Skip to main content

Protection of Freedoms Bill

Volume 733: debated on Tuesday 29 November 2011

Committee (1st Day) (Continued)

Relevant document: 20th Report from the Constitution Committee.

Clause 54 : Offence of immobilising etc. vehicles

Debate on Amendment 42 resumed.

My Lords, the noble Baroness, Lady Hayter, is being optimistic in thinking that she will achieve what she sets out to achieve in her amendment. Governments usually have their heads well sunk into the sand by the time legislation gets this far, particularly with the Daily Mail behind it. However, I hope she achieves success in making sure that this business is properly regulated.

As the noble Baroness said, the real problem was that motorists were being subjected to rogue clampers and treated in completely unacceptable ways. That situation might have been dealt with in other ways but it is now being dealt with in this way. There is nothing that I can see in the Bill at the moment that will save motorists from being done in by rogue ticketers. Indeed, the clampers will not have to change their tactics much because in Clause 54 there is a provision for movable barriers. All they will need is a gate across the entrance to a car park and they will have effectively immobilised a car and put it in exactly the same position as if there was a clamp on it.

There are also individual barriers on individual parking places—those little posts that have a key turned in the top—and so individual parking spaces may, under the provisions of Clause 54, continue to be subject to the kind of practice the Bill objects to—that is, the immobilisation of a car, subject to a stiff penalty, without any regard to the needs of the occupant, or of a blue badge holder and so on.

Not only is the Bill deficient in that it allows a slight change of tactics to continue the practices objected to but it opens the business of ticketing to a whole range of untrustworthy organisations. It does not take much to find someone who will sell you a book of 20 parking tickets. You then go and slap them on any car you like and if the motorist pays up you get a cheque back—very nice. This can be done under the guise of protecting your own property—which you might be—or you might do it randomly. There is no proper control over this.

The people doing this are, as the noble Baroness said, being given access to the DVLA database; they are entitled to know whose car it is. If the police are occasionally corruptible, what do we think of these people? If you want to know whose car is parked somewhere, you make sure that you make friends with the person who gives you the ticket that you stick on the car and they will drop you the name and address as if it was public property. We have to make sure that there are tight regulations under the Bill for anyone engaged in ticketing, and also on those who are allowed to continue operating fixed barrier car parks, whether of the conventional kind such as you might find under the National Theatre or others where you drop in coins as you exit. There needs to be proper regulation of those people to make sure that we do not get the cowboys back in another guise.

I believe that the Government intend to license the British Parking Association—it is a totally reputable body and I am quite happy that it should be in charge of the scheme—but any organisation such as that will find it difficult to discipline its members unless the Government insist that the scheme has teeth and take a supervisory role so that if they start falling down on the job they can be brought to book. The Government cannot dodge their responsibilities by saying that tickets are okay. Tickets can end up in large bills for people. If those sending out the tickets choose to employ bailiffs who are not shy of employing all the tricks of the trade, people can end up with bills approaching a couple of thousand quid—not legally, but none the less they do. Why should motorists be subject to that kind of harassment just because of a badly drafted Bill?

We need to sort out the business and to make sure that anyone benefiting from the structures in the Bill is reputable; that it is easy to obtain redress when things have gone wrong and that it is cost-free to obtain that redress. This Bill does not do that yet. I hope the noble Baroness will receive support from her Front Bench in pushing for changes, even if she cannot get all that she asks for.

My Lords, unlike the noble Baroness, I start from the point of view that clamping must be stopped. I have concerns about some aspects of the Bill, including the role of the accredited trade association. In practice, as the noble Lord said, there is only one and, although it may be a perfectly reputable organisation, not all of its members live up to the expectations that one has of them. As has been said, it is very difficult to police a members’ organisation. There needs to be a further effort, via legislation, to raise standards in the industry and there need to be mechanisms that ensure standards are raised, such as a guaranteed right of appeal.

The code of conduct must include a provision on clear bay markings, lighting and adequate size of parking bays. There have been too many cases of people being fined exorbitant amounts of money because one wheel of their car protrudes into the neighbouring parking bay. Irritating as that may be to you and I when we go to the supermarket and it is the last available parking bay, it is nevertheless the case that at night in a dark car park, when the markings have long ago rubbed off, that can be—and is— exploited. There is plenty of evidence of that.

Penalty charges and tickets should be levied only by companies that adhere to the code of conduct, to which I have referred, and the charges must be reasonable. A good benchmark would be the charges levied by local authorities. They vary of course from area to area, but the joy of that as a measure is that it takes account of the local market in parking provision and enables variation from one part of the country to another. It gives a reasonable comparison.

I should like to ask the Minister about the experience in Scotland. I understand that wheel clamping is illegal in Scotland: has there been the explosion in unfair and extortionate ticketing that the noble Baroness fears? I do not recall reading or hearing about that problem but it would be useful to hear about the experience in Scotland.

