Protection of Freedoms Bill

Baroness Featherstone Excerpts

Monday 10th October 2011 Commons Chamber

I look forward to hearing from the Minister that she has had an opportunity to think again about the Bill’s failure to deal with the issue of ticketing and introduce a fair, independent system of appeal to deal with the problem of rogue ticketers, which I believe will come back to haunt the Government.

[The Parliamentary Under-Secretary of State for the Home Department (Lynne Featherstone)]

As the hon. Member for Kingston upon Hull North (Diana Johnson) pointed out, we had a long debate in Committee on issues such as ticketing and clamping. Before I reply to her specific questions, let me remind the House what was said by many of the people she cited when we announced that we were going to ban wheel-clamping on private land. Edmund King, president of the AA, said:

“An outright ban on wheelclamping on private land is a victory for justice and common sense.”

The hon. Member for West Bromwich East (Mr Watson) said:

“I just want to say that this part of the Bill is fantastic and that the Home Secretary has my full support for it.”—[Official Report, 1 March 2011; Vol. 524, c. 210.]

Gillian Guy, chief executive of Citizens Advice, said:

“We are extremely pleased that the government has decided to deal with the scourge of clamping and towing on private land, as a matter of urgency.”

The AA said in a press release:

“It is a momentous decision to prepare new legislation to end this scourge that has blighted the name of parking control in private parking areas for so long.”

I quoted those comments partly to remind Opposition Members that what they proposed to do was license the companies concerned—in fact, individuals have been licensed, which clearly has not worked according to the tales told by almost every Member in the House about those whose cars have been clamped and from whom money has been more or less extorted—and also to remind them that the system that we propose was wanted by Members on both sides of the House. The issue now is how to ensure that we can implement it. Licensing clamping businesses, as suggested by the Opposition, was not the answer.

We have discussed the “what ifs”—all the issues that might arise—and the potential problems if rogue clampers became rogue ticketers. In Scotland clamping was banned in 1992, very successfully. On deciding to consider the option of banning, the first thing I did was ask my officials to inquire what the repercussions and difficulties had been in Scotland, such as whether the use of barriers had been impossible and whether there were rogue clampers. I looked into those matters in 2010, which was after 18 years, and my officials came back and said there had been just a handful of letters about any problems in all that time.

[Jeremy Corbyn]

The hon. Lady will have received correspondence from the Aberdeen Park Maintenance Company, which manages a private road in my constituency. It has an effective, low-cost system of controls and a minimal level of clamping. Under this legislation, however, it will not be allowed to do any clamping at all. Instead it will have to install expensive barriers and employ staff. That will cost everyone, including council and social housing tenants, a great deal of money. I realise this is a somewhat anomalous argument, but in every city there are private and unadopted roads where such issues will arise, and I would be grateful if she would share her thoughts and say what response she will give to this company.

[Lynne Featherstone]

I am sure such issues will arise across the land. The way to deal with them will be through either ticketing or barriers. However, it is also possible—although this is not required—for a local authority to take over responsibility for that land and issue tickets. Such matters can be addressed in that way, therefore. I cannot give a specific response on every circumstance that might arise across the land, but in Scotland the answer was barriers or ticketing; it was not particularly complicated.

We will carefully watch how things pan out, but our proposal is our best effort to get the balance right and to make sure that we proceed without the burdens of regulating everything in the land and instead let the parking industry look after itself so there is no cost to the taxpayer if ticketing is taken forward. An appeals process will also be put in place, and I shall address the detail of that shortly.

I listened carefully to the comments of the hon. Member for Kingston upon Hull North, and I think we are all trying to achieve the same outcome, but we just believe that we can get there in different ways. The best way in which I can respond to new clause 15 is by reference to the Government amendments in this group, which address ticketing issues.

The Government amendments propose a number of changes to schedule 4, which makes provision for vehicle keepers to be held liable for unpaid parking charges in certain circumstances. The amendments, many of which are of a drafting or technical nature, seek to clarify the effect of the provisions in order to reduce the potential for them to be misunderstood either deliberately or inadvertently by motorists, vehicle keepers and those responsible for parking restrictions and enforcement on private land.

