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Public Bill Committee Debates

Draft Civil Enforcement of Parking Contraventions (Representations and Appeals) (Wales) Regulations 2008

The Committee consisted of the following Members:

Chairman: Mr. Martyn Jones
Allen, Mr. Graham (Nottingham, North) (Lab)
Baron, Mr. John (Billericay) (Con)
Flynn, Paul (Newport, West) (Lab)
Gillan, Mrs. Cheryl (Chesham and Amersham) (Con)
Havard, Mr. Dai (Merthyr Tydfil and Rhymney) (Lab)
Irranca-Davies, Huw (Parliamentary Under-Secretary of State for Wales)
Laxton, Mr. Bob (Derby, North) (Lab)
Meacher, Mr. Michael (Oldham, West and Royton) (Lab)
Mitchell, Mr. Austin (Great Grimsby) (Lab)
Morden, Jessica (Newport, East) (Lab)
Morgan, Julie (Cardiff, North) (Lab)
Moss, Mr. Malcolm (North-East Cambridgeshire) (Con)
Ottaway, Richard (Croydon, South) (Con)
Scott, Mr. Lee (Ilford, North) (Con)
Tami, Mark (Alyn and Deeside) (Lab)
Williams, Mark (Ceredigion) (LD)
Williams, Mr. Roger (Brecon and Radnorshire) (LD)
Annette Toft, Committee Clerk
† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 5 February 2008

[Mr. Martin Jones in the Chair]

Draft Civil Enforcement of Parking Contraventions (Representations and Appeals) (Wales) Regulations 2008

4.30 pm
Mrs. Cheryl Gillan (Chesham and Amersham) (Con): On a point of order, Mr. Jones. May I ask the Minister to assist the Committee? There appears to be an anomaly in connection with this order. I am sure that there is a perfectly reasonable explanation, but it was not easy to find it in the explanatory memorandum. I understand that this set of regulations was placed before the Joint Committee on Statutory Instruments on 12 December, and appeared in its sixth report. On 13 December, those draft regulations were laid before the House. I presume that they were in a similar form to the papers that had gone before the JCSI. Thereafter they appear to have been withdrawn on 18 December and hey presto, new regulations appeared on 19 December. Does that mean that the documents we are considering today are not the documents that were placed before the JCSI and, if so, what is the explanation, because it was hard to find any reference to that at all in the explanatory memorandum? It would be helpful if the Minister, whom I know has had inspiration, could enlighten us.
The Chairman: That is not a point of order for me directly, but I am sure that the Minister will assist once he has moved the motion.
4.32 pm
The Parliamentary Under-Secretary of State for Wales (Huw Irranca-Davies): I beg to move,
That the Committee has considered the Draft Civil Enforcement of Parking Contraventions (Representations and Appeals) (Wales) Regulations 2008.
As well as welcoming you to the Chair, Mr. Jones, I shall, with your leniency, address the point made by the hon. Member for Chesham and Amersham. I thank her for the constructive manner in which she did so. It is normal practice for lawyers working for Government Departments to provide lawyers working for the Joint Committee on Statutory Instruments with an advanced draft of an order or, in this case, a set of regulations, to obtain drafting advice before they are submitted to the JCSI for formal approval. The timetable that the hon. Lady laid out is quite correct.
In the case of this set of regulations, the JCSI pointed out the need for a number of minor drafting amendments. Unfortunately, due to an administrative error, the amendments were not all incorporated into the version of regulations laid on 13 December 2007, hence the reason for their having to be laid again on 7 January 2008. However, in view of the constructive manner in which the matter has been raised, it might be worth while in future putting a note in the explanatory memorandum to explain exactly what has happened. I thank the hon. Lady for raising the matter. Copies of the regulatory impact assessment were circulated this morning. The regulations are part of a package of measures that will put in place new procedures for parking enforcement by local authorities in Wales, and they were laid before the House on 7 January 2008.
Mr. Malcolm Moss (North-East Cambridgeshire) (Con): The Minister talks about a regulatory impact assessment being made available this morning. To whom was it sent?
Huw Irranca-Davies: The RIA was sent to Front-Bench spokesmen this morning. All of them have had an opportunity to look at it, and there are copies in the room.
Mr. Moss: So the Minister is admitting that members of the Committee were not sent copies of the assessment this morning?
Huw Irranca-Davies: The hon. Gentleman is correct, once again. It may be self-effacing to say so, but we would have preferred it to have been sent out at the same time as the explanatory memorandum. We acknowledge that. However, as there are no cost implications to the public purse, there was technically no need to produce an RIA.
