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Paul Sanderson's blog

On what basis is the CRR calling for a judicial review?

28 February 2011: There is an interesting article on the Guardian website that explains the basis under which people and organisations can challenge the Government using a Judicial Review.

As you can see in the article, it needs to be done in three months, and there are three criteria under which a Government decision can be challenged. To quote the article, these are:

First, on the basis that it was illegal – this usually means that the decision maker has acted beyond the powers granted to it by parliament, or has misunderstood the law.

Second, because it was irrational – this is difficult to establish, it is not enough to show that a decision was unreasonable, it must be so outrageous that no sensible person who had applied his mind to the question could have arrived at it; a decision could also be disproportionate to the end sought, usually in the context of human rights or European Community law.

Third, the decision may have been procedurally unfair – a common example is when decision makers fail to carry out an adequate public consultation, as was the case in relation to the Building Schools for the Future decision.

Now I am no lawyer (obviously), but looking at these criteria, it seems to me the second and third would appear to rule out a Judicial Review on the revised Waste Framework Directive on the basis that the Government’s decision would be difficult to justify as “irrational” and it would also be hard to argue that the decision was “procedurally unfair”. My hunch therefore is that those members of the Campaign for Real Recycling that are calling for a Judicial Review are looking to suggest that the Government’s action was illegal.

As Philip Reynolds showed in the story Commingled inclusion appears legally reasonable, waste expert claims, the view of one lawyer is that Defra appears to have followed the letter of the law. I’m sure those advising CRR will claim differently, but in my view it does show that it isn’t at all clear that CRR will get its way and that a Judicial Review will happen.

 

17 February 2011: This is my editor’s comment piece for this week’s MRW:

Our exclusive story by Philip Reynolds on the fact that community recycling organisations and local communities could take control of waste collection rounds under Right to Challenge proposals is bound to be controversial. Click here to see the original story.

This will be seen with horror by the waste management companies that could potentially lose business from this to community groups.

But it will be welcomed by community organisations that wish to see more ownership of the way their local collections are organised.

It is bound to be controversial, and not just with the waste industry. For example, could special interest groups such as energy from waste opponents use this to challenge contracted incumbents? This could lead to messy legal disputes if communities are able to overrule decisions by their democratically elected councillors.

The full details, and implications, of this measure have not been fully realised, but there has to be a concern about whether this has been fully thought through.

There is no doubt that in some circumstances, community groups can make a difference, but there is always the danger that these groups don’t actually represent the community but their own special interest.  

Again, it is DCLG that has proposed this Right to Challenge, and is part of the Localism Bill that is being scrutinised by Parliament. With its pressure on local authorities to introduce weekly collections, it is evident that DCLG is still driving much of the agenda when it comes to municipal waste policy.

14 February 2011: There is something romantic about the sea and it is particularly apt of course to talk about romanticism today of all days.

It is possibly the fresh air, the possibility of travel to distant lands, the trade of goods coming into ports, and our history as a maritime nation. And of course, there are the romantic vessels that transport our goods, or defend our nation.

Like when Concorde was decommisioned, there is a great sadness that ships like the wonderfully named HMS Invincible come to the end of their lives. As this story shows, she has been sent to Turkey to be dismantled. At the moment, HMS Exeter, Sheffield and Nottingham are all for sale for scrap.

Although Invincible was decommissioned six years ago, it is sad to see a Ministry of Defence spokesman talk in quite cold terms about a good return for the tax payer from the scrapping of her. I’ve nothing against Turkey or the Leyal Ship Recycling company that will recycle the aircraft carrier, but I think it is a shame that such wonderful ships aren’t recycled in the UK, so that they can gracefully end their lives on British shores. We don’t have much of a ship building industry anymore, but ship dismantling is something that still happens here. This should be more than just an economic argument, but one about supporting British businesses too.

11 February 2011: I visited Jonathan Straight, chief executive of bin manufacturing company Straight, at the company’s Leeds head office yesterday. And a very nice trip it was too!

Jonathan is a canny businessman, and is an entrepreneur who spotted an opportunity, and created a thriving business in the space available. There are a lot of these types of people starting to emerge in the recycling and waste management sector and in my view it is great to see.

The interview will be available on this website and in MRW magazine at the beginning of March, so keep an eye out for it.

One of the things that always amazes me on my trips around the country by rail, is how many familiar names of companies you see near to the tracks. Yesterday I spotted Metal and Waste Recycling and PDM Group on the way up. There is clearly plenty of logistical advantage in being close to a railway line, but it is also good that people can see them out of the window!