In Committee, the hon. Lady argued for the introduction of a statutory scheme for the regulation of parking on private land which was the same as the one we are discussing now. The Opposition were particularly concerned for there to be statutory provision in respect of signage at car parks and appeals rights. That theme is again picked up in new clause 15.

[Diana Johnson]

I want the Minister to set out very clearly that the Government amendments do not provide for an independent appeals process, but are instead limited to keeper liability in very specific circumstances. They therefore do not provide proper and adequate independent appeals for anyone who receives a ticket.

[Lynne Featherstone]

For any land that is properly signed and under lawful authority, people will be protected by either consumer law or the appeals process that will be set up by the British Parking Association. If the hon. Lady lets me pursue my argument, I think that some of her questions will be answered.

I made it clear that parking enforcement was properly a matter for existing contract and consumer protection law, backed up by self-regulation by the parking industry. That remains the Government’s position—that is clear. However, we have looked again at the provisions in schedule 4 to see whether they include adequate safeguards for motorists and vehicle keepers, and the amendments strengthen those in two ways.

First, on appeal rights and keeper liability, I fully agree with the hon. Lady that there should be appropriate safeguards for motorists, including access to an appeals body for drivers or vehicle keepers to challenge parking charges where they believe they have been wrongly or unfairly imposed. Amendment 59 makes it clear that the notice to the driver or the keeper of a vehicle must set out the arrangements for the resolution of disputes or complaints. We have asked the parking sector, led by the British Parking Association, to establish an independent appeals body, funded by the parking industry and free to consumers, to cover tickets issued by members of the BPA or another accredited trade association. We have also made it clear that we will not bring the keeper liability provisions in schedule 4 into force unless and until the sector establishes, financially supports and agrees to abide by the decisions of an independent challenge body. Unlike the hon. Lady, we do not see a need to constitute this appeals body in legislation. We believe that effective self-regulation by the parking industry is the right way forward, wherever possible, rather than relying on a governmental regulatory approach.

[Diana Johnson]

I am interested in what the Minister is saying. However, self-regulation for wheel-clamping clearly did not work and we are ending up in a similar position in this area. By providing self-regulation, we will find that the good ticketing and parking companies will be members of the BPA but the organisations that are just going to intimidate and impose excessive charges through ticketing notices on vehicles will not be covered by the appeals process.

[Lynne Featherstone]

Intimidation is against the law. I would say to any motorist intimidated by a rogue ticketer that they should report it immediately to the police.

Secondly, on signage, amendment 61 sets out a reserve power to prescribe requirements on the display, content and location of signs at car parks and other relevant land. I say a “reserve power” because parking providers will be able to access DVLA keeper data, and therefore benefit from the keeper liability provisions, only if they abide by the British Parking Association’s code of practice on signage. We do not consider that regulation on signage will be necessary and we would want to introduce statutory rules on signage only if there was clear evidence that the BPA code was not living up to the job. I would be more than happy to read out to the hon. Lady the BPA code on signage, but it is quite long. Suffice it to say, it is big, clear and exactly what one would want in terms of proper parking signage. If that was not the case, we would keep an eye on the situation, but we do not want to introduce statutory rules about signage automatically because we believe that the BPA code will work.

The third significant change introduced by these amendments is to extend the application of the keeper liability regime to circumstances where an obligation to pay a parking charge arises as a result of parking on land without permission, which is to say in the context of a trespass or other tort. This change will help to address the concerns expressed by tenant associations and others about their ability to tackle unauthorised parking in communal parking areas once the ban on wheel-clamping comes into force. We have also made it clear in relation to vehicle hire companies that liability for any parking charges during the period of hire will rest with the hirer of the vehicle once the vehicle hire company provides a copy of the relevant documentation to the creditor. Again that reflects the position for on-road parking contraventions.

