Landfill Tax Fraud

Aaron Bell Excerpts

Thursday 12th January 2023 Commons Chamber

[Mr Jones]

I am grateful to the hon. Gentleman for this intervention. The frustration is that we do not need new legislation; we just need Government action to fund and implement the existing powers.

My next point, which will also affect the hon. Gentleman’s part of the United Kingdom, is about the effect on local communities. I know that my hon. Friend the Member for Blaydon (Liz Twist), the hon. Member for Newcastle-under-Lyme (Aaron Bell) and the right hon. Member for Haltemprice and Howden will mention specific examples from their constituencies of where local communities feel powerless to stop the huge environmental damage being done to the area. However, this is not down to any lack of trying by those right hon. and hon. Members, who have campaigned for change for many years.

The PAC report estimates that the cost of landfill tax fraud and waste crime is about £1 billion a year. However, that figure is just like me sticking my finger in the air, because basically no one knows. That is a conservative estimate, and the reason for that, as the report says, is that we have basically given up trying to monitor what is happening.

How does landfill tax fraud work in practice? There are strands to it. The first is the way in which the tax was implemented. There are two rates, and those rates went up between 2008 and 2014. The rate for inert or inactive waste is currently £3.15 a tonne, and the standard for ordinary waste is £98.60 a tonne. The first element of criminality involves saying that waste is inert when it is not. There is no monitoring at all, so people are instantly making a fortune by avoiding taxation. The incentive for misdescription of waste is the huge gap between the two rates. The Environment Agency does not really enforce this, and I am sure that boreholes would reveal that inert-waste only sites will contain other waste. The problem is that we do not know what is in such sites, which is a future environmental problem.

The second strand is illegal sites without a licence, for which there are no real sanctions. People can buy a field or an old quarry and keep filling it, and they do not pay any landfill tax.

The next method is far more sophisticated, whereby criminal elements buy or set themselves up as legitimate waste operators. Is that easy? It is, because there are no restrictions on who can become a waste operator. If someone buys an existing business or a quarry, they can label it and say they are going to collect waste, but who is checking? People can run two scams. They can declare active waste as inert, and they can just declare half of what they are putting in.

[Aaron Bell (Newcastle-under-Lyme) (Con)]

I thank the right hon. Gentleman for securing this debate. He is absolutely right that someone with no qualifications can set up or, indeed, take over a site, and there will be no checks as to whether they are fit and proper. They could have a criminal record within the waste sector itself, as was the case at Walleys Quarry in my constituency. The Environment Agency appears powerless to do anything to stop such people operating landfills.

--- Later in debate ---

[Mr David Davis]

The right hon. Gentleman is right, and I will come back to the incentives—both criminal and legal—that are built in against legal operators.

The right hon. Gentleman also spoke about the powerlessness of communities. Again, I can exemplify that point. We thought we had scored a victory by taking the Niramax associate Transwaste to court over the Gilberdyke site and winning our case that it had breached a whole load of conditions. We won the case, but did my constituents see any improvements? No. Were the problems addressed in court fixed or enforced by the agencies? No. Did the behaviour of the operators improve? No. The courts proved powerless and so the community certainly felt powerless, again because there was no proper enforcement. That goes back to the point that the right hon. Gentleman made in response to the hon. Member for Bristol East (Kerry McCarthy) that this is not primarily about changing the regulations or the law, but about changing the mode of operation of the agencies involved.

Precisely because they cheat and evade payment of landfill tax, criminal companies can undercut other businesses, picking up waste and charging a pittance for it, knowing they will make up for it in illegal returns. In the case of Gilberdyke, locals reported that lorries were flooding the area from Wembley, south Wales, south-west Scotland and Manchester. It is expensive to transport this stuff. Why would it be transported that far unless there were some enormous unfair—not to mention illegal—advantage for the operators? That is what is going on there.

Some of my constituents who are very qualified people monitored that site and estimated that between £50 million and £60 million in landfill tax was being evaded while those lorries were flooding the area. That is at one site alone. This activity involves the destruction of my constituents’ quality of life and the destruction of the local environment, all in pursuit of illegal profits, yet so little action is being taken.

