Protection of Freedoms Bill

My Lords, Amendment 42 addresses the law of unintended consequences. The situation is similar to that of the Dangerous Dogs Act. As of some rogue dog owners, we had the Dangerous Dogs Act, and now we have some rogue wheel clampers, we have clauses that will outlaw not the rogues but the clamps. In doing so, they will trespass on the rights of residents and private landowners. It is funny—funny peculiar rather than funny ha-ha—that despite drunk drivers killing pedestrians and passengers, we refuse to outlaw drink driving and only outlaw excess-drink driving; and that despite guns killing people, we outlaw the unauthorised ownership of guns rather than the guns themselves. We are now going to have a situation where guns, if they are licensed, will be legal on your own premises, but wheel clamping will be a criminal offence. What have we done with wheel clamping? Instead of cracking down on rogue clampers, the Government seek to ban all wheel clamping on private land, even when it is undoubtedly of value and properly controlled. It is this part of the Bill that I seek to amend—not to give free rein to clampers but to build in robust and comprehensive regulation to the industry. I will give six reasons for the amendment. First, how big a problem is posed by rogue clampers? We have seen them on television, but that does not necessarily make it a problem. No one likes being clamped, but the main reason for being clamped is that one has parked without authority on someone else's land. Vehicle immobilisation is one side of the coin, but the obverse side is irresponsible and selfish parking. However, without any consultation on this issue, the Government announced a complete ban on all clamping on private property. They provided no evidence for how many people are affected by rogue clampers and are putting the rights of unlawfully parked motorists above the rights of landowners who are only trying to protect their private property. The issue of cowboy clampers was largely dealt with in the Crime and Security Act 2010. Sections 42 and 44 of the Private Security Industry Act 2001 introduced a series of regulations requiring wheel clamping companies to acquire licences and landowners to use only licensed companies, as well as an effective means of appeal for the motorist. However, the powers were never commenced and, strangely, the Government have set about reinventing the wheel. How big a problem is it? Nick Clegg justified this part of the Bill by referring to his Your Freedom website on which 46,000 people left 14,000 ideas. Quite so—but I understand that only 24 of them wanted a ban on wheel clamping. Nevertheless, Mr Clegg suggested that those ideas led to this proposed ban on wheel clamping on private land. Secondly, where does clamping work? Clamping or the mere threat of it probably deters more than 90 per cent of illegal parking on private land. The inconvenience of having a car clamped deters even the most persistent and selfish parker. This is fair when there are clear warning signs—and there are bound to be since the essence of effective clamping is not to clamp but to deter. Thousands of residents will be badly affected by the Government's proposed ban. I remember when, on public rather than private land, I used to return late at night from a hospital where I worked to find that I could not park anywhere near my house, which was in the first non-parking controlled part of the street a couple of hundred yards from a Tube station and a famous music venue—the Forum, for noble Lords who know Kentish Town. Until we got residents’ parking, it was all but impossible to park within 10 or 15 minutes’ walk of my front door. It was a public road, but I fully understand what it must be like to come back to a block of flats like the one I used to live in near Highgate Tube and find that there is nowhere in the communal private parking area to leave one's car. I will quote a police spokesman from Gwent. He said: "““The concept of … legislation which removes the disincentive to behave irresponsibly is somewhat incongruous””." What are the alternatives to which the rogues will turn if they cannot use wheel clamps? The Government want to deal with rogue clampers but have failed to add any provision to prevent such rogues moving from clamping to ticketing, where they will then be able to fleece the 40 per cent of drivers who pay their tickets. There is no requirement in the Bill for such operators to comply with any code of practice or provide an appeals service. Already, many rogue clampers have turned to ticketing as they do not need an SIA licence or to join an accredited trade association. Julian Edwards, from Lancashire Trading Standards, said: "““Legal enforcement with the possibility of action through the courts””—" if there is just ticketing— "““can be far worse””—" than clamping— "““and ticketing companies are now ‘licking their lips in anticipation of a money bonanza’””." Meanwhile, drivers could end up facing a bill for hundreds of pounds. What’s more, a ban will simply send a message to persistent fly-parkers that they have the freedom to flout private parking restrictions. This is a dangerous precedent to set with respect to private property, but those motorists who are pursued through the small claims court may find themselves wishing that they had been faced with a clamp on their car rather than a bailiff at their door. Fourthly, who will suffer if all wheel clamping is outlawed? The effect of a blanket ban, no doubt unintended, would be myriad problems for motorists and property owners as it would leave some landowners with no redress against the rogue parker. People park on private land every day—at leisure centres, retail parks, local authority and other housing developments, parks, open spaces, hospitals, university campuses, school and church property, sheltered housing and railway stations. A ban on clamping and towing away would remove the right of the owner to protect their land. With a ban there would be nothing to stop selfish motorists parking across hospital ambulance bays, blocking emergency exits or wheelchair access ramps, or even parking on somebody's drive. Noble Lords can imagine if their private drive was near a pop festival, a railway station, a cinema or football ground and somebody left their car on it. On some housing estates, not just cars but trailers are left and the residents have no means of removing them from their parking areas. The Reverend Adam Scott is a clergyman at St Michael and All Angels in south London, which is coterminous with a housing estate. He stated that the local amenity company serves thousands of people on the estate. It uses a reputable clamping firm, 70 per cent of whose work is for local authorities—but that 70 per cent is unaffected by the proposed ban. The Reverend Scott states: "““Our church halls are heavily used for a variety of community purposes including a nursery school, scouts and other youth activities, events for older people, blood donation and even as a polling station. We also have midweek services, weddings and funerals. Visitors to the church and halls are permitted to park and—with the current