Protection of Freedoms Bill

My Lords, as we have heard from the noble Baroness, Lady Hayter, her Amendment 42 seeks to introduce a number of exemptions to the ban on vehicle immobilisation and towing. The amendment would allow wheel clamping and towing to continue on private land where the vehicle was unregistered in the United Kingdom, causing an obstruction or parked in a residential estate where parking was permitted only for residents or their guests, or the vehicle was adapted for towing—in other words, it was a trailer or a caravan. I understand why she and others seek these amendments, but I personally have received complaints about the activities of rogue clamping companies. The amendment seeks to create a governance system for parking enforcement operatives who are members of an accredited trade association to allow them to continue to clamp and tow vehicles in the circumstances set out in proposed new subsections (2A) and (2B), subject to compliance with a code of practice. For the wheel-clamping ban to be effective, it is important that there are very limited exceptions, as otherwise they will create potential loopholes to be exploited by unscrupulous clampers, of which there are many. Even if the clamping operator company itself is not a rogue operator, it is easy to imagine how the individual man or woman attaching the clamp could make a mistake. The noble Baronesses, Lady Hayter and Lady Grey-Thompson, asked whether landholders will be able to move cars that are wrongly parked in a disabled parking bay after the clamping ban. A landholder will be able to move a vehicle a short distance without committing an offence provided their intention is simply to regain access to their land and they do not intend to prevent or inhibit the vehicle’s driver or owner from removing it. They will not be able to charge the driver of the vehicle for this. However, the provisions in the Bill would not offer a defence to the landholder in the event of a vehicle being damaged while the landholder moved it. The landholder who moves a vehicle a short distance, intending to regain access to his land, does so entirely at his own risk. The exceptions provided for in this amendment are very widely drawn and could render the ban wholly ineffective. Many noble Lords, including the noble Baroness, Lady Grey-Thompson, have raised the issue of disabled parking bays. However, it is currently possible for a disabled driver to be clamped if they do not display their blue badge, and the consequences could be very serious. Noble Lords will be aware that the blue badge must not be displayed unless the car is being used by a disabled driver, so there is plenty of scope for a mistake to be made. The amendment puts its faith in a system of regulation overseen by one or more accredited trade associations. They have their part to play in ensuring that parking enforcement is well managed, but it is clear from the experience of the past few years that the regulation of wheel clamping has failed to stop the abuses and does not, therefore, provide the answer. Seven years of licensing by the Security Industry Authority has failed to curb the unscrupulous practices of rogue wheel clampers and we do not believe that further regulation will change that. The amendment seeks to introduce a number of specific exemptions, which would be available to parking enforcement operatives who are members of an accredited trade association. Let me address these in turn. Foreign-registered vehicles are not always required to register with the DVLA. Moreover, we should not assume that the drivers of such vehicles are any less likely to avoid paying parking tickets than UK drivers. Furthermore, it would be considered discriminatory against foreign drivers if lawful authority was granted to parking enforcement operatives to clamp and tow away their vehicles but not UK-registered vehicles—a point made by my noble friend Lady Randerson. If there are particular problems with an unregistered vehicle, including a foreign-registered vehicle that has been in the country for more than six months and is therefore required to be registered here, the vehicle concerned can be reported to the DVLA, which has statutory powers to take enforcement action, including immobilising such a vehicle. In the case of a vehicle that is causing an obstruction or is dangerously parked, as well as vehicles designed or adapted for towing by mechanically propelled vehicles—that is, trailers—the changes made by Clause 55 will assist. The clause extends the power of the Secretary of State to make regulations to extend police powers to remove vehicles that are dangerously or obstructively parked on land other than a public road. At present, the police have the power to remove only vehicles that are parked on public roads. Moreover, under the Bill as drafted, no offence would be committed if a dangerously or obstructively parked vehicle were to be moved a short distance, as I have already described. As to the control of unauthorised parking in communal parking areas, for example on residential estates, I should stress that the Government are not outlawing all methods of parking control—only clamping and towing