The right hon. Member for North Durham quoted the Public Accounts Committee saying about the Department for Environment, Food and Rural Affairs in October last year that

“the approach to large parts of waste crime is closer to decriminalisation.”

I make the point, as a past Chairman of the PAC, that the PAC is careful about what it says about Government operations. It is careful that it is factually based, and it bases everything on the National Audit Office reports and so on. For the PAC to accuse an agency or Department of effectively decriminalising something as serious as this is in itself an enormously powerful and worrying statement. That quote will strike a chord with those of us who have had to observe the appalling weak record of enforcement of the Environment Agency, even with legal operators, frankly. We are not talking about legal operators today, but even with legal operators, the Environment Agency is weak, let alone those who need to be cracked down on. That fact, again, is reinforced by the data. The number of prosecutions for waste crime generally—not tax evasion, but waste crime generally—have fallen by more than 90% since 2007-08. As the right hon. Gentleman said, there have been no prosecutions whatever for landfill tax fraud.

With Operation Nosedive—like the right hon. Gentleman, I wondered about the name, where it came from, and whether it was making a prediction about its own success—I have to say that its failure was written in from the beginning. It was a failure from the start. HMRC, the Environment Agency and the Crown Prosecution Service were simply not working together properly to investigate and prosecute the gangsters. They simply were not doing the job as a coherent group of people. The NAO told me that HMRC and the CPS admitted as much, and that is why no prosecutions were taken forward. The problem is that this failure and the ongoing increases in the rate of landfill tax mean that illegal profits are only increasing. Given how landfill tax is structured, if evasion is not stopped, then every time landfill tax goes up to improve the environment, the criminal is actually incentivised more by a bigger comparative advantage against the legitimate operators.

[Aaron Bell]

The story of Niramax seems to foreshadow much of my experience in Newcastle. The Minister will appreciate, as an economist, that Gresham’s law says that bad money drives out good, and is that not exactly what is happening in the waste sector? Legitimate firms are being driven out of the sector, with the result that more and more criminals are acting in the sector, making it harder for people to dispose of their waste legitimately, even if they want to.

[Mr Davis]

That is absolutely correct. I am sure Gresham did not have in mind blackmail and threats as well, which also come into it when the operation becomes criminal rather than legal. The joint failure of HMRC and the Environment Agency led to theft from the public purse—it is as simple as that—the devastation of public spaces, and the undermining of public confidence in this whole policy area. Ostensibly, the issue is that HMRC is focused on the collection of tax, while the Environment Agency is following a remit to manage waste. That is the excuse given, if you like. Frankly, it is extraordinary that the Environment Agency would not collect data on a tax designed to incentivise good waste operation. That is its purpose, so why on earth is the Environment Agency not monitoring that carefully? If it is not working, it is a failure of its own remit.

--- Later in debate ---

[Aaron Bell (Newcastle-under-Lyme) (Con)]

It is a pleasure to follow the hon. Member for Blaydon (Liz Twist), whose constituents experienced many of the same problems mine have, albeit a few years before, and to follow two excellent contributions from my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the right hon. Member for North Durham (Mr Jones). I was pleased to go with them to the National Crime Agency last year to try to get these issues taken more seriously. I pay tribute to all the work the three Members who have spoken today have done over the years, before I was a Member of this place, to try to get this issue taken more seriously.

It is a serious issue. It is not just the cost to the public purse—that has been spoken about many times already—but the cost to our constituents, and to their lives and physical and mental health. That is what people in Newcastle-under-Lyme have been suffering, as I have repeatedly brought to the House’s attention over many years.

The failure of the investigations and of the ill-named Operation Nosedive only emboldens the people in this space. The firm that operates Walleys Quarry, Red Industries Ltd, had a failed prosecution against them, regarding a separate site of theirs, by the Environment Agency over an incident in which cyanide leaked into the River Trent in October 2009. After many years, the Environment Agency conceded the flaws in its case, which were probably caused by insufficiently advanced legal advice, to which the right hon. Member for North Durham referred. That only emboldened the firm—we can see that if we look at the press releases crowing over the failure of the EA’s prosecution—to think that it can get away with things and that it will not be held to account by those who should hold it to account.