The Assembly Government, along with the Department for Transport, have informed local authorities of the need for civil enforcement to be self-financing. The RIA merely states that local authorities can recover modest additional costs from civil parking enforcement through parking charges and penalty charge notices. For each PCN issued, local authorities pay a fee to the National Parking Adjudication Service. Because there are no cost implications to the public purse, there was technically no need to produce a regulatory impact assessment, but it would have been preferable to produce that with the explanatory memorandum.
Mrs. Gillan: I am grateful to my hon. Friend the Member for North-East Cambridgeshire for raising this matter, which I was going to raise when I was called to speak. The Minister is right—I had to ask a member of my staff to request a copy of the initial regulatory appraisal, which is referred to on the last page of the explanatory notes. I thought that the Minister should know that the copy that was sent to me includes all the drafting changes, some of which I had intended to question, but it would be curmudgeonly to do so. Is it possible to ensure that, in future, when hon. Members are dealing with Welsh matters, they receive the correct papers, preferably without drafting corrections, because in some instances they change the meaning and they make the document look a little messy?
I am sure that right hon. and hon. Members will be aware of the importance of good traffic management in improving road safety, reducing congestion, and minimising the impact of road traffic on the environment. The Traffic Management Act 2004 gives local authorities a specific duty to manage their networks, and fair and effective parking enforcement has a role to play in that. The regulations will help them to do that fairly, transparently and effectively, with the overarching objective of keeping traffic moving safely. That will also have the benefit of making public transport more attractive to passengers. Essentially, the regulations tidy up and strengthen legislation stemming from the Road Traffic Act 1991.
The new enforcement system will benefit motorists by encouraging the best use of available road space, and provide a more transparent mechanism for enforcement. Ministers in the Welsh Assembly will be responsible for considering local authorities’ new proposals for CPE, and deciding whether they should be approved. There may be instances in which a vehicle has been immobilised or removed in error, or in which a penalty charge notice has been served in error—for example, a driver might be delivering or collecting goods, with a valid permit displayed, or the owner who receives a payment reminder might not have been the owner at the time of the contravention. That is why the regulations provide for measures to challenge the action of local authorities, and to appeal to an adjudication service should those challenges be rejected. For example, the adjudicator will have the power to return a case to the local authority to reconsider a contravention that took place in mitigating circumstances.
The procedures for representations and appeals largely replicate those in the 1991 Act. The regulations maintain the 1991 Act’s simplified and streamlined process, under which appeals will continue to be made to an independent adjudication service that deals only with parking issues. Local authorities are required to publicise those mechanisms so that they are easily accessible to the public. The package of regulations—others are going through the Welsh Assembly’s legislative process—have been finalised following widespread consultation. Responses were received from individual local authorities in Wales, the police, the British Parking Association, the Institution of Highways and Transportation, the Chartered Institute of Logistics and Transport, and others. In addition, the package of regulations has benefited from expert and robust advice from the entirely independent adjudicators.
It is important to note that local authorities that choose to take on those powers should aim to achieve self-financing as quickly as possible, using income from parking charges and PCNs to cover the cost of CPE, which is not a revenue-raising measure, so any surplus must be used on transport-related schemes. The Welsh Assembly Government will receive annual reports from local authorities that adopt CPE, detailing their CPE activities and how any surplus is spent. The regulations have been widely welcomed by local authorities and the public, and I hope that they will be welcomed by all members of the Committee, as I know that they have a great interest both in promoting the best and safest use of road space and in encouraging public transport. It has taken a great deal of hard work to balance the local authorities’ need for a strong and effective enforcement regime with a system that motorists accept as flexible and fair. The Welsh Assembly Government will issue detailed operational guidance, statutory guidance and guidance about the use of approved devices to record alleged contraventions, to help local authorities that wish to take on CPE. With that, I commend the regulations to the Committee.
4.41 pm
Mrs. Gillan: I welcome you to the chair, Mr. Jones, and I echo the Minister’s words about serving under your chairmanship. I hope that this matter will not detain the Committee for long, because I do not regard it as contentious. Indeed, these matters have been discussed on a previous occasion, when we debated a measure with a similar long title—it applied, however, to England—in another Committee. I think we all recognise the importance of good traffic management for road safety, reduced congestion and protection of the environment.
I am sure that we all agree that sensible parking enforcement is a necessary part of that goal, even though, from time to time, some of us find that we are the ones paying fines for contravening parking arrangements. [Interruption.] I see that I have struck a chord with members of the Committee. I would hasten to say that, as the Chairman presiding over our debate on the regulations for England pointed out, this is not an opportunity for people to discuss tickets they received in a fashion which they deemed was not strictly necessary. It is essential that a balance is struck between the need to enforce restrictions and the sensible use of discretion, so that the system is flexible enough to recognise the practicalities of life and, of course, mitigating circumstances in certain cases.
