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Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013

Volume 742: debated on Tuesday 29 January 2013

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments.

My Lords, these regulations were laid before the House on 19 December 2012. They form part of a package of statutory instruments that will enable local authorities in Wales to enforce bus lane and some moving traffic offences. Similar civil enforcement provisions under the Traffic Management Act are already in force in Wales in respect of parking contraventions. The package of legislation will enable enforcement in Wales to be carried out by civil enforcement officers acting on behalf of local authorities, in addition to police officers and traffic wardens.

By way of some background, Part 6 of the Traffic Management Act 2004 provides power to the “appropriate national authority” to make regulations for the civil enforcement by local authorities of parking and waiting restrictions, bus lanes and some moving traffic offences. In Wales the appropriate national authority is Welsh Ministers. The Act also confers powers on the Lord Chancellor to make regulations dealing with the notification and enforcement of penalty charges, representations to the enforcement authority, appeals to an independent adjudicator by those on whom penalties are imposed, and the appointment of adjudicators. Section 89 of the 2004 Act provides the Lord Chancellor with express powers to make different provisions for Wales.

The regulations before the Committee set out procedures whereby persons upon whom civil penalties have been imposed for parking, bus lane or certain moving traffic contraventions in areas where civil enforcement applies, or persons whose vehicles have been immobilised on account of such contraventions, can make representations to the relevant enforcement authority against the imposition of the penalties in particular cases and can appeal to an independent adjudicator if their representations are rejected by the local authority in Wales.

I will be brief. Does the noble Baroness have any intention, in the course of these proceedings, to give the Committee any statistics on the number of appeals and representations under the regime that is to be replaced by new legislation?

It is not my intention to do so. As I will make clear later when responding to the questions and comments of noble Lords, it is very difficult to know the extent to which this will spread throughout Wales, because it will be a devolved issue and not one for your Lordships’ House.

I will return to what I was saying in introducing the regulations. Persons who have received penalties can make representations to the relevant enforcement authority against the imposition of the penalties in particular cases and can appeal to an independent adjudicator if their representations are rejected by the local authority in Wales. The regulations set out the grounds for making representations and for appealing, and the schedule contains rules for the conduct of proceedings before adjudicators.

Using their executive powers in the Traffic Management Act 2004, Welsh Ministers propose to expand the range of offences for which civil enforcement may be used by local authorities in Wales to include bus lane contraventions and some moving traffic offences; for example, restrictions applying to cycle lanes, left or right turns and box junctions. These specific regulations are necessary to ensure that persons on whom civil penalties have been imposed in Wales can make representations against the imposition of the penalties and can appeal to an independent adjudicator if their representations are rejected by the local authority in Wales.

The regulations should be read in conjunction with a further set of regulations, the Civil Enforcement of Road Traffic Contraventions (General Provisions) (Wales) Regulations 2013. Assuming that the regulations before the Committee today are approved, these regulations will be made by both the Lord Chancellor and Welsh Ministers and laid before both Parliament and the Assembly, subject to annulment. A copy of the proposed regulations is attached as an annexe to the Explanatory Memorandum.

The general provisions regulations must be signed by both the Lord Chancellor and Welsh Ministers. They provide detail in relation to the service of penalty charge notices and the immobilisation of vehicles. They also prescribe requirements in relation to the use of income generated from penalty charge notices and deal with the appointment of adjudicators by enforcement authorities.

Welsh Ministers will need to make several sets of regulations in addition to both these sets of regulations, subject only to Assembly procedure, to complete the package of legislation. The first of these, the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) Removed Vehicles (Wales) Regulations 2013, deals with the appeal process where a vehicle owner does not agree that a vehicle should have been removed and/or disposed of by the local authority in Wales.

The regulations dealing with appeals against removed vehicles were laid in draft before the Assembly on 19 December and are subject to a resolution of the Assembly before being made. A further set of regulations subject to annulment in the Assembly is expected to be laid in due course. The Civil Enforcement of Road Traffic Contraventions (Approved Devices) (Wales) Order 2013 will deal with technical specifications for devices used by local authorities in Wales to capture road traffic contraventions; for example, camera enforcement. My department continues to work closely with the Welsh Government on the delivery of the overall package.

In the interests of simplifying this area, the opportunity is being taken to consolidate the law. Provisions relating to civil enforcement of parking, bus lanes and moving traffic offences are being consolidated throughout the package of statutory instruments.