We need to learn all the lessons of Operation Nosedive, the incident in the Trent, and all the other occasions where we have failed to prosecute landfill tax fraud, or other forms of waste crime. The fact that there has never been a successful conviction for landfill tax fraud is astounding when we consider the depth of criminality that we have exposed in the waste industry. I exposed some of it in the Westminster Hall debate that I led on 1 February last year—the right hon. Member for North Durham and my right hon. Friend the Member for Haltemprice and Howden both spoke in that debate and referred to it in their speeches.

Perhaps I can briefly update the House on where we are with Walleys Quarry, because it is germane to the debate—I will not repeat the full history, Mr Deputy Speaker, having already secured Adjournment debates, multiple Westminster Hall debates, a ten-minute rule Bill and all the rest of it. What my right hon. Friend said about the Environment Agency’s fear that action might make the problem worse is well founded. It did monitoring and said, “Nothing to see here.” It was reluctant to do further monitoring until eventually it was forced into it by a combination of me and the council leader, Simon Tagg. Once it conceded there was a problem, the idea that we might take the permit away from these people, who continually fail, was barely even discussed, because it wanted to ensure that the company managed the site. I understand that as a strategy, but it sticks in the craw of all the local residents, who can see what is happening. They can see the trucks coming from hundreds of miles away—from Scotland and the Lake district—to bring waste to Walleys Quarry. They are monitoring trucks going in at the wrong times of the day, dumping before they are supposed to. There are so many little breaches along the way that stick in the craw of people. They know that the site is under investigation, yet the company is continuing to make money from its operations. I know how painful that is for my constituents, who have suffered with living with the odour. Walleys Quarry is particularly notorious for its odour. We have had by far the single worst odour problem in recorded history—I believe that the previous record belonged to a site in Chorley, Mr Speaker’s constituency. Our site has broken all records. We have had four Environment Agency monitoring stations ringed around the site for the last couple of years.

I am pleased to report that the odour is diminishing. That is because of the work that the Environment Agency has compelled the operator to do. As far as it goes, that strategy is fine. However, the second part of the strategy needs to be to throw the book at the operator. It has been issued with multiple breaches in the last few years, all of which have required it to do work and said, “We reserve the right to take further punishment action later.” We are waiting for that punishment action to happen.

In fact, in Newcastle-under-Lyme, we have two investigations going on into Walleys Quarry. There is the criminal investigation, which was announced in December 2021. I understand that that will take a long time because it is complex and many counterparties are involved. It is all about misdescription of waste, which is a much wider problem and investigation for the EA. There is also the regulatory investigation announced in September, which I raised with the Secretary of State at Environment, Food and Rural Affairs questions shortly before Christmas. We need to get some results on that more quickly because regulation should be the EA’s bread and butter. It needs to start holding the company to account for the failures.

The odour problem has been getting better. We are catching more than twice as much gas as we were—we have the figures—and the EA has mandated capping in additional wells. That is not to say that it never smells. It did smell a bit in December, particularly when the temperature fell below zero; those are the conditions where the odour gets a lot worse.

I congratulate Newcastle-under-Lyme Borough Council, under the leadership of Councillor Tagg and chief executive Martin Hamilton, who took the bold step—it was almost unprecedented for a local authority—of pursuing an abatement notice against the operator. It is difficult to do that because prosecuting an abatement notice needs the consent of the Secretary of State; it is a regulated site and it has the permit with the EA. However, the impact on our residents in Newcastle was so severe that the council felt it had to do that. It was able to bring that to a successful conclusion with the operator, who initially appealed but ultimately accepted the decision, following consultation and discussion. I think that was the first proper concession that Walleys Quarry Ltd and its parent company Red Industries has made that its site has been responsible for the unacceptable odour.

