Deregulation Bill

Lord McKenzie of Luton Excerpts

Tuesday 4th November 2014 Grand Committee

Moved by

[Lord McKenzie of Luton]

61C: Clause 38, page 30, line 21, leave out from “given” to end of line 23 and insert “either—
(a) by a notice fixed to the vehicle;(b) by a notice handed to the person appearing to be in charge of the vehicle at the time; or(c) where the enforcement officer is prevented from serving the notice by either of the methods in paragraph (a) or (b), by post,in respect of a parking contravention on a road in a civil enforcement area in England”

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[Lord McKenzie of Luton (Lab)]

My Lords, in moving this amendment, I will also speak to our other amendments in this group—Amendments 61D, 61E, 61F and 61G. I will address the clause stand part debate in due course.

Most local authorities have adopted civil parking enforcement powers, which mean that they, rather than the police, can issue parking tickets for on-street parking contraventions and in local authority off-street car parks. This means that they have full responsibility for the design, implementation and enforcement of parking policies in their areas. The quid pro quo as the Government apparently see it is that local authorities should use these powers to seek best solutions to balance the sometimes competing needs of different road users, including cyclists, pedestrians, residents, shops and businesses.

Local authorities, as we know, are precluded from using their civil parking enforcement powers to raise revenue. The Government say that they are aware of concerns that some local authorities are being overzealous with parking enforcement, and they have focused on the use of CCTV as having insufficient regard to statutory guidance. It is suggested that enforcement by CCTV is particularly unfair because a motorist might be issued with a ticket as a consequence of a camera. The ticket arrives at their home some time after the event when they have no opportunity to examine the location when the alleged contravention took place. However, the Government’s consultation on local authority parking last year acknowledged the benefit of CCTV in enforcing moving traffic congestion where cars use bus lanes, do not exit box junctions and so forth.

The LGA disputes much of the Government’s analysis. It points out that successful appeals to the adjudicator are low, 80% of councils make no surplus on enforcement and parking surpluses that do arise are reinvested back into transport improvements. Parking controls help to ensure that businesses have access to loading bays, school entrances are kept clear and parking does not obstruct access to shops, businesses and residences.

Notwithstanding that, Clause 38 seeks to ban the use of CCTV for parking enforcement, although the Government have already acknowledged the need for some exemptions to this policy as a result of campaigning by the LGA. They have acknowledged the need to allow its use at bus stops, in bus lanes, outside schools and on red routes. CCTV is quite properly used to enforce parking restrictions where the use of enforcement officers is not practical. Outside schools is a particular case in point because motorists can move their vehicles when a traffic officer approaches. Enforcement in some instances requires constant observation over a period of time or for safety reasons.

As Clause 38 is currently drafted, and subject to the detail of any regulations, it would seem to make it impossible to enforce a penalty where the driver has fled the scene or where an enforcement officer is otherwise prevented from fixing the PCN to the vehicle or handing it to the person in charge of the vehicle; perhaps because of threats of violence. It cannot be the Government’s intention to allow such behaviour to be rewarded. At present of course, an enforcement officer can hand a PCN to a driver or send it by post when prevented from serving it directly. Amendment 61C would therefore allow a PCN to be issued by post where it cannot be issued in the manner currently provided for in Clause 38.

Amendments 61D and 61E would include in the Bill exemptions from the ban, some of which the Government have already conceded should be provided. This applies to contraventions for stopping at bus stops and bus lanes, school entrance markings and red routes on the grounds of safety and the needs of bus services. Amendments 61B, 61F and 61G have been added to our proposals for the same reasons. We propose that all arrangements for safety reasons should be covered as well as no-stopping and no-loading restrictions because these, too, impact on bus service delays.

