Private Car Parks

Tuesday 14th September 2010 Westminster Hall

12:30

[Henry Smith (Crawley) (Con)]

Thank you, Mr Walker, for the opportunity to raise the matter of better consumer protection for those using private car parks. Having just walked through Westminster Hall, I am deeply aware that we are close to a place of great significance in our nation’s history, and that the subject of the debate might sound somewhat mundane, but it has been the single greatest issue of concern expressed by constituents since I was elected in May. Indeed, even before I became an MP, when I was the leader of the local county council and a parliamentary candidate, many local people raised the matter with me. It is a concern that has been highlighted recently by the Automobile Association, the Royal Automobile Club and the Consumers Association.

I do not want to give the wrong impression; the majority of private car park operators conduct their business in a reasonable and responsible way that respects the consumer. However, there are all too many examples of private car park operations that use highly questionable methods, and I am afraid that one such operation is located in the heart of my constituency.

What is the problem? Well, more than 60 constituents have contacted me because, having visited a private car park and bought a pay and display ticket, about a week later they received a somewhat threatening letter claiming that they did not purchase a ticket and demanding payment. It is not enough for the constituent to produce evidence that they did purchase a ticket, because the operator then claims that it was not correctly displayed. Interestingly, the operator does not produce an adhesive label with the ticket so that it can be stuck to the window. By contrast, a fine issued in a local authority car park is cancelled when a ticket that has fallen off the dashboard is later produced.

Another concern that many constituents have raised, and which is a problem in private car parks across the country, is that motorists are being issued with tickets for irresponsible parking for the most minor infractions, such as having a wheel only an inch on a white line, even when there is no parking space next to the vehicle. By contrast, much more discretion and explanation is allowed in council-controlled car parks. Indeed, around 60% of appeals relating to council car parks in England and Wales are successful.

Another concern is that the clocks on pay and display meters seem to be deliberately set between five and 10 minutes fast, so when shoppers look at their watches or mobile phones they think that they still have a little more time to get back to their cars, but of course they do not, according to the meter clock, and so are issued with a ticket. By contrast, in council-controlled car parks people are allowed a grace period when returning to their cars and the clocks usually run on time.

The sheer scale of the fines that some rogue private car park operators charge is another cause for concern. The car park in my constituency charges £70 on average when a ticket is issued, which must be paid within a fortnight. If that is not paid, the operators hike up the amount by £30 every fortnight. The letters sent out have a rather threatening tone.

[Mr Mark Williams (Ceredigion) (LD)]

I pay tribute to the hon. Gentleman for securing the debate; I suspect that the issue is as passionate in Ceredigion as in Crawley. As he mentioned, the problem is not just the scale of the fines, but the threatening tone of the letters that demand payment. A constituent of mine, Mrs Yvonne Partington, was issued with a £110 fine and received a letter with the familiar black and white checkerboard pattern of the Dyfed-Powys constabulary, even though it came from the company she had the misfortune of dealing with. She had left the car park in good time but became stuck in a traffic jam. The photographic machine recorded her as staying in the car park, but she had attempted to leave long before her ticket was up. Those are the kind of injustices that the hon. Gentleman’s constituents, and those of many other Members, are experiencing.

[Henry Smith]

The hon. Gentleman is absolutely right. The strange practice of making the demand for payment look like an official ticket and the threatening nature of the letters mean that many elderly constituents become concerned and are essentially intimidated into paying the fines. Other people are worried that their credit rating will be damaged if they do not pay the fine, as that is often used as a threat.

[Anne Marie Morris (Newton Abbot) (Con)]

I thank my hon. Friend for bringing this crucial matter to the House’s attention. I suspect that every Member present has received complaints from constituents on the subject. He is absolutely right that a vehicle need be only a millimetre over a white line for the enforcement to be draconian and rapid. My point, which reinforces what the hon. Member for Ceredigion (Mr Williams) said, is that the fines are pursued very aggressively. The time limits and the rates at which the fines increase are such that the average householder is unable to work out whether the claim is justified and then sort out payment. More interestingly, once a fine is hiked up to the top figure—

[Mr Charles Walker (in the Chair)]

Order. This is an intervention.

