England to End Profit-Driven Litter Enforcement Contracts

Ministers in England have announced plans to clamp down on “for-profit” litter enforcement arrangements, which have allowed private firms to profit from issuing fines. Under new statutory guidance, local councils will be required to terminate contracts that enable private enforcers to receive between 50% and 100% of the penalties they impose.

Fixed penalty notices (FPNs) for littering and violations of public spaces protection orders (PSPOs) typically range from £100 to £200, with potential court prosecutions leading to fines exceeding £1,000 for severe offences. PSPOs serve as tools for local authorities to address specific anti-social behaviours, including dog fouling, street drinking, and other nuisances.

The Ministry of Housing, Communities and Local Government has expressed its intention to implement this statutory guidance to ensure local authorities can effectively and consistently exercise their enforcement powers. “We plan to bring forward statutory enforcement guidance on both littering and fly-tipping,” the ministry stated. “We will refresh and modernise the code of practice on litter and refuse in England to improve local authorities’ understanding of their duties.”

Josie Appleton, director of the civil liberties group the Manifesto Club, welcomed the proposed changes. She noted that the fining-for-profit market constitutes a significant portion of both litter and PSPO penalties, with at least 75% of PSPO penalties originating from private companies. “The government will have to be firm if it wants to end the injustice,” she remarked.

The ongoing debate about the practical implications of this “statutory guidance” continues. The existing code of practice on litter and refuse, last updated in October 2023, already advises local authorities to enforce fines proportionately and only when “in the public interest.” Nonetheless, critics argue that these guidelines are often non-binding, making a formal ban essential to eliminate what Appleton calls “institutionalised profit from public shame.”

In a troubling incident, Nayan Kisten recounted being wrongly accused of spitting by officers from the private enforcement company Kingdom Services in Tonbridge, Kent, last March. Kisten reported that the officers demanded his identification without adequately explaining the situation or providing evidence. Despite his denial and the absence of objective proof, he was fined £125, a penalty he is contesting.

“They were really dismissive of any discussion. They just wanted to process the fine as quickly as possible,” Kisten stated. “It took me six months of repeated emails and stonewalling before the council confirmed the fine had been cancelled. I can see how people pay these fines out of fear, even when they’re innocent. It’s a scary, pressurising experience with the very real threat of a criminal record if you maintain your innocence.”

Critics have long warned that outsourcing litter enforcement to private companies often results in excessive fines for minor infractions. While government guidance advises against allowing revenue to be a motivating factor, some performance contracts explicitly link rewards to the number of penalties issued. Appleton commented, “When private companies are paid per fine, it inevitably leads to absurd penalties and outrageous injustices.”

There are also calls for the government to address the absence of formal appeal rights. Currently, individuals who refuse to pay fines must defend themselves in court, risking a criminal conviction, a potential fine of £2,500, and additional costs if they lose.

As penalties are set to increase, the upper limit for litter FPNs will rise from £150 to £500 beginning in July 2024 due to new legislation. Tim Clement-Jones, a Liberal Democrat peer, cautioned that raising fines without adequately curbing profit-driven enforcement could exacerbate existing disparities.

“Private companies frequently issue grossly out-of-proportion penalties, the vast majority of which are issued for innocuous actions that fall far outside anyone’s definition of serious anti-social behaviour,” he noted. Clement-Jones also highlighted the lack of judicial oversight, arguing that the current FPN system undermines due process. “They are issued solely based on the decision of an official and do not involve the production of evidence in court,” he said.

In response to these concerns, the Department for Environment, Food and Rural Affairs (Defra) has confirmed its intention to publish the statutory guidance on littering enforcement in the new year. This development marks a significant shift in the approach to litter enforcement in England, aiming to protect individuals from undue penalties and ensure accountability in the enforcement process.