Lead theft – future threats in parishes and parliament

The need for awareness at local and national level of the potential threats

The recent Archdeacons’ News, Bulletin no. 20 December 2016 included an alert which warned of the heightened potential for the theft of lead from church roofs as a result of its increased scrap value. Coupled with this is the possibility that the on-going government review of the Scrap Metal Dealers Act 2013 will reignite the pressure by some MPs to seek its the repeal of the Act or certain of its provisions – a possibility raised by the review.

Potential for increased level of lead theft

The recent Archdeacons’ News notes that the price of lead “is about to reach an all-time high, and is currently trading at over £2,000 a tonne on the London Metal Exchange, a doubling of the price in just over 6 months”. It suggests that this could well encourage metal theft gangs to increase or resume their activities and encourages appropriate vigilance. The on-going Operation Crucible “should mean that police forces are alert to this crime”, but archdeacons are requested to contact the National Archdeacons’ Forum “should they experience an inadequate response after reporting a crime”.

Insurers are proactive in this area and Ecclesiastical Insurance has a useful Check List of items that need to be reviewed by the PCC and incumbent on a regular basis. It notes that the application and registration of SmartWater (or an approved alternative), together with the display of prominent signage is a condition of its policies; should this condition not be met, the church will not be covered for theft or attempted theft of metal, or the subsequent damage. Additional actions such as installing an electronic roof security system or CCTV will further reduce the risk of a theft occurring.

With regard to roof alarms, Ecclesiastical Insurance states [emphasis in original]:

“Thanks to the success of [roof] alarms, from 1st August 2015, where a roof alarm approved by us has been installed and SmartWater (or an alternative forensic marker approved by us) has been applied and registered, there will be no limits applicable to our church policies for theft or attempted theft of external metal and the subsequent damage as a result of the theft or attempted theft. In the event of a loss claims will be paid in full up to the buildings and/or contents sums insured”.

Building works, especially roof and other high level repairs may need scaffolding to be used while the work is in progress. Ecclesiastical Insurance states “[i]t is important to note that our insurance policies exclude the theft of metals whilst scaffolding is erected, [as reported in the case of Holy Trinity Church, Seaton Carew, Hartlepool]. However, we may be able to provide some cover provided certain conditions are met”.

Grants towards the installation of roof alarms  for churches of any denomination are currently available through the Allchurches Trust Limited; although the government’s Places of Worship Security Funding scheme provides grants for protective security measures (such as CCTV cameras, perimeter fencing, locks etc.) to places of worship in England and Wales, this is directed at the prevention of hate crime, rather than theft.

Consistory courts

The role of the consistory courts and the choice of replacement materials has been covered in Church roofs: replacement of lead following theft in which we noted:

“There is no shortage of guidance on alternative materials which might be used to replace stolen lead roofing, but it is only the consistory courts that have the authority to grant permission for its use, as either a temporary or permanent repair.  Anyone seeking a confirmatory faculty for a “quick fix” solution would be advised to read the judgement Re St. Mary the Blessed Virgin Eastry [2012] Canterbury Const Ct, Morag Ellis Com. Gen. where the PCC had incurred a cost of £90,000 for the unlawful installation of Ubiflex, a synthetic coating, which the Commissary General ruled had to be replaced after five years”.

The Faculty Jurisdiction Rules 2015 now provide for:

  • “[t}he application of forensic marking on roof lead or other material covering a roof or to rainwater goods or flashings [e.g. SmartWater] to be undertaken without the need for consultation, (Table 1, List A, A1 (6));
  •  “[t]he like for like replacement of roofing material”, (Table 2, List B, B1 (9);  and
  • “[t]he installation of a roof alarm” to be undertaken without a faculty, subject to consultation etc., (Table 2, List B, B1 (10)).

Review of the Scrap Metal Dealers Act 2013

In his response to Written Question 54519 on 2 December 2016 concerning the review of the SMDA 2013,  Brandon Lewis, Minister of State for Policing and the Fire Service at the Home Office,  stated:

“The Government intends to commence the review of the Scrap Metal Dealers Act 2013 very shortly and will publish the outcomes of the review in 2017.

This is earlier than required by section 18 of the Scrap Metal Dealers Act which said that the review should be undertaken and its finding published no later than 30 September 2018. We consulted with key partners and it was considered that there was sufficient evidence available about the working of the Act to undertake the review now.”

