Why I think Scottish Authorities can't quite tackle petty environmental problems
Are you comfortable with hackers using your bank account details to steal money? Do you want a burglar or robber knowing exactly where you live even if you have the best defenses available to keep them at bay? Nobody wants their personal details to be given out for the wrong reasons which is why the Data Protection Act was introduced through the British Parliament in 1998 after being brought into line with the 1995 EU Data Protection Directive, even though the act itself never mentioned privacy.
This law especially applies to any kind of authority in the UK whether it be law enforcement agencies (e.g. Police), local authorities, corporate companies that hold your details as part of the services they make towards their customers, educational institutions, voting polls and even the military. If any business is established, it must register with the Information Commissioners Office to officially state they will comply with Section 17 of the Data Protection Act 1998, which states that data controllers must comply with processing data (using a Data Processor like a call centre or admin team) from a Data Subject along with the Information Commissioner's Office (ICO). This involves declaring to the ICO about the amount of computers used between every department, how many CCTV (surveillance how exactly the data will be processed. Disobeying the Act will result in harsh punishment in the form of hefty fines, particularly if sub-sections 21 (1) and (2), Sections 55 (unlawful obtaining of personal data) and 56 are broken under the law.
The Data Protection Act is run on 8 Principles that those subject to control and process data must comply with unless an exemption applies:
First principle - Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 is met and in the case of sensitive personal data, at least one of the conditions set out in Schedule 3 or either of the two Statutory Instruments below is met.
Schedule 2 - 1. The data subject has given his consent to the processing.
2. The processing is necessary—(a)for the performance of a contract to which the data subject is a party, or (b) for the taking of steps at the request of the data subject with a view to entering into a contract.
3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract.
4. The processing is necessary in order to protect the vital interests of the data subject.
5. The processing is necessary—(a) for the administration of justice, (aa) for the exercise of any functions of either House of Parliament, (b) for the exercise of any functions conferred on any person by or under any enactment, (c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department, or (d) for the exercise of any other functions of a public nature exercised in the public interest by any person.
6. (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. (2) The Secretary of State (for Constitutional Affairs. This has since been transferred to the Secretary of State for Justice) may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied.
Schedule 3 (the handling of sensitive data) - 1. The data subject has given his explicit consent to the processing of the personal data. 2. (1) The processing is necessary for the purposes of exercising or performing any right or obligation which is conferred or imposed by law on the data controller in connection with employment. (2) The Secretary of State may by order—(a) exclude the application of sub-paragraph (1) in such cases as may be specified, or (b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.
3. The processing is necessary—(a) in order to protect the vital interests of the data subject or another person, in a case where—(i) consent cannot be given by or on behalf of the data subject, or(ii)the data controller cannot reasonably be expected to obtain the consent of the data subject, or (b) in order to protect the vital interests of another person, in a case where consent by or on behalf of the data subject has been unreasonably withheld.
4. The processing—(a) is carried out in the course of its legitimate activities by any body or association which—(i) is not established or conducted for profit, and (ii) exists for political, philosophical, religious or trade-union purposes, (b) is carried out with appropriate safeguards for the rights and freedoms of data subjects, (c) relates only to individuals who either are members of the body or association or have regular contact with it in connection with its purposes, and (d) does not involve disclosure of the personal data to a third party without the consent of the data subject.
5. The information contained in the personal data has been made public as a result of steps deliberately taken by the data subject.
6. The processing—(a) is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), (b) is necessary for the purpose of obtaining legal advice, or (c) is otherwise necessary for the purposes of establishing, exercising or defending legal rights.
7. (1) The processing is necessary—(a) for the administration of justice, (aa) for the exercise of any functions of either House of Parliament, (b) for the exercise of any functions conferred on any person by or under an enactment, or (c) for the exercise of any functions of the Crown, a Minister of the Crown or a government department. (2) The Secretary of State may by order—(a) exclude the application of sub-paragraph (1) in such cases as may be specified, or (b) provide that, in such cases as may be specified, the condition in sub-paragraph (1) is not to be regarded as satisfied unless such further conditions as may be specified in the order are also satisfied.
