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Environmental Health Scotlandthe law: interpretation, enforcement and performanceby John F CrawfordNearly two decades ago a REHIS PresidentialAddress included words to the effect that...‘when allother Council Departments have failed to resolve aproblem, it invariably falls to the Environmental HealthService to be asked to find a remedy...’. Such were thehalcyon days of 1975-96 when most Councils had aDirector of Environmental Health or similar post-holderreporting directly to the Chief Executive.Admittedly there were fewer of the issues associatedwith Freedom of Information legislation, and therewas a lot of support for the idea that anyone in chargeof a Council service should actually have workedin that service before being promoted, but theEnvironmental Health Officer (EHO) trainingtraditionally encouraged ‘thinking out of the box’long before the cliché became so popular withmodern managers.The writer’s first encounter with this concept wasin the late ’60s when complaints were received frommembers of the public assailed by golf balls whilepromenading in a public estate in Stevenston. Scrutinyof the limited legislation available offered little scopefor action so it was decided a site inspection wasneeded with the estate groundsman. On finding anindividual with a full set of clubs, driving shots ina reckless and random manner, a polite request todesist was met with the reply ‘if you can quoteme a by-law or other piece of statute whichprevents me from practising my sport here, I’ll moveon: otherwise I intend to carry on’. The groundsman,a sexagenarian around 18 stone (and a ‘doon-hamer’)simply lifted the bag of clubs and said ‘ye micht playwith that club son, but ye’ll nae play wi’ these ithers’and walked off. An amicable solution was then foundwhere the golfer got his clubs back in exchange for apromise to keep off the estate in future.Those of us who fondly recall the powers inthe Public Health (Scotland) Act 1897 and theBurgh Police Acts welcomed the vagueness of somesections which were on many occasions sufficient towarn off miscreants long before more formal actionwas needed. Yet there are many documentedexamples where EHOs moved swiftly to use thesepowers when required.Vagueness however was not always a bonus. By thelate 1960s most new legislation was preceded byScottish Development Department (SDD) Circularswhich, like today, were designed to assist enforcementstaff in interpreting statute. The Sewage (Scotland)Act 1968 wasn’t triggered until 1972/73 and includeda potential re-definition of a ‘sewer’ (or so it wasintended). Until then, the sewer was maintained bythe Council and all associated (Buchan) traps andpipework on the carriageway and footpath was theresponsibility of the householder. This definition wasvery significant in coastal holiday resorts where therewere a lot of second homes, often used for summerlets with attendant over-crowding, damage, etc.The 1968 Act (according to the SDD Circular)required the Council to assume responsibility for allpipework and traps ‘as soon as these left thecurtilage of the building’ but one west coast BurghSurveyor wasn’t having it. His reading of the Actwas that, while it might have intended to have thisnew burden placed on the Council, it didn’t actuallysay so! Moreover, his Town Clerk was of the samemind.Picture the telephone conversation:‘Am I speaking to the Burgh Surveyor?’‘Yes.’‘Your Assistant has declined to instruct the clearanceof a choked Buchan trap outside my house at***** Street.’‘Good for him.’‘What do you mean? It’s on the footpath and youhave a statutory duty to clear the obstruction.’‘Who says?’‘The Sewerage (Scotland) Act 1968 says so. Itsets out a new definition of a sewer which nowincludes the Buchan trap.’‘That’s not my understanding of the Act.’‘You better know that I’ve read the SDD Circularwhich makes it clear that Buchan traps on thefootpath are now classed as part of the sewer.’‘SDD circulars aren’t law.’‘But they have a bearing on the Act.’‘No they don’t.’16
Environmental Health ScotlandIf they don’t have a bearing on the Act, why does theSDD issue them in the first place?’‘Search me. At the end of the day it will be for thecourts to decide what the Act means. On my readingthe Act isn’t clear and I’ve recommended that theCouncil adopts the status quo until there’s somecase law.’‘So in the meantime, I cannot enjoy my home becauseof the foul stench of overflowing sewage outsidemy bedroom window.’‘My staff report that yesterday afternoon there weretwo families of at least five members using thistwo-apartment house, sharing the kitchen and atoilet in the close. I’m not surprised the Buchan trapis choked.’‘What authority have you to enter these premiseswithout my permission?’‘Try the Public Health (Scotland) Act or the BurghPolice (Scotland) Acts. Yesterday morning yourholiday lets complained to us about overcrowding’.‘I’m going to instruct a local plumber to clear theblockage and send you the bill.’‘It won’t be paid without us issuing an official order.’‘I’ll sue you for the cost.’‘Good luck! Make sure you spell my name right onthe paperwork.’So until the 1975 reorganisation, that Burgh took noresponsibility for sewers other than those definedbefore the new Act was introduced!How would such action be judged in today’sculture of listening, caring, responsible Councils? Howmany of today’s (professional?) complainers receivemore than their statutory entitlement simply becauseof the fact that the fear of refusing their request willimmediately trigger a more formal investigation orimpact on in-house performance statistics?There’s no doubt that Councils need a rigorouscomplaints investigation scheme to ensure the higheststandards of service delivery but the fact that oneparticular individual (or service) has been the subjectof numerous complaints is only of significancewhen any of these complaints are upheld.Cleansing Officers are only too aware of the increasein complaints when new waste collection servicesare introduced. On evaluation, these complaints areoften not about how the service is delivered, but moreabout the Council’s new collection policy.Returning to the ‘thinking outside the box’ approach,the writer heard of a problem where an individualarrived at his disabled mother’s home every dayat 4.00pm to deposit copious amounts of food tofeed feral pigeons. Hundreds of birds awaited hisarrival, leaving their mark on neighbours’ cars,washing and footpaths, etc. Reasonable requests fromthe Environmental Health Service were vigorouslyrebuffed and it was thought little could be done.It then emerged that this individual was licensed bythe Council to drive a Private Hire Vehicle and as theHead of Service (fortuitously) was also responsiblefor the Licensing Service, it was rumoured thatthe Council might want to consider whether suchbehaviour was ‘fit and proper’ for a licensee.Having given the matter some thought, the driverdecided not to opt for a hearing in front of Councillorsand stopped feeding the birds.Would that every complaint could be resolved soeasily! Yet a cursory look at Statutory PerformanceIndicators suggests that there is a continuing traditionof EHOs finding informal and practical solutions formany of the complaints received.It is important, however, that EHOs, REHIS andthe Society of Chief Officers of EnvironmentalHealth in Scotland continue the practice of speakingout when new legislation is either needed or suggestedand that shortcomings in existing statutes are rectified.Anyone who has read Edna Robertson’s excellentbiography of James Muir Russell, Glasgow’s firstMedical Officer of Health in the late 19th centurywill see that he and his contemporaries were veryvocal in highlighting the need for legislativeintervention to improve public health. Russell was oftenberated by elected members for his views that there werelinks between poor standards of housing and ill-healthbut he pressed on and was eventually vindicated.While the message or advice from the EnvironmentalHealth Service might not be as ‘good’, ‘useful’, or‘helpful’ as colleagues and other recipients might wish,we owe it to Russell and our predecessors to continuetheir fine tradition.After all, it was once suggested we can trace ourlineage back to Moses: arguably the first public healthpractitioner, who banned the eating of pork...?John Crawford is a self-employed consultantcurrently retained on a part-time basis by theCaledonian Environment Centre as Technical Adviserand is a past President of the Institute. The viewsexpressed here are his alone.17
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