restrictions and clamping as a threat—there is usually space for their vehicles … Our concern is that this clause would lead to a war by motorists against residents and visitors to this and other estates””." These residents want the House to appreciate that they are against rogue clampers extorting unreasonable sums from motorists, but want the ability to exercise proper stewardship of a community resource. The chief executive of the Association of Residential Managing Agents, which represents firms managing leasehold blocks, said that a survey of his members found that 93 per cent believed that a total ban on wheel clamping was not the answer. He said that, "““the industry needs to be properly regulated to protect the interests of landowners, residents and motorists””." Bob Smytherman, chairman of the Federation of Private Residents’ Associations, says: "““Illegal parking in areas belonging to a block of flats is already a major problem; by removing the deterrent of wheel-clamping it will further exacerbate this problem for many flat owners and tenants with a private parking space. The effectiveness of clamping lies in the threat that the illegal rogue car-parker may return to their car to find it immobilised. The rogue car-parker is not deterred by the threat of a parking ticket””." Tickets are anyway only enforceable against registered keepers, who are unlikely to name the driver who has actually caused the problem. Are we really asking companies to chase up the keeper through the DVLA, making even more private information available to a host more people? Furthermore, some of the offenders are likely to be among the 15 per cent of owners of unregistered cars, added to which trailers and even caravans are not on any DVLA database. If wheel clamping were outlawed, as the Government want, many landowners would have to resort to pop-up studs, chains or expensive barriers. However, the barriers proposed in the Bill are still no answer to many residential areas for the simple problems, let alone costs, of constructing them. Sometimes the police or the planning authorities will not permit them where they may cause a traffic hazard on entrances leading to or from public roads. They are unfeasible for residents’ parking spaces outside their own homes. Imagine you are a disabled driver and cannot access dedicated parking bays because some selfish drivers think they would prefer to park there, but no one can remove or immobilise their car. Disabled drivers need to use parking bays reserved for them at supermarkets and in leisure car parks, but the proposed inability to remove parked vehicles at the owner’s cost will remove the best deterrents to such rogue parking: the wheel clamp or having one’s car towed away. Ticketing is pointless where cars are parked illegally in disabled bays or where access is needed. The Government say that the police can be called to tow the car away, but that will not be the case in disabled bays where they are not causing an obstruction but are just in the way of a disabled person who wants to park there. I know that the noble Baroness will speak about the blue badge system, but I know that disabled motorists fear that car parking spaces reserved for them will no longer be available. Disabled Motoring UK, which represents disabled drivers and blue badge holders, is understandably opposed to this ban. Its chairman has commented: "““We are very concerned that should this clamping ban come into force, there will no longer be any way to deal with persistent abusers of these bays, or drivers who have parked in such a way ""that access routes for disabled people are blocked. Selfish and opportunistic drivers will feel free to park in these spaces safe in the knowledge that the only effective deterrent from doing so will be outlawed””." I shall quote from a letter from Mr and Mrs Hubbard in Beckenham. One of them is diabetic and the other has MS. Their car park, for a small number of flats, has a few parking bays for tenants and a shared parking bay for health visitors and doctors, yet it was used by all and sundry despite signs saying ““Allocated Disabled Parking Bays”” until they employed a clamping firm whose signs alone have helped considerably, although very occasionally clamps are still needed. They are very effective. Mr and Mrs Hubbard write: "““Please can you help us by asking the Government not to stop clamping or towing away but to regulate this service? … Please let us continue to get help and assistance from the genuine clamping or towing company … We are not well people and suffer with incurable diseases. Please let us safely park our car and not go back to how it used to be””." The other issue is that, without clamping or towing, foreign or unregistered vehicles will be able to park with impunity since there is no way of enforcing ticketing against them. It is no good saying that these cars can be moved if they cause an obstruction. The person inconvenienced may not be qualified or insured to drive or move the car. They may be disabled and unable to get into that car and anyway, who would be covered by insurance if the car were damaged? The idea that they could just move it out and put it on the public road, even if it was not insured or MOT-ed, seems extraordinary. What are the alternatives to an outright ban? We all strongly support the attempt to deal with cowboy clampers who have plagued the private parking industry, and the industry must be regulated to freeze them out, so we need legislation to require all parking operators to comply with robust regulation. Only compulsory membership of a licensing scheme and dispute resolution system will suffice. Without that, the cowboys will continue to flourish and reputable parking companies will suffer. We must take immediate action to reverse that position. That is what is set out in these amendments. The amendment will mean that clamping and towing away on private land could continue where the vehicle is foreign-registered or not correctly registered with the DVLA, or where the vehicle is causing an obstruction or is on land attached to residential properties and used solely for the purposes of those residents. Schedule 4 would prevent any rogue clampers moving into rogue ticketing by requiring operators to sign up to a code of practice maintained by an accredited trade association. The appeals mechanism proposed in Schedule 4 would provide an independent appeals service for anyone receiving a parking ticket. Citizens Advice, trading standards and Consumer Focus have called on the Government to introduce independent dispute resolution in this Bill, funded by the industry and available to all motorists, so that cases where mistakes are made or where consumers feel that they have been unfairly treated—for example, by being pursued for excessive charges—can be quickly, fairly and cheaply resolved. I trust that the mechanism I have set out answers that call. I believe this is an important amendment, and I hope it will find favour with the Committee. I beg to move. House resumed. Relevant document: 20th Report from the Constitution Committee. Clause 54 : Offence of immobilising etc. vehicles Debate on Amendment 42 resumed.