Point of law - Sorting the rubbish, by Stephen Cirell and John Bennett

22 Jun 06
As three-quarters of UK waste still goes to landfill, there has been talk of charging households that do not recycle. This would not require any new laws as a trio of existing ones could be brought into service

23 June 2006

As three-quarters of UK waste still goes to landfill, there has been talk of charging households that do not recycle. This would not require any new laws as a trio of existing ones could be brought into service

While the Cameron effect has yet to be fully felt in national politics, there is an area where all three parties seem to be agreed. This is that Britain needs to do something to improve its recycling targets and reduce the amount of waste we simply throw away.

We might not be the worst country in Europe but we are a long way from the best. We recycle under 25% of our rubbish while countries such as Germany and Austria were already hitting around the 45% mark in 2000. The UK's target to reach that level might well be brought forward to 2015; but even that is a long way away and some drastic action is necessary in the meantime.

It is generally agreed that the way forward is more recycling at the domestic level, but despite all the encouragement over the past five years, UK households are still a long way short of treating recycling as seriously as our continental neighbours.

The latest approach is to look at targeted environmental taxes. We have seen how this can work in relation to the differential car tax on vehicles.

Sir Michael Lyons' review of local government finance, which is due to report at the end of the year, has now raised the possibility of charging householders directly for the collection of waste.

The idea would be to follow a model pioneered in other European Union states whereby households that produce more than an agreed level of waste per week are charged for the excess. The system could work technically by weighing each householder's 'wheelie bin' and charging at an agreed rate per kilo over a permitted level. Alternatively, it could be delivered from a commercial perspective by 'selling' a special form of plastic bag, which the householder uses for extra waste. One bag is given free per week; others have to be paid for.

This change could hit two targets with the same stone. It could raise finance and also benefit households that produce less waste to the detriment of those that produce more. Currently, there is no direct financial encouragement to recycle. Those who do bother subsidise those who don't. Such measures have produced significant results in other countries and have not led to wholesale abuse by fly-tipping or other avoidance measures.

While the technology is clear, the legal power to charge is missing. It is generally thought that this will require primary legislation such as a new Finance Act or a new Environment Act.

However, a simpler legal solution might be available using three different existing powers.

The first is the Local Government Act 2000's 'wellbeing powers', which include wide powers to undertake environment initiatives. The problem is that the wellbeing power was drafted to enable authorities to spend money raised by other means to deliver the wellbeing — ie, it is a spending power rather than a charging power.

This is where the second of our three powers comes in. The Local Government Act 2003 permits local authorities to charge for services that are provided under another power. So Section 93 of the 2003 Act could be used to charge citizens for services provided under wellbeing powers or other discretionary powers.

However, there are restrictions to prevent s93 being used as a general taxation power. The first restriction is that the citizen must consent to the service and the second is that the power cannot be added to a statutory duty (eg, the duty to collect household waste).

While it is generally accepted that the existing powers can be used to charge for an enhanced service that is sought voluntarily, it cannot be used for the simple collection of 'excess' waste. This is where our third power comes in.

Section 16 of the Local Government Act 1999 is a very wide discretionary power given to government to amend existing primary legislation in the interests of 'Best Value'. This power needs the government to issue secondary legislation by way of a statutory instrument but critically it does not need a new Act of Parliament. With the 'cross party' support for new environmental measures, it is not too far-fetched to suggest that a similar political consensus could be persuaded to remove the restrictions limiting the charging power in s93 for these purposes.

A suitably drafted statutory instrument could permit some form of charging for 'excessive' domestic waste; with the power perhaps limited to only the better performing local authorities.

Now that would be worth focusing on CPA scores to achieve.

Stephen Cirell is head of local government and Professor John Bennett is a consultant solicitor with Eversheds. They are authors of Best Value law and practice, published in loose-leaf by Sweet and Maxwell


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