The Home Office in London has confessed it made a legislative “error” when it repealed sections of an environmental protection act without realising that they applied to Scotland.
As a result local authorities north of the border no longer have legal authority to issue notices requiring companies to install rubbish bins and take other measures to prevent littering. They also can’t order public bodies to clean up their land.
The Scottish environment minister, Richard Lochhead, has accused UK ministers of having “a rubbish attitude towards Scotland’s rubbish”. He is writing to the Home Office minister, Mike Penning, demanding “urgent action” to rectify the blunder.
“Laws over litter and the environment are rightly devolved to the Scottish Parliament but the Tories at Westminster have gone ahead and repealed them without even informing the Scottish Parliament,” said Lochhead.
“It’s now over fifteen years since the establishment of the Scottish Parliament, but that news doesn’t seem to have reached some parts of Whitehall yet. I am asking the UK government to reinstate the provisions they repealed – and what measures they are taking to ensure this doesn’t happen again.”
The Home Office’s mistake was made when it was repealing sections 92-94A of the 1990 Environmental Protection Act so they could be replaced by new powers in the 2014 Anti-social Behaviour, Crime and Policing Act.
But unfortunately officials failed to notice that the sections they were repealing applied to Scotland as well as England and Wales. The replacement powers they were introducing in the new legislation only covered England and Wales.
The repealed sections 92-94A gave Scottish local authorities the ability to issue Street Litter Control Notices forcing fast food outlets, lottery ticket sellers and other business to tidy up the messes they make. The repealed powers also enabled councils to issue Litter Abatement Notices obliging public authorities to tackle litter.
According to Lochhead, it looked like the Home Office was guilty of “a careless oversight”. Scottish Government officials could help correct this by suggesting amendments to the Policing and Crime Bill currently on it way through the UK Parliament, he suggested.
The Scottish Government is now investigating “whether any legal implications have arisen for local authorities who may have sought to use powers no longer available to them, as a result of the UK government’s action.”
The Convention of Scotland Local Authorities (COSLA) said it was warned earlier this year of the possibility that anti-litter laws had been wrongly repealed. “We welcome this additional clarity around the subject,” a COSLA spokesman said.
“We look forward to receiving guidance from the Scottish Government in due course regarding both any implications for local authorities and the need for any further legislation. In the meantime we will continue to provide our statutory duties with regards to litter and street cleansing and to encourage our communities in playing their part in reducing litter.”
A Home Office spokesman told the Sunday Herald: “We are aware of this error which was made during the process of strengthening existing legislation. Our legal advisors are urgently considering how best to resolve the issue.”
Last week the anti-litter charity, Keep Scotland Beautiful, warned that local environmental quality standards across Scotland were on the decline. Litter, fly tipping, graffiti, dog fouling and other detritus were getting worse, not better, it said.
“The consequences of this decline, which first started around 2012 - 2013, are far-reaching due to the effects on individual health and wellbeing as well as local and national prosperity,” concluded an expert report for the charity.