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The government routinely ignore the statutory duty on litter or, if they have to mention it, dumb it down/ misrepresent it. This is particularly so in the context of Highways England.

I have concluded that this is part of a tacit policy by officials to mislead Ministers, Parliament and the country.

Under S89(1) of the Environmental Protection Act Local Councils and Highways England have to ensure, so far as is practicable that they keep their highways clear of litter and refuse.

This means cleaning with sufficient frequency to prevent accumulations building up – a process successfully employed by the central London Boroughs and London Underground. Elsewhere the duty is widely ignored – particularly by those responsible for our high-speed roads and motorways.

The duty is not to:

“Collect” or “remove” litter (i.e. as and when you get around to it), or to

Comply with DEFRA’s Litter Code of Practice, its last resort response times or its gradings.

Yet, when it is not side-lined or ignored altogether, this is how it is invariably portrayed.


The duty and its failure as a policy should have been the focus of the government’s recent Litter Strategy for England. Instead the only reference to it is tucked away on page 60 in a discussion of the Litter Code of Practice.

Highways England’s own Litter Strategy is just as blatant. It says which roads the duty applies to but not what the duty is.

A ministerial briefing for John Hayes MP when he became the minister responsible for HE stated: “Highways England ….  is responsible for clearing litter on all England’s motorways…. “ See my FOI request.

Nick Harris, HE’s Operations Director, wrote to Ms Crawford saying “under the terms of the Environmental Protection Act we are responsible for the management and removal of litter on the motorway network and some trunk roads”.

In an e-mail to me of 18th Feb 2018 he referred to clean-ups being programmed  “in line with recommendations from the Environmental Protection Act”.

Andrew Jones,  Parliamentary Under-Secretary (Department for Transport) said in the H of C in reference to HE “It has a duty to adhere to the code of practice on litter and refuse, which is part of the Environmental Protection Act 1990..”

Jesse Norman, Under Sec. of State at the DfT wrote to Claire Perry MP saying: “Highways England is responsible for collecting litter on motorways and a small number of trunk roads. ….. Highways England complies with the gradings set out in the Code of Practice on Litter and Refuse 2006”.

Again, Jesse Norman in the  H of C Jan 2018  said: “Highways England is responsible for complying with the mandatory legal requirements under the Environmental Protection Act 1990, which includes removing litter on England’s motorways and some trunk roads”.

In a letter to me the DfT wrote say “.. the government will review the mechanism by which councils and other land managers can be held to account for maintaining their land to the standards set out in the Code of Practice … “

The DfT laid out its performance specification for Highways England in its Road Investment Strategy. This makes 130 references to “environment”, 31 to “biodiversity”, 35 to “noise” and 21 to “air quality”.  It does not however make a single reference to “litter” never mind the EPA S89(1) duty. “Clean” is only used in reference to air / fumes.

In the RIS Environmental Key Performance Indicators (KPIs) were laid down for “noise” and “biodiversity” but not for litter. [See pages 22 -24 of Part 3 – Performance Specification of the Road Investment Strategy].

More evidence

Peter Silverman
9th July 2018



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