[Henry Smith]

My hon. Friend the Member for Newton Abbot (Anne Marie Morris) makes a good point. I have found that there is zero compassion from the car park company in my constituency. In local authority car parks, justifiable reasons, such as a ticket falling off a windscreen, are at least usually heard fairly in an appeal, but no discretion is allowed by the private car park firms that I have been dealing with. I have never come across a case in which they have cancelled a ticket. They are simply interested in seeking the “fine” from the person they wish to charge.

Not only is that worrying for elderly residents and those concerned about their credit records, but it is starting to damage town centre businesses. Such rogue parking firms are bad corporate citizens, and their practices start to have negative effects on other town centre businesses. I have plenty of evidence for that. I was talking to a constituent the other day who told me that he simply would not go into the town centre again because he feared that he would be slapped with a fine, despite doing nothing wrong. The problem is starting to damage business.

[Gareth Johnson (Dartford) (Con)]

Perhaps my hon. Friend will agree that there are wider issues here. He will be aware of the Government’s proposal to ban clamping on private land, which would make ticketing the only available recourse, and that would be a failure unless it was responsible ticketing. Consequently, the Government’s plans rely wholeheartedly on responsible companies ticketing only in appropriate cases. Otherwise, the proposal will fail.

[Henry Smith]

My hon. Friend is absolutely right, and I fully support the Government’s proposal to ban wheel-clamping on private land in England and Wales. That has been successful in Scotland since 1992; the ban has not created any problems there. He is right, however, to highlight the fact that such a change could shift some private parking operators from their usual suspect practices to simply using the Driver and Vehicle Licensing Agency database, which is easy to register with, to continue issuing threatening fines. Although I fully support the proposed legislation, I feel that it might create an unintended consequence elsewhere. A complete picture would be provided by better regulation of the way all private operators issue tickets.

What is the answer to the problem? As an elected representative, I see it as my role to raise this kind of issue in this place, and I am happy to do that. However, as a politician, my instinct is not suddenly to reach for the statute book or create a new quango or agency. We have enough of them in this country—we need to trim back on quangos and agencies—and I do not think that they are necessarily the answer. I certainly do not want to place on our police officers or local authority traffic wardens the extra burden of policing private car parks as well.

I wonder whether it would be worth considering giving a power to license private car parks to the local authority—the elected local government in an area—which would, of course, be responsive through the ballot box. Local councils are used to licensing small, local outlets. Publicans are licensed by the local authority, and if they are caught consistently selling alcohol to under-age individuals, they lose their licence. Taxi drivers are another example: they are licensed by the local authority, and if they fiddle with the meter or are convicted of dangerous driving, they lose their licence to operate.

In a similar way, local councils could simply license local car park operators to operate. This could be self-funding through a small levy on the private operator, which makes considerable sums through the business. The council would be able to respond to complaints that come into the town hall, and to say, “There is clearly a problem with an operator, and the licence conditions need to be reviewed.”

At present, the only way that local authorities can have any real influence over rogue car park operators in their administrative area is through planning permission, but that works only if temporary planning permission has been granted to a site. Once a precedent has been set in planning and plans have been approved, rescinding permission is extraordinarily complex and difficult—I would argue that it is almost impossible. Local authorities really do not have many powers in their armoury that enable them to defend their residents—our constituents—from such practices.

There is another possibility. An agency that I was not aware of until recently, the Security Industry Authority, which I understand sits under the Home Office, has been—and technically still is—responsible for licensing private wheel-clampers and other security companies across the country. Obviously, if the legislation goes through—I am sure that it will—and the ban on private wheel-clamping becomes effective, part of the agency will cease to have a role. There would be a golden opportunity to slim it down, and perhaps its power in that respect could be devolved so that local authorities could have greater influence.