On Amendment 42, I want to raise a couple of practical issues relating to this. First, proposed new subsection (2A) refers to an offence not being committed,

“if … the vehicle is not registered under the Vehicle Excise and Registration Act”.

As I understand it, that means that it would be legal to wheel clamp foreign vehicles. I wonder where that places us in terms of EU law and international law and whether it is possible to discriminate against foreign vehicles in that way. I am not for one minute suggesting that it is desirable to do so and I do not know whether the noble Baroness intended that outcome but, as far as I can see, included in those vehicles that are not registered would be foreign vehicles. That could cause a problem.

I want to look at the issue of proposed new subsection (2B), which says that,

“land on which the vehicle is parked is designated for parking by residents of specific dwellings or by their guests”.

The Government need to look at the particular situation of those people, as they are not setting out to make money from parking. It is their private property.

I am aware of one example near where I live, in what was my constituency. I dealt with this thorny problem for a very long time. There was a block of flats where it was not practical or possible, for reasons of geographical layout, to have erected a barrier or gate. The block of flats is next to a university that charges for parking, so the students and the staff park all over the place, including in the area designated for residents of the blocks of flats, and some of them are even prepared to trap people in their garages, let alone take their parking spaces in their front gardens and on the private road. The residents of the flats are not in the position where they can erect a gate or barrier; they surely do not want to set up a system where they charge people through ticketing, which would be a sledgehammer to crack a nut. It is a difficult nut to crack but, nevertheless, the expense, complexity and legality of setting up a system for ticketing and levying tickets on people is ridiculous. So the obvious answer was wheel clamping, because there is nothing more annoying than not being able to drive your car home at the end of the day. We cannot work on exceptions such as that one, but the Government need to look at how to solve the problem for the people in that block of flats. The problem referred to in that part of the amendment needs to be looked at again.

Proposed new subsection (2C) in Amendment 42 sets up a system to allow clamping to continue, which has not been successful in the past. I cannot support amendments that establish a major regulatory system, because one desirable thing about this Bill is that it narrows down the number of people who have the right to get information from the DVLA. It is important that information is channelled down so that it has to go via the accredited trade association, and only companies that are members of that are eligible to get that information. In my experience, it is extremely worrying how easy it is to find that information and the misuse to which that information is put. The Bill takes the right approach in narrowing that down, so I do not believe that the amendments that we are discussing take the right approach from that perspective.

I apologise to the noble Baroness, Lady Stowell, on the Front Bench, because I told her that I would go away and stop being a nuisance. But before I decided to be a nuisance again, I established that it was not to her that I was going to be a nuisance but to my noble friend Lord Attlee.

I will not be that much of a nuisance, because having listened to the debates so far I found myself completely ambivalent about the merits of the amendment proposed by the noble Baroness, Lady Hayter, the words of my noble friend Lord Lucas and the cautionary remarks of the noble Baroness, Lady Randerson. I shall reflect on all that.

The point that interests me is on the appeals system. The noble Earl, who is answering this debate, presumably knows something about this from his transport connections. With appeals on ordinary parking offences we already have a pretty shambolic system. In London there are the London parking adjudicators; outside London there is another set of parking adjudicators, who are all part of the tribunal system, which is what I know something about. Outside London it depends on whether your council decides to opt in to decriminalise parking or pursue it in the ordinary, old-fashioned way through the magistrates’ courts. I do not think that the variation in the sort of justice depending on where you live is terribly sensible.

From reading the briefing that somebody—presumably the Government Whips’ Office—helpfully sent me, I have couple of questions. The briefing says:

“Government amendments to Schedule 4 have been tabled to make clear that notices to keepers and drivers must include relevant information about what impendent appeals/dispute resolution arrangements are available to them, in addition to any internal arrangements. We have also made a commitment not to commence the keeper liability provisions of Schedule 4 until the parking industry establishes an independent appeals body”.

I understand both those sentences on their own but I do not understand them taken together. Are we talking about an insistence that the industry must have a single approved appeals system, whether approved or not? Or are we saying that everybody who becomes eligible to benefit from Schedule 4 must have their own appeals system, and will that be approved or not? I simply do not know the answer to these questions. What I do know is that if there is to be a single approved appeals system that everybody has to join to get the benefits, that seems sensible. If there is to be an endless series of different appeals systems chosen by different providers, whether approved or not as providers or an appeals system, I do not think that is sensible. It puts me in mind of an absolutely daft proposal produced by another government department two or three years ago to have rival ombudsmen in a particular industry—I think that it was electricity or telecoms—chosen by the providers, not the customers. The worst providers would choose the least effective ombudsmen. This is just not a sensible way to run a railway. I would like to know the answer to my questions.

