Protection of Freedoms Bill

Baroness Hayter of Kentish Town Excerpts

Tuesday 29th November 2011 Lords Chamber

Moved by

[Baroness Hayter of Kentish Town]

42: Clause 54, page 40, line 13, at end insert—
“(2A) An offence is not committed under subsection (1) by a relevant person if—
(a) the vehicle is not registered under the Vehicle Excise and Registration Act 1994; or(b) the relevant person in question has reason to believe the vehicle is registered under the Vehicle Excise and Registration Act 1994, but that the registration details are incorrect.(2B) An offence is not committed under subsection (1)(b) in cases where—
(a) the vehicle is parked in such a way that it—(i) prevents the parking of vehicles elsewhere on land under the same ownership or control as the land on which the vehicle is parked; or(ii) prevents or restricts the passage of other vehicles or of individuals on that land; or(b) the land on which the vehicle is parked is designated for parking by residents of specific dwellings or by their guests; or(c) the vehicle is a vehicle designated or adapted for towing by a mechanically propelled vehicle.(2C) The defences under subsection (2A) or (2B) are, in relation to a person who immobilised, moved or restricted the movement of the vehicle in question in the course of a business, only available if the person in question—
(a) was a member of a trade association accredited for the purpose of the subsection in question by the appropriate national authority; and(b) acted in compliance with any code of practice approved for the purpose of the subsection in question by the appropriate national authority.”

[Baroness Hayter of Kentish Town]

My Lords, Amendment 42 addresses the law of unintended consequences. The situation is similar to that of the Dangerous Dogs Act. As of some rogue dog owners, we had the Dangerous Dogs Act, and now we have some rogue wheel clampers, we have clauses that will outlaw not the rogues but the clamps. In doing so, they will trespass on the rights of residents and private landowners.

It is funny—funny peculiar rather than funny ha-ha—that despite drunk drivers killing pedestrians and passengers, we refuse to outlaw drink driving and only outlaw excess-drink driving; and that despite guns killing people, we outlaw the unauthorised ownership of guns rather than the guns themselves. We are now going to have a situation where guns, if they are licensed, will be legal on your own premises, but wheel clamping will be a criminal offence.

What have we done with wheel clamping? Instead of cracking down on rogue clampers, the Government seek to ban all wheel clamping on private land, even when it is undoubtedly of value and properly controlled. It is this part of the Bill that I seek to amend—not to give free rein to clampers but to build in robust and comprehensive regulation to the industry.

I will give six reasons for the amendment. First, how big a problem is posed by rogue clampers? We have seen them on television, but that does not necessarily make it a problem. No one likes being clamped, but the main reason for being clamped is that one has parked without authority on someone else's land. Vehicle immobilisation is one side of the coin, but the obverse side is irresponsible and selfish parking. However, without any consultation on this issue, the Government announced a complete ban on all clamping on private property. They provided no evidence for how many people are affected by rogue clampers and are putting the rights of unlawfully parked motorists above the rights of landowners who are only trying to protect their private property.

The issue of cowboy clampers was largely dealt with in the Crime and Security Act 2010. Sections 42 and 44 of the Private Security Industry Act 2001 introduced a series of regulations requiring wheel clamping companies to acquire licences and landowners to use only licensed companies, as well as an effective means of appeal for the motorist. However, the powers were never commenced and, strangely, the Government have set about reinventing the wheel.

How big a problem is it? Nick Clegg justified this part of the Bill by referring to his Your Freedom website on which 46,000 people left 14,000 ideas. Quite so—but I understand that only 24 of them wanted a ban on wheel clamping. Nevertheless, Mr Clegg suggested that those ideas led to this proposed ban on wheel clamping on private land.

Secondly, where does clamping work? Clamping or the mere threat of it probably deters more than 90 per cent of illegal parking on private land. The inconvenience of having a car clamped deters even the most persistent and selfish parker. This is fair when there are clear warning signs—and there are bound to be since the essence of effective clamping is not to clamp but to deter.

Thousands of residents will be badly affected by the Government's proposed ban. I remember when, on public rather than private land, I used to return late at night from a hospital where I worked to find that I could not park anywhere near my house, which was in the first non-parking controlled part of the street a couple of hundred yards from a Tube station and a famous music venue—the Forum, for noble Lords who know Kentish Town. Until we got residents’ parking, it was all but impossible to park within 10 or 15 minutes’ walk of my front door. It was a public road, but I fully understand what it must be like to come back to a block of flats like the one I used to live in near Highgate Tube and find that there is nowhere in the communal private parking area to leave one's car. I will quote a police spokesman from Gwent. He said:

“The concept of … legislation which removes the disincentive to behave irresponsibly is somewhat incongruous”.

What are the alternatives to which the rogues will turn if they cannot use wheel clamps? The Government want to deal with rogue clampers but have failed to add any provision to prevent such rogues moving from clamping to ticketing, where they will then be able to fleece the 40 per cent of drivers who pay their tickets. There is no requirement in the Bill for such operators to comply with any code of practice or provide an appeals service. Already, many rogue clampers have turned to ticketing as they do not need an SIA licence or to join an accredited trade association.

Julian Edwards, from Lancashire Trading Standards, said:

“Legal enforcement with the possibility of action through the courts”—

if there is just ticketing—

“can be far worse”—

than clamping—

“and ticketing companies are now ‘licking their lips in anticipation of a money bonanza’”.

Meanwhile, drivers could end up facing a bill for hundreds of pounds. What’s more, a ban will simply send a message to persistent fly-parkers that they have the freedom to flout private parking restrictions. This is a dangerous precedent to set with respect to private property, but those motorists who are pursued through the small claims court may find themselves wishing that they had been faced with a clamp on their car rather than a bailiff at their door.

Fourthly, who will suffer if all wheel clamping is outlawed? The effect of a blanket ban, no doubt unintended, would be myriad problems for motorists and property owners as it would leave some landowners with no redress against the rogue parker. People park on private land every day—at leisure centres, retail parks, local authority and other housing developments, parks, open spaces, hospitals, university campuses, school and church property, sheltered housing and railway stations. A ban on clamping and towing away would remove the right of the owner to protect their land. With a ban there would be nothing to stop selfish motorists parking across hospital ambulance bays, blocking emergency exits or wheelchair access ramps, or even parking on somebody's drive. Noble Lords can imagine if their private drive was near a pop festival, a railway station, a cinema or football ground and somebody left their car on it. On some housing estates, not just cars but trailers are left and the residents have no means of removing them from their parking areas.

The Reverend Adam Scott is a clergyman at St Michael and All Angels in south London, which is coterminous with a housing estate. He stated that the local amenity company serves thousands of people on the estate. It uses a reputable clamping firm, 70 per cent of whose work is for local authorities—but that 70 per cent is unaffected by the proposed ban. The Reverend Scott states:

“Our church halls are heavily used for a variety of community purposes including a nursery school, scouts and other youth activities, events for older people, blood donation and even as a polling station. We also have midweek services, weddings and funerals. Visitors to the church and halls are permitted to park and—with the current restrictions and clamping as a threat—there is usually space for their vehicles … Our concern is that this clause would lead to a war by motorists against residents and visitors to this and other estates”.

These residents want the House to appreciate that they are against rogue clampers extorting unreasonable sums from motorists, but want the ability to exercise proper stewardship of a community resource.

The chief executive of the Association of Residential Managing Agents, which represents firms managing leasehold blocks, said that a survey of his members found that 93 per cent believed that a total ban on wheel clamping was not the answer. He said that,

“the industry needs to be properly regulated to protect the interests of landowners, residents and motorists”.