New local government enforcement duties: preferred policy approach

This guidance covers a range of points that councils generally recommend are incorporated within these new policies. Although policy departments may engage with departments with close links to councils, such as DLUHC or the Office for Product Safety and Standards in BEIS, they should also engage directly via the LGA and/ or professional bodies for a local government view.

Context

In recent years, many different government departments have developed new policies and introduced associated legislation creating new enforcement responsibilities for councils. These cover a range of different issues and support many important objectives, including protecting the environment, animal welfare, tackling obesity and preventing knife crime.

While individually departments believe these new responsibilities will not be significant, the cumulative impact of them adds up. The Department for Levelling Up, Housing and Communities (DLUHC) is therefore trying to develop a collective picture of new demands on the services which primarily enforce these new policies (typically trading standards and sometimes environmental health) through its regular forward look process. To support this process, departments planning a new duty or other form of work affecting local regulatory services should liaise with DLUHC (via [email protected] and copying in [email protected] for info) at an early stage to ensure these are included in the departments ‘forward look’ of new activities impacting these services.

It is also important to be aware of the position that these new burdens are being layered on to. Since 2010, both trading standards and environmental health teams have experienced significant funding cuts as a result of cuts to local government funding - figures show that trading standards budgets fell from an average of £1.27 million in 2010-11 to £860,000 in 2018-19 – and services are already extremely stretched in trying to cover existing responsibilities (for example, trading standards services oversee more than 250 pieces of legislation). Staffing levels in both environmental health and trading standards have reduced significantly and therefore there is no capacity to absorb and proactively implement new responsibilities other than at the expense of existing work.

It must also be noted that the provision of small amounts of new burden funding does not address the wider workforce recruitment issues that these services are facing.

Suggested policy approach

The notes below highlight issues for departments to be aware of and provide a steer on some key factors that can ensure the regulations are as easy to implement and enforce as possible.

Which council is responsible?*

*The notes in this section apply to England only. All Welsh councils are unitary authorities.

There needs to be clarity over which councils are intended and able to enforce the policy/legislation. There are various legislative definitions of local authorities and departments will need to use the correct one. There have been many errors over the years with the wrong definitions being used with unforeseen consequences in terms of enforcement.

Weights and measures authorities are county councils and unitary authorities (including metropolitan boroughs/districts, London boroughs and county unitaries). This does NOT include district councils in two tier areas.

If it is intended that enforcement should be done solely by Trading Standards then we suggest using “local weights and measures authorities” as the appropriate term in legislation.

If it is intended that other services, such as environmental health, should be able to enforce a measure alongside or instead of trading standards teams then a broad definition of local authority, including district councils as well as county councils and unitary councils, should be used. Services such as environmental health would not be able to enforce regulations that are the responsibility of the weights and measures authority in two-tier areas (although there would be the flexibility for them to do so within a unitary authority).

Powers and tools

Councils will need the appropriate powers and tools to enforce the regulations, potentially including powers of entry, the right to request documentation etc.

Schedule 5 of the Consumer Rights Act 2015 covering investigatory powers, sets out a standardised set of enforcement powers which local services are used to using and which have often been lifted and shifted into or referenced in other regulatory legislation.

In addition, where appropriate, councils should be given other powers to secure compliance, for example to issues fixed penalties, improvement and prohibition notices to require those in scope to improve their practices to meet the requirements of the legislation within a specified time period (as used in Covid regulations); or to make legal undertakings to change behaviour. The broader the toolkit available, the more likely that a local authority will be able to make the most appropriate response.

Legislative approach to enforcement

Consideration will need to be given to how councils will be empowered to take enforcement action where there is non-compliance.

An effective approach is for councils to have the power to issue fixed monetary penalties as fines for breaching a criminal offence. Where there is non-payment of the fine, this should be treated as a criminal offence prosecuted through the magistrates courts, rather than treated as a civil offence to be pursued through the first tier tribunal.

Some government departments have moved away from the use of criminal sanctions on the basis that there is a perception that it is cheaper and easier to use the civil law. This is NOT the case, either for the prosecuting authority or for the defendant. A simple Magistrates Court hearing is relatively quick and simple and affords defendants a higher level of protection that a civil court. Conversely civil courts can be expensive and expose both parties to the risk of paying much higher legal fees and costs.

