Select Committee on Transport Seventh Report

7  PROPORTIONALITY

143. The present civil parking enforcement regime makes no distinction between different types of parking contravention. Thus outstaying the permitted time in a parking bay, results in the same penalty, up to £100 in London, as the penalty imposed for dangerous parking, for example, on double yellow lines or outside a school. This can undermine drivers' confidence and results in complaints.[110]

144. In addition, many motorists regard the levels of penalty in general to be excessive and disproportionate for parking contraventions. For example, we were told that overstaying in a 30 pence parking bay had resulted in a £60 penalty.[111] Such penalties may be technically correct but offend people's sense of 'natural justice'. Richard Childs dealt with proportionality similarly in his report for the British Parking Association:

The effect of a lack of differentiation in penalty is that no account is taken of the 'intent' exhibited by the road user. Natural justice would suggest that imposing a range of different levels or types of penalty for different types of behaviour is fairer.[112]

145. The Government needs to give consideration to making penalties proportionate to the seriousness of the contravention. This would result in a more finely calibrated, but still practical, scale of penalties than exist at present. Illegal parking acts which clearly create danger for other road users, those which result in disruption to traffic flow, and those which contribute to congestion, should attract penalties at the severe end of the scale. This is likely to have a welcome deterrent effect. For parking contraventions which do not have these consequences a relatively lesser penalty may be more reasonable.

146. Any revision of the parking penalties must be practical. We are not suggesting a system of penalty charges which differentiates between every conceivable type of contravention. For example, the Association of London Government pointed out that varying the penalty charge according to the duration of the contravention and length of overstay is unfeasible as it would require parking attendants to re-visit the offending vehicle at regular intervals and issue repeated Penalty Charge Notices as the duration of the contravention lengthened.[113] We agree.

147. It would not be feasible to vary the penalty applied according to the duration of each parking contravention. It should however be perfectly possible to base penalties on the straightforward distinction between contraventions of 'prohibited parking', for example, resting on double yellow lines, and 'permitted parking', for example, overstaying in car parking spaces. This would help dispel the crudities of the present system, allow penalties to be better aligned with people's sense of natural justice, and at the same time provide a stronger deterrent against more serious contraventions. It should also contribute to fostering a greater public acceptance of civil parking enforcement.

'Wheel clamping' and vehicle removal

148. Local authorities which have adopted decriminalised parking enforcement have the power to clamp the wheels of vehicles transgressing the law and remove (lift or tow away) them. The Department for Transport guidance states that the power to 'wheel clamp' is an effective and visible deterrent against illegal parking.[114]

149. Where vehicles are causing obstruction or hazard to other road users wheel clamping would make the problem worse and is not therefore a suitable enforcement action. The question is therefore, are there offences which do not result in danger for road users or congestion, which are nevertheless of sufficient gravity to warrant the use of wheel clamping. The motoring groups saw wheel clamping as an excessive penalty. For example, the AA Motoring Trust said that "Clamping and towing away are draconian consequences that go well beyond what any fair-minded person would see as being reasonable for making a simple mistake."[115]

The local authority view of clamping

150. There are mixed views among local authorities about the appropriateness of wheel clamping as a penalty. Some councils have never implemented these powers. Winchester City Council told us that "In setting up the Decriminalised Parking Enforcement system, we took the decision not to clamp and/or remove vehicles and after 10 years experience of DPE we are satisfied that was the correct decision for our area."[116]

151. Other councils however do see the benefits in this stronger form of deterrent. Camden Council is one:

Part of enforcement is to encourage drivers to comply with controls, but often drivers deliberately choose to contravene regulations, either because they believe they will escape penalty, or because they are prepared to take the risk of a PCN, and to pay the charge if caught. The use of more severe sanctions, such as clamping or tow-away, are a justified deterrent to make the risk not only financial, but one of inconvenience, which the driver may be less willing to venture.[117]

152. Manchester City Council told us that it implemented clamping when it took over parking enforcement in 1999. But in 2003 the council ceased to use what it now describes as "the most emotive enforcement tactic". Clamping was not deemed to match local priorities, and was judged to be unreasonable.[118]

153. Wheel clamping is a powerful and visible deterrent to illegal parking and can influence the behaviour of those who would disregard a Penalty Charge Notice. It is a severe penalty however. Care must therefore be taken to ensure that wheel clamping is applied proportionately. The Government should consider restricting the use of wheel clamping to persistent offenders and unregistered vehicles.

Vehicle removal

154. Vehicle removal has the advantage of removing the obstruction from the road or parking area. But there are important considerations for the local authority contemplating this measure: for example, the cost of providing a secure pound for towed vehicles, and ensuring that vehicles are not damaged in the process of removal.

