London Local Authorities Bill [HL]
Tuesday 18 February 2003
380. We are also not convinced about the way in which
setting the level of fixed penalties is dealt with in the Bill.
A particular concern is that the Secretary of State has been given
some reserved powers in which it is possible that when we draft
a clause the Secretary of State may well have reserved powers
but we do not consider powers that are given in the Local London
Authorities Bill workable, they look maybe slightly more impressive
than they really are. We think that they would not provide a proper
longterm way of dealing with this problem. For example there
is a possibility that a long running battle could turn out to
be forged in relation to the level of a fixed penalty if under
the Local Authority Bill, my Lords, a local authority sets a level
of penalty which the Secretary of State considers excessive. The
Secretary of State is given the power to object to that, and indeed
she can then make regulations which will set a different, lower
381. Notwithstanding that Parliament will then have
the power to annul those regulations and therefore if they do
not annul them it can be taken they are content with the level
of penalty set by the Secretary of State, and the local authority
as soon as one month later can come back and set up another penalty
which is higher than that which was set by the Secretary of State
and implicitly approved by Parliament.
382. It is possible that you could have a position
where the fixed penalty is going up and down if neither side is
willing to back down, you could have a farcical situation where
the fixed penalty is going up and down every 12 months, which
does not seem like an appropriate way of dealing with the problem.
383. We also think that the Secretary of State's
power to make regulation could add significantly to the amount
of legislation in this area in a way which is probably not appropriate
because of the time limit which is given under which the Secretary
of State is required to make regulations, within a month of receiving
notification of the levy of fixed penalty from the local authority,
it would be most likely impossible for the Secretary of State
to deal with more than one or two local authorities in a single
instrument, which would mean that the Secretary of State may have
to make quite a few, potentially dozens of sets of regulations,
and given that there are 30 councils in London this could lead
to a significant increase in the amount of legislation which is
required to be scrutinised by Parliament and also the amount of
legislation that is actually made in this country.
384. We always keep an eye on the amount of regulation
which we make to a sensible level and any unnecessary increase
in the level of statutory instruments is not particularly welcome.
385. I referred earlier to the one month time limit
which the Secretary of State will have to make to regulations
once she receives notification from a local authority that they
want to set up a fixed penalty level. We do not consider that
this is really workable. There is going to be virtually no time
for the Department to consider the level of fixed penalty and
also to consider whether or not any consultation is necessary
on any replacement level of fixed penalty.
386. The drafting of the regulations will inevitably
be very rushed, which could lead to poor legislation. The problems
would be particularly severe should notification be given before
Christmas when everybody inevitably will be on holiday, at least
many people may be.
387. We do not think that that time limit is realistic.
There are also a rather odd selection of publicity requirements
in relation to this procedure, for example the local authority
is required to give publicity to the level at which a fixed penalty
is set but there is no similar requirement on the Secretary of
State to give publicity to any objection that you may give to
that level, so that may lead to confusion. Although the Secretary
of State may choose to try and prevent this confusion by doing
something discretionary it seems rather odd there should be some
compulsory requirement of consultation on publicity in some areas
and not in others.
388. I think you can see that we do have a number
of relatively dry procedural objections to some of this but it
all adds up to a system that we do not think has been thought
through sufficiently thoroughly to actually deal with this in
a way that will work well longterm.
389. We are not content with the Bill as it stands
at the moment.
390. MR SAUNDERS: Can I raise a point, you said that
the Secretary of State has only one month, that is before he makes
his objection, in which to object, once he has objected the new
levels set by the local authority do not come into force until
the objection has been withdrawn, so there is an absolute stay
and he has all of the time he wants to make his regulations and
get them right.
(Mr Jones) In Clause 29(4) it says, "If,
at any time before the levels of fixed penalties required to be
notified under subsection (1) above to the Secretary of State
have come into force..."
391. MR SAUNDERS: Indeed. Subsection (3) says that
they do not come into force until the objection has been withdrawn.
You make your objection and that holds everything, then you can
make your regulations as and when you pleas.
392. CHAIRMAN: Is that how the Promoters see it?
393. MR LEWIS: My Lord, that is exactly how the Promoters
see it. It might be useful on clauses 28 and 29, but more to the
point clause 29, that they have been described as unworkable.
These are lifted straight from the Road Traffic Act 1991, a piece
of Government legislation, dealing with the level of parking fines.
Mr Lester is the expert.
394. I believe that the equivalent provisions in
the 1991 Act have not had to be used, which perhaps indicates
that the London boroughs have been setting the levels of parking
fines since the 1991 Act sensibly. We are not aware of any moves
from the Department of Transport to alter what are I do
not have the relevant section here but remember back to drafting
this Bill and I am pretty sure that they are lifted almost word
for word from the existing Government legislation dealing with
default powers of the Secretary of State in respect of parking
(Mr Jones) In response I would say that that
provision seems to me pretty much a waste of time; in that the
net result is, that on receiving notification and the Secretary
of State has actually lodged a formal objection, he may then withdraw
when he has had proper time to consider it,. It will be a pretty
meaningless requirement and does not seem worth having in the
395. LORD TORDOFF: I thought you were arguing that
there was going to be a roller coaster whilst this was happening.
It seems to me that 29(3) rules that out?
(Mr Jones) The roller coaster was the possibility
that a local authority could be in dispute with the Secretary
of State and there would be ultimately no way of resolving the
dispute in a satisfactory manner because the local authority would
be able to continue slapping in its requests for a higher penalty,
and the Secretary of State, if he disagrees with that, would be
able to continue making regulations which would overturn it.
396. MR LEWIS: Could I intervene here. 29(6) does
not preclude the councils from having another go; but they cannot
do it for another 12 months.
(Mr Jones) I was not suggesting anything otherwise,
but every 12 months there may be a change. That is as I said earlier.
397. CHAIRMAN: Maybe we are becoming slightly bogged
down in the detail of things at the level at this moment. It is
an important point. Can I just be clear, what the Government is
really saying is you are legislating at the moment in the Local
Government Bill, which is currently in the Commons, along some
of these lines; or what does that Local Government Bill cover
which is or is not in here?
(Mr Jones) The clause which we have in the
Local Government Bill, clause 116, enables all local authorities
in England and Wales to retain the money they get from fixed penalties
and to be able to spend it on at least their statutory litter
and dog fouling functions, with the possibility of regulations
to extend their powers to spend it. That is similar.
398. It is the meat of these clauses?
(Mr Jones) Yes, it is. The difference is that
we have not yet introduced any legislation which deals with allowing
local authorities to set the level of fixed penalty. That is something
we are still considering and consulting on.
399. CHAIRMAN: I do not know if this is really relevant
or not, but this new idea of a high performing local authority,
who is going to decide? Presumably the Secretary of State will
decide? Or is there a list of things you have to do to qualify?
(Mr Jones) There is a corresponding provision
that we include in the Local Government Bill which enables us
to link in with the classification of authorities in clause 117,
that is one possibility. The policy on that has not been completely
resolved as yet.
(Mrs McGregor) That is the Comprehensive Performance
Assessment undertaken by the Audit Commission which reported in
December last year on the Highways Authorities, which includes
London boroughs. I have a list here.