Protection of Freedoms Bill

Lord Lucas Excerpts

Monday 6th February 2012 Lords Chamber

[Lord Wills]

My Lords, I support my noble friend Lady Hayter on this matter. I should declare an interest as someone who suffers fairly regularly from the kind of selfish behaviour that she so compellingly outlined. She set out the arguments so well that I do not intend to rehearse them again. I only ask the Minister to reflect on the sentiment of the House that, in dealing with the very real problems of clamping by private operators that it is widely accepted need to be dealt with, the Government do not create another set of problems. The risks that my noble friend outlined are real. I hope that the Minister in his reply can give the House some reassurance that the Government are going to tackle them.

[Lord Lucas]

My Lords, I am thoroughly in favour of Amendment 42, or at least the intention behind it. It is quite clear that the Bill as it stands will allow a continuation of current abuses in different forms. All you need is a couple of posts with a chain coiled next to one of them and you have a barrier that you can put whenever you want. Anyone caught within it might have to pay a large fine to be released. We will have the same people indulging in very much the same practices as at the moment but they will use a barrier rather than a clamp. Clearly this section is designed to exempt local authority car parks and others with a raised barrier and a ticket on entry. I entirely agree with that. However, it must be reworded, and Amendment 42 seems a pretty good way of doing it. It would be desirable to improve the arrangements in the Bill for appealing against unjustified tickets. I have no objection to the way in which the noble Baroness has set about doing it although I suspect she has taken on a hopeless cause when it comes to allowing more people to clamp. The Daily Mail will use that one, I suspect.

[Earl Attlee]

My Lords, we have already debated these issues at some length in Committee and I am grateful to noble Lords for taking time to meet with me and my officials since then to discuss these matters further. As the noble Baroness, Lady Hayter, has so expertly and temptingly set out, Amendment 42 seeks to allow the use of fixed barriers in certain circumstances and to specify certain conditions that must be met.

We consider the amendment to be unnecessary as Clause 54(3) already requires that there is express or implied consent by the driver of the vehicle to restricting its movement by parking where there is a fixed barrier. In practice this means that the existence of the barrier must have been apparent to the driver, either visibly or through clear signage, when they parked. Secondly, in order to establish a contract as a basis for payment, the terms for parking would have to be clearly displayed. Therefore, if the landholder demanded a fee for release of the vehicle without such a basis, he would be committing an offence under Clause 54(1). In answer to my noble friend Lord Lucas, I am convinced that we have drafted these provisions correctly.

Amendment 43 seeks to create a new power for the Secretary of State to grant lawful authority to clamp and tow vehicles to those who request it, with the expectation that applications would not be refused if made by local authorities, residents’ associations and community groups. Again, we consider the amendment to be unnecessary because there are existing powers for local authorities to take a controlling interest in the management of parking on private land with the agreement with the landholder.

Section 33(4)(b) of the Road Traffic Regulation Act 1984 states:

“A local authority may, on such terms as they think fit … arrange with any person for him to provide such a parking place on any land of which he is the owner or in which he has an interest”.

The phrase,

“provide such a parking place”

refers to a Section 32 parking place, which is the general power for local authorities to provide off-street parking places. As a result, the local authority could make provisions as to the conditions for the use of the parking places and manage and enforce those conditions under the Traffic Management Act 2004. This would enable local authorities to use their lawful authority to clamp or tow those vehicles that have contravened the terms and conditions for parking on that land.

The amendment would also introduce regulation of wheel clampers overseen by the Secretary of State who will also presumably be responsible for enforcement, rather than the Security Industry Authority or another body. The requirements set out in Amendment 43 could lead to a patchwork system of regulation in that each application made would have to set out how they meet the requirements, including in respect of an appeals process. However, the amendment does not provide for national standards which any local scheme must adhere to, so the amendment could lead to a system where wheel clamping schemes are different throughout the country. I am sure that is not the noble Baroness’s intention.