155. We heard that the Chief Parking Adjudicator for England and Wales has doubts about the compatibility of vehicle removal for parking contraventions with human rights legislation:

The Human Rights Act 1998 came into force subsequent to the Road Traffic Act 1991. Adjudicators are of the view that the incorporation of the European Convention on Human Rights into the national legislation places a greater duty on councils to have regard to proportionality.... They need to be able to justify in every case why the issue of a PCN alone would not have achieved the desired objective (i.e. of a reasonable level of compliance with legitimate parking restrictions).[119]

156. The removal of a vehicle by a local authority on the grounds that it is parked illegally is a very serious matter. The Chief Adjudicator for England and Wales has concerns that vehicle removal may be incompatible with human rights legislation. The Government needs to examine this issue carefully and take a view about whether or not it is within the law. The resulting Departmental guidance will need to be legally robust and clear if it is to be of use.

Penalties for persistent offenders

157. Persistent offenders are a particular problem in parking enforcement. Some drivers repeatedly and wilfully disregard local parking regulations. Key difficulties are unregistered vehicles, those with non-UK licence plates, and vehicles with duplicate number plates.[120]

158. We heard that certain aspects of the regulations weaken the powers of local authorities to take action against persistent offenders. The Technical Advisers Group told us that local authorities are not permitted to follow up past contraventions when vehicles are clamped or impounded.[121] The British Parking Association pointed out that local authorities are not permitted to take enforcement action against persistent offenders' vehicles unless they are illegally parked at the time:

It is unfortunate that when the concept of decriminalised parking enforcement was brought over as a model from the USA, that the "Scoff" laws were not attached. The ability to enforce against a persistent evader wherever his or her vehicle is found would be a much greater deterrent to those who deliberately try to evade justice.[122]

159. The Government needs to consider penalties for those who offend persistently against the parking and road use rules, and for those who treat the Penalty Charge Notice system with contempt. The Department needs to consider extending the powers available to local authorities in taking action against this minority of drivers that persistently and wilfully contravene parking regulations, evade penalties, and flout the law.

Foreign-registered vehicles

160. The scale and impact of traffic offences (including parking contraventions) in London by foreign-registered vehicles is being researched in the 'SPARKS Programme'.[123]

161. The programme has identified that almost 40 per cent of London boroughs regularly issue Penalty Charge Notices to foreign-registered vehicles but do not seek to enforce them.[124] One third of foreign vehicles for which Penalty Charge Notices are issued are on London's list of '100 persistent offenders'.[125] The research discovered that there is a lack of access to foreign vehicle registration databases, and that parking attendants are often unable to identify the country of origin of the vehicle. This is the reason for the ineffective follow up by local authorities.

162. The UK faces an additional difficulty in achieving co-operation with overseas enforcement teams. Its decriminalised parking regimes are the exception rather than the rule and are not covered by existing or planned cross-border agreements.[126]

163. Furthermore, we heard that the problem has become more difficult recently since the Driver and Vehicle Licensing Agency received legal advice from the Department for Transport that it would be beyond the remit of the Agency to handle any foreign vehicle owner data.[127] If the Department has indeed issued such advice, this would effectively halt the exchange of data which allows identification of the owners of foreign-registered vehicles which have been parked in contravention of the parking regulations in the UK, and thereafter enforcement of the penalty charge notice. This means that local authorities would be unable to establish automated links with vehicle databases in other European countries, even when those countries are willing to supply the data. As a result, owners of foreign-registered vehicles would effectively become exempt from any form of civil parking enforcement in the UK.

164. Many foreign-registered vehicles flaunt UK parking regulations with impunity. This is because co-operation between national enforcement agencies is ineffective. One relevant factor is that access to relevant data is often not readily available to the local authorities here. This is not good enough. The Department for Transport needs to address this problem with some sense of urgency. The Government needs to ensure that the UK's decriminalised parking enforcement regimes are included in international co-operation agreements. It must support local authorities vigorously in pursuing penalties for parking contraventions by foreign-registered vehicles. In its response to this report the Department should explain what action it will take (including legislative action if required) to ensure that the Driver and Vehicle Licensing Agency is able to assist fully local authorities in pursuing civil enforcement action against owners of foreign-registered vehicles, particularly for those vehicles registered in other European countries.