9 February 2011:

You might have thought that the silly battle of commingled versus source separated was over, but the Campaign for Real Recycling has put it right back into the limelight with a press release issued late last night, when it announced that it would be seeking a judicial review into how the Government plans to implement the Revised Waste Framework Directive into English law.

But I understand this is a battle not being fought against the MRF operators and waste management companies (although they are inevitably going to be unhappy) as before, but a war against Defra, fought by a Campaign that could be driven apart by what some within the body are describing as an extreme position taken by those leading it.

It is no secret that the Campaign for Real Recycling was set up by a number of recycling businesses in response to concerns about the material quality coming from MRFs that are sorting commingled collections. The creation of the CRR really put the spotlight on the commingled versus source separated debate with both sides holding their positions.

Over the past year or so, there seems to have been a more intelligent and grown up conversation about materials quality with some MRF operators and waste management companies willing to engage (I’m told by some that MRW’s Recycling United campaign did help towards this). These attempts at finding middle ground, must surely be at risk, and there are people within the CRR itself that agree.

The reason why this has all blown up is because the CRR accuses Defra of playing “silly buggers” as one member put it to me. The CRR believes Defra has decided to take the easy option of allowing commingled collections to continue in England, despite what it believes is clear guidance in the directive that certain recyclable items should be collected separately. It argues that Defra has fudged its interpretation of the directive to make life easier for itself so that it doesn’t need to make local authorities that have gone down the commingled route, change direction.

A number of campaign members, and some people outside it that share similar views, have told me this morning of their immense frustration with Defra. One said to me: “Defra has known about our position for about a year. Defra just aren’t listening and if anything are being awkward. We have asked for information, we have put in a Freedom of Information request, but Defra has worked hard not to give us anything we need.”

I’m told that the CRR put in a Freedom of Information request in October asking why Defra had this interpration that the directive allowed for commingled collections, but the CRR was not happy with the vague information it got back.

Another person with an interest said: “It doesn’t surprise me this has happened [the call for the judicial review], as there is general frustration with the general path the UK government has decided to go down. Legislation has been designed to avoid landfill with its weight-based targets etc, but there has been no emphasis on the quality of the output.It seems to me that Defra is trying to convince the world that black equals white. From the point of view of the materials manufacturers, they are pissed off with this position.

“There are no healthy discussions going on with Defra about what the future should be. I have some sympathy with Defra officials that are being forced to take up a position they are not comfortable with, as the ministers have decided on a particular direction.”

The CRR has taken legal advice on its position, as it argues Defra has failed to engage and is incorrect in its interpretation that commingled collections should be considered as a form of separate collection. Indeed, I understand that the CRR has a letter from a European Commission official stating they, the Commission, believe the UK’s approach is wrong, and I’m told by other sources that the Commission may consider legal action itself against the UK if it takes this approach.

But this approach by the CRR hasn’t been welcomed by all of its members. One told me that they knew “of a threat, but I had hoped it [the CRR] wouldn’t push a judicial review as it is not helpful”. This person added that around half of the UK already has commingled collections and so the Government was never going to want to change this and create even more upheaval in local government. “Kicking something off like this isn’t constructive,” the person added. “Yes the CRR should look to influence, and yes there are problems with MRFs. But this isn’t helpful. It will stretch the campaign’s cohesion. The argument is technically correct that Defra has not paid attention to our concerns, and what appears to be clear in the directive. While I knew the CRR was considering this option of a judicial review, I was not consulted.”

However, another member said that all members of the CRR had been made aware, and were meeting today when all views could also be aired.

The reality is though, that almost all of the CRR members take material from MRFs and some, such as the paper companies SCA and UPM that are represented in the group by Paperchain, have even built or are in the process of building their own MRFs.

One member that supported the call for the judicial review also predicted this could be the beginning of the end of the CRR. “It is a case that definitely has to be heard and there has been lots of internal debate in the CRR about whether this was the correct approach to take. We are a loose coalition of different people and interests and the mood of the group changes from time to time. But I am sure there will be some members who will be considering whether to continue to support the CRR. I’m sure some of the paper manufacturers will have to look at whether this is in their interests now they have MRFs and whether the fees they pay are in their best interests.

“There has been a more conciliatory tone in the market and the CRR has been working with a lower tone overall and some support us continuing this approach. But with Defra putting the directive before Parliament, in my view the timing was right for us to raise our objection.”

Another stakeholder expected this would now drag on over the coming months and re-open the whole commingled versus source separated debate again, with neither side backing down. I suspect they are right.