Under the Tribunals, Courts and Enforcement Act 2007, parking adjudicators are a “listed tribunal” which is required to be consulted on these regulations. We have therefore consulted the Administrative Justice and Tribunals Council on the draft regulations and the council has confirmed that it is content.

The regulations before your Lordships today are entirely in line with the division of responsibilities between the Lord Chancellor and Welsh Ministers for civil enforcement provided for in the Traffic Management Act 2004. The regulations have been considered by the Secondary Legislation Scrutiny Committee, which has determined that the special attention of the House need not be drawn to them. They have been considered also by the Joint Committee on Statutory Instruments, which has approved them without comment.

The Government’s role in bringing the regulations forward demonstrates our commitment to observing devolution arrangements and, where appropriate, to collaborating with the Welsh Government to enable them to deliver their commitments in Wales. I beg to move.

My Lords, I have reassuringly good news for the Minister: I think it unlikely that these regulations will be contested. Clearly they are, as she said, part of a package of representation and appeals procedures that appear to be eminently sensible. Obviously, the regulations are not controversial. There is a strong consensus in favour of the regulations in Wales. As the Minister has said, they are part of a process of devolution, and of working together at both London and Cardiff levels.

I also agree with the Minister that the mischief aimed at is very clear. It is the assessment of the Welsh Government that the heavy workload of the police in Wales means that a relatively low priority is given to the enforcement of the bus lane offences. Therefore, the case is made that local authorities, which clearly have an interest in the enforcement of these regulations if they so choose, are likely to lead a more speedy and effective enforcement process. Indeed, the process is likely to encourage a greater use of buses. It is relevant and related to the good work of the Assembly done over “park and ride”, for example. It may well lead to a reduction in congestion, along with many other measures in the urban areas.

Briefly, to put this in context, bus lanes are by definition overwhelmingly relevant to urban areas. However, we have just heard that the financial support for buses and rural transport has been substantially reduced. The Assembly has just announced that in the coming financial year, 2013-14, the sum available for rural transport and buses is £25 million, whereas in the current year it is £33 million. That is a more than 25% reduction and obviously has implications not only for the increasing isolation of rural areas but for the elderly and low-income groups within those areas. It has relevance, too, to young people seeking jobs.

I obviously have a few questions for the Minister. Looking at the process which she has outlined, based on the 2004 Act, it is clearly highly convoluted and lengthy. I would be grateful if she could indicate whether she agrees with that, and what proposals she has for cutting that down. One obvious conclusion is that the involvement of the Ministry of Justice and the Lord Chancellor is really a fifth wheel to the coach. This is a series of decisions which should properly be made in and for Wales. There is no real contribution. Think of all the forests in Finland which have been cut down and the time wasted at the Westminster level for this type of regulation. I hope that the Minister and the Wales Office will be considering how best one can streamline these procedures. That, I am sure, would be much supported in Wales.

My next question is about the nature of the consultation. This is set out on pages 8 and 9 of the Explanatory Memorandum, which tells us that the consultation was undertaken between November 2009 and February 2010, which in itself begs the question, since the consultation was concluded in February 2010, as to why on earth has there been such a lengthy delay since that time. What have people been doing in the mean time in respect of this following the end of the consultation process? We are told that:

“The organisations consulted were each of the 22 local authorities … the four police constabularies, the Traffic Penalty Tribunal, bodies representing taxi and private hire operators, and”—

wait for it—

“other stakeholders”.

We are told on page 15 that the respondents to the consultation included the South East Wales Transport Alliance and various local authorities—alas, not my own local authority, the City and County of Swansea—the Confederation of Passenger Transport, a couple of county councils and One Voice Wales. It would not have delayed it any more, so should the net not have been extended a little wider? Should one not have looked for motorists’ representatives, including perhaps the motoring organisations in Wales? The AA and RAC, for example, would surely have had an interest in the question of bus lanes and would certainly have tried to represent the interests of the motorists as opposed to the interests of local authorities and the other worthy groups that have been consulted. Why were the representatives of motoring organisations and of the motoring public not represented?

Finally, I will build on the question posed so well by my noble friend Lord Jones. I know that this will be relevant to the Welsh Assembly and will depend on the take-up of local authorities and so on, but will local authorities have an incentive to enforce the bus lanes? We are told that it will be self-financing, so is the assumption—there must be some working assumptions on this—that there will be more employment in this area by local authorities at a time when, in other sectors, they are cutting their employment? What are the expected numbers and are we confident that it will in fact be self-financing? We do not know exactly the number of officials who will be employed, although local authorities surely have an incentive to expedite the process.