We have seen that following seven years of licensing by the Security Industry Authority, rogue wheel clampers continue to carry out their unscrupulous practices and we do not consider that further regulation of the industry will deter them, no matter how much the noble Baroness, Lady Hayter, deplores their activity. An outright ban on wheel clamping without lawful authority is the only way to deal with rogue wheel clampers. Wheel clamping and the towing away of vehicles by private individuals or businesses without lawful authority in order to force payment of a charge are unacceptable and should be prohibited. As well as causing motorists significant distress and anxiety, the clampers in effect hold the vehicle to ransom—or at least threaten to do so as a deterrent. No one can justify or defend the exorbitant release fees and intimidatory tactics employed.

Throughout our debates, many noble Lords have strongly made the point that clamping is a particularly effective deterrent to inconsiderate and unauthorised parking on private land. It may be, but is it also disproportionate. Supposing I was attempting to deter motorists from speeding: if I proposed that the police have the power to clamp an errant motorist’s car for a couple of hours without recourse to an independent tribunal, I expect your Lordships would have something to say.

There can be situations where, in the circumstances, the motorist who is clamped has acted reasonably. What about a midwife who is seeing a patient in a large block of flats and reasonably believes that permission to park has been granted? How can it be right to clamp his or her vehicle in such circumstances? One only has to ask what the knock-on effect could be. What about police operations? I spoke to a pal of mine who undertakes covert police duties, dealing with very serious matters. He said in an e-mail:

“I can speak from first-hand experience on this. On several occasions this happened to me whilst on duty on covert operations. On every occasion I had to park my police vehicle quickly and deploy on foot from the vehicle. The vehicle was always left in open parking spaces on private land and subsequently clamped. Whilst I cannot quote the figures, I know this happens on many occasions in similar circumstances”.

The fact is that a clamping company operative, no matter how well meaning, cannot possibly know whether what he is doing is reasonable. Therefore private clamping on private land is fundamentally flawed.

Turning to Amendments 44, 45—-

[Lord Lucas]

My Lords, why would it be any different for the policeman if a barrier had been placed across his car? He still would not have been able to use it. Why is that acceptable and a clamp not?

[Earl Attlee]

The noble Lord makes a very good point. The policeman would have to take that risk. However, he would be aware that he was taking the operational risk that his vehicle might be clamped.

I turn to the other amendments. As the noble Baroness, Lady Hayter, has explained, these amendments seek to provide an alternative dispute resolution mechanism. The Government would be required to prescribe and enforce the system, which would need to be funded by the industry. It is a bit odd that in this group of amendments the noble Baroness proposes retaining clamping without any effective means of appeal while in other amendments she is insisting on a system of appeal.

As indicated in previous debates, the Government are committed to providing an independent appeals service, which will cover all tickets issued on private land by members of an accredited trade association. In practice, this body will cover all ticketing by members of the British Parking Association’s approved operator scheme, who are the major private parking providers in the sector with accredited access to the DVLA keeper data, and will therefore be able to pursue vehicle keepers for unpaid parking charges after the measures in Schedule 4 come into force. However, we have made absolutely clear that we will not commence the keeper liability provisions in Schedule 4 until this independent appeals body is in place.

The amendments tabled in the name of the noble Baroness, Lady Hayter, propose much broader regulation covering all parking on private land which, we believe, would impose a not inconsiderable burden on smaller landowners, including those who wish to manage perhaps only a handful of parking spaces, or even one.

I fear that I am not in full agreement with the noble Baroness, Lady Hayter, regarding Scotland, where wheel-clamping has been banned since 1992. We have seen no convincing evidence that levels of rogue ticketing are a particular problem. However, we are not being complacent; we have given these amendments very careful consideration and, in this respect, I am particularly grateful to noble Lords who have taken the time to meet me to discuss the Government’s proposals. I have also had very helpful and informative meetings with the British Parking Association, Citizens Advice and Consumer Focus.

Some noble Lords raised the issue of Citizens Advice Scotland dealing with more than 1,500 parking inquiries, which represents a big increase on previous years. The figures need to be reviewed in the context of the number of parking tickets issued each year; I do not have the figures for Scotland to hand but, in England and Wales, local authorities issued over 4.2 million penalty charge notices for on-road contraventions alone in 2009-10.

Following discussions, we have agreed that part of our commitment to monitoring the impact of the provisions will be to continue to liaise closely with consumer protection groups to ensure that if rogue ticketing activity does occur such groups can feed back to us. If it becomes a significant problem, we will consider further measures, including wider regulation, if it proves necessary in the light of experience. I hope that that meets the needs of the noble Lord, Lord Wills.

