Litter – the big Westminster cover up

“Something is rotten in the state of Defra”

Litter – the big Westminster cover up

A report by Peter Silverman MA MSc
This section Updated: 27th November 2019

Contents

A litter ridden country
A national problem covered up by spin
Ministerial Merry-go-round
We are not a 3rd world country – let’s pick up the litter
The statutory duty on litter
How they undermine the statutory duty by ..
… side-lining it
… misrepresenting it
… focussing on DEFRA’s Litter Code of Practice (LCOP)
… ignoring litter altogether
Holding duty bodies to account – a process not fit for purpose
A bonanza for Highways England’s contractors
Failure to deter waste and litter offences on the Highways England network
Waste transporters can spill rubbish and litter with impunity
The new civil law penalties for littering from vehicles do not apply to motorways
On-the-spot fines – contractors prove their worth
Highways England should be made responsible for cleaning all of their trunk roads
HWRC charges for DIY waste – an incentive for fly-tippping
Environment Agency fail to prosecute large scale fly-tippers

A litter ridden country

Respondents in the Crime Survey for England and Wales consistently identify litter and rubbish lying around as a major concern in their area. Link

In 2015 a Commons Select Committee concluded that that “England is a litter-ridden country compared to most of Europe, North America and Japan”. Link

So why do we seem incapable of doing anything about this?

A national problem covered up by spin

While the primary cause of litter is of course the cumulative actions of individuals the reason the problem persists is because successive governments have failed to get to grips with the problem. 

Instead the “men from the ministries” produce excuses and vacuous strategy documents while passing the buck to underfunded local authorities. Link. One of their objectives is to avoid any scrutiny of the DfT’s long-term mismanagement of our litter-strewn strategic road network (i.e. the motorways and trunk roads now run by Highways England).

Ministerial Merry-go-round

This is made easy for them by the ministerial merry-go-round. There have been 9 different Roads ministers at the DfT and 8 DEFRA ministers overseeing litter since the beginning of 2010. Link. They simply have no chance to get on top of the job before they whisked away to another post or the back benches.

We are not a third world country – let’s pick up the litter

While we need to put much more effort into deterrence, we also need to pick up the litter more promptly. Yet per household spending by councils on street cleaning has fallen by almost 30% in real terms since 2009/10.

We now spend only 56p / week / houshold on street cleaning – only 6% of what we spend on take-away food and snacks . Link

Yet additional funding for street cleansing was not even considered in the Government’s Litter Strategy for England.

The government line on this is to refer to the absolute spend on street cleaning and to state with an air of high indignation that “those funds could be better used to deliver the range of important services provided by our councils“. Link. But surely we should be able to provide a good standard of public services right across the board. We are not a third world country and should not appear to be one. 

The Statutory duty on litter 

In theory if Highways England and local authorities complied with their statutory duty on litter there should not be a litter problem. 

Under S89 of the Environmental Protection Act 1990 duty bodies – the main ones are local authorities and Highways England – have a duty to ENSURE they KEEP their public spaces and highways CLEAR of litter and refuse, so far as is practicable.  Link

Parliament chose “practicable” as opposed to “reasonably practicable”. Cost should not be an overriding consideration.

They should therefore not only clean our highways and public spaces on a sufficiently regular basis so that they are kept clean but also prosecute (or fine) those who create the problem with sufficient vigour that far less litter is created in the first place.

This is not an impossible task. The Central London Boroughs and London Underground comply with their duty to a tee.  Walk along Oxford Street or Whitehall – round every corner you will see a cleaner with a pushcart. Go down into the underground and you will see someone with a plastic bag and a litter picker often walking along a platform to pick up just a single piece of litter.

It is worth pointing out that the statutory duty applies equally to all areas. A back street in Birmingham should be kept a clean as Parliament Square – but litter is everywhere in most of our high streets, commercial areas and residential roads.

So, why does no one seem to know about this important duty? Why do most councils and Highways England ignore it with impunity? 

How they undermine the Statutory Duty ….

I believe the “men at the ministry” operate a tactic policy of undermining the duty and making sure there is no effective monitoring of compliance with it. They do this by:

…. side-lining it

The widespread failure to comply with it 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. 