Clamping on private land

165. The Department for Transport suggested that many of the examples of excessive wheel clamping practices have taken place in private sector car parks or on other private land.[128] Much of the land used for off-street parking is owned and managed by the private sector and as such is governed by the Trade Descriptions Act 1988 and Part III of the Consumer Protection Act 1987, rather than by road traffic legislation.[129]

166. Having a separate system of parking enforcement for private land (including car parks on private land) increases the possibility of confusion on the part of the motorist. It also blurs the lines of accountability. Clamping on private land should be governed by the same framework of restrictions and codes of practice as public on-street clamping. The Government should ensure an equable legal framework including public roads and private land used by the public for parking which will stamp out these abuses.

Bailiffs

167. Should a driver fail to pay a parking penalty, local authorities may eventually use bailiffs to pursue the outstanding charge.

168. When a driver fails to pay a penalty charge within the time allowed, the authority can serve on the motorist a Charge Certificate which increases the penalty charge by 50 per cent. Should the driver fail to pay this increased charge within fourteen days of it being served, the authority can register the Charge Certificate with the national Traffic Enforcement Centre.

169. Should the motorist continue to resist paying and fail to contest the matter, the local authority may take further enforcement action by requesting a warrant. Once the warrant has been authorised by the Traffic Enforcement Centre, the authority will employ certificated bailiffs to execute that warrant. The bailiff is empowered to seize and sell goods belonging to the driver to the value of the outstanding amount, plus the cost of executing the warrant.

170. We received evidence from the London Motorists Action Group expressing concern about the involvement of bailiffs in decriminalised parking enforcement.[130] The group cited a case of a debt collection company that had demanded £1060 for non-payment of two Penalty Charge Notices.[131] The Group claims that it is common for bailiffs working on behalf of local authorities to demand such extortionate charges for parking penalties. The AA Motoring Trust stated that "Local councils must bear responsibility for action taken in their name and bailiff action should have to be authorised by a senior officer of the council."[132] The reputation of the council will be affected by the performance of bailiffs working on their behalf.

171. Local authorities need an effective means for collecting unpaid penalty charges from drivers. Baliffs may be appropriate in a small number of cases. The use of bailiffs must be carefully regulated by the local authority however. Their use in collecting unpaid fines can easily undermine further public confidence in decriminalised parking enforcement. Local authorities must take the greatest care to ensure they use only reputable bailiffs. Bailiff's charges and operational practices must be transparent and subject to prior approval and close monitoring as part of any contractual agreement. These charges must be as widely publicised as possible and freely available to the public.

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110   Q291, Q15. British Parking Association 'A Review of Decriminalised Parking Enforcement for the British Parking Association' June 2005 by Richard Childs QPM BSc FSyl, page 26 Back

111   Correspondence to the Committee from Mr Colin Brown Back

112   British Parking Association 'A Review of Decriminalised Parking Enforcement for the British Parking Association' June 2005 by Richard Childs QPM BSc FSyl Back

113   Association of London Government, Study into Differential Penalty Charges for Parking and Other Decriminalised Offences Technical Report (2005) Back

114   Department of Transport (1995) Guidance on Decriminalised Parking Enforcement Outside London, Local Authority Circular 1/95 Back

115   Ev 67 Back

116   Ev 31 Back

117   Ev 136 Back

118   Ev 29 Back

119   Ev 92 Back

120   Ev 47 Back

121   Ev 47 Back

122   Ev 01 In America, a "scofflaw" is defined as a person who habitually violates the law or fails to answer court summonses. Parking Enforcement Officers in America are permitted to wheel lock or tow vehicles for which there are three or more unpaid parking tickets, that are at least 90 days old. The ability to deal with persistent evaders is therefore thought to be much tougher in America than in the UK, because persistent evaders cannot so easily frustrate the law.  Back

123   The SPARKS programme is funded by London's Enforcement Task Force, which comprises Transport for London, ALG and other organisations. TfL is the major budget provider of the Enforcement Task Force (www.alg.gov.uk/sparks).  Back

124   SPARKS Programme http://www.alg.gov.uk/doc.asp?doc=15903&cat=2029, "London Boroughs Struggle to Deter Illegal Parking by non-UK Drivers", 08/11/2005. Back

125   Presentation to British Parking Association Autumn Conference 2005 by Bill Blakemore, SPARKS Programme. Back

126   Nick Lester, Association of London Government states in correspondence with Committee: "Parking penalties from those remaining areas in the UK where enforcement remains criminal can be enforced in Europe using the COPEN 24 directive, while Britons contravening in other European countries can also be enforced against where it remains a criminal act." Back

127   Correspondence with Nick Lester, Association of London Government Back

128   Ev 108 Back

129   Ev 108 Back

130   Ev 175 Back

131   Ev 175 Back

132   Ev 67 Back

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Prepared 22 June 2006