Wrexham Council’s Executive Board met yesterday and the agenda included a proposal by Councillors Marc Jones and Carrie Harper from Plaid Cymru to suspend the contract with Kingdom Security.Kingdom is responsible for enforcing littering and has issued more than 9,000 Fixed Penalty Notices in the two years it’s been operating in Wrexham.
The Executive Board decided at the last minute to hear the matter behing closed doors and has now published a one-line summary of what was decided: The motion be not adopted.
The Executive Board will have to explain for itself why it made its decision and why the need for secrecy. People will come to their own conclusions and I hope we can explain in full how this council operates very soon.
THIS IS AN EXTENDED VERSION OF THE ARGUMENT PUT TO THE EXECUTIVE BOARD
Zero Tolerance Policy and the law
The council is putting itself at significant risk as the concept of zero tolerance for litter enforcement is not mentioned at all in statute. Under the Environmental Protection Act 1990, the offence of littering is only complete under the â€˜….. and leave itâ€� clause. Defra and the Welsh Government make it clear in the guidance underpinning this legislation that accidental littering should not automatically lead to a FPN, and that a person should be given the opportunity to pick the litter up first. Under a zero tolerance regime, this is not happening, and I would therefore question the legality of all FPNs issued under it.
Previously we’ve been told guidelines are not law.
But the case of Ali v Newham Borough Council (2012) contradicts that assertion.
This High Court ruling clearly established that a local authority has no lawful justification for departing from government guidelines. Put simply, the guidelines issued must be followed, and an offence is only committed if the litter is left. By adopting the Zero Tolerance approach for litter enforcement, something Kingdom is naturally keen to see happen, the council is at risk of significant legal action being taken to rescind and repay all illegally issued FPNs. This in turn puts WCBC residents at risk, since any financial penalties will clearly be passed on to the taxpayers.
The Council is required by the Regulatorsâ€™ Code to publish their Enforcement Policy explaining how they respond to non-compliance. It is recognised as an important document for regulators in meeting their responsibility under the statutory principles of good regulation, set out in Section 21 of The Legislative and Regulatory Reform Act 2006, to be accountable and transparent about their activities. In particular:
The principles of the Regulators Code apply to enforcement action carried out by local authorities. An effective environmental offences enforcement regime is one that is proportionate, consistent, targeted, transparent and accountable.
The current draft statutory guidance places strong emphasis on a proportionate hierarchical approach to litter enforcement, focussing on education, awareness and warnings as opposed to a blanket Zero Tolerance approach, whereby even accidental littering is penalised.But Zero Tolerance is not actually council policy.
From the council’s own website:
“Dog Fouling and littering impact on all members of the community therefore all should comply with the law. However consideration is given to an individual who may have difficulty picking up dog foul or who is visually impairedâ€�.
In addition, there is some tolerance shown in not prosecuting people under 18 and for people who are described as vulnerable. So there is no policy of zero tolerance.Defra states in the consultation document â€˜Modification to the Code of Practice on Litter and Refuse: Guidance on Effective Enforcementâ€™:
â€œWhen exercising their enforcement powers, councils are acting in a quasi-judicial capacity, and we are clear that these powers must be exercised in such a way as to uphold public confidence in a fair judicial system. Fixed penalty notices should therefore only be issued when it is proportionate and in the public interest to do so. Disproportionate enforcement activity undermines legitimate messages against littering and other environmental offences. Our policy is clear that under no circumstances should councils view the use of fixed penalty notices or civil penalty notices as a means to generate income. Where councils choose to use a third-party enforcement service, they should use an approach which is not based on the number of fines issued or revenue raised as this practice undermines public confidence in and support for a fair judicial system.â€�
The Government therefore makes it clear that a target approach is not in support of the fair judicial system in the UK.Zero tolerance is fundamental to the Kingdom contract.
The term ‘zero tolerance’ is not mentioned in Council Minutes. It’s also not referred to in the governing legislation, the Welsh Government guidance or the Council’s own Environmental Enforcement Policy, which has a structured approach that obliges the enforcement officer to try and achieve compliance in the first instance. This is followed by a ‘hierarchy’ of enforcement which begins with a verbal warning before formal enforcement procedures are considered. The implications of this are twofold:
(a) that the Council has not authorised a policy of â€˜zero toleranceâ€™
(b) That Kingdom have failed, either wilfully or mistakenly, to adopt and apply the staged approach to litter enforcement, so that almost all steps prior to court proceedings have been ignored, with the result that many thousands of Wrexham citizens have been incorrectly or unnecessarily criminalised, where alternatives could have been applied.
Anyone who has been served with a fixed penalty notice for an environmental offence and feels that they have been treated unfairly are entitled to seek to have their case reviewed and reconsidered.The council’s chief legal officer has confirmed in an e-mail dated June 22, 2018 that the council has no ‘zero tolerance’ policy regarding Kingdom’s contract and therefore the council has a problem.
As a result of the significant reputational and legal risk this council faces, the motion submitted calls on the Executive Board to suspend with immediate effect the contract with Kingdom.
We don’t believe the council should delay on this matter – Kingdom’s fines amount to tens of thousands of pounds a month and, if we wait until the Task and Finish group reports back in the autumn, that potentially means more than Â£100,000 extra fines – which could be contested and could see Wrexham Council taxpayers footing the bill.