We need to get those investigations pursued with all deliberate speed. I am grateful to the EA for giving me a briefing on them on Monday. I appreciate that the Minister is from the Treasury and not from DEFRA, but we do need to see all pressure put on the Environment Agency to get those investigations brought to a conclusion as soon as possible so that my constituents can start to see some justice, some accountability and potentially some compensation, whether through Government or through the class action lawsuit that a number of them are considering, because of the impact on people’s quality of life and health, exacerbating pre-existing conditions such as chronic obstructive pulmonary disease and asthma and exacerbating pre-existing mental health conditions of anxiety and depression. It has been phenomenal. I laid all that out in the Adjournment debate, so I will do not so again today. However, even in the most recent month, there have been more breaches of the permit.

[Matt Rodda]

Does the hon. Gentleman want to say a little about the disruption and concern caused by heavy vehicle movements near the site? That is of huge concern around the country. In my area, we recently had planning permission granted for an incinerator in West Berkshire. The road access is likely to be through Reading town centre. Many of my residents are concerned about that. I would be interested to learn how his colleagues have helped to tackle the problem in Staffordshire.

[Aaron Bell]

I thank the hon. Gentleman for his intervention. That has been a significant problem in Newcastle. There have been accidents on the road outside the landfill caused by lorries backing up along the road. Firms opposite have complained that people have had problems accessing their businesses. An arrangement has been recently made through a variation to the planning permission to allow vehicles on to the site before the 7 am opening time so that they can at least queue on the site rather than on the road. There is also state of the road and the mud that some vehicles have left on it. There is a wheel wash that vehicles are supposed to go through when they leave. It is clear that it has not always been working. The county council has had to write on more than one occasion to the operator demanding that it cleans up the local roads as well. Traffic and the state of the roads are significant issues, and I wish the hon. Gentleman well with his efforts to represent the people of Reading in the situation with the incinerator to which he refers. The impact is not just about odour; it is about the whole operation and its interference with people’s quality of life in the surrounding villages.

As I was saying, there have been far too many breaches and they are still ongoing. Even under intense scrutiny, with four monitoring stations and regular Environment Agency visits—including unannounced visits, which I welcome—the operator is still being found responsible for more and more breaches. I pay particular tribute to Stop the Stink campaigner Dr Mick Salt, who has brought several such breaches to the public’s attention via freedom of information requests.

The operator’s continual failure to comply with the conditions of its permit, even under such intense scrutiny, is staggering. It surely only strengthens the case for stripping it of the permit altogether when the investigation concludes. I will continue to fight for my constituents and fight to ensure that the operator and the EA are both fully held to account and that we get some appropriate action in response to the misery that the landfill has visited on Newcastle-under-Lyme residents, particularly those who live closest.

Let me turn more specifically to the subject of today’s debate: landfill tax fraud, to which I referred in the Westminster Hall last February. The problem, as I said in my intervention on my right hon. Friend the Member for Haltemprice and Howden, is that bad firms are driving good ones out of the industry. I have spoken to legitimate operators in Stoke-on-Trent who are upset that they are trying to do an honest job but cannot compete with the firms undercutting them.

Fundamentally, most people will take assurances from firms that say, “Of course we’ll handle your waste legitimately, don’t worry about that—and here’s a nice price for you.” A lot of people will be guided by that, so the regulator needs to step in. People need confidence that a regulated firm will be regulated. They should not need incentives to go to one firm or another because of ethical considerations; they should be able to trust that any firm in a regulated space is operating honestly and ethically.

As we heard from the right hon. Member for North Durham, the landfill tax differential has gone up to more than £95 per tonne. When the charge was first introduced in 1996, there was only a £5 differential; the rates were £2 and £7. I welcome the fact that landfill tax has reduced the overall amount of waste going to landfill, but it has obviously created strong incentives for misdescription.