As I said at the beginning of my remarks, this may seem like a mundane issue to discuss, considering the great issues of the day, but I have been struck by the considerable angst and upset the subject has caused constituents, and often those who are most vulnerable.

[Andrew George (St Ives) (LD)]

The hon. Gentleman makes an excellent case. He appears to acknowledge that clamping, which the British Parking Association’s voluntary code says should be used only as the last resort, is in fact often used as the first resort, within nanoseconds of a ticket going over the limit, as we all know from our casework. I assume from what he says that he would welcome further regulation and a body to which people can complain and through which they can get redress.

[Henry Smith]

The hon. Gentleman makes a good point. I spoke earlier about my political instincts, which may not be shared by everyone across the Floor. My instincts are that if an industry can self-regulate, it is probably preferable that it does so. He is right to mention the industry body called the British Parking Association, but from the research that I have done, it seems that it has failed to police its members and look after the consumer. It appears to be there to look after the interests of its members only. I certainly have yet to come across an instance—no doubt there are examples—where it has upheld a complaint by a motorist. Therefore, it seems that self-regulation is failing.

[George Eustice (Camborne and Redruth) (Con)]

My hon. Friend raises an incredibly important point, and we all have to deal with such issues. Rather than introducing a complicated system of licensing or a complaints ombudsman-type procedure, would it not be better just to have clear regulation, and expressly to limit the powers of the parking companies, perhaps by making it clear that they cannot levy fines greater than the prevailing fines of the local authority, and that fines should be waived if a ticket is produced retrospectively? That kind of clear regulation could be included in the Government’s current legislation on car-clamping.

[Henry Smith]

My hon. Friend raises a good point. My instinct is not to increase regulation—I am a fan of increased local accountability and control. I am not claiming today to know the answer. One of the reasons why I asked for this discussion was to have an opportunity to explore how best to address the situation.

Personally, having researched the issue, I think that a local licensing function need not be a burden. Licensing committees often meet for only about 20 minutes at a time, and an extra item on the agenda every so often need not be a problem. As for additional expense, a simple fee for applying for a licence could cover it. However, I certainly would not oppose looking at legislation to set a maximum fine, or legislation similar to that which went through relatively recently to regulate local authority car parks and set clear standards for them. It would be worth considering extending such standards to private operators.

My concern about civil cases is that most people do not have the ability or resources to pursue them, and it seems that rogue car park operators rely on that. Frankly, they scare many people into paying the fine; they think, “I’ll pay the £70 because I just want the problem to go away.” It seems that that accounts for 90% of their business.

The suggestion has merit, and I would ask the Government to consider a broad range of options not only to clamp down on the clampers—no pun intended—as proposed, but to ensure that the other sharp practice of some private car park operators is brought to a halt, so that the industry can be respected again. There needs to be greater clarity between private car park providers and local authority car park providers.

Thank you, Mr Walker, for the opportunity to raise this issue. I am grateful for hon. Members’ contributions.

12:48

[The Parliamentary Under-Secretary of State for Transport (Norman Baker)]

I congratulate my hon. Friend the Member for Crawley (Henry Smith) on securing this debate on consumer protection—in effect, that is what it is—for users of private land. I also congratulate him for the first time officially on his election. He had a good reputation as leader of West Sussex county council, and I hope he carries it through in this House, as I am confident he will.

This issue can be controversial and, understandably, can raise strong emotions. I note the contributions of support from my hon. Friends the Members for Ceredigion (Mr Williams), for Newton Abbot (Anne Marie Morris), for Dartford (Gareth Johnson), for St Ives (Andrew George) and for Camborne and Redruth (George Eustice).

Off-street land accounts for a significant proportion of the space that is allocated for parking in England, and highway authorities have a statutory duty to manage the traffic network to ensure the expeditious movement of traffic, as required under the Traffic Management Act 2004. Off-street land may be in the ownership of and managed by the local authority, or it may be in private ownership. As my hon. Friend the Member for Crawley said, off-street parking on private land has caused more controversy than that on public land.