I want briefly to support Amendment 42. I mentioned even more briefly at Second Reading that I am particularly keen on eradicating blue badge abuse. I thank the noble Baroness, Lady Hayter, for tabling the amendment, because it highlights where my concern most closely fits. I declare an interest, in that I have a blue badge. I support legal clamping but would like to stop illegal operators.

This is a personal view, but there are two groups of abusers. First, there are those people who steal or buy blue badges, which is an increasing market and can be very profitable. In some areas, it has been shown to have increased sevenfold to tenfold in recent years. Also in this group are those who borrow their grandmother's badge and see it as a right to use the family badge. The worst offenders are those who take grandma out and leave her in the car. We have laws for not leaving dogs in cars, but sadly not for grandmothers. When she was younger, my daughter and I used to play a game at the local shopping centre, which was “Count the grandma”.

In the second group, there are those who do not have a blue badge and who may be stopping for five minutes, while popping into a shop or picking up family, who blatantly abuse the system and stare out those who possess blue badges legally. Perhaps there is occasionally a good reason for stopping in those spaces, but I am passionate about blue badge abuse—not just for the abuse in itself but because I believe it shows a wider indication of attitude towards disabled people. I believe it is important to crack down on this. At a time when the media portrayal of disabled people is perhaps at its worst, the Glasgow Media Unit recently looked at some comparative data of media portrayal of disabled people from 2005-06 and 2010-11, which showed that the portrayal was significantly worse than at any time in the past 10 to 15 years. Recent articles have shown disabled people as benefit scroungers and workshy.

I spend a lot of time driving around the country and what I see, too often, is disabled people with hidden impairments being verbally abused because the system is not fully understood. It is only a few steps later that we see why some people think it perfectly acceptable to abuse the system rather than understand the reason for it. There is shocking abuse around the country. I see people who suddenly develop an incredible change of gait when they see me getting out of my car with my wheelchair, or whose limps mysteriously disappear as they walk around the corner. I do not mean to make light of this but it is really important.

It is not just about being close to the shops or the supermarkets—some supermarkets have tried very hard to combat this—but about being closer to work. It is about integrating disabled people in society and having a wide enough space to get a chair in and out of a car. It may be about getting your wheelchair and a child in and out of the car. I have lost count of the number of times I have had to give my car keys to complete strangers and ask them to pull my car out of a space, when someone has just parked across the yellow hash lines between spaces. Wherever I go, at any time of day or night and pretty much every day of the week, I see people abusing blue badge parking spaces. While I do not generally agree with increasing powers, I believe that we need to do more to protect disabled people who have parked legally. I believe in clamping for blue badge abuse, and perhaps we could do even more to protect parking for disabled people.

My Lords, I have an interest to declare: by virtue of my profession, I am a manager of commercial property. I well remember, not very long ago, a tenant of one of my clients explaining, in the context of a rear service yard behind some shops, how perilous it would be for the continuation of that facility were she not able to involve a clamping firm to deal with serial offenders, because that is what we need. I am grateful to the noble Baroness, Lady Hayter, for raising this because I was unable to be present for Second Reading of this important Bill and therefore this is the first occasion I have had to comment on this matter.

The Government’s intentions certainly need clarification here. The Minister’s clear statement at Second Reading about there being no option but to ban clampers overlooks the need, as other noble Lords have mentioned, to have a workable system to discourage the abuses. I will not follow the noble Baroness, Lady Grey-Thompson, about the number of apparently able-bodied people who I have seen leaping out of cars with blue badges, other than to draw the Committee’s attention to there being, I am told, quite a flourishing market in stolen and counterfeit blue badges themselves. Apart from that, we have a system where serial abusers of parking facilities are putting their cars where they should not and serial malefactors, in terms of clampers, follow on to make life disproportionately unpleasant for people who have sometimes inadvertently parked in the wrong place for a short period.

Both of those are abuses at either end of the spectrum. We need to somehow see the middle ground, and what we can get out of it, before we ditch the baby and the bathwater because in urban areas it is extremely important that this functions effectively. If I have one criticism at all of the noble Baroness's amendments, it would be that her proposed new subsection (2B) does not quite deal with rights of way and such matters. It seems to be hypothecated towards the residential occupier, for reasons I can well understand, but I would put in a plea for the commercial occupier as well. It is very important that shops can get access to their loading areas and that sort of thing, and that where there is an allocated parking bay in connection with an office it is not blocked by somebody else. For years, that has not been properly regulated.

In connection with the point raised by the noble Lord, Lord Newton—and I found myself in near total agreement with his comments and those of other noble Lords—we would not be where we are had there been a proper, objective and robust adjudication system for dealing with it many years ago, which is when it should have been put in place. We are at risk of sweeping away the clampers by having a set of regulations put in place without realising, on the one hand, that we want to deal with an abuse and, on the other, that there is a need for the private owner to have some control over their own land. After all, it may be a car parking space which represents for them a sum of money in terms of their non-domestic rating assessment. They are paying for it. They may be paying for a remote parking space, but if it is blocked by somebody else it can lead only to problems.

