Protection of Freedoms Bill

Earl Attlee Excerpts

Tuesday 29th November 2011 Lords Chamber

[Lord Rosser]

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.

[Earl Attlee]

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.

--- Later in debate ---

[Lord Lucas]

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.

[Earl Attlee]

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.

[Baroness Hayter of Kentish Town]

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.

[Earl Attlee]

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?

[Baroness Hayter of Kentish Town]

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.

--- Later in debate ---

[Lord Rosser]

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.

[Earl Attlee]

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.