Amendment 61F seeks to ensure that the provisions of Clause 38 cannot have effect until the proposed implementing regulations have been the subject of a regulatory impact assessment and an equalities impact assessment. As I understand it, no impact assessments have been conducted on these clauses, particularly in respect of the impact on those dependent on public transport or on vulnerable users. Can the Minister tell the Committee why this is? Will the Government now commit to producing such assessments before implementing these provisions?

The purpose of Amendment 61G is to enable those local authorities that wish to use CCTV and automatic number plate recognition in car parks in order to make it easier for users to park and pay later or to better manage space for users. It would make it easier, for example, to have pre-booking arrangements. The Protection of Freedoms Act 2012 provided for such technology in private car parks but not local authority ones. The use of such technology would depend on it being used for better space management or customer convenience. This approach follows the same basis as that on which the congestion charge operates and, so I am told, the new Dartford crossing toll. The Department of Health’s encouragement for NHS trusts to use pay-on-exit systems is in the same vein.

Since tabling these amendments and drafting most of these notes, we have seen a draft of the regulations enabled by this clause. We obviously need some time to look at these—although doubtless the Minister will offer some enlightenment—but on the face of things, it looks as though the prospect of enforcement by post is preserved for on-road contraventions, in limited circumstances when alternatives are prevented. These would appear to be more limited than in Amendment 61C. The regulations would also appear to cover some, if not all, of what is provided by Amendments 61D and 61E, but this is not in the Bill. The draft regulations do not address Amendment 61G.

Can the Minister help me in particular with a specific piece of drafting in those regulations? Regulation 9A(3)(c) looks at the circumstances where service of enforcement by post would be permitted. It refers to,

“where the civil enforcement officer has begun to prepare a penalty charge notice for service in accordance with paragraph (2)”.

What does,

“begun to prepare a penalty charge notice”,

mean in this context? Does the officer have to actually get his machine or pencil out of a bag for a written enforcement notice? Does he just have to appear and look at the number plate of the vehicle in contemplation of doing something or does he actually have to press the button on the notice? This might seem frivolous but it is important that these things are clarified otherwise the scope for argument, litigation and adjudication will be endless.

We welcome the Government’s response, so far as it goes, in listening to the concerns and the LGA’s campaign—however, it is not enough. I beg to move.

[Lord Bradshaw (LD)]

I believe that these provisions are ill thought through and extremely damaging to local government and local governance. At the same time as the Government are beginning to concede powers—to Greater Manchester, as we read this morning—these provisions are taking away a power which is essential for local government to keep its roads free. Those roads are becoming increasingly congested and increasingly badly maintained.

The law relating to bus operation is that the traffic commissioners who license buses provide that they do not run early or more than five minutes behind schedule. It is extremely difficult for bus operators to keep within the present limits with the present level of enforcement; it would be completely impossible if we got odd people having five minutes to pop in to get the paper and impeding the traffic. That has a large-scale effect. For example, in Oxford, which I know well, the congestion at one stage got so bad that in one of the park and rides they had to put extra buses in and extra drivers. Of course, they got no more revenue, because they were taking the same number of people, who just happened to be sitting in congested areas. I am not talking only about bus lanes; these appear to be covered in the proposed regulations. I am talking about the fact that a large number of buses do not use roads that have bus lanes; the vast majority—I think about 60%—travel along ordinary roads, which are protected in places at least by double yellow lines. I honestly believe that this is not a subject that the Government should be involved in.

There is very little evidence that surpluses are being frittered away or used by councils to subside luxuries. I accept that in Kensington and Chelsea and in Westminster a couple of councils make a profit, but we cannot argue from the particular to the general. A piece of evidence that I have from one local authority shows that actually a very small fraction of people contest their parking fines and a much smaller proportion of them are upheld by the parking adjudicator. Nobody likes getting tickets because they have been watched by CCTV but most people accept that they have done wrong and will have to pay the fine, which is mitigated to 50% if people pay promptly. It is quite impossible to think that the police have resources to do that sort of work; it has to be done by CCTV, and if local authorities can afford to employ parking wardens it is probably at the expense of spending money on something else. I cannot understand why, in this day and age, technology is not brought to bear on problems. This is not spying on people; it is picking up illegal parking that is obstructing the highway for the ordinary person.