There are many effects in the Bill as drafted. Perhaps the noble Earl can reply later on this, as I had not given him advance warning of it, but I feel that Clause 54(3) is the most incredible gobbledygook. I have asked several noble Lords this afternoon if they can fathom out what it means, and nobody has been able to tell me. He will doubtless say that Clause 55, the extension of the powers to remove vehicles from land, covers the noble Baroness's point. I am not sure that it does. How are these powers to be exercised in practice when, in reality, the process of removing offending vehicles—a remedy which needs to be dealt with fairly quickly—does not even have effective coverage in urban areas, let alone where this “or other land” might be? Presumably, that means something other than the public highway and can mean something rural as well as urban. I have my doubts about that thinking.

The noble Baroness, Lady Hayter, said that we need robust and comprehensive regulation. Certainly we do not want too much regulation, as has already been said, but we need some. We certainly do not need a legal minefield or something lacking in clarity. The noble Baroness, Lady Randerson, rightly pointed out that it is the ingredients that are important here. Beyond licensing, there has to be a code of practice, probably some sort of insurance provision to make sure that people are properly covered, a complaints procedure, sanctions for bad performance and a compensation provision for where they have stepped out of line. That would probably be dealt with before an impartial adjudicator, who needs to be put in by somebody else.

However, there is an issue. I relate to what the noble Baroness said, in the sense that this is setting up another great load of regulation, but what is the option? It is that people will simply barricade their urban parking areas. Whether they barricade them for the purposes that the noble Lord, Lord Lucas, suggested —to enable them to stick the clamp on as before—or whether they barricade them permanently, with a gateway which is locked at night, my concern is that a lot of these spaces in and around our urban areas are freely and conveniently used by all sorts of people out of hours and generally create no problems whatsoever. If the only sanction is for people to spend a lot of money creating barricades, the utility of our urban areas seems to become much less convenient for the general population and a great deal more expensive for those who are trying to get, effectively, exclusive possession for their own purposes of their own piece of land.

We have a problem here, and we must get the balance right. I shall not press the Minister for any detailed response to the comments that I have made, but I will perhaps write to him and suggest ways in which we might be able to forge a better way forward.

My Lords, our Amendment 43 in this group seeks to ban the use of fixed barriers by private parking operators unless they comply with new statutory rules on maximum parking charges and signage. The need for this amendment arises from the Government’s decision on Report in the Commons to introduce new subsection (3) into Clause 54, as has already been referred to, as a clarification in order to maintain the lawful use of fixed barriers in private car parks. However, the effect of that subsection appears to be also to reinstate mechanisms by which less principled operators will effectively be able to immobilise vehicles and prevent drivers from leaving without paying excessive or erroneous parking charges.

As Diana Johnson MP said during the debate in the other place,

“I am even more concerned that companies that wish to get round the law, operate in an intimidating way and issue excessive parking tickets will see this as an opportunity to go ahead. Under clause 54(3) putting down a barrier in effect immobilises a vehicle”.—[Official Report, Commons, 10/10/11; col. 139.]

Subsection (3) risks creating a loophole that will see the return of the very same regime of rogue operators that the Bill is trying to eradicate. Our amendment seeks to ensure that only reputable operators are allowed to use the added measure of fixed barriers in order to ensure the on-the-spot payment of tickets. If not, they would have to pursue vehicle keepers through the DVLA as provided for by Schedule 4.

Reference has already been made to Schedule 4. Under it, landowners—that is, in this context, parking providers—may pursue vehicle keepers for unpaid parking charges through the DVLA, subject to certain conditions. Concerns have been expressed about that arrangement. Consumer groups, Citizens Advice and trading standards have pointed out that rogue ticketers, whose numbers may increase following any ban on clamping, will be able to access vehicle keepers’ highly sensitive information through the DVLA and pursue them for excessive or unfairly levied charges.

The present position is that existing regulations enable only those who provide parking in accordance with industry best practice to access details of vehicle keepers from the DVLA. Industry best practice is defined in the regulations as membership of an accredited trade association, of which the British Parking Association’s approved operator scheme is currently the only one. However, the concerns that have been expressed relate to the fact that adherence to best practice is equated with membership of the BPA. The BPA is a trade association and is not resourced or intended to enforce compliance. In addition, the BPA approved operator scheme is not independent since it is decided on by the membership—namely, the parking providers—and therefore does not guarantee fairness to consumers.