The owners of private land are entitled to decide who may or may not park on their land, and the terms and conditions on which that land may be used. For example, national health service organisations have autonomy to make decisions that best suit their local circumstances, and private land may include land controlled by public bodies for the purpose of the point made by my hon. Friend. We uphold the right of landowners to limit and to control who parks on their land, but it is important that those who want to park there are aware of the status of the land, the terms that apply and any penalties that might flow from contravening those terms. It is also important that any penalties are appropriate and proportionate.

One option open to landowners who wish to limit use of their land for parking purposes is to use gates or barriers, which are relatively inexpensive to install and probably one of the simplest and most effective ways for landowners to manage use of their land. Barriers can either prevent access entirely or ensure that a charge for parking there can be collected. They also have the advantage of making it absolutely clear to motorists where they may or may not park.

However, in other areas it may not be so clear to the motorist that land is not available for parking by anyone, or they may believe that they can park with impunity. I am told that it is not unknown for motorists to park outside the kiosk at a petrol station while nipping off to transact business elsewhere. Clearly that is not acceptable, and landowners are entitled to deal with the problem. Motorists parking on private land allocated for that purpose have the protection of the Government's consumer legislation. Exactly what that protection comprises will, of course, depend on circumstances, and it is for trading standards officers to decide whether the circumstances merit action being taken.

Consumer protection legislation includes legal safeguards enabling motorists to seek legal redress if they have been unfairly penalised for parking on private land. For example, if signs or price indication about a service are misleading, or if information about high charges is available only when motorists have entered the car park and they cannot exit without paying, they may raise the matter with their local trading standards officer. In response to a point raised by my hon. Friend the Member for Crawley, trading standards officers may also be interested in aggressive letters that are sent to individuals. Aggressive debt collection is an offence, and may result in action by trading standards officers. I am aware of constituents who have been frightened into paying because of the threat that the sum may double and because the tone of letters is so threatening that they feel obliged to pay. That cannot be satisfactory.

Marketing information to promote the supply of parking services that is given to consumers at the entrance to the land or elsewhere is likely to be a commercial practice within the meaning of the Consumer Protection from Unfair Trading Regulations 2008. If such information is misleading or aggressive, or unfair in other ways, it may be prohibited under those regulations, which are enforced by trading standards officers or the Office of Fair Trading by way of injunctions and through the criminal law.

If a motorist decides to park in a car park and buys a pay-and-display or similar ticket, it is likely that a contract is established and that some or all the information on a notice at the entrance or elsewhere setting out the terms under which parking services are offered may become the terms of the contract in law. If the motorist contends that a term is unfair, the Unfair Terms in Consumer Contracts Regulations 1999 may be relevant. Those regulations provide that unfair terms are not binding on consumers, and trading standards officers and the Office of Fair Trading may wish to take action.

The Consumer Protection from Unfair Trading Regulations 2008 deal with misleading signs. There may be an offence under regulation 6 if material information is hidden or provided in a way that is unclear, unintelligible, ambiguous or untimely, or if it is omitted. That may apply if signs cannot easily be seen or read for any reason, but must be material and likely to affect the decision making of the average consumer—in this case, the motorist.

If parking charges cannot easily be seen before entry and the information relating to them is placed, for example, much higher than the motorist would reasonably expect, and the motorist cannot exit the car park without paying, that may constitute an offence, but it is less likely to be an offence if the motorist can easily exit without paying when they have seen the charges and if they decide not to park, or if the charges are around what the consumer would reasonably expect. That is because it is unlikely that the motorist’s decision is affected by the omission.

[Anne Marie Morris]

Will the Minister give way?

[Norman Baker]

If my hon. Friend will forgive me, I was left with only 12 minutes in which to respond and I want to answer the points that were raised. If I find some space later, I will give way to her.