 

8 February 2011: Philip Reynolds has written this piece on the Eunomia research conducted for the Welsh Assembly Government on the best way to design collection schemes to help it reach its 70% municipal recycling target.

This report is excellent, thorough and gives even more evidence to the collection debate. But the days of the commingled versus source separated debate are over and we are now in a period where there is a more grown-up approach being taken by both sides of the argument on the whole.

Take my interview with Andrew Perkins from Aylesford Newsprint recently. For him, quality of material is really important. But he recognises that “there is a lot of good work going on to improve the quality coming out of MRFs and some are producing a nice quality”. In that interview, he also says that some collection systems do, at present, produce better quality material for his business than others. This balanced view is good to see.

The Eunomia report takes a similar view and don’t be fooled by those who say it clearly comes out on one side, because it doesn’t. It is a nuanced report that says that at present, kerbside sort is marginally better. But if you have enhanced recycling schemes, which Wales is likely to achieve through its 70% target, then kerbside sort is a much better by far option.

You can see the quote (and the full report) from Eunomia project director Joe Papineschi here in which he says it is the most comprehensive report yet, but also isn’t the last word. So let’s not pretend that this report ends the debate, because even its authors admit it doesn’t.

This is a sensible report for a now sensible debate. I’m sure MRF operators that are committed to improving quality will wish to respond to the report, and will wish to work to ensure that when it comes to enhanced schemes, their technology will be able to match that of kerbside sort.

On a slightly different matter, there is a reason both MRW and Letsrecycle spell commingled like this rather than co-mingled. Can we get everyone to eventually agree on the commingled versus co-mingled debate? That might be more challenging!

 

7 February 2011: Part of my job is to respond to media requests for help, and as such, I occasionally get calls from TV, radio and print media asking for help. Last week, I got a call from BBC Radio Merseyside asking if I could comment on a story in Liverpool (my home town) regarding a company wishing to build an autoclave, but it was getting local opposition. I agreed, but as I did not know this particular company invovled, or its plans, I said I would only do it to give context, but as I am from Liverpool originally (live in south London now), I might be able to place some of that context.

And to be fair, the presenter stuck to that. But he asked me a question about whether I thought the opposition was NIMBY-ism. And to be honest, initially it threw me a bit, but I think my response was overall correct. I said that often NIMBY-ism happens because companies do not properly address the concerns of residents and looking into this particular case a bit more, it seems this has been the situation. As we’ve shown in MRW many times, those companies that engage and explain early on, tend to deal with the concerns of residents best. However, there are always a vocal minority that will always complain, and these are the genuine NIMBYs.

Let me know your thoughts on whether I was right with my answer. However, I was also pleased that BBC Radion Merseyside were looking to bring balance to what seems to be quite an emotive story.

If you so wish, you can listen to the interview on iPlayer here

It is about 1 hour 20 in I think!

 

 

4 February 2011: A few weeks back MRW did this story as we had spotted in the legislation that fines could be placed on local authorities if the Government so wished as part of the Localism Bill. This story has started to blossom and is becoming a real worry for local authorities and others.

A sign of this comes today from London Mayor Boris Johnson’s deputy Sir Simon Milton who is concerned that fines should not be levied by Government if local government isn’t given the resources to solve the problem in the first place. The new powers in the Localism Bill give the Secretary of State (in the case of recycling and waste, at Defra) the power to decide arbitrarily the level of the fine and which council will be penalised. It could mean for example that low performing councils could be penalised more than high performance councils if targets were missed, without taking into account the circumstances.

Sir Simon Milton’s statement is particularly interesting because it comes from the office of the Conservative mayor Boris Johnson warning against Conservative Communities Secretary Eric Pickles for his sleight of hand (my words!)in putting this measure into the Localism Bill. This measure is unfair on local authorities that are already facing cuts and needs to be re-thought.

 

4 February 2011: Hurray, England has hit a 40% recycling rate for the first time…but isn’t that disappointing?

A lot of hard work has gone into getting to the 40.1% recycling rate in England, and local authorities, waste management companies and others have done a huge amount to increase recycling by pretty much ten times its rate a decade ago.

But have we already reached a plateau? Is this as good as it gets when it comes to recycling in England?

We had better hope it isn’t, and that it is a short-term blip. We are committed to an EU driven 50% recycling rate by 2020, and at the current growth rate, we would be at roughly 44% by then if recycling growth continues at the same rate (by my calculations admittedly!).

The figures are based on a rolling comparison between the period April 2009/March 2010 where a 39.7% recycling rate was seen and July 2009 and June 2010, which Defra says accounts for seasonal fluctuations, but makes it difficult for those of us who aren’t statisticians to make direct comparisons.