In her amendments, my noble friend Lady Hayter of Kentish Town has raised an important issue, which was referred to at Second Reading when reference was made to what would happen in the event of a total ban on clamping if people found their driveways being used if they happened, as has been said today, to live near a railway station, a football stadium or perhaps some other major leisure centre, where this is a hazard that at least some of them seem to face. It is not clear, if there is to be a complete ban on clamping, exactly what their redress would be. There certainly would not seem to be much point in calling the police, since even if they felt moved to act in relation to a car on someone’s driveway, it is highly unlikely that they would regard the issue as a particular priority. I hope that the Minister will not dismiss my noble friend’s amendments but will seek to address an answer to the issues and concerns that she has raised.

We have also heard concerns raised about the impact on disabled drivers. Does the minister believe that the Government’s proposals have an impact on disabled drivers? In written evidence to the Public Bill Committee, the British Parking Association said that it was particularly concerned that the equality impact assessment assumes that there will be no impact. We have certainly heard during today’s debate of circumstances that will have an adverse impact and which appear to arise directly from the provisions in the Government’s Bill. I hope that the Minister will give a straight answer on those concerns.

We would support the establishment of an independent appeals process, but it must apply across the whole sector, not just in relation to the BPA. I assume that the Minister would have no objections to that, but no doubt he will be stating his position shortly.

I conclude by saying that in this very interesting debate a significant number of concerns have been raised and there is a degree of consensus, though not complete, from all sides of the House about the concerns that need to be addressed. Because I accept that there are no easy answers, I invite the Minister to consider whether he might convene discussions outside the Chamber with the interested parties—those who have contributed to the debate today—to talk about those concerns and see if any consensus can be reached on progress that might be made in addressing them.

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.

My Lords, I am very grateful to my noble friend for that lengthy and interesting explanation. I shall follow his example and read it carefully in Hansard. I would certainly like to be included in any delegation which the noble Lord, Lord Rosser, may choose to lead to the ministry. It seems to me that a number of points still require to be cleared up.

As regards this business of having a right to move a car that is causing an obstruction, that is pretty useless if you are immediately done for scratching its paintwork. How are you going to prove that you have done no damage? You will have to start off with a complete photographic survey. Then you will presumably have to pay a couple of hundred quid for a velvet-lined lorry to lift the thing up. The kit that is needed to move a car without damaging it is not the sort of kit that most people have. It does not seem to be a piece of law that will ever be beneficial to someone who has had his driveway blocked, to a hospital where people cannot gain access to where the ambulances come in, or wherever else it might be. They will not have the kit to take effective action because there will be too few occasions when this happens and there will be no private operators to respond.

I remain concerned about proposed subsection (3) and I do not think that its implications have been thought through. All you need is a chain on the ground attached to a post, and you could come along, stretch it out across the gateway to the park and padlock the other end. It is enough to immobilise a car. Or you could set out posts around the park and loop the chain around them. As the provision is currently phrased, it is an invitation to bad behaviour, although I understand why it is there and I do not want to inconvenience the ordinary municipal car park that has an up-and-down barrier, which is a sensible arrangement. However, we have to have a more rogue-proof provision. I look forward very much to the meeting.

Perhaps I may quickly respond to my noble friend. As regards large establishments such as hospitals, I imagine that they would use an accredited car park operator. As to the example of a discrete chain that you could suddenly pull up after the motorist has left, I remind my noble friend that the landholder would have to have good signage, otherwise he could fall foul of the offence of immobilising the vehicle.

My Lords, I thank the noble Earl for his response, and I thank the noble Earl, Lord Lytton, the noble Baronesses, Lady Grey-Thompson and Lady Randerson, and the noble Lords, Lord Rosser, Lord Lucas and Lord Newton, for their contributions.

I am immensely disappointed because the response did not answer what for me are the two major issues—residential parking and disabled parking. The Minister has not responded at all on those matters. When talking to one of my colleagues from Northern Ireland, they said simply that it is illegal to park in a disabled space in Northern Ireland, and that the police enforce that law. I was also told what happened to other cars that park in disabled spaces—they were immobilised, albeit with a knife to the wheel, rather than by a wheel clamp. Nothing in the Bill will make it easier—in fact, it will be harder—to preserve the right of disabled people to park in disabled bays.

However, the real issue is that my amendments are not about car parks. There was the idea of having lighting, signage and so on, but I am talking about people’s own private car-parking spaces at a block of flats with perhaps five or 10 parking areas for those five or 10 flat owners. They do not want to put up CCTV, lights or signage. It is their private parking. That is the driver behind this issue, and I am afraid that none of the responses addresses such people’s needs. They do not want to issue tickets and go to the DVLA to find out who a car belongs to. They want to deter drivers from parking where they should not—whether that space is for a disabled vehicle or their own.

The noble Baroness gave an example of just a few parking slots in a housing estate, but does she agree that commonly available are small barriers or posts that you can put in place and would be very effective in stopping other motorists from effectively stealing the landholder’s parking slot?