One comment I always make to local authority colleagues in Wales is about the possibility of having local authorities in Wales co-operating for certain functions, maybe on the old county level. I can see no reason why, for example, in my own county of West Glamorgan, Neath Port Talbot should not work with the City and County of Swansea, if the demand is such. That would surely be in accordance with the broad policies of the Government and should certainly help the Welsh council tax payer. I hope that opportunities will be found to encourage local authorities, perhaps on an old county basis, to work together to this end.

My Lords, I am not sure whether this is the first order that the noble Baroness, Lady Randerson, has brought to the Committee as part of her responsibilities for Wales—I know she has done it for Northern Ireland before—but I cannot imagine that she was waiting in awe for the excitement of this order when she took up her responsibilities in the Wales Office.

To pick up the point made by the noble Lord, Lord Anderson, it really is beyond belief that we need to apply ourselves to this sort of detail at Westminster. If devolution means anything, surely this sort of detail should be handled down the road in Cardiff. I understand that they had a committee that looked at it for all of 30 seconds and that those who have looked at it up here have no comments to make on it. It is all detail that, no doubt, was appropriate for consultation, but it is beyond belief that a consultation on something like this should take three years. If a consultation is to be meaningful, one would imagine that all the interests would have been taken on board, including those of people who run shops.

I understand fully that it took about four months to receive comments from the consultees and then three years to digest what came back. If it is taking that long, surely interests such as those of shopkeepers should be taken on board. If bus lanes have an impact on anyone, it is on shopkeepers. There can be serious problems for people who need to stop and pick up their purchases.

Let me pick up the point about finance. We are told that this is self-financing. Do we therefore assume that those involved are keeping some of the money arising from the fines that are imposed? If so, who gets the money? Is it the local authority or the National Assembly? If the money is not adequate for the costs of running the new system, who pays the difference? Is it the local authority? Who pays for the appeals, for which no doubt there will be a cost? At a time when there is a tremendous squeeze on local authorities, I would have thought that the last thing they want is additional costs.

We are told that Welsh Ministers can extend the range of contraventions and are involved in the mechanics in a pretty fundamental way. Therefore, at an appropriate time—I realise that this goes beyond the scope of what we are debating today—should we not consider transferring this matter lock, stock and barrel, so that it can be handled in Cardiff without taking up our time in this Chamber?

My Lords, I will be brief. I am grateful to the Minister for her considerate introduction to the regulations. However, do we have no statistics whatever from 2010 or 2011 on the number of immobilisations or appeals? Has the Welsh Local Government Association made no representations to the Government or to the Welsh Assembly Government? Is there an estimate of the amount of work that we are passing to local government in Wales? Do we have any insight into what the four constabularies have put on record about this change? It would be helpful for the Committee to know the scale of the work that we are passing on. That seems to be a foundation question.

My Lords, I thank the Minister for bringing these important regulations before us today. We welcome them, as they are what the Welsh Government have requested and have been working on for some time. The package gives powers to local authorities effectively to manage traffic, which will help to reduce delays and tackle congestion. I am aware that the Welsh Government have worked closely with local authorities, the British Parking Association, the police, the UK Government and their legal services in preparing the regulations, which will complement and consolidate the powers that local authorities were given on 31 March 2008 to take civil enforcement action against parking contraventions.

It is important to note that these powers will not stop the police from taking action where necessary, although the main rationale for the changes is that the police are not able to make the enforcement of bus lanes and road traffic contraventions priorities for action. I can give the example of Cardiff where there are bus lanes which, of course, only buses should be using. However, Cardiff Council is unable to take action against other vehicles using those lanes because they do not have the enforcement powers to do so. The Welsh Government believe that these regulations will help improve the punctuality and appeal of local bus services because if the bus lanes are clear, the buses can get to their destinations a lot more quickly. The Welsh Government think that this will help to further the sustainability of bus services, which we know are so important to many of our communities in Wales.

This is a key part of the Welsh Government’s economic and social objectives and is consistent with their national transport plan which was published in December 2011. However, it is important that these powers are used appropriately and that the public can trust the decisions made by enforcement officers. The enforcement of the bus lane and road traffic contraventions will be based on evidence captured on camera and other approved recording equipment and devices. Another set of regulations will be brought forward to deal with those, as the Minister has explained.