away. There are other means to control parking on private land, including CCTV, barriers and ticketing. Where appropriate, we expect landholders to turn to those types of control. As we shall come on to, the provisions in Schedule 4 to the Bill will strengthen the effectiveness of ticketing as a method of parking enforcement. An outright ban on wheel clamping is the right thing to do. Only a comprehensive ban will protect motorists from the scourge of rogue wheel clampers imposing excessive release charges and denying people the use of their vehicles until they agree to pay up, with little or no prospect of any effective remedy thereafter. A fatal flaw of the clamping regime, even if undertaken by a reputable operator, is that the appeal regime must be ineffective. This is not to say that motorists should not also behave responsibly. It is reprehensible for a motorist to park illegally in a disabled driver’s bay. The ban on wheel clamping is not an invitation for people to park where they like, whenever they like. There are other effective enforcement remedies and the Bill builds on these. I understand the concerns that have been expressed but I have to say that the approach provided by this amendment would make the ban unworkable. Amendment 43, which was spoken to by the noble Lord, Lord Rosser, seeks to introduce a system of statutory regulations governing the maximum parking charges and signage relating to barriers. Given the way that the amendment is drafted, I point out that such regulation would apply only where parking providers and landowners were operating barriers. This amendment is also unnecessary. Where someone is offering parking facilities on a commercial basis, normal contract law and consumer protection laws apply. On top of this, there is self-regulation by the industry through the British Parking Association. Given all this, the Government do not believe that there is a case for adding an additional layer of statutory regulation. The noble Earl, Lord Lytton, asked whether fixed barriers will be exempt from the offence and what the purpose of Clause 54(3) is. Yes, the Bill ensures that fixed barriers—for example, one with a raising arm at a car park exit where payment of a parking charge is required—will still be permitted. The use of fixed barriers to control car parks will therefore continue in circumstances where the barrier was present when the vehicle was parked; where it was clear or prominent enough for the driver to have been aware of it; and there was sufficient signage. On the issue of charging, the BPA’s code of practice for members states: "““Setting parking charges for breach of contract is a matter for operators … The standard parking charge should not exceed £75 including””—" after taking into account— "““any discount for early payment. The maximum Parking Charge or face value of the ticket must not exceed £150””." My noble friend Lord Lucas asked about rogue tickets and the role of the BPA. The BPA could withdraw a ticketer’s accreditation and, as a result, that ticketer would not have automatic access to the DVLA database. In answer to one of the questions from the noble Lord, Lord Rosser, there have been several occasions when the BPA has withdrawn accreditation, so this is not an idle threat. My noble friend Lord Newton asked about the remit of the independent appeals body. A ticket from an accredited operator must give details of the appeal mechanism. We have asked the parking sector, led by the British Parking Association, to establish an independent appeals body to cover the operation of those companies that are members of a Government-accredited trade association and thereby have access to the DVLA vehicle-keeper information. We intend that there should be only one appeal system. It will be distinct from that for on-road offences. The appeals body must be and be seen to be fully independent; its decisions must be binding on ATA members; it must be provided as a free service to motorists; and it must be fully funded by the parking sector. We believe that, working together with the trade association in the establishment of this process, we will ensure that a fair system is developed and set up, while not imposing unnecessary additional governmental regulation on the industry or costs on the taxpayer. There is no maximum for ticketing by non-BPA members. However, charges and conditions of use in privately owned off-street car parks must be visible on a prominent sign at the entrance to the land. These may constitute a contract between the car park owner and the motorist. It is therefore open to motorists to report grossly unreasonable charges and dubious practices to the local trading standards office, and report any criminal behaviour, such as intimidation or threats, to the police. Signage is also dealt with in the British Parking Association’s code of practice on signage. Among other things, this requires that: "““Signs must show, in plain and intelligible language, all the terms on which an operator may wish to rely. Signs must be placed at the entrance to the site, and there must be enough signs placed in other locations throughout the site so that drivers are given the chance to be aware of