The review is not listed as a formal government consultation, but according to Metals Recycling Weekly of 5 December, “the Home Office has sent out a consultation document to industry figures asking them for their views”. Relevant heritage bodies appear to have been included in this circulation. MRW notes:

“The review was due in 2018 but the Home Office has agreed to a request from the British Metal Recycling Association (BMRA) to bring the process forward. The BMRA has welcomed the early review, but chief executive Robert Fell said he was concerned with the short consultation period and hoped the Government would “bring more rigour to a number of provisions of the Act”. “As an industry and a country, we cannot afford to be complacent; we need to strengthen the Act and commit specific police funding to enforcement too”.

The version of the Review consultation below appeared on the web site of the Heritage Alliance. Whilst some might view this as a positive initiative, Question 2 needs to be viewed in the light of the Act’s parliamentary history. At the time, Lord Faulkner of Worcester blogged (20 January 2013):

“Getting the new Scrap Metal Dealers Bill through the House of Commons was not without its difficulties. At the very last minute two Conservative MPs appeared ready to talk out the bill by tabling over 70 amendments on a single day – even though tackling metal theft was seen as a huge priority by everyone, the government included. They were only persuaded to drop their filibuster by a promise that ministers would table an amendment in the House of Lords which would add a so-called “sunset clause” – a measure which would have caused the Act to expire altogether after five years”.

However, the ministers were made aware that it was for the House of Lords to decide whether to accept the sunset clause. Lord Faulkner’s opposition to the government’s amendment was shared by speakers in all parts of the chamber, “with the Conservative Lord Forsyth and the Bishop of Exeter making particularly telling speeches”. In the vote “not-contents” totalled 89 (including all the cross-benchers who were present and voting and many Liberal Democrats), with the “contents” amounting to 31.

In our post Scrap Metal Act now in force – modified rapture! we warned:

“Section 18 of the Act requires the Secretary of State to undertake a review of the Act within 5 years of its enactment, which will provide another opportunity for opponents to attempt to attack its provisions”.

Clearly, the game’s afoot and, in addition to the review, it is likely that significant lobbying will be in progress.

Scrap Metal Dealers Act 2013: Review

December 23, 2016

The Home Office is seeking views and evidence on whether the Scrap Metal Dealers Act 2013 has met its objectives and whether it would be appropriate to retain or repeal the Act or any of its provisions in order to achieve those objectives in the future.

The Scrap Metal Dealers Act 2013 was introduced to provide a robust, modern, and comprehensive regulatory regime for the metal recycling sector in order to tackle the trade in stolen metal.

Question 1: In your view, has the Scrap Metal Dealers Act 2013 been successful in meeting the objective set out above? What evidence do you have to support your view?

Question 2: Do you consider that it is appropriate to retain or repeal the Act or any of its provisions at this time? Please supply any evidence to support your view.

The Act introduced a licensing regime that requires scrap metal dealers to hold and display a scrap metal licence issued by a local authority. This can be either a site licence or a collector’s licence. The Act also requires the Environment Agency in England and Natural Resources Wales to maintain national registers of scrap metal licences.

Question 3: To what extent do you consider that the requirements relating to licences and the national registers have helped to achieve the Act’s objective?

The Act introduced requirements on scrap metal dealers to verify the identity of those from whom they receive scrap metal; it makes it an offence for any scrap metal dealer to pay for scrap metal by cash; and requires dealers to maintain appropriate records of all transactions.

Question 4: In your view, to what extent have the above requirements helped to achieve the Act’s objective?

You are welcome to submit any other views relating to the purpose of this review.

Send responses to SMDAreview@homeoffice.gsi.gov.uk

Deadline 30th January.

Cite this article as: David Pocklington, "Lead theft – future threats in parishes and parliament" in Law & Religion UK, 4 January 2017, http://www.lawandreligionuk.com/2017/01/04/lead-theft-future-threats-in-parishes-and-parliamenton/

8 thoughts on “Lead theft – future threats in parishes and parliament

  1. I do not understand why anybody – conservative MPs or others (apart from criminals) -would seek to jeopardise this valuable legislation.

    • Yes I agree. Private Members Bills are particularly susceptible to being “talked out”, recent examples being: the prevention of rogue landlords evicting tenants who ask for basic repairs; the regulation of payday lenders; making the installation of smoke detectors in rented properties as standard; changes to provisions on the hospital parking charge change. There may be good reasons why such provisions should not proceed – unexpected consequences, wider issues not considered in the Bill, conflict with existing legislation – but being “talking out” by one or two MPs does not seem to be a sound approach.