The regulations talk about zig-zag lines outside schools. I know what they are like; they go for about 10 yards either side of the entrance. That is not the problem. If you go almost anywhere you will find a line of cars outside schools and, for that matter, outside hospitals, which is very long and creates huge safety problems. Many headmasters ask local authorities to bring the enforcement ban or some sort of TV equipment to control the problem, because many people who park in those places are just selfish or lazy—or perhaps both. I do not believe that we should pander to that sort of thing.

With this clause, we need to go back to the drawing board and take some advice from people who really know what they are talking about, not relying on something conjured up in Whitehall, probably by somebody who really does not understand the problem.

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[Lord Gardiner of Kimble]

My noble friend is always extremely persuasive. Clearly, the record of these discussions will go back to the department.

In his amendments, the noble Lord seeks to place in the Bill the list of exempted areas where local authorities can continue to use CCTV to issue tickets in the post. The department does not think that it would be expedient to set the exemptions in primary legislation. It is conceivable that exemptions could be increased or reduced in the future, so it might be more desirable to include them in secondary legislation. Everyone will have their own view on what is the right balance for the use of CCTV, whether that is in parking, as your Lordships are debating today, or more widely. The Government have given careful consideration to the list of exemptions and, in particular, have reflected the views of those who responded to the consultation.

The noble Lord, Lord McKenzie, also seeks to introduce a requirement for impact assessments to be carried out for the provisions. As I am sure he will know, the Government have been clear in their determination to reduce the impact of rules and regulations on businesses and policymakers. Indeed, the Government’s Better Regulation Framework Manual, which was published in July 2013, states that impact assessments are required only for measures that regulate or deregulate business or concern the regulation of business. This clause applies only to local authorities that carry out parking enforcement, so we believe that no impact assessment is required.

[Lord McKenzie of Luton]

Will the Minister remind me what the criteria are for an equality impact assessment?

[Lord Gardiner of Kimble]

I think that I might need a little assistance on that, but I will return to it.

The noble Lord also suggested the insertion of a new clause that would prevent the measures in the Bill from affecting off-street parking. However, the measures in the Bill already apply only to on-street parking, so we consider that the noble Lord’s suggested new clause is not necessary.

I should also reply to my noble friend Lord Bradshaw on the issue of traffic flow. Local authorities will still be able to enforce parking. Indeed, the great majority of authorities do this without the use of CCTV. As I said, in those areas where traffic flow is vital, the Government have provided for CCTV to continue.

I promise to write to the noble Lord about equality impact assessments.

[Lord McKenzie of Luton]

My Lords, I thank all noble Lords who have spoken in this debate. I shall first pick up some points that the Minister made. I understand his definition of when someone begins to prepare a parking ticket. I suspect that CCTV evidence will need to be brought to bear on that decision on more than a few occasions.

Let me revert to the noble Lord, Lord Bradshaw, who said that the amendment was damaging to local government and took powers away from local authorities. With respect, that is not what the amendment was doing. What is taking the power away from local authorities is the clause in the Bill. The amendment was seeking to ameliorate the impact of that. In that sense, I guess that it is a middle position between the two extremes of the coalition—those who do not want the clause at all and those who, if it has to be there, want to make it work in a better way. The arguments for not having it there at all are not insignificant.

[Lord Bradshaw]

I am sorry to interrupt. There is a woeful lack of solid evidence to support what the Government are proposing. The Minister, in replying, referred to parking penalty charge notices and all the work given to the adjudicators. In one borough, which I shall not name, 45,771 tickets were issued in a year. Of those, 358 were referred to the parking adjudicator and 65 were upheld. So we are talking about 65—one and a half a week—against the local authority issuing nearly 1,000 a week. It is preposterous that this sort of evidence is used by the Government to make these proposals. I beg the Minister to go away and convene a meeting between the people who support the Bill and those who actually have to work it. Seriously, this will cause chaos to bus services and parking enforcement—and probably a general feeling, once again, that the Government are out of touch with people.