Not only is standard waste being misdescribed as inert, but waste is going to landfill that should not be there at all. In the debate last February, we heard examples from a journalist’s research that included cavity wax, arsenic, zinc and even rat poison going into Walleys Quarry. I know that those allegations have been put to the Environment Agency and I am sure that they will be part of the criminal investigation, so I do not want to comment further on them today, but the problem is that charging £100 a tonne for waste is increasingly incentivising misdescription.

[Mr Kevan Jones]

It never ceases to amaze me that these things happen even when the Environment Agency understands the problem. I referred earlier—I was racking my brains for the figures—to fires at waste transfer stations and landfill sites, which are another way in which operators get round the regulations. Burning waste to get rid of it is a common practice, but the Environment Agency just seems to turn a blind eye. Not only is there an effect on the environment when operators burn what they should not be burning, but they avoid landfill tax.

[Aaron Bell]

The right hon. Gentleman is absolutely right. With illegal landfill sites in particular, we can almost rely on there being a suspicious arson attack. Getting the fire services involved is often the quickest way to get these problems resolved, because operators know that they and not the Environment Agency will ultimately be the ones involved in cleaning up. My constituency also has a notorious illegal waste dump at Doddlespool farm; I do not want to detain the House for too long, but we have seen all these things going on, with all sorts of impacts on the environment from vermin and all the rest of it.

Fly-tipping is forecast to have probably the greatest overall financial impact, although it is very difficult to get the numbers. The national tax gap for HMRC overall is estimated at 5.1%, but the landfill tax gap was 17.1% in 2020-21 and in previous years it has been more than 20%. That is equivalent to £125 million, which is only a part of the overall billion-pound estimate of the cost of waste crime. That does not even really take into account the cost of fly-tipping; it is about tax that should have been collected but has not. Things that are completely illegal fall somewhat outside the tax gap calculations, as I understand it.

[Mr David Davis]

My hon. Friend has talked of perverse incentives. As far as I am aware—and, as I have said, I served as Chairman of the Public Accounts Committee for five years—this is the clearest example of a strong incentive for good policy turning into a strong perverse incentive against that good policy, off the back of enforcement. When the Treasury assesses how much it puts into enforcement, ought it not to take that full spectrum of effect into account?

[Aaron Bell]

I could not agree more. I cannot remember who it was who mentioned the Environment Agency earlier, but there has been a cultural problem with enforcement, and I should like to see HMRC step up and assist. There is a long tradition of the taxman being the man who catches perpetrators of organised and serious crime in the end, but it is not happening with waste crime. I shall say more about that later.

In a statement to the House on the 18th report of the Public Accounts Committee, my hon. Friend the Member for The Cotswolds (Sir Geoffrey Clifton-Brown) said that Jim Harra had assured the Committee that the tax gap was so large because the scope of landfill tax had been widened to include illegal waste sites. However, if fly-tipping were taken into account, it might be even larger. The summary of the report stated:

“Waste crime is known to be greatly under-reported, so the true scale and impact of the problem are even larger than official data suggest.”

As my right hon. Friend the Member for Haltemprice and Howden just pointed out, that is just the financial cost; we are not remotely taking into account the cost in terms of the impact on people’s quality of life. Perhaps if we do get a class action lawsuit, some financial numbers will be attributed to that in Newcastle-under-Lyme.

[Mr Kevan Jones]

Another area in which some action is belatedly being taken is the export of waste, which not only avoids tax but causes environmental disasters in some developing countries.

[Aaron Bell]

The right hon. Gentleman is entirely correct. Indeed, as I mentioned last February in connection with Walleys Quarry, there was a suggestion that waste that should have been exported for treatment in, I believe, the Netherlands was actually going straight into landfill. Export adds an extra layer of complexity for the Environment Agency and HMRC to get on top of, but get on top of it they must, because these operators are using all the tricks in the book to get their waste dealt with as cheaply as possible and maximise their profits.

When it comes to social cost, misclassified waste is, according to the EA, the most likely result of the smell at Walleys Quarry landfill, driven primarily by hydrogen sulphide created by the biodegradation of gypsum. The awful impact of that has been experienced by my constituents time and again. It was exacerbated during lockdown, when the smell was at its worst, but when we opened up again, people did not want to come into the town centre and use our pubs, bars and cafes, or even just do their shopping, because of the awful odour.