the risk involved at the time of parking or leaving the vehicle””." The code then lists various pieces of information which must be included in the signs. We have no evidence to suggest that the BPA’s code of practice is ineffectual in this regard. Of course, not all parking providers will be members of the BPA, but, as I have said, if they want to offer parking facilities on commercial terms they will need to establish a bona fide contract with the motorist, and this will usually have to be done through adequate signage. Where a parking provider wishes to avail themselves of the keeper liability provisions in Schedule 4, they will need to comply with any prescribed requirements as to the display, content and location of signs on the relevant land. We have made it clear, however, that this is intended as a reserve power given that we consider that the BPA’s code of practice already covers this ground. Amendments 45, 47, 49, 51 and 55 in the name of the noble Baroness, Lady Hayter, seek to provide on the face of the Bill that only a member of an accredited trade association can access the keeper liability provisions in Schedule 4. In addition, the amendments seek to provide for a statutory appeals mechanism. Again, these would apply to all landowners, not just major private car park operators, so would bear down on small private landowners trying to deal with parking or trespass problems on their land, such as small shops, pub car parks and even private driveways. They are also predicated by the fear that the Bill, in driving out rogue wheel clampers, will encourage disreputable elements in the parking industry to switch to rogue ticketing, adopting the same strong-arm tactics that they used with clamping. My noble friend Lady Randerson asked about the experience in Scotland. She will know that wheel clamping has been banned in Scotland since the early 1990s and we have not seen any evidence that rogue ticketing is a particular problem there. It is worth considering here the very real differences between ticketing and wheel clamping. I remind noble Lords what Chief Constable Chris Sims told the Committee in another place on this matter. He said: "““The piece that I suspect collectively causes us concern is the level of intimidation that comes with the presence of a clamp. There may be issues with ticketing, but it will not carry the level of immediate intimidation that has been the really evil part of this. I am sure that issues will remain, but I think that the provision will take away the threatening issue for members of the public””.—[Official Report, Commons, Protection of Freedoms Bill Committee, 22/3/11; col. 25.]" The provision referred to is the ban on wheel clamping. It is quite clear that simply putting a ticket on a vehicle is much less intimidating than immobilising or removing a vehicle and then demanding payment before releasing the vehicle. We have to weigh up whether the threat of such abuses would justify putting in place a raft of new statutory regulation over and above that which is already in the schedule, particularly as the keeper liability provisions apply to all private land, not just major private car parks. That said, I accept the spirit of the first part of Amendment 45. We have already made clear that only those parking companies which are members of an accredited trade association would have access to DVLA keeper data. We do not, however, consider it necessary to write this on to the face of the Bill given that the requirement is already enforced through the DVLA’s gatekeeper role. DVLA policy is not to release keeper data to parking companies unless they are members of an accredited trade association. It would be a disproportionate measure to require such individuals and smaller landholders to join an accredited trade association. The DVLA is best placed to exercise discretion as to whether or not such information should properly be released on the facts of any particular case. However, the Government agree that there needs to be an independent appeals body for those companies that are members of the BPA’s accredited trade association and therefore have general access to DVLA data; that is, they do not have to show ““reasonable cause”” on a case-by-case basis. We are working with the British Parking Association to ensure that such an independent body is put in place. However, we should be wary of establishing cumbersome statutory procedures where action by the industry can do the job just as well. With regard to the amendment of my noble friend Lord Lucas to Amendment 45, I suggest that it is unnecessary as the Government already accredit trade associations and, in the case of parking companies, require them to comply with a code of practice. In this case it is the BPA’s approved operator scheme, which is regularly reviewed and agreed by the DVLA. The BPA is working out how to ensure that consumers and motorists can identify bogus tickets. I will read Hansard very carefully. As suggested by the noble Lord, Lord Rosser, I will be delighted to have meetings with any interested noble Lords. In the light of this explanation, I hope that the noble Baroness, Lady Hayter, will agree to withdraw her amendment.