The Welsh Government are in discussions with the Vehicle Certification Agency on the terms of the technical service agreement to certify on behalf of Welsh Ministers that the cameras and associated equipment used to enforce parking restrictions in bus lanes and certain road traffic contraventions are fit for purpose. It is important that local authorities are accountable for their decisions and that residents know how the money raised from fines is used, a point made earlier by other noble Lords.

In terms of accountability, the local authorities using these powers will be required to send copies of their income and expenditure accounts to Welsh Ministers as part of an annual report about their enforcement activities. This will highlight the impact on journey times along key routes. It is also important that the appeal system and the independent adjudicator are set up, which is what we are dealing with today. The regulations specify the procedure for making representations and ensure that people given a penalty charge will be able to see the evidence against them and are given the opportunity to challenge it. For example, they may not have owned the vehicle at the time the penalty was incurred.

Following the results of the consultation, the regulations stipulate that local authorities must be responsible for handling representations themselves rather than the responsibility being contracted out. That is to be welcomed as it ensures that people will know that they can go directly to their council, thus maintaining a direct and transparent link. It is planned that the regulations will be backed up by statutory operational guidance that will provide more detailed advice on the use of the new powers. It is important that that guidance is well publicised. The Welsh Government are planning to work closely with local authorities, the British Parking Association and others to prepare the guidance, which they plan to publish this year.

These are sensible regulations that should make a difference to road travel in Wales, especially in town centres and other busy areas. In supporting these plans, I understand that the Welsh Government are anxious to go ahead with implementation at the earliest opportunity. Can the Minister tell us when the regulations will be put before the House of Commons, as I understand that no date has as yet been fixed? Will she also agree to use her influence to ensure that there are no further delays in order to enable the Welsh Government and local authorities to move forward quickly on the implementation of these regulations? In the mean time, I thank the Minister for placing these regulations before us, and of course we fully support them.

My Lords, I thank all noble Lords for their contributions. I will preface my remarks and my attempts to answer all the questions—of which there were many—with a key point that I must stress. It is important to recognise that under the Traffic Management Act, the decision to expand the civil enforcement regime in Wales falls within the executive competence of Welsh Ministers. They have concluded that they should now make use of their powers under the Act in relation to bus lane and some moving traffic offences. That decision having been made by Welsh Ministers, these regulations are necessary to ensure that people upon whom civil penalties have been imposed are able to appeal to an independent adjudicator if their representations are rejected by a Welsh local authority. In other words, we are here today—as several noble Lords pointed out—to carry out the desires, wishes and policies of the Welsh Government, but we are doing so within the framework of UK legislation.

The noble Lord, Lord Anderson, called attention to the Welsh Government’s view that the police give low priority to traffic and bus lane offences because of their heavy workload. That is undoubtedly the case. I recall the police saying to me on several occasions when I was an elected representative that they did not have the time or resources to pay attention to such issues. It was one of the more frustrating parts of my role as an elected representative to try to deal with the concerns of local residents about things that were very important to them but which the police did not regard as a priority—for good, logical reasons in the larger scheme of law enforcement. The noble Lord referred to the fact that bus lanes are issues in urban areas. He called attention to the reduction in financial support for bus routes within Wales. I must point out that this is a budgetary decision entirely of the Welsh Government.

The noble Lord rightly pointed out that this is a lengthy and complex process. The intention is that all four instruments to which I referred will be made simultaneously, once Parliament has approved the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations, and the Assembly has approved the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) Removed Vehicles (Wales) Regulations 2013. The general provisions of the regulations will come into force a minimum of 21 days later.

The process is complex because both the UK and Welsh Governments are involved. Noble Lords expressed frustration about this, which I understand. Perhaps I may gently point out that the Silk consultation is ongoing, and if noble Lords wish to make representations on this issue to the commission, that would be entirely in order in terms of the work that it is doing.

The noble Lords, Lord Anderson and Lord Wigley, referred to the considerable length of time since the consultation exercise was concluded. The time lapse can be explained by further work which was undertaken to develop the regulations with the adjudication service, with the British Parking Association and with local authorities. However, as noble Lords have said, this is a complex issue. We are working here entirely to the timetable of the Welsh Government. This is the Welsh Government’s policy. We are working with them to implement that policy. I am sure that we would all wish that it is now implemented as soon as possible.