The Environment (Principles and Governance) Bill currently going through Parliament proposes that anyone will be able to complain to a new Office for Environmental Protection if he or she believes that a public authority has failed to comply with environmental law. The Bill has however been carefully crafted so that compliance with the statutory duty on litter will not be covered – unless parliament can be persuaded otherwise. Link

….. misrepresenting it

Central government invariably misrepresents the duty by saying it is either one of “removing /collecting” litter or it’s a matter of “complying with the DEFRA’s Code of Practice on Litter”. Link

Highways England are quite blatant about this. They state in their litter strategy: “We are responsible for litter collection on motorways and some trunk roads” – in other words their contractors are free to collect litter as and when feel like doing soLink

This deception goes right to the top of the DfT. When John Hayes MP became the roads minister in 2016 the departmental briefing note prepared for him stated that Highways England was responsible for “clearing litter” on all England’s motorways. Link

His successor Andrew Jones MP said Highways England “has a duty to adhere to the code of practice on litter and refuse, which is part of the Environmental Protection Act 1990”. Link

He was followed by Jesse Norman MP who said: “Highways England is responsible for complying with the …… the Environmental Protection Act 1990, which includes removing litter …” Link

….  focussing on DEFRA’s Litter Code of Practice (LCOP)

Under the S89 of EPA 1990 DEFRA have to issue a code of practice to provide guidance to duty bodies who then have an obligation to have regard to it.

The only way to make sense of LCOP’s 90 pages is to realise that the authors’ purpose was to provide duty bodies with a adulterated duty based on concocted “last-resort response times”. 

LCOP pays lip service to the duty by saying in 9.1: “ … duty bodies are expected to set their cleansing schedules so that they meet the duty to keep their relevant land clear of litter and refuse” (“Keep” is even italicised in the text). Then it undermines it in 9.4 where it says: “As a last resort, if acceptable standards of litter and refuse are not met, response times have been set for each of the four categories (of land) by which land must be returned to an acceptable standard”. 

Duty bodies then assume that complying with these response times is sufficient to comply with their responsibilities.  It means, for example, that they can take 14 days to clean a lay-by if it falls below standard – but no way is that consistent with “ensuring it is kept clear of litter and refuse, so far as is practicable”. 

I have now written to DEFRA giving notice of my intention to go to the High Court to challenge the validity of their response times.

…. ignoring litter altogether

The DfT’s 2015 Road Investment Strategy for Highways England laid down Environmental Key Performance Indicators (KPIs) for “noise” and “biodiversity” but not for litter. [See pages 22-24 of Part 3 – Performance Specification of the Road Investment Strategy].

As a consequence, the Office of Rail & Road, who have a statutory obligation to monitor how Highways England carry out its functions have said ‘assessing Highways England’s compliance with the specific provisions in s.89 is outside the scope of ORR’s functions’.

Subsequently the DfT, when asked why there was no such KPI said there was no need for one for the very reason that there was a statutory duty on litter. But surely the opposite is true. Link

This did not stop the government implying there was a KPI for litter in their 2017 Litter Strategy for England by saying on page 58″

We will also consider how Highways England’s Performance Specification can drive better litter cleaning, and will consider developing a revised litter cleaning KPI for the next Performance Specification period“. 

Holding duty bodies to account – a process not fit for purpose

Alongside S89, the statutory duty, S91 of the Environmental Protection Act 1990 gave the citizen the right to take a duty body to court if he or she was aggrieved by litter. However if he or she fails to win costs, maybe on a technicality, they can end up having to pay out several thousand pounds. The process is simply not fit for purpose.Link

This has been the case for 29 years yet DEFRA have failed to introduce the necessary reforms. 

What is needed is an regulator / monitor to whom the public can take their complaints – the very last thing the men from the ministry want.

A bonanza for Highway England’s contractors

Without any external scrutiny the Highways Agency, and now Highways England, have simply let their contractors do as much or as little litter picking as they chose to do.

There is indication that the same laxity applies to all aspects of routine maintenance. You only have to look at the weeds piercing through the pavements in the picture at the top of this page.

Many have grown rich in the process. The National Audit Office has estimated that shareholders in Connect Plus M25 Ltd had made returns of 31% pa over an eight-year period!

One of the roads included in their contract is the 9 mile stretch of the A13 / A1089 linking the M25 to Tilbury. The whole of this section was declared a “litter black spot” by HE and yet Connect Plus have never had any financial penalties applied to them for underperformance on litter.  Link

Failure to deter waste and litter offences on the Highways England network

Highways England’s policy is to distance themselves from any involvement in prosecuting waste and littering offences committed on their network claiming they do not have the necessary legal powers. They are supported in this by DEFRA. 

“It currently has no enforcement functions, in relation to littering or any other offences. Although Highways England is responsible for keeping the strategic road network (and a small number of trunk roads) clear of litter and refuse, enforcement against littering offences which are committed on land for which Highways England is responsible is the responsibility of the relevant district council’ – 

DEFRA consultation page 30 Link

But this is simply untrue. – anyone can initiate prosecutions for waste and littering offences committed on the Highways England’s network. Local Authorities have no priority over HE – its a DfT/ DEFRA fiction. Link

If they wanted to Highways England could also issue on-the-spot litter fines (in lieu of prosecution) with the authorisation of the relevant local authorities. 

