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Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022

Volume 821: debated on Monday 25 April 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (England) Regulations 2022.

Relevant documents: 29th and 34th Reports from the Secondary Legislation Scrutiny Committee

My Lords, the regulations before the Committee today meet a commitment made by the Prime Minister in the 2020 policy statement Gear Change: A Bold Vision for Walking and Cycling to give local authorities outside London powers conferred in Part 6 of the Traffic Management Act 2004 to enforce contraventions of moving traffic restrictions. These powers are being commenced to coincide with these regulations, which are due to come into force on 31 May. The regulations before the Committee today form part of a package: an affirmative statutory instrument and a negative one. I shall refer to the former as the appeals regulations, and it is these are being considered by the Committee today.

The appeals regulations consolidate the rights of representation and appeal which have been in place England-wide since 2007 for vehicle owners who are or may be liable to pay penalty charge notices—PCNs—in respect of parking contraventions. They also extend those rights to disputed bus lane and moving traffic PCNs outside London. However, noble Lords should also note the negative procedure instrument: the Civil Enforcement of Road Traffic Contraventions (Approved Devices, Charging Guidelines and General Provisions) (England) Regulations 2022. This instrument includes wider provisions for evidence, penalty charge notices, adjudication, penalty charge levels, and income and expenditure.

This regulatory package, introduced under Part 6 of the Traffic Management Act 2004, consolidates existing legislation. At the same time, it makes powers available to local authorities outside London to issue PCNs for contraventions of safety-critical moving traffic restrictions, such as no entry, banned turns and unlawful entry into box junctions. From now on, local authorities wanting to undertake moving traffic enforcement may apply for formal designation of these powers to enable enforcement to begin in practice by using CCTV cameras that have been certified by the Secretary of State. We plan to lay an order designating the first group of LAs as soon as practicable and will lay further orders as demand dictates.

When using these powers, local authorities have a duty to act fairly. These regulations therefore make provisions entitling drivers who are or may be liable to pay penalty charges for contravening certain traffic restrictions, including the moving traffic restrictions, to make representations to the enforcement authority and, if their case is rejected, to appeal to an independent adjudicator against the penalty charge. The regulations prescribe the information that must be given when a penalty charge is imposed about the right to make representations or appeal against that charge. The regulations also prescribe time limits for each stage of these processes, within which both the motorist and the local authority must respond, and create an offence of knowingly or recklessly making false representations under these regulations or in connection with an appeal.

I assure noble Lords that these regulations merely extend long-established provisions for motorists wishing to dispute parking penalties to the forthcoming civil enforcement regime for moving traffic contraventions. To create parity across the board outside London, we have also used this opportunity to repeal the bus lane enforcement regime, in place since 2005 under the Transport Act 2000, to create a single enforcement regime under the 2004 Act; that includes bus lane enforcement. It was always envisaged that this would happen soon after the 2004 Act was introduced.

By doing so, we have removed some of the inconsistencies in the legislation. Motorists challenging bus lane penalties will therefore benefit from representations and appeals provisions not previously available to them. These will apply to all contraventions. For example, they can challenge a penalty charge on the grounds of “procedural impropriety”. There will also be an express duty on local authorities to consider any “compelling reasons” that the motorist gives for the cancellation of the charge; express powers for adjudicators to refer cases back to the local authority where there are no grounds to allow the appeal but the adjudicator considers that the authority should reconsider whether the appellant should pay all or some of the penalty; and a requirement for the authority to respond to representations within 56 calendar days.

Bringing bus lane powers under the 2004 Act also has an allied benefit, in that it enables Ministers to publish for local authorities, for the first time, statutory guidance to cover all contraventions to which local authorities must have regard. This will simplify the system for the local authority so that it does not have lots of different types of enforcement considerations when it plans how to operationalise them.

However, I am clear that civil enforcement of moving traffic contraventions—or, indeed, of any traffic contraventions —should be a last resort. If contraventions are preventable through other means, such as improvements to road layout or traffic signing, I expect this to be done before enforcement is considered. We will issue statutory guidance to ensure that local authorities use these powers correctly.

Before enforcement can begin in practice, local authorities must apply to the department for an order by means of a letter to the Secretary of State. To ensure due diligence, designation of a local authority will be conditional on them having already consulted local residents and businesses on where existing restrictions have been earmarked for enforcement, and due consideration must have been given to any legitimate concerns.