      There have been specific criminal offences relating to scrap metal dealing since the seventeenth century, with provisions within the Criminal Law Act 1781 carrying a penalty of seven years’ transportation to Australia. Hansard provides ample evidence of the problematic nature of this crime over the years – inadequate implementation, lack of data – reviewed in my article “Old and New Metal Dealers”, (2012) 24 Environmental Law and Management 41. In a subsequent article, I reviewed the early, unsuccessful attempts at revising the legislation, “The many issues associated with scrap
      metal theft”, (2012) 24 Environmental Law and Management 255.

      Parliament was eventually goaded out of its torpor through a series of early day motions, a (failed) private member’s bill and numerous e-petitions, prompted by growing public concern. The first substantive measure was the amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, sections 145-147. Despite this `quick fix’, pressure for more radical changes continued and consequently, Richard Ottaway introduced his Private Member’s Bill, the Scrap Metal Dealers Bill, which gained government support and was eventually passed.

      We will follow the progress of its Review with interest.

  2. David – Thank you for this post, and for drawing attention to the EIO checklist and the current Government consultation on the Scrap Metal Dealers Act 2013. However, like Stephen Dowling and yourself, I fail to see why anyone, apart from the lead thieves or dishonest scrap metal dealers, would want to repeal or weaken the Act’s regulatory provisions.
    The call for heightened awareness of the current risk of lead theft from church roofs is timely. There have been three such thefts in Suffolk in the past two months, and another two thefts in Norfolk occurred either side of Christmas (from Toft Monks and Sloley: see: http://www.edp24.co.uk/news/crime/norfolk_church_leader_left_devastated_by_lead_theft_1_4828314 and http://www.edp24.co.uk/news/crime/parishioners_left_devastated_after_lead_thieves_target_church_in_sloley_1_4835663.
    However, the fact that these thefts continue despite the 2013 Act is no reason for relaxing its provisions. In the case of lead theft from church roofs, it is widely thought that the stolen lead is being put in a container and then transported abroad via one of the east coast ports, but anything that makes this dishonest activity more difficult is to be welcomed.
    There was good news last year for some of the churches to suffer lead theft: as a result of lobbying by certain Suffolk MPs, eligibility for grant aid from the Listed Places of Worship Roof Repair Fund was extended to such churches, but not all were successful in their applications for funding from what was a limited ‘pot’ of money. (In Suffolk, four out of 12 were successful.) It is helpful, too, that, as you note above, a ‘like-for-like’ roof repair now requires only ‘List B’ approval from the relevant archdeacon, rather than a full faculty petition.
    Also, since 1 February 2016, under guidelines issued by the Sentencing Council, “Damage to heritage assets” can be an aggravating feature when assessing harm, leading to the theft being placed in a higher sentencing category. In introducing the new guidelines, the Council explained that “The guidelines also set out for the first time that if an offence involves the theft of historic objects or the loss of the nation’s heritage, this can make an offence more serious.”
    In the light of these developments, it would be a brave minister who proposed any watering down of the provisions of the SMDA 2013. What is concerning, though, is that the review of the Act was announced two days before Christmas (on a Friday) with a deadline for responses of 30 January 2017 – effectively, given the intervening Christmas & New Year holidays, a consultation period of just under 4 weeks (though the Government’s consultation principles, as reissued in January 2016, no longer set a specific minimum period.)

  3. Thank you, David, for the additional information. As lobbyist, the length of consultation periods was a constant concern, particularly where there were two or more consecutive consultations from different part of government as well as select committees. Whilst those not involved in formatting consultation responses might view four weeks as adequate, this can be problematic where a “corporate” view must be sought before the response is submitted.

    My concern with this “consultation” on lead is that although a “review” was heralded by the 2 December response to a Written Question, it appears to have been kept “below the radar” with no formal notification under the “government consultations”. Nevertheless, many heritage bodies appear to have received the questionnaire, which is the route by which I was alerted; however, it does not seem to appear on the ChurchCare web site nor that of Ecclesiastical Insurance.

    The guidelines issued by the Sentencing Council are a welcome development, and echo an earlier initiative of the Crown Prosecution Service. During 2012, the CPS launched specific guidance for its lawyers on tackling metal theft, highlighting the significant and damaging impact it has on communities and industry. This guidance also brought together other existing policy, and reminded prosecutors of a number of approaches to encourage robust prosecutions, and the selection of the offence prosecuted and the applicable tariff.

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