London Local Authorities Bill [HL]
Tuesday 18 February 2003
320. MR KERRIGAN: I am Andrew Kerrigan from the Department
of Environment, Food and Rural Affairs.
321. MRS McGREGOR: I am Wendy McGregor from the Office
of the Deputy Prime Minister.
322. CHAIRMAN: I do not know how long these clauses
might take with Government opposition.
323. MR LEWIS: I suspect more than 20 minutes.
324. CHAIRMAN: I think it might be wise if we break
for lunch now in that case because we have a little bit of deliberation
to do ourselves. We will be back at two o'clock sharp. I am sorry
to break you off at that point but when I see something coming
along which looks as if it might take more than a little while
it is probably better to break now.
After a short adjournment
325. CHAIRMAN: Before we recommence with the business
can I just say that the Committee has considered Clause 19 and
we have concluded that it should remain in the Bill with the amendments
as proposed in the Filled Bill. We will give our reasons in a
special report which will be published after the proceedings of
the Committee have finished.
326. Now, I think we have been introduced to the
representatives from the two Government Departments so we can
get cracking on Clauses 26 onwards.
327. MR LEWIS: Clauses 26 to 29, my Lord.
328. CHAIRMAN: Thank you.
MR NICK LESTER, Sworn
Examined by THE COMMITTEE
329. MR LEWIS: I have now sitting to my immediate
right Nick Lester, who is the Director of Environment at the Association
of London Government and he is here to answer any questions which
might arise on the provisions, although I suspect that most of
our presentation will consist of my submissions.
330. My Lord, these provisions alter the way in which
a number of offences which the Councils are already able to prosecute
can be dealt with. The intention is to make enforcement easier
for the council, and also to save court time. What these clauses
do, in summary, is to enable an authorised officer of the council
to serve a fixed penalty notice on a person who they have reason
to believe has committed the offence. The service of the fixed
penalty notice enables the recipient to elect to pay the fixed
penalty or have his case tried in the Magistrates Court in the
usual way. He has a 14 day period in which to consider his position.
After the end of that period, the council can issue a summons
in the Magistrates Court.
331. This procedure is certainly precedented and,
in fact, was pioneered by Westminster City Council for litter
offences under the City of Westminster Act 1989. It now operates
on a national scale in respect of dog fouling and litter offences
and also other offences, for example those related to vehicle
332. I will deal with dog fouling and litter shortly
because it is in respect of those offences that the Government
Departments have reported. The other offences to which these provisions
will apply are all listed in Schedule 3 to the Bill on page 30.
You will see they are restricted to contraventions of abatement
notices under the Environmental Protection Act 1990 which deals
with matters such as noise nuisance and pollution, displaying
advertisements in contravention of the advertisement regulations,
which includes flyposting, which we will be dealing with later
in a different clause, and also offences under the street trading
legislation, which we have already examined.
333. I could also mention the fixed penalty provisions
also apply to bylaws. I will just remind myself of which provision
that is. 26(1)(b) I am reminded. Yes, thank you very much. Clause
26(1)(b) on page 16 also provides that the fixed penalty offences
provision should attach to bylaws made by the councils.
334. There are two significant differences in these
clauses from existing legislation related to fixed penalties adopted
on a national scale. The first difference is in relation to where
fixed penalty revenue goes. Under these clauses the councils will
be able to retain the income from fixed penalties by virtue of
Clause 27(6). Subsection (7) brings in Schedule 4. That is subsection
(7) of Clause 26. Schedule 4 sets out how the income from fixed
penalties should be dealt with by the council.
335. In effect, as it is amended, that schedule will
enable Councils to use the surplus from the fixed penalty notice
regimes for purposes connected with the improvement of the amenity
of their area or any part of that area. Under the existing litter
and dog fouling regimes, the council have to pay the revenue to
the Secretary of State.
336. The other major difference, which is also linked
to finances, is that under Clauses 28 and 29 the councils are
able to fix the levels of fixed penalties themselves. They would
do that through an already existing joint committee, and, importantly,
there would be a safeguard against the councils fixing the levels
too high, because the Secretary of State would have a power to
reduce the levels of fixed penalties under Clause 29. It would
be illogical for the councils to set levels of fixed penalties
at a high level anyway, because in order to make payment of a
fixed payment an attractive option to the recipient, the penalty
would logically have to be set at a level which was lower than
the combined fine ad costs which the recipient would expect to
have to pay if tried by the magistrates.
337. My Lord, as you know, there are four Government
reports against these clauses - two each from DEFRA and the Office
of the Deputy Prime Minister. The reports relate only to the dog
fouling and littering offences. When these reports were submitted
last year, the Government had already published a White Paper
called Strong Local Leadership - Quality Public Services
which dealt with a number of issues which have now been brought
together in the current Local Government Bill which is before
the other place. It is noteworthy that the White Paper was published
just after the Bill which your Lordships are considering today
was deposited in Parliament. As the initial two reports say, the
White Paper said that the Government would allow local authorities
to use the proceeds from fines on littering and dog fouling for
additional spending to enhance the local environment.
338. My Lords, if you look behind Tab 2 and document
number 2B, paragraph 4.18, this is the White Paper, it says in
that paragraph "We have already announced that we will allow
local authorities to use the money from fines for dog fouling
and litter to provide additional spending to enhance the local
environment." It then goes on to say, further on: "We
will give high-performing authorities complete freedom to decide
how to spend the income from dog fouling, littering and parking
fines." (Obviously we are not concerned about parking fines
339. The reports quite rightly point out that Schedule
4 to the Bill (Schedule 5 when it was deposited) provided that
surpluses in the accounts of the councils could be applied for
such purposes as the council thought fit. The amendment on page
31 of the Bill, on line 12, restricts the purposes for which the
councils could use fixed penalties to purposes connected with
the improvement of the amenity of the area of the council or any
part of that area. This represents, of course, a considerable
restriction on the council's powers compared to what was originally
in the Bill. The Departments still do not like this wording, and
believe that the relevant provision of the Local Government Bill,
Clause 116, which is contained in the bundle before you, should