7A. (1) The processing—(a) is either—(i) the disclosure of sensitive personal data by a person as a member of an anti-fraud organisation or otherwise in accordance with any arrangements made by such an organisation; or (ii) any other processing by that person or another person of sensitive personal data so disclosed; and (b) is necessary for the purposes of preventing fraud or a particular kind of fraud. (2) In this paragraph “an anti-fraud organisation” means any unincorporated association, body corporate or other person which enables or facilitates any sharing of information to prevent fraud or a particular kind of fraud or which has any of these functions as its purpose or one of its purposes.
8. (1) The processing is necessary for medical purposes and is undertaken by—(a) a health professional, or (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional. (2) In this paragraph “medical purposes” includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of healthcare services.
9. (1) The processing—(a) is of sensitive personal data consisting of information as to racial or ethnic origin, (b) is necessary for the purpose of identifying or keeping under review the existence or absence of equality of opportunity or treatment between persons of different racial or ethnic origins, with a view to enabling such equality to be promoted or maintained, and (c) is carried out with appropriate safeguards for the rights and freedoms of data subjects. (2) The Secretary of State may by order specify circumstances in which processing falling within sub-paragraph (1) (a) and (b) is, or is not, to be taken for the purposes of sub-paragraph (1) (c) to be carried out with appropriate safeguards for the rights and freedoms of data subjects.
10. The personal data are processed in circumstances specified in an order made by the Secretary of State for the purposes of this paragraph.
Second principle - Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
Third principle - Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
Fourth principle - Personal data shall be accurate and, where necessary, kept up to date.
Fifth principle - Personal data processed for any purpose or purposes shall
not be kept for longer than is necessary for that purpose or those purposes.
Sixth principle - Personal data shall be processed in accordance with the rights of data subjects under this Act.
Seventh principle - Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
Eighth principle - Personal data shall not be transferred to a country or territory outside the European Economic Area, unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.
There is one exception, though, in the form of Section 29 where personal data processed for purpose of "the prevention or detection of crime, the apprehension or prosecution of offenders, or the assessment or collection of any tax or duty or of any imposition of a similar nature". In other words, a local authority in the UK should not always be obliged to obey the law of keeping processed data secret for the very purpose of detecting or even preventing crime such as a terrorist plot (see Section 28 of the DPA), a murder plot, a conspiracy to assault, kidnap or rob someone or even drink driving to the lower ranked offenses of dog fouling, fly-tipping (Illegal Dumping) and littering as well as Breach of the Peace (the equivalent to Disorderly Conduct in the United States) and criminal damage such as vandalism. Section 32 of the DPA 1998 can allow data to be bypassed for the sake of public interest but there is a hitch: subsection 1 states that the publishing of such data is ultimately decided by the Data Controller. This is why many Councils across Scotland uphold the right to use the Data Protection Act as an excuse to not reveal even the most basic of information such as whether an offender has been dealt with or not, even if you are not likely to come into contact with them in real life. It is they who decide if the data is of public interest or not, even if the public actually show no concern with the data being released. This also explains why they often use Section 12 of the Freedom of Information (Scotland) Act 2002 legitimately to save costs on other priorities when asked about how their laws are working. They also explain that every one of their environmental wardens and the staff processing data of offenders has to obey the code of conduct outlined in the Regulatory of Investigatory Powers (Scotland) Act 2000.
What does the Regulatory of Investigatory Powers (Scotland) Act 2000 hold in terms of having the authority to investigate dog fouling and littering? As explained in several e-Mails and a few phone calls from every one of the 32 councils I contacted in Scotland when I asked the question, "Is is true that members of the public in (Insert name of county here) can report dog fouling and litter offences anonymously, especially if they have clear video footage of them caught in the act and if they know the person(s) doing it?", they use the codes of conduct in the RIPSA to justify not allowing ordinary members of the public to report offenders anonymously. They explained that they generally do allow members of the public to report offenders anonymously if they know both the name(s) and address of the offenders but only a warning is issued. If the decided action was to take the case to a Sheriff court in order to fine the offenders, the witnesses would have to fully come forward with their details to keep in line with court procedures. In Section 7 (3) of the act, an authorization of covert surveillance may be done to detect or prevent crime but under subsection 4, Scottish Ministers have the right to challenge such authorizations. This can depend on if they feel it breaches our human rights (including the rights of the offenders).