Finally, the amendments will allow for the use of CCTV or automatic number plate recognition technology, as well as the physical ticketing of vehicles, in order to manage parking on relevant land. Taken together, these amendments to schedule 4 will ensure that parking providers and other landowners will have an effective means of enforcing unpaid parking charges which are, at the same time, fair to the motorist and vehicle keepers.

On the concerns expressed about rogue ticketers, the Government are fully committed to monitoring the effect of the ban on vehicle immobilisation and removal and the associated keeper liability provisions in schedule 4.

--- Later in debate ---

[Diana Johnson]

Let us be clear. Are we saying that if someone receives a ticket in a private car park and there is a barrier that restricts the car from being driven away, that is completely legitimate? Is the Minister saying that a vehicle can still be immobilised by a barrier being put down at the front of the car park, with a ticket being issued, so that the car cannot move away? Is that correct?

[Lynne Featherstone]

The presence of the barrier means that the owner has either expressly or implicitly consented to pay the parking charges, which must be clearly labelled under either consumer protection law or the new laws under the keeper liability or BPA rules. If he or she has paid the charge, the barrier will be lifted and they can leave the car park. They must pay the charge for the barrier to be lifted, like a normal car park. That is what happens in a normal car park—when I go shopping, that is what happens. One complies.

[Diana Johnson]

The point I am trying to make to the Minister is that some rogue landowners will put down barriers to immobilise vehicles but will put a ticket for, say, £500 on the car, saying, “Pay the £500 and we will take the barrier up.” That is the issue. I am concerned not about legitimate parking organisations that are members of the BPA, but about those rogue companies that are out to make a fast buck.

--- Later in debate ---

[Lynne Featherstone]

That has not been the experience in Scotland. I would say to motorists, first, that they should not enter unless the signage is clear and they know what they are doing, and, secondly, that if that were to happen, they should call the police. [Interruption.] I was about to say that I hope, in the light of the reassurance I have provided in respect of appeal rights and signage, that the hon. Lady will feel able to withdraw her new clause and support the Government’s amendments, but I am not sure that the timing is entirely appropriate.

The hon. Lady asked about the six-month limit for hired cars and she made a good point that we are happy to consider further. She also asked about the effect of consumer protection legislation on ticketing. Where the terms and conditions on which land may be used for parking are displayed on a prominent sign at the entrance to the land, existing consumer protection legislation applies. Such legislation protects consumers from misleading information and unfair contract terms. That deals with the point about the £500 ticket the hon. Lady mentioned, which would, under that protection, clearly be an unfair contract term. For example, where signs for motorists in a car park are misleading or where other misleading or deceptive information is given, such as the use of tickets that look like local authority tickets, there may be a breach of consumer protection regulations. If so, local authority trading standards services and the Office of Fair Trading can take enforcement action.

Where there is no prominent sign setting out the terms and conditions according to which the land may be used, there is no protection, as I have said, and the motorist should not park there as he or she is probably trespassing. However, that may not always be clear and it may be that a car park provider could be accused of making a misleading omission under the Consumer Protection from Unfair Trading Regulations 2008 if they fail to provide information that no parking is allowed. Maximum penalties under the regulations are a £5,000 fine on summary conviction—that is in a magistrates court—or a fine or imprisonment for a term not exceeding two years, or both, on conviction or indictment in a Crown court. Furthermore, companies can pursue motorists for a parking fee only when they have the motorist’s contact details, and the DVLA will provide those details only to companies that are registered with an accredited trade association. I have seen no evidence that contract law and consumer protection are defective in any way in that regard.

Let me return to the issue of extortionate fees and barriers, which the hon. Lady mentioned. If she was asking whether the exemption for barriers in clause 54(3) means that a landowner will still be able to charge extortionate fees to let motorists out of a car park where there is a barrier, the answer is no because, as I have said, subsection (3)(a) requires that

“there is express or implied consent by the driver of the vehicle to restricting its movement by a fixed barrier”.