For more serious cases, where the offending is serious, deliberate, ongoing or where there has been an ongoing refusal to engage with authorities to bring about compliance, then it is entirely appropriate for the more serious elements of criminal, law to be used, including seizure of assets by the court etc which can only be achieved via the criminal route.

This also allows courts to impose different types of penalties that may serve both the defendant and local communities in a better way, such as community service orders, curfews, criminal behaviour orders.

Overarching enforcement policy

It is helpful if new regulations are clear that councils’ enforcement approaches will be as set out in their existing enforcement policy, which all councils have. Requiring councils to produce a specific enforcement approach or policy for individual legislation or regulations is burdensome and does not add value, so should be avoided when drafting legislation.

Resourcing approach - new burdens

The New Burdens Doctrine states all new burdens (irrespective of whether it is legislation, guidance or a ministerial announcement) placed on local authorities by central Government must be fully assessed and funded. Broadly, a new burden is defined as any policy or initiative which increases the cost of providing local authority services but the doctrine only applies where central government requires or exhorts authorities to do something new or additional.

Firstly, it is important to note that although we are supportive of fixed monetary penalty (FMP) income being retained by councils, permitting councils to do so in legislation is not a substitute for new burdens funding. Councils aim to support businesses and others to comply with regulations in the first instance, with enforcement action a backup measure for wilful or repeated breaches. FMP income will not cover implementation activities for a new regulatory regime, such as visiting and advising businesses, and will only be secured if a council needs to take enforcement action.

Another issue is whereby departments seek to take the approach that because a new policy may lead to a reduction in other council costs (eg, reduced waste disposal costs), there is no need to provide new burdens funding because these future savings are included in the impact assessment and the net costs are zero. As with relying on income from penalties, this approach also means that councils do not receive any new burdens funding to support implementation activities for the new regime and is not a practical way to fund a new burden.

The New Burdens Doctrine is clear that departments cannot argue that short term costs will be offset against long term savings. Only specific identified cost savings (rather than vague, non-specific, or unquantifiable savings) can be offset against identified costs and this should be on a year-by-year basis. Where possible, costs should be considered in terms of staff and non-staff costs, and revenue and capital costs. As part of the new burdens process, departments should demonstrate they have considered the direct and indirect impact on pay and pensions costs. All of these costs are factored into the Association of Chief Trading Standards Officers (ACTSO) figure referenced below.

In terms of the level of resourcing needed to support new burdens, as set out above, councils’ compliance and enforcement capacity is stretched thinly across a number of existing duties. If a new policy is expected to require significant staffing capacity, our recommendation is that the new burden should be assessed on the basis of funding additional staff to undertake it (although it should be noted that there are shortages of professional officers in environmental health and trading standards which make recruitment of trained officers challenging). Without additional staff being supported through new burdens funding, the same number of officers will be required to undertake an even greater number of responsibilities.

Often, departments indicate that they do not require significant capacity as they expect limited proactive to be required work to support a new policy when it is implemented, perhaps because they are expecting high levels of compliance. In these circumstances, departments should cost up the activities that they do expect to be undertaken and the basic data on numbers of businesses or others impacted. This information may include issues such as:

• the total no of business affected by a new law
• per cent anticipated noncompliance based on Government data or estimates
• any training required for enforcement staff
• the level of any expected pro-active work in terms of routine checks
• levels of any expected business advice work
• the enforcement tools available (eg would a large amount be fixed penalties, what per cent might go to court etc.)

Once this type of information has been discussed with the LGA/WLGA and professional bodies, we can then then work with departments on good estimates of what the new burdens will cost.

We ask that departments use a cost figure of £80 (for 2023-2024) identified by ACTSO members as reflecting the average cost of putting a trading standards officer on the ground (the equivalent sum can also be used for environmental health officer costs). The figure provided is NOT the salary cost, but the full cost to a council of putting an officer on the ground. This includes salary, employment on costs, and ALL associated support, management, oversight, finance, HR, legal, buildings, ICT, data protection, transport and the plethora of other costs a local authority has when carrying out work.

One option departments can consider where they think there will be limited enforcement activity overall, or where it will only be in very specific localities, is to fund and appoint a lead enforcement authority, responsible for advising on or taking enforcement cases across the country. This helps to ensure the necessary expertise is developed despite there being a limited number of councils which are engaged in enforcement work. Examples include the National Trading Standards’ Estate and Lettings Agents team which covers Estate Agents Act enforcement for the whole of the UK via one local authority.