[Lord McKenzie of Luton]

My Lords, I do not at all dispute the adjudication figures. I probably used the same briefing as the noble Lord. We have a common understanding of the data and the Government have more to do in justifying what they are doing here.

The issue around schools is clearly very important. The point has been well made that it is nonsense to say that TV cameras will be able to be used along a very short stretch of road. Our amendment would widen or retain the opportunity to use CCTV in those circumstances. The noble Baroness, Lady Hanham, asked who was complaining about parking charges. I hesitate to say, but she might wish to take a taxi ride in Luton and it will not be long before she gets someone bending her ear about parking charges and enforcement. I suspect that that situation is not unique to where I live.

There is a localism argument in all this, although I know that depending on where people are on a proposition, they either grasp the localism mantra or they do not. We debated something just last week when those who are now on the localist wing were arguing for a very much centralist approach. We have all probably been on one side of that issue or another.

The Minister said that I was trying to introduce a new clause related to off-street parking enforcement; was that the point he was making? The point about Amendment 61G, which was suggested to us by the LGA, related to the opportunity for local authority car parks to have the benefit of the same use of technology as private car parks so that it can be used to improve management of those car parks—to enable people to park and pay afterwards, for example. Those are the sort of arrangements that make more efficient use of car parks—as I said, the Department of Health hospital trusts are encouraging that—which was the purpose of my clause. Perhaps the Minister might reflect on that.

My noble friend Lord Rooker, as ever, made a challenging point, in this case about the difference between somebody getting done for speeding on a motorway and somebody getting a parking ticket when they are stationary. These provisions apply only for stationary vehicles—for obvious reasons which the Minister I think dealt with. If people are motoring at 40, 50 or 60 miles an hour, you need some form of evidence to be able to justify a penalty, and CCTV is the obvious option. I do not think that the Government, to be fair to them, are seeking to change that in these regulations. But where I challenge the Government, and where I would certainly align myself with most of the Benches opposite, is that I do not think the Government have justified the very narrow use of CCTV that would result from this clause. At the very least it should be widened to cover all of those areas focused on safety, for example bus usage and the efficiency of the bus service. What they are doing is very restrictive and, I believe, unacceptable. One way or another, it needs to change.

[Lord Tope]

I do not think the noble Lord has quite withdrawn his amendment yet. Before he does so, I could perhaps help with Amendment 61G—which I certainly support—which refers to the use of an approved device in car parks. As I understand it, the Protection of Freedoms Act 2012 provided for the use of CCTV and automatic number plate recognition in private car parks but did not do so for local authority car parks. If that is the case—I believe that it is, and that is the reason for the amendment—I do not understand the logic for it. Why is it permissible in a privately owned or managed car park but not in a local authority one? I suspect, or would like to believe, that that was simply an omission when the 2012 Act was passed and that this is the opportunity to correct it.

[Lord McKenzie of Luton]

I am grateful to the noble Lord for his support on that particular amendment. I do not believe we can get an answer this afternoon as to why that distinction was made when the provisions were introduced but it is certainly important that we get it. We will obviously need a lot of follow-up on this area of debate, but in the mean time I beg leave to withdraw the amendment.

Amendment 61C withdrawn.

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[Lord Holmes of Richmond (Con)]

My Lords, I support the amendment tabled by the noble Lord, Lord Low, and already spoken to. I feel nervous about standing between two noble friends. Luckily, I am not right between them, so I feel safe at the end of the Table. Also, it is a pleasure to be speaking to my noble friend the Minister. Two hours ago we were speaking on sport and now we are on parking. We should all bow down in awe at the extent of his knowledge and the range of expertise demonstrated in just one afternoon.