As I have said, we have already established a new system for parking management companies—

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, like the noble Baroness, Lady Brinton, I have also been involved with this committee, which has been looking in very great deal at this issue. As others have said, with the marvellous help of Laura Richards and Harry Fletcher, who have done a tremendous amount of work, we have listened to the most appalling stories. Again, as has been said, it is not just the individual whose life is ruined; it is often whole families who have to rush around the country trying to escape the persecution. As we also know, it is not just a question of trying to escape; there are murders and other terrible consequences. I, too, congratulate the noble Baroness, Lady Royall, on tabling the amendment. It is a good and very worth-while attempt not only to replicate the Scottish legislation—which, as we have all heard, has made good progress, and lessons are being learnt from it—but to make some additions, which we have worked on in our committee. Very sadly, it is probably not the right time to do so. We have a clash because the report that we have all been working on is published tomorrow, and it is very comprehensive. This makes, in my view, a strong case for a far more comprehensive piece of legislation.

That said, I commend the noble Baroness, Lady Royall, on later Amendments 49B and 49C in this group. They are an attempt, although I tend to agree probably not a practical one, to come to the right conclusion. We have, however, been told that Third Reading is not until March, so there might be some time to work on this report. If that is the case, we should gratefully look at that. Whether or not we will be able to accept it in its final stage, it would be an example of an updated piece of legislation that might in due course need further improvement but might be a step in the right direction.

I will mention cyberstalking briefly because it is a major and worrying area that needs dealing with. The perpetrator can not only continue to hound and haunt the victim in appalling ways but reinvent himself, pretend that he is the victim and spread all sorts of rumours. It is a very serious situation that we have ignored for far too long. One is almost surprised at how little attention has been paid to it. We should think back and not forget that domestic violence was regarded as something that was within the family and that the police should not get involved. How ridiculous that sounds in today's world.

Again, I congratulate the noble Baroness, Lady Royall, on what she is doing. I hope that we can make progress between now and Third Reading in the way I suggested, and then think again. I very much support what is being done.

[Lord Lucas]

My Lords, I very much look forward to reading the report tomorrow. I support the direction that the noble Baronesses have taken but I feel that Amendment 49A raises too many questions, particularly around the boundary of what is and is not acceptable conduct. For example, there is no requirement on A to behave reasonably, only on B. In subsection (5) of the proposed new clause we are getting close to the continental form of law where something is permitted only if it is allowed in legislation, whereas in the English form of law something is permitted if it is not forbidden in legislation. That requires careful consideration. I hope that the report of the noble Baroness will be the start of that process, and that my noble friend will be very supportive in his reply.

[Lord Henley]

My Lords, perhaps the House will welcome my intervention at this stage. I echo the words of the noble Baroness, Lady Howe, in saying that, surprisingly, I, too, commend the noble Baroness, Lady Royall, on tabling the amendments in this group. However, I have some doubts about their practicality and timing.

My first doubt is about their practicality. There are three amendments in the group. I am not sure in which order the noble Baroness would wish to see them on the statute book, or whether she wants to see them all on the statute book at the same time. Amendment 49A sets out in some detail what she proposes to do, although subsection (8) of the proposed new clause still gives the Secretary of State power by regulation to add further forms of conduct to subsection (6). The second amendment is a somewhat briefer attempt to do the same thing, which gives greater power to the Secretary of State to govern by regulation. The third, Amendment 49C, seems to imply that the Secretary of State can do what she likes, when she likes, merely by regulation. I am not sure that that is the right way to go about legislating in this field. I hope that I will cover these points in greater detail in my brief remarks.

I appreciate also the extreme importance of this matter. I make it quite clear to the noble Baroness and to the House that the Government take this very seriously indeed. We understand what my noble friend Lady Brinton called the fear and trauma that it can cause victims, many of whom are women living in fear of physical violence as well as mental anguish. We accept that more needs to be done—I make that quite clear—to protect victims of stalking and to stamp out such behaviour. That is why the Government took the initiative as long ago as last November in launching their consultation, which sought views on how we could more effectively protect victims of stalking—including, if necessary, through strengthening civil and criminal law, and police powers.