I look forward to the Minister giving money to all those people to pay for them. They are actually rather expensive. Perhaps some of the rogues who do asphalting at the front of houses could install those posts at the same time. I do not think that the noble Earl heard my example of Mr and Mrs Hubbard, who are disabled. Where are they going to get the money to put up an extra block to stop people parking in front of their sheltered accommodation? Having to do that would be extraordinary.

I am very concerned about the point raised by the noble Lord, Lord Lucas, about the greater use of the DVLA database. There are great dangers in expecting more people to have to chase the owner, rather than, having clamped the car, getting people to come round and sort the situation out there and then. I thought that we wanted there to be less, rather than more, access to private data. That is also the case regarding CCTV. I had thought that part of the Bill provided for less CCTV. I happen to be in favour of CCTV—many women are—but the whole thrust of the Bill is for less of it. Now little blocks of flats with five residents are meant to put CCTV outside so that they can see who has been parking in the middle of the night. That is difficult to understand.

On the issues raised by the noble Baroness, Lady Randerson, I understand that we take a different position on clamping, but the issues that I am raising are exactly the same: what do you do about a block of flats that is next to a charging car park—although it could be anywhere—when ordinary residents cannot get into their garage or to their front door?

If they are disabled, where they park, there may be a ramp; if they have to park somewhere else, there may be steps, so they cannot go there. There seems to be no consideration of the small residential group. The idea of moving the car was raised earlier. You have to break into it to move it, so presumably that will damage the car straightaway. If you have a driving licence only for a motorbike and not for a car, you might not be licensed to move it at all. I find the idea of breaking into someone's car to move it as hard to understand as the answer.

The noble Earl, Lord Lytton, talked about serial offenders; this is a major problem. We are talking not about people who just overstay—they meant to move it but did not come back—but serial offenders who go into the car parking area, which is not a car park and where they should never have gone anyway, and leave the car there. I did not raise the issue of community facilities, such as churches, where it may be very difficult if you are going to a funeral or wedding and suddenly cannot drive in there. That was not the thrust of my amendments at all; I am interested in residential areas. Nevertheless, those points have not been answered.

The major points that I am interested in, particularly the blue badge system and disabled car parking areas, wherever they may be, or small residential areas, have not been answered. Nevertheless, I am grateful for the opportunity to discuss this further and take up that offer. I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

Amendment 43 not moved.

Clause 54 agreed.

Clauses 55 and 56 agreed.

Schedule 4: Material subject to the Terrorism Prevention and Investigation Measures Act 2011

Amendment 44

Moved by

44: Schedule 4, page 126, line 7, leave out “and 12” and insert “, 12 and 12A”

I shall speak also to Amendment 54. It seems to me that if we are to allow private operators the privilege of ticketing, we ought to expect the highest standards of them in both their propriety and their behaviour towards the motorist. We ought to look to them for the sort of regime that we wish that we could have with many local authorities who currently enforce ticketing. There seems to me no reason why we should import the standards of bad behaviour of, say, Camden, into the private sector, granting the private sector privileges on the basis of the bad precedents of the bad end of the local authorities.

Amendment 54 sets out some of the things that I think we should ensure that private operators granted that privilege should do. First, they should take steps to establish a current residential address of the keeper of the vehicle. That is one of the major causes of distress in local authority parking enforcement. They send tickets to old addresses or to people who previously owned the vehicle, and the first thing that the real registered keeper at his real address knows is when the bailiffs turn up, because the bailiffs actually take the trouble to check addresses before they send people round. It costs about 50p a time to gain their address. That ought to be a duty on private operators granted those privileges.

We must have a maximum. My noble friend has said that there will be a maximum; I am content with that. A feature of some of the rogues has been excessive maxima. We must make sure that the terms of the contract do not act as an unreasonable disincentive to appeal. My noble friend is working out an appeals procedure. He will be aware that there is a considerable disincentive built into the local authority system at the moment. You lose your discount if you appeal, and if you lose your appeal, you therefore pay double. That is absolutely as far as it should go. There has to be some disincentive, or people will just appeal anyway, but there has to be a limit on the disincentive.

We would all wish parking attendants to behave in a civilised way towards someone who was a minute or two late or who just pulled up in their car, ran into the newsagent and ran out again. Pardoning that sort of behaviour is what makes for a civilised society—a neighbourly society, as one of my right honourable friends so memorably phrased it—and, again, we ought to ask that of the private industry if we are giving them these privileges.

Evidence of payment should be provided in a proper form. Many local authority tickets are not self-adhesive and it is very easy for a draft through the ventilator to blow them off car dashboards, particularly some modern slippery and sloping examples. The tickets end up on the floor and that is it. If we grant private firms these privileges, they ought to provide payment evidence which is capable of being fixed firmly to the car so that it does not slip. When approached with a reasonable excuse as to why things have gone wrong, whether it be a parking ticket that has blown off or a document sent to the wrong address, or that the person’s mother-in-law had had a heart attack and he had to take her to hospital, we would expect a civilised private operator to take those things into account.