Statistics were raised by the noble Lords, Lord Wigley and Lord Jones. These are, of course, new enforcement powers which local authorities will be able to use. Previous statistics do not fit these powers. The previous traffic offence statistics which exist are supplied by the police. They are not supplied on the same geographical basis. They are not, as far as I am aware, broken down into individual offences—although I will check that out and write to noble Lords if I am incorrect. Of course, those statistics reflect a police service which has said that it does not have the time to do this job as effectively as it would wish. Any previous statistics are therefore of relatively little application to the current situation. Of course, the police will continue to have the powers to do this, as they have at the moment. We are looking at local authority enforcement, but there will be a two-strand approach, as the police will also continue to enforce.

The police will still have the powers but it is fair to assume, given the low priority, that in most cases they will try to pass this on to the local authority. There must be some guesstimate in government of how many additional employees there will be among the local authorities, otherwise one is totally in the dark on this.

Annual parking enforcement reports are already in existence on the enforcement activities of those authorities which have civil enforcement of parking. In future, these annual reports will include bus lane and moving traffic offences. Although the concern for statistics is entirely correct, and although I am saying to noble Lords that the current statistics are of limited use, in future the desire to get more statistics will be fully satisfied. There will be annual reports.

I will review what is available and consult the Welsh Government over this. If I believe that they can add anything useful to our discussion today, I will write to noble Lords. However, from what I know of the statistics that exist, they will be of little relevance when applied to the future.

On the Lord Chancellor’s powers, it was thought appropriate that provision about appeals, notification and adjudication should be made by the Lord Chancellor. This is not a devolved matter. The UK Government have worked closely with the Welsh Government to introduce the package together. The process of co-operation between the two Governments has worked well in this case. The noble Lord, Lord Wigley, asked about the estimated cost passed to the local authorities. There is no estimate of the cost. The enforcement is not being entirely transferred to local authorities, because, as I have already said, the police will retain enforcement alongside local authorities. However, I emphasise that local authorities have welcomed the opportunity to enforce these contraventions. It is expected that the schemes will be self-financing within a year.

That is the basis on which the provisions, in terms of the parking regulations, have been applied. This is not an entirely new scheme, in that this approach applies already in London, so there is the example of London to be followed. But there is also the example of how the parking enforcement has worked, and that has been very successful. For example, in Cardiff it has been possible to apply that self-financing approach very effectively. In the event of there being a surplus generated by civil enforcement at the end of the year, it must by law be spent on transport purposes. Those purposes are listed within the regulations, so it is very tightly controlled.

Local authorities have welcomed the opportunity to enforce these contraventions. They believe that it will lead to a more effective and efficient bus service and an easier traffic flow. It is not an approach that would immediately attract rural areas, perhaps; we are talking primarily about urban areas. I emphasise that local authorities are not obliged to take up these powers; they do so only if they wish. It is for them to determine the suitability of the scheme.

The noble Lord, Lord Anderson, referred to the bodies which were sent the consultation documents. The Welsh Government’s consultation documents are published on their website and were issued to numerous organisations. If the noble Lord wishes I can ask Welsh Ministers for a copy of their consultation circulation list.

I am sorry to delay the Committee, but I cannot allow this point to go by. Will the noble Baroness refer to page 21 of this document, where at the bottom of the Explanatory Note there is a reference to the Welsh Government’s website? Will she look at it and decide for herself whether “www.xxxxxxxx” is an appropriate address?

I assure the noble Lord that I will deal with that as a matter of urgency after this debate finishes.

I will respond to noble Lords in general afterwards on any issues that arise from this debate.

Finally, when I write about the statistics, noble Lords should bear in mind that we do not know how many local authorities are going to opt in to this scheme, so it is difficult to talk about the statistics.

The noble Baroness, Lady Gale, asked when the debate in the House of Commons would be. It will be on 12 February. As the noble Lord, Lord Wigley, said, it may not be a cause for great excitement. I am a citizen of Cardiff. The noble Baroness, Lady Gale, gave a very good example of Cardiff lacking the power to take action on bus lanes. I remember the South Wales Echo featuring a heated debate as to whether Cardiff Council should have the power to enforce parking restrictions. It was probably one of the most heated local debates within the Welsh capital city in many years. It is important to remember that these issues may seem to us relatively minor, but they are of considerable importance not only to local residents but to bus companies, commuters and, of course, the democratically elected councils that run our cities and towns and try to make sure that we have an effective and efficient transport system. I commend the regulations to noble Lords.

Motion agreed.