Owners of private land will often want recourse to the Driver and Vehicle Licensing Agency to secure information about vehicle ownership. DVLA policy is to ensure that organisations such as private car parking operators are subject to adequate controls and safeguards before disclosing personal data about vehicle keepers. To safeguard the release of information from DVLA’s vehicle record, the agency requires parking enforcement companies to be a member of an accredited trade association. To retain membership of such an ATA, the company must abide by its code of practice to promote fair treatment of motorists. Car parking operators who do not comply will face expulsion from the ATA and will not be able to access personal data in the course of their business.

So far, the British Parking Association is the only relevant ATA for the parking industry, and all members must comply with its code of practice, which covers, among other things, requirements for signage and methods of contact with motorists. The BPA’S code of practice provides that there must be signs that 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 car park, and there must be adequate signage placed in other locations throughout the car parking area so that motorists are aware of the risk involved at the time of parking or leaving the vehicle.

The code of practice sets out the information that must be included on a ticket. That includes the parking operator’s registered company name and, if the operator is using a trading name other than its registered company name, a geographical address where documents may be served, as well as details of all other communication methods, including a phone number or non-mechanical contact point by which motorists may challenge a parking ticket. Parking operators are encouraged to provide an e-mail or website address.

One condition of membership of the BPA is that the company has a complaints procedure that enables motorists to challenge any ticket that they believe was not merited. This year, the BPA will launch an independent body to consider cases in which a motorist is unhappy with the way that a company has dealt with a complaint, and it will be mandatory for parking companies to abide by the decisions of that body. Those that do not, without good reason, will be expelled from the BPA and will no longer be able to enforce parking restrictions on their land with the use of vehicle keeper data from DVLA. As my hon. Friends the Members for Crawley and for St Ives said, that relies on effective self-regulation by the parking industry, and we are prepared to see whether that works but we reserve the right to take further action if it does not. I note that two companies have already been expelled since the approved operator scheme was set up in October 2007, so it seems that the BPA recognises that self-regulation must not be toothless.

I turn to the suggestion that local authorities might license private sector car parks. Powers exist to enable that to be done, but it is wholly a matter for local authorities, such as West Sussex county council, to decide whether to do so. Section 44 of the Road Traffic Regulation Act 1984 enables the provision of an Order in Council to enable the operation of public off-street parking places to be regulated in England and Wales by the county council. My hon. Friend the Member for Crawley may have been unaware of that when he was leader of that august body. The Government would be willing, in principle, to consider that if a county council sought it. My officials tell me that they are not aware of any such order ever having been sought by a county council.

Not only are powers available to local authorities to regulate off-street parking, but they may also, with the agreement of the landowner, take over operation and enforcement on that land. For many landowners, particularly public bodies, such as hospitals and educational establishments, local authority enforcement using the Traffic Management Act 2004, with its strong regulated framework, may be an attractive option, which enhances public accountability, but a local authority cannot force a landowner to take on that responsibility, nor can a landowner force a local authority to do it. There must be a willing partnership on both sides.

I assure hon. Members that the Government are very aware of public concern about the enforcement practices adopted by some companies operating private car parks, including unreasonable behaviour and excessive additional charges. As set out in the coalition agreement, the Government are committed to banning unacceptable wheel clamping on private land and I hope that my hon. Friend saw the Home Office’s welcome announcement last month taking that forward.

We are working with the industry to ensure that the legislation is introduced smoothly and effectively, and can come into force as soon as possible. Apart from tackling outrageous and unacceptable behaviour by some clamping companies, that will help to improve the image of the private parking industry, which works well overall but has been tarnished by such behaviour and the actions of some companies. We are working with the industry to improve working practices, and to encourage compliance with relevant codes of practice.

[Anne Marie Morris]

I am delighted to hear that there are so many remedies. My only comment is that one must be a lawyer rather than an average driver to take advantage of them. Something should be done to make them more public.

[Norman Baker]

We will do our best to publicise what is available and to ensure that good, sensible, straightforward language is used so that people can understand it.

I am grateful for the opportunity to set out—

[Mr Charles Walker (in the Chair)]

Order.