Although the Dog (Fouling of Land) Act 1996 has been used by councils across the UK to crack down on Dog Fouling, it specifically states under sections 7 and 8 of the said act that the law does not apply to Northern Ireland or Scotland at all, which makes a likely contest for those convicted of letting their dog foul on public or unauthorized private land if they are caught in Northern Ireland or Scotland. This is where the Dog Fouling (Scotland) Act 2003 comes in to extend the similar powers enforced in England and Wales, only this allows the person whom the fixed penalty notice has been issued to the right to appeal it under Section 8 of the act. Not once is the right to report offenders anonymously on grounds of threat to safety ever mentioned in this act nor in Section 87 of the Environmental Protection Act 1990. A draft guidance document released in 2003 at the time the act was due to come into force, on Page 3 and at points 11 and 12, it specifically states in section 17 of the act that the need for corroborative evidence under section 48 of the Civic Government (Scotland) Act 1982, meaning that it will be easier to convict someone of dog fouling and littering based on the evidence of a single or pair of enforcement officers rather than having the total requirement of a witness or 2 to come forward and testify. But many councils have been forced to cut the amount of wardens on the streets because of budget cuts from the British Government, hence the fact that you, as an ordinary citizen, are generally far more likely to witness dog fouling and littering than the very few enforcement officers employed to look after our streets. One example to demonstrate this statement was an e-Mail I received
All in all, these laws are all linked in common to the obedience of Article 8 of the European Convention of Human Rights (the right to respect for private and family life). However, the irony in this situation is that Article 8 states that "There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." A consultation document sent to and received by the ICO in 2013 specifically reveals that public authorities must give full consideration to Article 8 of the European Convention on Human Rights. So in theory, law enforcers in the appropriate authority should have the right to spy on suspected dog foulers, fly-tippers and litter louts (they are more clever than you think if they wish to avoid paying a large sum of money on top of their already burdening debts). But being such an open-ended law, if an offender decides to appeal his/her accusation or conviction based on their human rights being breached, they can under the said law and being a nation that voted to remain in the European Union on the 23rd June 2016, it would take only a wise mind to know what mood the local authorities enforcing the law or even the Sheriffs would be in to pick sides. But surely the right to respect for private and family life can be quite rightly used if the complainant feels that there is a genuine threat to their safety from the offender(s) if they are highly likely to expose themselves and where they live while testifying in front of the offender(s) in Court? Time will tell if individual local authorities will say yes and wake up to the madness silently held back for a few decades to the present.
Even though Police Scotland have the right to enforce Section 87 of the EPA on drivers they see littering out of their vehicles, any citizen that decides to report any offender they see from evidence capturing technology such as a Dashboard Camera amid their anger from the lack of authority presence, for example, still has to go through the same procedure of fully testifying in front of the offender in a Sheriff Court, no matter how dangerous the offender can be, whether they like it or not.
Only by revising the law to include the right to not only report dog foulers and litterbugs anonymously but allow councils to process data just as transparently as the armed forces, the police and M16 when they are tracking suspected criminals can we finally not only regain the fair justice that is deserved for those that make our countryside dirty but at least make the average joe feel safe when deciding to stand up up to them. It is time that we mean business towards anyone carelessly wrecking our environment. If the likes of Keep Australia Beautiful WA, the city of Tucson, Arizona, USA and the Don't Mess with Texas campaign can have a good success rate with their tactics, why not us?
Link to Data Protection Act 1998: http://www.legislation.gov.uk/ukpga/1998/29/contents
Link to Article 8 of the European Convention on Human Rights: https://en.wikipedia.org/wiki/Article_8_of_the_European_Convention_on_Human_Rights
Link to Regulation of Investigatory Powers (Scotland) Act 2000: http://www.legislation.gov.uk/asp/2000/11/contents
Link to Dog (Fouling of Land) Act 1996: http://www.legislation.gov.uk/ukpga/1996/20/contents
Link to Dog Fouling (Scotland) Act 2003: http://www.legislation.gov.uk/asp/2003/12/contents
I sent 1 letter to SNP Councillor Ian Murray circa Monday 6th March 2017 enquiring about both the lack of environmental enforcement officers for the West Dunbartonshire area and the way the laws on litter work:
"Dear Ian Murray,
Having seen your party's proposals to spend:
1. £50k to improve enforcement of litter and dog fouling rules
and
2. £50k to combat Flytipping
If the SNP won this year's elections on May 4th 2017, can you, your party and your authority clarify exactly how the money will help to enforce our environmental laws (including the usage of S29 of the Data Protection Act 1998, given the fact that Dog Fouling and littering are criminal offenses), including by means of being able to report offenders not known to the complainant(s) anonymously, even in court, and increasing the amount of enforcement officers in the area from 4 to a minimum of 10 or above?