Local authorities will also be expected to issue warning notices for first-time moving traffic contraventions at each camera location for six months following enforcement going live. This will apply to any new camera location in the future. These requirements will be enshrined in the statutory guidance to ensure that enforcement is targeted only at problem sites, that road users clearly understand the new powers and that enforcement is carried out fairly.

I stress that traffic enforcement must be aimed at increasing compliance and not raising revenue. Local authorities will not have a free hand in how any resulting surplus is used, which will be strictly ring-fenced for covering enforcement costs or specified local authority funded local transport schemes or environmental measures. Neither will local authorities have a free hand in setting penalty charge levels for moving traffic contraventions, as these are banded and set out in the regulations in line with existing penalties for higher-level parking contraventions. As moving traffic and bus lane contraventions are of a type, we are increasing bus lane penalties by £10 to align with contraventions of moving traffic and higher-level parking contraventions —for example, parking in a disabled bay.

These regulations support the enforcement of moving traffic contraventions and play a key role in reducing congestion, with consequent benefits to air quality and to well-being. I commend the regulations to the Committee.

My Lords, I have just two brief points to make. I thank and congratulate my noble friend on bringing forward the regulations this afternoon. First, I understand that there was a delay and that the statutory instruments had to be withdrawn and re-laid. I would very much like to understand why that was the case and have an assurance that that will not happen with future SIs.

My second concern relates to the Secondary Legislation Scrutiny Committee’s 29th report, dated 10 February 2022. At paragraph 40 it says:

“To free up police officers’ time, these Regulations extend the range of offences that can be dealt with by civil enforcement officers acting on behalf of local authorities, or in some cases traffic cameras.”

I would like to understand from which budget the civil enforcement officers will be taking on this work. I am mindful of the extent to which local authorities’ budgets are under severe pressure at this time.

Who will be responsible for the traffic cameras? In north Yorkshire and County Durham we have very few fixed cameras; the traffic cameras are mostly mobile. When I was an MP in north Yorkshire, I was informed, on the quiet, that in many instances there is no film in static cameras in north Yorkshire—they are just there to alarm people, in the hope that their behaviour will be reformed because they see a traffic camera in front of them. Are we relying on mobile traffic cameras, which are still the province of the police, or are there some other traffic cameras of which I am not aware?

With those few remarks, I wish the SI good speed.

My Lords, on this side we very much support these measures; it would be odd if we did not, as my noble friend Lord Bradshaw has been arguing for this move for pretty much as long as I have been in the House, which is over 20 years now. Civil enforcement of moving traffic offences is, as he has argued, really important in improving the flow of traffic generally and particularly for buses. Bringing the rest of England in line with London is a welcome step. I also agree with the Government that we need better enforcement for safety reasons for cycle lanes, pedestrian crossings, and so on.

I very much agree with the Minister: we need to ensure that these penalties are a means to achieve those objectives on congestion and safety, not a revenue raiser. I welcome the protections that have been put in place. The AA has done a huge amount of work gathering data on all this. One of the things it has found is that most drivers faced with a penalty just pay up even where they do not believe that they have done anything wrong or think that they have a good mitigating reason; because they are afraid of the penalty going up if they do not pay immediately, they decide that it is easier to pay. That is concerning.

Similarly, in its data gathering, the AA has picked up locations where the volume of violations is such that it suggests there is a problem with either the layout or the signage. Clearly something should be done about that, not just simply issuing more and more fines. It argues for a sort of automatic review mechanism when particular locations reach a certain point. I wonder whether the department has thought about that. The AA also argues that first-time offenders should receive a warning letter no matter how long the measures have been in place, not just within six months. Again, I wonder what the Government have thought about this.

Like the noble Baroness, Lady McIntosh, I had a look at Joint Committee on Statutory Instruments’ report. The committee has some concerns. It highlighted two instances of defective drafting—I gather that those have been accepted by the department so I will not dwell on them—but there are also two instances of a difference of opinion between the JCSI and the department about whether some provisions are intra vires. One of them is on the question of what happens when a local authority fails to decide what to do with the proceeds of crime.

The second one troubles me a little more. The department asserts that the 15-minute period between the issue of a notice and clamping is a minimum period. The JSCI has argued that, in primary legislation, 15 minutes is the period and, if Parliament had wanted a 15-minute minimum, it would have legislated for that—but it did not and has given it as a definite period. So the committee does not accept that the department is correct. I am slightly troubled about this simply because, as the Minister will know, there is quite an industry in finding legal loopholes to get through fixed-penalty notices and various things. We need to be absolutely sure that we are confident that this will not become a loophole.