Secondly, in order to establish a contract as a basis for payment, the terms for parking have to be clearly displayed. We consider that if a landowner demanded a fee for the vehicle’s release without that basis, he would be committing an offence under subsection (1).

[Stephen Pound (Ealing North) (Lab)]

I know that the hon. Lady’s heart is in the right place and that we are trying to achieve something good with this Bill, but it is riddled with holes and exemptions. I foresee a scenario in which a person gets a ticket from one of these companies and the DVLA then provides that person’s address to the ticketing company, which then applies for a bailiff’s warrant in a distant court, and a bailiff then turns up and takes the person’s car. With the best will in the world, ringing up trading standards or the police will not help. If these companies cannot get you one way they will get you another way, and bailiffs’ warrants on vehicles will be in use.

[Lynne Featherstone]

I thank the hon. Gentleman for that, but he is wrong. A rogue ticketer who is not a member of an accredited trade association or the British Parking Association would not be able to access the information from the Driver and Vehicle Licensing Agency.

[Stephen Pound]

It is not rogue; it is the norm.

[Lynne Featherstone]

It is not the norm. This is about making parking work for everyone. We are changing what was an appalling blot on the landscape. There is probably not an MP in the House who has not written to me or the Minister who previously held my position with terrible tales of rogue clamping. At the very worst, if the hon. Lady—sorry, the hon. Gentleman—[Interruption.] I have forgotten my point now; it is lost to posterity.

Anyway, I hope that I have answered the points raised by the hon. Member for Kingston upon Hull North. We are trying to do the right thing; we are removing a scourge. The measures have been welcomed by motoring organisations and people across the land. There is nothing as popular as the measures, as a result of people’s experiences of being clamped in unfair circumstances. I hope that the hon. Lady will feel able to withdraw her new clause and support the Government amendments. I fear that she may not, but I live in hope.

[Mr Ben Bradshaw (Exeter) (Lab)]

I rise briefly to support new clause 15, tabled by my hon. Friend the Member for Kingston upon Hull North (Diana Johnson). In over 14 years as Member of Parliament for Exeter, I cannot recall a local grievance that has caused as many constituents to complain to me or seek my help as have done about the behaviour of private car park operators over the last 18 months or so. Constituents have been fined while going to buy a ticket; fined despite buying and displaying a ticket; and fined despite the fact that the ticket machine was broken at the time and the driver had left a note to that effect on his windscreen. One car park at Exeter airport, which has 24-hour digital recording of the cars going in and out, has fined motorists for using the car park to turn around in, or for driving in and out of it by mistake.

The vast majority of cases concern people who have been fined, not clamped. The common grievance is the sense of summary injustice and the lack of any right of proper appeal. In some cases, when I have intervened, the companies concerned have reduced or even waived the fines. My local newspaper, the Express & Echo, has also taken up individual cases and sought to name and shame the rogue operators, but no system of justice should have to depend on the intervention of an MP or a local newspaper. I wholeheartedly agree with the excellent editorial in The Times today that warned that the Bill threatens to make a bad situation worse. We need a proper right of appeal, and I am afraid that the appeal process outlined by the Minister, which will be on a voluntary basis, will not reassure my constituents.

[Lynne Featherstone]

Is the right hon. Gentleman saying that he would allow wheel-clamping on private land to continue?

[Mr Bradshaw]

No. I am making the same point that other Members have made: if we ban wheel-clamping, the danger is in the unforeseen consequences. As I hope that the hon. Lady will appreciate from her experience as a Minister, there is always a danger of moving the problem elsewhere. We are already seeing that happen in towns and cities such as mine. Her approach of a voluntary appeals process is wholly inadequate, given the problem out there; it certainly will not reassure my constituents who have suffered rogue fines.

I completely support the requirements in the new clause for any organisation enforcing a parking charge to be a member of an accredited association; for all parking signage to be clear; and for fine limits to be set at similar levels to maximum on-street parking fines. I hope that my hon. Friend the Member for Kingston upon Hull North will push the new clause to a vote, and that hon. Members will support her.