Needless to say cash strapped councils do not see it as their job to police litter and waste offences on HE’s roads. This has had the following consequences…

Waste transporters can spill rubbish and litter with impunity

The main source of litter on motorway main carriageways – as opposed to slip roads – are poorly covered waste transport trucks. While Highways England refuse to prosecute their operators the Environment Agency, part of DEFRA, say that they are not resourced to do this. Link

The new civil law penalties for littering from vehicles do not apply to motorways

In 2018  Regulations were approved by Parliament which meant that when litter was seen coming from a vehicle the owner would be subject to a civil law penalty.

“To maintain parity, rather than give new enforcement functions to Highways England in isolation, we propose that district councils should remain responsible for all littering enforcement (criminal or civil) on the Strategic Road Network”. 

DEFRA consultation page 30 Link

Highways England were not therefore empowered to issue these penalties and, as only bodies with the statutory duty to keep a highway clear of litter can issue them for offences committed on it, no one can issue them on the motorways (and on those trunk roads cleaned by HE). This was not explained to MPs and the Lords when the regulations were approved by them. I have therefore complained to the Prime Minister’s Office that DEFRA Minister, Therese Coffey MP misled Parliament on this point. Link

On-the-spot litter fines – contractors prove their worth

Councils employing specialist contractors issue on average 19 times as many fines as those using their own staff.

In spite of high profile criticism of over-zealous operatives it is likely that these cases are few and far between. 

Reform is in any case being planned by the industry in liaison with the British Standards Institute and the Home Office. Standards will be improved. Operatives will be licensed and monitored. Any bad apples will be identified and lose their licenses.

At the same time the legal framework under which they operate needs to be changed to improve productivity, deter littering more effectively and to provide a surplus for councils to double their current level of street cleaning at no cost to the law abiding public. Link

Highways England should be made responsible for cleaning all of their trunk roads

“We recommend that the Government make the Highways Agency responsible for cleaning trunk roads … “

Communities and Local Government Select Committee’s 2015 report on Litter and fly-tipping in England 

They were referring to those trunk roads on the Highways England network where the local authority has the statutory duty to keep them clear of litter. This means if a local authority wants to litter-pick a verge they have to get Highways England to install traffic management. Similarly, before Highways England can cut a verge they first have to get the local authority to pick up the litter. 

Warwickshire Waste Partnership. …. said thatworking with the Highways Agency was “a nightmare”

Communities and Local Government Select Committee’s 2015 report on Litter and fly-tipping in England

In their December 2015 response the Government wrongly claimed that the transfer of responsibilities would require primary legislation. 

They also said that Highways England were working on ways to improve collaboration with local authorities. In the 2017 Litter Strategy for England they said that Highways England were to launch a Litter Collaboration Pack. Finally in October 2018 Highways England said they had produced Tackling Litter Together – A Support Pack for Local Authorities . Fantastic – it had only taken three and a half years. BUT when I asked for a copy I was told it was still only in draft. I gather that is still the case. 

There are parallel situations in London where TfL  maintained roads, such as the North Circular, have to be cleaned by the Boroughs, and in the Shireswhere County Council maintained roads have to be cleaned by the District / Borough / City councils.

Link

HWRC charges for DIY waste – an incentive for fly-tipping

“The Government’s view is clear: DIY waste is classed as household waste if it results from work a householder would normally carry out. A number of local authorities have introduced additional charges for the deposit of waste which local authorities categorise as ‘waste other than household waste”. .

The Litter Strategy for England (2017) Page 20

In 2019 DEFRA described these fees as a backdoor tax saying “homeowners should be allowed to dump for free rubbish from improvements

However it is the waste regulations introduced by DEFRA in 2012 that allow councils to levy these charges. They should face the facts and rescind them instead of just blaming councils for doing what they are legally entitled to do.

Link

Environment Agency fail to prosecute large scale fly-tippers

Local authorities are responsible for investigating and clearing small scale fly-tipping on public land. The Environment Agency, part of DEFRA, are supposed to investigate larger scale fly-tipping (more than a lorry load of waste).

However they only prosecuted ONE case in 2018/19! How does DEFRA disguise this embarrassing fact?

Firstly they refer not to fly-tipping “prosecutions” carried out by the EA but to “incidents dealt with” i.e. incidents logged.

Secondly the EA activities are simply excluded from the official “Fly-tipping statistics for England”

Thirdly, they refer to “illegal dumping” rather than “fly-tipping” so that they can count in illegal dumping within waste sites into their stats for the EA.

Link

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