My Lords, I thank the Minister for bring forward these regulations, which I welcome. They will extend the rights of representations and appeals in parking, bus lane and moving traffic cases. I will not seek to detain the Committee for long, given that there is broad consensus on the basic principles. However, I welcome any details as to why it has taken so long to introduce these changes, given that they relate to a policy statement from two years ago.

A colleague was going to be doing this debate today so I came against the regulations only at 11.30 am. My understanding is that this is really a package made up of a commencement order that has no parliamentary procedures, a negative order that nobody has prayed against—so it will go through—and this measured affirmative order, or whatever the right term is. I hope that these regulations do a simple, uniform thing and bring the powers and appeal rights in England and Wales into a uniform piece of legislation. There are lots of nods but I would like to hear the Minister say yes to that because it would simplify how one thinks about this.

I wonder whether the Minister can offer a timeline for what flows from this package. I recognise that she may have done that in her speech but the impressive speed of her delivery was beyond my comprehension in places; I am not suggesting that she was not right and accurate, so I apologise for that. The reason I would like to see a timeline is because, as the Minister knows, the commencement of this order depends on the commencement of the negative order but I do not know when that is proposed to be. It would be useful to have on record when that will happen and when the consultation on the guidance will complete. I got the impression that the guidance might be published on the same day as the commencement. That would be unfortunate but it goes to the general issue of how motorists will know about both the offences and their appeal rights at the same time. I think the Minister said a little about how motorists will know about the offences, but knowledge about their appeal rights seems equally important.

The Committee hopes that these regulations will contribute to making the system of road traffic contraventions fairer and more effective. On broader road traffic issues, the Minister will be aware that the Government recently published an updated private parking code of practice, which caps fines at £80 in London and £50 elsewhere. Welcome as that is, unfortunately, the new code will not come into force fully until 2024. In the meantime, many parking firms are charging more than those caps permit. Does the Minister believe it is right that they are able to charge extortionate amounts before the new code of practice fully comes into force?

I thank noble Lords for contributing to this short debate. I apologise at the outset for my speed of delivery. I must slow down; I will slow down. I promise the noble Lord, Lord Tunnicliffe, that, next time I give an opening speech, I will slow down, enunciate and break for breath every now and again.

Some important points have been raised, which I hope to cover. I will write, of course, because I suspect that I will not be able to answer a couple of things in full. I am grateful for the broad welcome for these regulations. I accept that they have been a long time coming, particularly given that the Traffic Management Act was enacted in 2004. Then there was the issue of commencing Part 6. The delay in commencing that part and in putting these regulations before the Committee is partly down to the pressures of the pandemic; it has been a little busy in the Department for Transport. We wanted to get this right, recognising that it will be up to local authorities to put this into operation. They, too, have been suffering from a lack of time and resources during the pandemic.

We did crack on with it when we felt that things looked a little more positive but we had an issue with the JCSI, which was alluded to by my noble friend Lady McIntosh of Pickering. An error was discovered in the affirmative SI, which meant that we withdrew it and then re-laid it with the error resolved. It did not have an impact on the date of its coming into force, so it did not have an impact on the whole process of what was going to happen, but we are grateful to the JCSI for its work on finding the error because it would have been unforgivable for that to have got on to the statute book.

On the issues relating to the JCSI vires, I might write with a little more detail, perhaps to explain why we slightly differ from the JCSI and how we propose to respond to it. I believe that we will make some changes at the earliest opportunity; potentially, there is an opportunity to make a change in the first designation order, which will come soon.

On the point raised by my noble friend Lady McIntosh on resources, cameras and the gubbins that will have to be in place to operationalise these regulations, we know that some places have already put them in place. We know that London already does it but, let us face it, London is not really like everywhere else. But one might look at Cardiff. For example, in Wales, the Welsh Government commenced the Part 6 powers back in 2013 and, to date, Cardiff City Council and Carmarthenshire have acquired the designation of those powers. In Cardiff, we have a little bit of visibility about how they did it, how much it cost them and what the impact was on their budgets. The council’s latest Annual Park and Traffic Enforcement Report for 2018-19 confirms the following. For the first full year of enforcement, which was actually 2016-17—it is a little while ago, but that was its first full year, and it is the most up to date that we have—it ended up with a combined income of around £3.4 million and a total expenditure of £5.6 million, including parking. We estimate that it probably spent around £3.7 million on bus lane and moving traffic enforcement. So that was a deficit of about £0.3 million. We would expect that, in most circumstances, after the first year when things have settled down, you would end up with a surplus. As I explained in my opening remarks, that surplus can be used only on very specific things.