The Minister alluded to reports of local authorities using parking penalties as income generators, rather than to ensure safe, congestion-free roads, which undermine confidence in the system, whether or not they are true. We therefore welcome moves to expand the appeals process to make it more accountable and more transparent. I also welcome the move to widen the circumstances in which an appeal can be made to include cases where an authority has failed to follow correct procedures. If we expect motorists to comply with the procedures set out for them, we should expect the enforcement authority, too, to follow its own rules. That is only reasonable.
Although we broadly welcome moves towards a fairer, more transparent regime, I would like to raise several questions with the Minister. The regulations are to be made under the Traffic Management Act 2004, and there is a long gap between the passing of that Act and the coming into force of part 5. We can see that the timetable has slipped badly from the response by Lord Davies of Oldham to a question asked on 23 October 2006 in another place
I understand that full consultation on the civil parking enforcement provisions—wave 1 of the 2004 Act—was supposed to have taken place between July and September 2006. The estimated date for making the regulations was early 2007, and the estimated date for the regulations to come into force was mid-2007. The English regulations were debated on 19 November 2007, so why has it taken nearly three months longer to deal with those covering Wales? Why did the timetable slip from that given by Ministers in 2006? There are questions about what the criteria to which the adjudicator should adhere. I have no desire to ask the Minister to produce a long list of what may, or may not, be considered mitigating circumstances, but can guidance be produced to ensure a reasonably consistent and reliable approach throughout the country?
On that note, may I say something about the publication of information from councils on the number of appeals or adjudications? I have mentioned before the variety and number of appeals, and their success rate from council to council. If that information were given more prominence, it could discourage councils from being tempted to use parking penalties as a way of raising revenue. Will the Minister comment on that?
What measures, if any, have the Government taken to avoid any increase in spurious claims, which waste councils’ and adjudicators’ time and money? There are some motorists for whom anything counts as a mitigating circumstance, but I am sure that none of us would want the interests of the few to interrupt our progress towards effective parking regimes that allow the sensible use of discretion. Finally, I should like an update on the legislative procedure. The annual report to which I referred earlier states that
“the statutory structure underpinning the decriminalised enforcement powers operated by councils is far from simple.”
That is an understatement. Not only do we have this set of regulations, which are subject to the affirmative resolution procedure, but another set of regulations, entitled the Civil Enforcement of Parking Contraventions (Penalty Charge Notices, Enforcement and Adjudication) (Wales) Regulations 2007, which are subject to the negative resolution procedure. If that is not enough, in the National Assembly, no fewer than six statutory instruments are subject to the negative resolution procedure. I shall not read them out to the Committee, but the one that concerns me is the Civil Enforcement of Parking Contraventions (Approved Devices) (Wales) Order 2008, to which the Minister referred. If the Minister and the Committee look at paragraph 4.6, they will note that that the draft order could be postponed
“until after the others because of the requirement to notify it to the European Union, but that Order will need to come into force at the same time as the others.”
We therefore appear to have a three-dimensional laying of statutory instruments. We have to co-ordinate action across the European Union, the House of Commons, the House of Lords and the National Assembly for Wales just to put our parking regulations in order.
In the explanatory notes, there is an optimistic line in paragraph 5.1:
“These instruments apply to Wales. However, equivalent Regulations are being implemented in Parliament for England, allowing strengthened civil enforcement arrangements to come into force on the same date, 31 March 2008.”
Forgive me, Mr. Jones, for being a doubting Thomas. Perhaps the Minister is Superman and is wearing his underpants—fitting better than Jeremy Paxman’s—on the outside of his trousers, and can achieve that goal. However, as the timetable has slipped from the original aim of mid-2007 to the second week in January 2008, I seek his reassurance that the timetabling and the complexity of these pieces of secondary legislation will not defeat our officials, our Departments and the other three bodies that are involved: the Assembly, the House of Commons and the other place, and the European Union. If the Minister can satisfy me on those questions, I am happy to indicate that I have no intention of opposing the instrument.
4.52 pm
Mark Williams (Ceredigion) (LD): It is a pleasure to serve under your chairmanship this afternoon, Mr. Jones.
My colleagues and I support this measure, which will give car users in Wales an important and necessary way of challenging civil parking penalties. It will allow better enforcement of parking regulations by local authorities, rather than by the police. I have a few brief comments to make and a few concerns, some procedural and others to do with the substance of the regulations.
Like the hon. Member for Chesham and Amersham, I will not read the list of the other proposed instruments before the Assembly, but there are six sets of proposals. Two are orders that will take effect in Wales following part 6 of the Traffic Management Act 2004, providing a single national framework for the civil enforcement of parking, the use of bus lanes and some moving travel offences. The two orders and four sets of regulations will be subject to negative resolution procedure by the Assembly, which means that it is unlikely that there will be a full debate in the National Assembly on these powers. The other two provisions, including today’s regulations, must be considered by Parliament as they are quasi-judicial in function.