Yours Sincerely,
Jonathan Rainey"
Reply on 4th April 2017 from Councillor Murray:
"Hi Jonathan,
My apologies for not getting back to you sooner.
I have been making enquiries about the issue as it was not an area where I had sufficient knowledge to give you a reply.
West Dunbartonshire Council employ 2 officers (not 4 as you state), whose responsibility is litter and dog fouling. These officers cover the whole area from Gartocharn to the boundary between Clydebank and Glasgow, clearly a very large area.
SNP group feel that an increase in the number of officers will respect their anonymity when speaking to the alleged offenders.
Now that I have had the chance to read the further comments you have made since your first email I can see that you are focusing on the law and convictions.
With respect I would suggest that the law should be a last resort. What officers will try to do in the first instance is to educate offenders about their behaviour, point out the increased penalities they may face and inform them where they can obtain bags free of charge from the Council.
Officers tell me that this approach can lead to a change in behaviour, which to my mind is a good result.
To summarize, we believe that increasing the resources to tackle the problem can produce the results all of us residents are looking for.
My apologies once again for the delay in replying.
Kind regards,
Ian"
Sadly, Mr Murray, like any other politician (just generalizing here - thankfully not every politician is like that), generally only focuses on other important issues instead of the ones closer to home and makes preconceived assumptions based on some visits to the areas affected (or lack thereof), meaning that a highlighted problem then becomes ignored. If the Council or any other authority thinks that every dog fouler and litter lout is a nice, good-natured citizen who treats everyone around them with respect, they are clearly living in La La Land and they need to get out of both the dream and their offices to see the problems for themselves.
So what would be the correct steps to take in order to get rid of dog fouling and littering for good?
1. Introduce Deposit Return Schemes already used in countries like Australia, Belgium, Canada, Croatia, The Czech Republic, Denmark, Estonia, Finland, Germany, Hungary, Iceland, Lithuania, The Netherlands, Norway, Sweden and the United States which have already proven to be successful there so that people who litter would be attracted to the offer of rewards for recycling bottles and cans. In Sweden, the scheme had a 95% success rate in getting rid of litter.
2. Override the current laws on enforcing punishments for dog fouling and littering so that not only will authorities have the right to covertly survey, in a correct manner that will not result in negative feedback from the public, those who commit environmental-related offenses without unnecessary reprisals from other Governments including the EU, which in turn waste taxpayers' money and cause more austerity if a local authority refuses to cooperate with Article 8 of the European Convention on Human Rights to prevent or detect crime. This also involves handing down these powers to the police for catching dog foulers and litter louts in the act. When members of the public are allowed to report offenders with high quality evidence without the dreaded need to reveal their home addresses, only then will people feel safe.
3. Deploy more covert and overt Environmental Wardens onto our streets to deter offenders and catch anyone in the act. If offenders are caught, they first MUST be given a chance to correct their behaviour by placing their trash (or given a free poo bag to pick up dog poo) in the bin without any reprisals in the form of fines (unless they refuse to correct their behaviour and/or act rude towards the officers). The officers MUST show their badges clearly in the process. The officers must NOT follow bad corporate examples (take this investigation by the BBC's Panorama in mid-May 2017, for example or this case involving a pensioner who just let a bench dry after painting it only to be badly punished for doing just that) that cause the public to further question the effectiveness of the laws and therefore distrust authority altogether.
4. Introduce special Waste Awareness Courses for first time offenders and this could also include going on a litter pick with any selected organisation. They shall only issue fixed penalty notices if they have been found either to have failed to turn up to or have already attended a Litter Awareness Course. It should not matter which other local area they were prosecuted in, the laws have to be enforced. The courses should be broadcast via video link and/or in differently translated languages if the offender is from abroad.
5. The more frequent offenders are caught, the more the fines shall rise and the punishments more relevant. On the second offence, a criminal record will officially be created.