We all know very well that there are three subjects never to be discussed in polite conversation. I would certainly add a fourth, parking, to that. It raises temperatures—sometimes justifiably and sometimes the solution is actually in the hands of the person holding the steering wheel at that particular moment. Looking at the amendment, the situation is clearly set out and has worked not just perfectly but incredibly well in London since 1974. It has not impacted on the economic, social or cultural success of this great city. I would never say that what is good enough in London is good enough everywhere, but it is a very useful case in point to consider.

As a guide dog user, I obviously have a particular interest in this. In many cities and towns that I go to, trying to walk along the pavement is impossible. One steps out to avoid one car then realises that there is a second, third and fourth car and one is walking down the centre of the road while the cars are on the pavement. What a curious world one has entered there. It is almost as if pink flamingos are used as mallets for croquet and we are all diving down rabbit holes when we have reached a change of roles to that extent.

It is not just about visually impaired people, though—it is about the very nature and essence of inclusion. If you have a pushchair or pram, or you are walking with friends or family, if you have toddlers or if you are on a mobility scooter, if you are a pedestrian you should be able to access and enjoy the environment on the pavement. The clue is really in the name, “pavement”; it is not a carriageway. The Americans get it quite well—it is a sidewalk, not a side road or a side car park. That is where we should aim to guarantee everybody free, unimpeded access along the pavements, not just of London but across the entire nation. As we have already heard, there is a very clear local element here. Politics is nothing if it not only listens but acts locally. This amendment offers the right local solution to enable unimpeded access of the pavements up and down this nation.

I turn to the economics of it. Pavements are not designed for cars. Unsurprisingly, they crack and the tarmac sinks and they become not only unsightly but dangerous for pedestrians. Between 2006 and 2010, £1 billion was spent on pavement repairs as a result of parking. That figure does not even cover the costs that we can all only think about of people who have had to bring claims against local authorities for having been injured on pavements that have broken down as a result of people parking on them. Again with reference to the local agenda, that is why it is hardly surprising that 78% of local councillors believe that there should be prevention of pavement parking, as is the case in Greater London.

There is an economic argument and a social argument, as well as a legal argument. It would be good if my noble friend could strongly consider the wording set out in this amendment.

[Lord McKenzie of Luton]

My Lords, this is an important amendment, and we should thank the noble Lord, Lord Tope, for moving it on behalf of the noble Lord, Lord Low. As the noble Lord, Lord Tope, said, we all signed up to the Private Member’s Bill, which has stalled at the other end but is due for a Second Reading in January.

Under the existing legislation, it is illegal to drive on pavements and footpaths, but there is no specific prohibition against pavement parking. The ambiguity in the law means that most local authorities struggle to enforce restrictions, in contrast to London, which has operated a separate system since 1974. I understand that there are also exemptions in place in Exeter and Worcester. As the campaigning charity, Living Streets, said in written evidence to the Transport Select Committee:

“Inconsiderate parking can cause a major barrier to many vulnerable road users. It is clear that the current legislative situation relying on police enforcement isn’t working”.

Of course, there are some areas where parking on the pavement is unavoidable, and there are other legitimate reasons why it might sometimes be necessary—but all too often parking on the pavement obstructs access to pedestrians, forcing them to navigate busy and dangerous roads instead. Some 74% of adults report being forced to walk on the road because the pavement was being obstructed by cars and other vehicles. For some, pavement parking can effectively extinguish their right of way altogether. I refer to elderly people, people with buggies and those with disabilities. For them, cars that block the pavement can be a serious restriction on their freedom of movement.

I know that the measure proposed today has the support of the Guide Dogs UK, Age UK and several other organisations referred to by the noble Lord, Lord Tope. Banks of parked cars can also force cyclists to swerve into dangerous traffic flows, which can be especially dangerous on narrow roads. Pavements are not designed to bear the weight of cars, as the noble Lord, Lord Holmes, just said, let alone heavier goods vehicles; over time, they can become degraded, posing additional challenges for pedestrians and costs for local authorities.