There is also the issue to consider, if a local authority is putting something in place, that we have said that within the first six months there will be warning notices rather than fines to be paid for any individual attracting a contravention at a particular camera. So that will reduce the income. It is also worth recognising that many of the set-up costs will be one-off costs. There will be ongoing maintenance costs for the CCTV, but they will usually be one-off costs, which can be met more than over just the first year. On the flip side, we know that costs will be mitigated somewhat by the slight increase to the bus lane penalties.

In general, in our new burdens assessment, we suggested that there was no additional burden to local authorities by implementing these regulations, and the Local Government Association did not object to the new burdens assessment. So I think either it will work out cost neutral or there will be a surplus which, as discussed, will be used only for certain areas. I take the point about some sites being very non-compliant and therefore attracting large numbers of fines. Of course, we will make it clear in the guidance how local authorities should deal with those sites. We want the cameras to be in problem sites but, clearly, there will be areas where they can improve their highways layout or, indeed, their traffic signage to make people understand exactly what has happened.

To go back to my noble friend’s question about cameras, those that are used for moving traffic contraventions must be certified by the Vehicle Certification Agency. We have very specific cameras that are certified by the VCA, and we certify cameras at no charge to the LA—the department bears the cost. We have a specific fund from which we draw down. But it is local authorities that are responsible for paying for the cameras and then putting them in place, so it is up to them.

That slightly leads on to the point raised by the noble Baroness, Lady Scott. The guidance that we will complete will set out all sorts of things in relation to operating these regulations appropriately. I have mentioned those areas where there is lots of contravention. We have worked closely with the sector on the development of the detailed statutory guidance. We have had input from a wide range of stakeholders, including the motoring groups—the RAC and the AA have been very involved—and local government: the Local Government Association and local councils. We have also been in touch with and talked to active travel groups, including Sustrans, British Cycling and Living Streets, as well as the British Parking Association and the Traffic Penalty Tribunal. Clearly, we have to get this guidance right. We need to make sure we have the right level of enforcement and in the right places.

The noble Baroness mentioned the warning letter and asked why it is a six-month thing. It is for many reasons. At the heart of this, drivers should be following the signs anyway. If they have committed a contravention at some stage, they really should pay a penalty for it. When we looked at how long you could keep it for, there were two issues. The first is that to operationalise holding such a significant amount of data was quite tricky. There was also a GDPR consideration: you cannot hold people’s data for a vast period of time unless you are going to do something with it. We felt that six months was entirely reasonable, so that is why we landed on that.

I am grateful to the noble Lord, Lord Tunnicliffe, for standing in to do this statutory instrument, possibly at short notice. He asked for categorical confirmation that this was a uniform set of regulations that covered all the representations and appeals for all the different contraventions. I really want to say yes, because I think it is. However, I am fairly sure it will be “yes, but”, so I will write with further details as to whether there is any “but” and what currently falls out. The good thing is that we have consolidated bus lanes, parking and moving traffic, but something might have fallen through the gaps.

The timeline will depend very much on local authorities. Should these regulations be approved by your Lordships’ House, they will come into force on 31 May. We will be receiving applications from local authorities, but of course they will have to have done their consultation beforehand, which will take time. They will then apply to the department, and we will put them into groups and bring them through in designation orders in groups. It will not happen immediately and, through the consultation, residents in local areas will know that changes are afoot. People who are not from that area potentially will not, but they should be compliant with local traffic laws anyway. If in future they get a penalty charge notice from a local authority, it will specifically say on it where they can find out more information about representations, appeals and, for example, the 50% discount. All those things will be set out on the penalty charge notice, as they often are now for parking fines.

I cannot really say when I expect the first designation order to come through. I certainly expect that it will be this year, but I have not had an update as to how many local authorities have been in touch to say that they are pressing ahead quickly with this. I know that local authorities really want these powers and I think they will make their lives easier, particularly as we take forward the measures in the national bus strategy, which are so important.

The noble Lord, Lord Tunnicliffe, finished by mentioning the private parking consultation. I may write to him on that to make sure I have covered the question he raised. Otherwise, I commend these regulations to the Committee.

Motion agreed.