This data also coincides with the last year of the Labour Government, there or there abouts, when of course the nation was still concerned about coming out of recession and waste arisings would probably have been down, which could have impacted on these figures.

The challenge for the Conservative/Liberal Democrat Government, is to get the recycling rate growing again to average at least 1% per annum to meet the target. With the likes of Local Government Secretary Eric Pickles advocating alternate week collections, this could be a difficult objective to meet. These figures also suddenly shine much more light on how Defra intends England to reach the 50% target through this year’s promised Waste Review.

 

3 February 2011: This is my Editor’s Comment piece for the 4 February 2011 issue of MRW:

Over the past couple of years, MRW has run a number of stories on whether the PRN system is fit for purpose. This week we have a story, researched by senior reporter Tiffany Holland, that shows that a fifth of accredited packaging recovery note reprocessors and exporters had not registered in 2011 compared to the year before.

With PRNs in many materials now trading below the £1 level, it doesn’t make economic sense for these companies to pay the fees to register. Although, in some cases, it could just be that the companies are late in registering.

But clearly, there is something wrong with the PRN system at the moment and it isn’t proving economically viable in some cases. The situation with glass PRN prices leading to price volatility for the material is a good example of the PRN system not delivering.

I’d be interested in your views on PRNs. Should they be abolished, reformed or left as they are? Email me your thoughts to mrw@emap.com or comment below

 

2 February 2011: One of the most surprising stories of this week, has been the attention given by the Guardian newspaper to the Salvation Army Trading Company and its business deal with recycling contractor Kettering Textiles Ltd.

In the MRW Viewpoint column on this week’s Scrapbook page in the magazine, MRW deputy editor Andrea Lockerbie writes:

“The owner of Kettering Textiles Limited, Nigel Hanger, says he is in business to make a profit – and that in a non-charity setting would have been applauded for achieving such profits. But Hanger was also a director of the charity’s trading company, which the Guardian asserts creates a conflict of interest.

For the newspaper, the story is clearly about the conflict between donating to charity and expecting your donations in full to benefit the charity – and the generation of private profit. It is a valid point – but one that can be extended to the way many charities are run these days, using a big business approach that gives them greater reach and ultimately generates a greater income for their causes.

But the story also clearly shows the strength of the textile recycling sector and high demand for second hand clothing in Eastern Europe. Indeed, SATCOL reckons it could place around four times as much clothing as it is currently collecting. It also highlights the dominance of the Salvation Army in the UK: it now has around 5,000 textile banks and operates about half the banks found in supermarket car parks. That gives it a lot of access to the UK’s unwanted clothing.

Will the story make people think twice about dropping their old clothing into Salvation Army textile banks? I’m not sure. I think that with textile banks and charity shops it’s all about location: people are busy and want to get rid of their old clothes and other items in the quickest, easiest way possible. That’s also why there are many successful textile recycling businesses, who like the rest of the recycling industry have built businesses around generating value from the waste of others and collecting it in the easiest, most efficient way and diverting it from landfill. And for that they should be rewarded.”

I agree with her viewpoint on the whole. But I do think there is an issue with the relationship between the charity sector and private sector contractors. There is no hard and fast rule on what constitutes the proportion of the income that should go to a charity. Many people would expect it to be 100%, but that provides no real incentive to a private contractor, and in fact fails to take into account even administrative costs.

Clearly, there are benefits to having a private sector contractor acting on behalf of a charity, as they bring private sector approaches in terms of cost control and importantly the incentive of profit to encourage efficient operation.

The Salvation Army Trading Company has enabled the Salvation Army to do a lot of good, charitable work and in these particularly austere times it is important that this work continues. There have always been grumbles about the Salvation Army Trading Company. Some of this is to do with its size in comparison to other textile operators, while some of it is due to the fact that it made a commercial decision not to sort its textiles prior to export.

But this could be more serious, and the challenge facing the Salvation Army Trading Company is whether the public feels 30% of profit going to a private company is fair. At the moment, Andrea is correct in saying that people will most likely use the most convenient textile bank. But if this story drags on some more, then the Salvation Army will lose some of the goodwill it currently has.

If I were to bet on it, I’d say, the story will soon go away. However, the Salvation Army Trading Company needs to assess whether its relationship with Kettering Textiles Ltd is too cosy. The Guardian says that Kettering Textiles owner Nigel Hanger is also on the board of the Salvation Army Trading Company. In my view, this isn’t good corporate governance practice, and this part of the relationship should be reviewed.

Comment below if you wish

 

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