understand where the problems lie”.
At the time, a number of London boroughs basically said that they had other priorities and did not want to set up a new system for charging and recovering fines. In fact, it appeared that Wandsworth Council was the only one to actively pursue these new powers. So what is the position after five years? A recent study of appeals against vehicle-litter fines to London Tribunals found that Wandsworth was the only council that anyone appealed against. Of course, that might be because Wandsworth was particularly draconian, but perhaps it is more likely that many other London councils are simply not implementing the fines in the way intended. Therefore, can the Minister clarify how many London councils are using the powers and what lessons we are learning from those not currently doing so?
Secondly, in Defra’s Explanatory Memorandum which accompanies the regulations, it is recognised that the guidance on environmental fixed-penalty powers needs to be updated and clarified. The memorandum goes on to say that Defra intends to consult on the new guidance and have improved guidance in place before the powers in these regulations come into force in April 2018. It does not take a genius to say that that date is looming, so what progress is being made with this consultation? Will the deadline be met, and does the Minister think that this new guidance will go some way towards encouraging uptake of the new powers?
Thirdly, who will police these new regulations, and will it be acceptable for councils to outsource this responsibility? I ask that because the Minister may be aware of a “Panorama” programme aired last summer which showed that a private company, Kingdom Services, was employed as an environmental enforcement agency by around 28 councils around the country, dealing not with littering from cars but with littering in general. It paid its staff what it called a competency allowance, which amounted to a bonus for every littering incident at which they issued a fine. As a result, people were fined for ridiculous incidents—someone for pouring coffee down a drain, another for dropping and then picking up a piece of orange peel, and someone else for putting out their recycling on the wrong day. It was alleged that the company was working with the councils to fine as many people as possible and to profit from the income from the fines.
Does the Minister accept that the purpose of these new powers to fine those who litter from vehicles is not to add to the profits of councils but to change behaviours and keep the public on our side? That means rolling out the new powers intelligently and sympathetically. It also means that a high standard of reliable evidence has to be at the core of the scheme. Does she agree that for the new regulations to have public trust, the money from the fines should be used solely for further improvements to the environment and not for councils to make a profit?
Fourthly, as the noble Lord, Lord Marlesford, said, these provisions will allow for a fixed penalty to be issued with the lesser civil standard of proof. However, as I understand it, normal street-littering is dealt with under the criminal standard of proof—again, I may have got this wrong but I am sure that the Minister will clarify it—which includes the risk of criminal prosecution. Does the Minister think that having both a civil and criminal penalty for different sorts of littering in different circumstances can be justified?
Finally, my noble friend Lord Bassam mentioned the A27, which is an issue very close to my heart. I agree with him about what an eyesore it is. A number of noble Lords talked about littering in the countryside. How it is envisaged that the scheme will work in rural areas and on motorways? We all feel particularly affronted when we drive through the countryside and see litter left in the hedgerows and on the grass. Often, we know that it will be left there for a very long time. It seems unlikely that an enforcement agency would have the staff to police rural roads, but at the same time, the eyesore is even more powerful in areas of natural beauty. So do the Government have further plans to help clean up the countryside?
Also, am I right in saying that responsibility for litter on the side of motorways has transferred to Highways England? If so, will it have the same powers to catch and fine drivers throwing litter out of car windows, which again is a real blot on our landscape? Will the Minister clarify how that will work and what the Government’s target is, particularly for cleaning up the countryside?
I raise these issues not because I want to oppose the regulations—far from it—but because I want regulations that are effective and transformative. It is important that we learn the lessons from our experiences of tackling litter so far and that the new regulations really make a difference in the future. I hope the Minister will confirm that that will be the case. I look forward to her response.
Baroness Vere of Norbiton
My Lords, I thank all noble Lords for their contributions to what has turned out to be a fascinating debate, with some interesting points made. I will do my utmost to respond to all of them. However, as usual, if I do not I will write noble Lords a letter.
First, I thank my noble friend Lord Marlesford for his contribution today and his welcoming of these regulations. I agree with the noble Lord that this is a small step. There is no magic bullet when it comes to litter, but I hope that it is one step along the journey to making our country litter free. I also welcome the support that these regulations have received from my noble friend Lady Stowell, who made a very good contribution about it being everybody’s responsibility to stop littering.
My noble friend Lord Marlesford and the noble Baroness, Lady Jones, asked about timing. I admit that these regulations are a little delayed. However, we have used the time since the Anti-Social Behaviour, Crime and Policing Act achieved Royal Assent in March 2014 to carry out a scoping study into how the regulations were being used in London, and councils’ expectations or desires for a civil penalty system. We then developed and consulted on the draft regulations as part of preparing our new litter strategy for England. That is one reason for the delay. I hope that there will be no further delays when it comes to the department.
On the experience in London and the lessons learned, the slow take-up in London so far has been disappointing. I am surprised that London boroughs have not adopted these powers with more enthusiasm. I will certainly be on the case to my local councillor to ask exactly why this is the case. It is beholden on all of us as citizens to get in touch with our local councillors, because littering is a very important issue. Wandsworth is the only borough using the powers at the moment and we will take this opportunity to encourage other London boroughs to make use of the powers.
However, we are aware that there were some initial teething problems with these powers, which is why there may have been some delay. There was a problem with processing and enforcing payments. We have worked with the Traffic Penalty Tribunal and the MoJ to ensure that we have not replicated the problems initially experienced in London. We know that local London councils are using a mix of education and the threat of prosecution to change behaviour, and that is as important as fining people as they throw things out of their cars.