I have mentioned the health impacts, but there is also the long-term environmental unknown risk of waste going into landfill. We do not know exactly what is in Walleys Quarry; if the reports from journalists are to be believed, there could be all sorts of things in there. I have been given assurances that it is unlikely to cause any risk, given that it is all capped off, but not knowing what is in the ground is not a great state of affairs. The site should have been properly regulated ever since the permission was granted by John Prescott back in 1998.

I am conscious that I have been speaking for a while, so I will end my speech shortly. We need to look at what is being done, but also at what more needs to be done. The Public Accounts Committee report stated that action was being taken, but I believe it is taking place too slowly. We have seen the establishment of the joint waste crime unit, but we have not seen enough activity on the back of it. We have also seen helpful reports from the National Audit Office highlighting the severity of the problem. I understand that the Government accepted all the recommendations of the PAC report and will implement them, but we need to see a response to the HMRC landfill tax call for evidence. We do not know yet what will happen with that, but it needs to be structured in such a way that it achieves its legitimate aim of reducing the amount of waste going to landfill without incentivising people to take shortcuts.

The Department for Environment, Food and Rural Affairs, the EA and HMRC clearly need to work with relevant bodies within the criminal justice system to develop a plan for making enforcement more effective across the full spectrum of waste crime. That must include speeding the process up and—this is very important—consideration of whether the sentencing guidance needs to be strengthened. The inadequacy of the fines issued to companies and individuals is all too apparent. People who are doing tens or hundreds of pounds’ worth of damage—and that does not even allow for the social cost—are being hit with only hundreds of thousands of pounds-worth of fines, and there are very few cases in which people go to prison.

On top of that, we need to consider whether the bonds put up by operators are sufficient. The Environment Agency is worried about operators walking away precisely because it knows that the money put up in bonds is not sufficient for a local authority to ameliorate a site. We have had that exact discussion in Staffordshire about what would happen if the operator walked away from Walleys Quarry. Who would be on the hook for it, and how would we manage it? I pay tribute to the work done by councils to prepare for that potential eventuality, but it should not have to be like that. There should be enough money in the bond to fund the amelioration, if necessary.

It is clear from my many discussions with the Environment Agency that many of its officers agree there is a fundamental lack of deterrence. I am critical of the Environmental Agency’s culture, and I think it was far too slow to react when the problem got worse, but there is a feeling that people are getting away with it because they do not feel deterred by the sanctions. We need to look at that, too.

We need much tougher fines and the prospect of lengthy prison terms, and there needs to be a fit and proper person test for people seeking to operate landfills, whether they are setting one up or taking over a licence. All the agencies need to work together to deter waste crime and landfill tax fraud. I have often spoken to DEFRA Ministers about this, and I appreciate that a Treasury Minister is here because this debate is an HMRC issue, but I look forward to what he has to say about tackling landfill tax fraud, and waste crime more generally.

Given HMRC’s case load, it might look like there is more to be gained by working elsewhere, but we are losing out on hundreds of millions of pounds of tax, and on millions or billions of pounds of additional social cost. It is an incalculable loss that ordinary people who want to dispose of their waste cannot trust the sector, because they do not know whether their waste will be disposed of legally or illegally.

Some blue chip names deposed of their waste at Walleys Quarry. They were appalled to be identified as having done so by the reporting of journalists, and they stopped sending their waste there. No blame necessarily attaches to them, but it shows that, overall, the sector cannot be trusted.

There is a tradition, going back to Al Capone, of the taxman being the one who finally holds serious organised criminals to account. HMRC must step up and give the Environment Agency a helping hand, because the crimes with which HMRC can charge people carry much more serious financial consequences and, potentially, jail time. If HMRC learned the lessons of Operation Nosedive and looked to prosecute people for waste crime, it would be greatly appreciated by me, by my constituents and, I am sure, by the constituents of all hon. Members here today.