We cannot take political action against a private operator, as we can against a local authority. We cannot put up candidates or campaign against private operators in elections. We have great powers against local authorities which misbehave or do things that we do not like—albeit we may be slow to use them—but we have no such powers against private operators and therefore we should expect the very highest standards of them. I beg to move.

My Lords, we have Amendment 53 in this group. I shall attempt to be reasonably brief as many of the points were made in the previous debate. However, to recap, it is under Schedule 4 that landowners—that is, parking providers—may pursue vehicle keepers for unpaid parking charges through the DVLA, subject to certain conditions. As I said earlier, some concerns have been expressed about this arrangement, not least by consumers’ groups and Citizens Advice. I think that the Minister will find, for instance, that Citizens Advice Scotland has some examples of the adverse impact of the scheme as it applies there and it can give information on that.

The question of access to information is potentially of some concern. In evidence to the House of Commons Transport Committee last week, the Corporate Affairs Director of the DVLA said that if there were an allegation, for example, about damage or harm done through the use of a vehicle, the person alleging the harm would be given details of the keeper of the vehicle from whom they could make inquiries as to who was the operator of the vehicle at the time the alleged harm was done. When asked to whom this information would be given, the DVLA representative said that if they were in the private parking field, the companies would have to be members of the accredited trade association—that is, the British Parking Association’s approved operator scheme, which is the only approved operator scheme in the parking sector.

When it was then suggested that as long as an organisation joined the BPA, the DVLA would hand over information to it about the keeper of a vehicle, the DVLA said that it would, provided that it was convinced by the details of the request and the organisation was known to be a member of the approved operator scheme. However, as the Minister will know, recent media stories have claimed that the personal details of more than a million motorists were sold to private clamping companies by the DVLA in 2010, which suggests that maybe the safeguards against giving information to organisations or representatives of organisations who should not be entitled to know details of the keeper of a vehicle are not as strong as they should be.

Our amendment seeks to address the issue by requiring private parking providers to demonstrate adherence with industry best practice—that relates to all private parking providers—on issues such as signage display or maximum penalties to gain details of the vehicle keeper from the DVLA. The amendment also places a burden of responsibility on the DVLA to ensure that a keeper’s personal information is provided only to reputable parking providers by establishing a code of conduct on fair practice, including appropriate penalty charges and requirements for the display of notices in respect of parking of vehicles on the relevant land. I hope that the Minister will give careful consideration to the amendment which seeks to ensure that there is a code of practice and that it is an independent code of conduct that is operated and run not only in the interests of the parking providers but in the interests of those who use the parking facilities.

My Lords, all the amendments in this group seek to amend in their various ways the provisions on keeper liability in Schedule 4 to the Bill. Amendments 44 and 54, in the name of my noble friend Lord Lucas, set out a further set of conditions that the creditor must comply with to claim unpaid parking charges from the keeper of a vehicle. Unless the Committee appears to desire it, I do not propose to weary it by going through each one in detail, much as I would enjoy doing so.

Although the amendments are clearly well intentioned and designed to offer further safeguards to the motorist, I would hope to persuade my noble friend that they are in the most part either unnecessary or inappropriate. I say that because the amendments do not appear appropriate for trespass situations which the Bill also covers, and in relation to private car parks. The issues that the amendments address can be dealt with either through self-regulation within the industry, or they will be matters that may be considered by the independent appeals body that will be established before the provisions come into effect.

First and foremost, we do not consider that it is appropriate to add further conditions over and above those contained in the schedule for landowners who wish to take action against those who trespass on their property. In relation to non-trespass situations—private car parks—a number of the suggested conditions will be subject to the individual facts of a given case and would anyway be dealt with by the disputes arrangements, whether that was an internal scheme or through the independent appeals body. We have already made it clear that any notice to the driver or keeper of the vehicle intending to recover unpaid parking charges must set out what the appeals arrangements are. As such, we believe that the conditions that we have set out in the schedule adequately cover what would be expected of the creditor in seeking to recover unpaid parking charges. It will be more appropriate for the independent appeals body to hear disputes and review the evidence presented by either party rather than seeking to specify these matters in legislation beforehand.

In addition, consumer protection legislation already applies to parking contracts and there is the added safeguard that only those parking providers who are members of an accredited trade association will have access to DVLA vehicle keeper data and can therefore pursue keeper liability as part of their general enforcement arrangements. In response to the noble Lord, Lord Rosser, who asked about the 1 million occasions when the DVLA data were accessed, an accredited trade association can get DVLA data. A high figure is representative of the high number of on-road offences in which keeper details were requested. It also covers private policing to, for example, supermarkets. The Government have made it clear to the parking industry that members of such accredited trade associations—in this case the British Parking Association’s Approved Operator Scheme—will need to sign up to a code of practice that will include an agreement to have disputes and complaints dealt with via an independent appeals body.