The reality of the problem is not in contention, I suggest. In 2006, the Transport Select Committee said that the then Government,

“must grip the problem of pavement parking once and for all and ensure that it is outlawed throughout the country … rather than relying on the use of individual Traffic Regulation Orders on specific streets and local Acts to impose”,

a fine. Last year, the Transport Select Committee called for reform to end,

“a confusing patchwork approach across the country”,

and for a clarification of the rules for loading and unloading by haulage companies, and action to rectify the long-standing problems over poor signage. It is important that, even as the Government try to move towards allowing more diverse road signs from local authorities, common national standards can be agreed on this issue.

The status quo brings challenges for drivers as well as pedestrians and cyclists. The British Parking Association and the RAC Foundation all support the calls for change. Inappropriately parking vehicles can interfere with traffic flows for other road users, causing jams and congestion, and drivers are often unsure about restrictions—and which, if any, are in place. Given the growth in congestion on many of our roads, these problems are likely to be magnified in the years ahead.

The Government also seem to be in agreement, on the principle at least, that pavement parking is a problem that needs to be addressed. The amendment gives the Minister and the Government ample opportunity to do so. I urge them to take it.

[Lord Gardiner of Kimble]

My Lords, I first thank the noble Lord, Lord Tope, for speaking to the amendment; I am most grateful to the noble Lord, Lord Low, for tabling it.

The Government recognise entirely the importance of making the local environment convenient, safe and attractive to walk in, and of keeping footways in good order. I do not think anyone could have failed to be struck by all that my noble friend Lord Holmes of Richmond has said. However, as I think the noble Lord, Lord McKenzie, acknowledged, part of the dilemma is that there are indeed some streets where pavement parking may be inevitable, whether to maintain free passage of traffic, to allow loading and unloading or to allow the setting down of passengers in certain situations. I am afraid that I can think of instances when I have parked on a pavement for an elderly relative to get out safely, which I think was legitimate; it was not in London, either. There are therefore issues with a blanket ban, as the amendment is drafted, that are problematic.

Local authorities already have many powers to ban pavement parking; I have a list of them and they are quite considerable. However, I agree with my noble friend Lord Deben on this occasion. Local authorities are in the best position to decide on local parking restrictions and need to consider all road users when taking such decisions. A national ban of the type proposed would require local authorities to remove all existing restrictions, then to review their urban areas for where footway parking should nevertheless still be permitted, consult the community and erect new signage and markings, which would of course impose a burden on local government.

The amendment also proposes banning footway parking but allowing authorities to permit it where desired by a simple resolution. Circumvention of the traffic regulation order process would take away an important protection for the public. This process requires authorities to undertake consultation and advertise the proposals before councillors take final decisions. The Government’s guidance to local authorities makes clear that, during the appraisal of their parking policies, an authority should consider whether pavement parking is problematic in any part of its area. If it is, and is not covered by an existing traffic regulation order, the authority should consider amending the existing order or making a new one. Indeed, my noble friend Lady Kramer wrote to all English traffic authorities on 27 June this year to remind them of their existing, wide-ranging powers to prevent people from parking on the pavement where it is a problem.

Given the significant issues in managing a change of this scale, and the fact that authorities already have comprehensive powers to ban footway parking, I will ask the noble Lord to withdraw his amendment. However, before that, I want to emphasise that I am not asking the noble Lord to do that because the Government do not understand or accept the concerns that have been expressed. Indeed, the Government consulted the Disabled Persons Transport Advisory Committee on this. Although that body favours having no parking on the footway, it recognised that there would need to be exemptions from the national ban and that issues arise from this.

Although I am sure all noble Lords in the Committee will have every sympathy for what is intended, there are issues, which is why I ask my noble friend to withdraw his amendment.