In a similar vein, the amendment in the name of the noble Lord, Lord Rosser, seeks further regulation in the form of a statutory code of conduct covering penalty charges and signage. Any creditor would have to demonstrate that they had complied with the code before being able to obtain keeper details from the DVLA. Again, this is an overregulatory approach that would apply to all private land, including to trespass situations. It is both inappropriate and unnecessary. As I mentioned, members of the British Parking Association's approved operator scheme already operate under a code of practice that provides guidance on both penalty charges and signage. The Bill also contains reserve powers to prescribe signage if this proves necessary.

The noble Lord, Lord Rosser, touched on Scotland and the experience of Citizens Advice. I will follow it up and if the noble Lord could assist me with further details, it would be much appreciated.

The purpose of Schedule 4 is simply to strengthen the arrangements for the enforcement of unpaid parking charges as an alternative to wheel clamping once the ban has come into force. Schedule 4 covers all land not subject to statutory control, from private car parks to the front driveways of private properties. It would be neither sensible nor appropriate in these circumstances to introduce wide-ranging regulation that would seriously impinge on the ability of smaller landowners to control parking on their land. The self-regulatory approach for larger operators as a condition of membership of a government-accredited trade association is the right approach for larger private car park operators and their agents.

I turn to the government amendments. As I indicated, we will not commence the keeper liability provisions in Schedule 4 until an independent appeals body is in place. Government Amendments 48, 50 and 52 reinforce this point. They clarify the conditions that must be met when issuing a ticket to a driver or vehicle keeper for an unpaid parking charge by requiring that the ticket must include details both of any arrangements offered internally by the company, and any arrangements available by independent adjudication or arbitration. This reinforces and strengthens the Government's commitment that Schedule 4 will not commence until an independent appeals service is in place.

I will deal briefly with government Amendments 56 and 57. They make a small change to Schedule 4 following representations from the British Vehicle Rental and Leasing Association. I declare a small interest as I attended its 2005 annual dinner and found myself sitting next to a lady who appeared to be the girl of my dreams. I am pleased to say that she is now the Countess Attlee. The schedule excludes vehicle hire firms from keeper liability provisions provided certain conditions are fulfilled when vehicles are hired out. The association pointed out that the definition of a hire agreement that refers to hire periods not exceeding six months does not reflect modern vehicle rental arrangements, in which longer periods of hire are commonplace. We accepted this point and amended the definition of a hire agreement so that it covers hire periods of any duration.

In summing up, I assure your Lordships and the Committee that the Government are fully committed to monitoring the effect of the ban on wheel clamping and the associated keeper liability provisions in Schedule 4. If there is evidence that we need to take further measures when the new arrangements are in place, we will of course consider this. We do not believe that there will be any need, but if evidence shows that problems exist, we will act. However, there have been no problems of note with rogue ticketing in Scotland, where wheel clamping has been banned since 1992. Given this assurance, I hope that my noble friend Lord Lucas will withdraw his amendment and that he and the noble Lord, Lord Rosser, will support the government amendments.

My Lords, I assume the noble Lord, Lord Lucas, will respond. However, in view of the momentous news that the noble Earl gave us, perhaps we on these Benches may offer our sincere congratulations on what clearly was a memorable occasion.

My Lords, there can be no more romantic venue at which to meet one’s wife. I am very grateful for what my noble friend has said. To the extent that I have continuing questions, they will be swept up into the meeting already referred to. I beg leave to withdraw the amendment.

Amendment 44 withdrawn.

Amendment 45 not moved.

Amendment 47 not moved.

Amendment 48

Moved by

48: Schedule 4, page 127, line 34, at end insert—

“( ) In sub-paragraph (2)(d) the reference to arrangements for the resolution of disputes or complaints includes—

(a) any procedures offered by the creditor for dealing informally with representations by the driver about the notice or any matter contained in it; and(b) any arrangements under which disputes or complaints (however described) may be referred by the driver to independent adjudication or arbitration.”

Amendment 48 agreed.

Amendment 49 not moved.

Amendment 50

Moved by

50: Schedule 4, page 128, line 45, at end insert—

“( ) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—

(a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and(b) any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.”

Amendment 50 agreed.

Amendment 51 not moved.

Amendment 52

Moved by

52: Schedule 4, page 130, line 7, at end insert—

“( ) In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—

(a) any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and(b) any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.”

Amendment 52 agreed.

Amendments 53 to 55 not moved.

Amendments 56 and 57

Moved by

56: Schedule 4, page 132, line 4, leave out “not exceeding 6 months” and insert “of any duration”

57: Schedule 4, page 132, line 5, leave out “so as to exceed 6 months”

Amendments 56 and 57 agreed.

Schedule 4, as amended, agreed.

House resumed.