On a general point, does the Minister think it appropriate that, in what is a devolved matter, the only scrutiny for these powers, notwithstanding the wide consultation that he alluded to, is from Members of Parliament and peers? The hon. Lady and the Minister mentioned that these are similar regulations to those that have been passed for England. The regulations were considered for England in October and November last year. I again pose the question for the Minister that perhaps it would have been a better use of parliamentary time if the regulations had been considered together. There might be an underlying reason why they were not, but I would like to hear what the he has to say.
Mrs. Gillan: I hear the point that the hon. Gentleman is making, but it is important, if there are distinctive differences between England and Wales, that the Welsh matters have the correct time and hearing in Committee. One of the things that worries me, and I am sure that it will concern him, is that all too often matters that concern Wales are rolled in under everything else. It is important that we give time specifically to Welsh matters.
Mark Williams: I am grateful for that point of view and do not deviate from it at all. I am just making the general observation, as the hon. Lady did in her remarks, that this consideration should have happened a lot earlier than today.
On the substance of the regulations, what progress is being made in encouraging better take-up of decriminalised parking enforcement by Welsh local authorities? Notwithstanding what he said, what estimate does the Minister have of the initial cost of decriminalising parking enforcement to Welsh local authorities, and what would be the estimated payback time in periods of receipt?
At present, only six of the 22 local authorities in Wales have opted to decriminalise: Gwynedd, Conwy, Denbighshire, Ynys Môn, Carmarthenshire and Neath Port Talbot. Will the Minister explain the comparatively low take-up in Wales? The view of many is that it is because of perceived high costs in setting up such schemes, especially given the recent tight local government settlements. What message would he send to those sceptical local authorities to encourage them in their use of the provisions?
Will the Minister assure me that the appeal process outlined in the regulations enables the unhappy motorist to appeal to the public adjudicator? He can consider it and uphold the complaint or the verdict of the local authority, but he can then advise the local authority to reconsider. I understand that the local authority is not bound to reconsider it, and that past practice has been that some local authorities have not undertaken such action in the way that they should. In short, is he satisfied that the provision is sufficiently rigorous to protect the interests of the motorist? We welcome the order, although I look forward to receiving a few reassurances.
4.56 pm
Huw Irranca-Davies: I am pleased to respond to some detailed and helpful points that have been made, and also to welcome the general feeling of support for the regulations in Committee because of their potential for impacting positively on traffic management. I turn first to some issues raised by the hon. Member for Chesham and Amersham. I am happy to give details of the number of appeals in Wales at present. Within the local authority of Carmarthenshire, 13,902 penalty charge notices were issued, against which there were 38 appeals—0.3 per cent.—and of those, 19, half of them, were allowed. The number of appeals was small.
There were similar proportions in Denbighshire, in that 14,155 penalty charge notices were issued of which 29 went to appeal—0.2 per cent.—and 14 of those were allowed, which was below 50 per cent. In Neath Port Talbot, 20,398 penalty charge notices were issued of which 57 went to appeal—0.3 per cent.—of which 56 per cent. were allowed.
Mrs. Gillan: I am grateful to the Minister. Will he confirm that those figures appeared in the 2005 annual report? I was looking for updated figures.
Huw Irranca-Davies: Yes, I am referring to the same figures.
Mention was made by the hon. Member for Ceredigion of the timing. Well, these are Wales-only regulations and it is right and appropriate to consider them separately. The English regulations have to go first, but there are differences in the regulations for Wales, not least in respect of the Welsh Assembly’s role. It is right that we consider them separately and subsequently to the English regulations. We have followed the Department for Transport’s lead on timing. I have mentioned extensive consultation, and we in Wales are still consulting on taking this forward. I take the point that it would have been better for them to have reached us earlier, but we followed the Department’s lead.
Several points have been made about subsequent guidance relying on the order. The Assembly will issue statutory and operational guidance to all local authorities, including on those aspects that have been raised about mitigating circumstances. Reference was made to that during the discussion on the English application of the regulations, too. The point was well made and an agreement was found about the fact that we do not have to fetter local authorities and prescribe to them exactly. They must have discretion in how they apply the regulations, which is right and proper. The Welsh Assembly will issue that guidance.
Mark Williams: Given the time scale that we are working to of 31 March, how advanced is the preparation for the guidance? Will it be ready for that deadline?
Huw Irranca-Davies: The hon. Gentleman helpfully brings me to a response that I was about to give to him and the hon. Member for Chesham and Amersham. Yes, they are very well advanced. We have no reason to doubt that the time scale that we have laid out will be met. Those will perhaps be famous last words, but we have no reason to doubt that.
The hon. Lady mentioned the issue of motorists being put off appealing, in case they lose or pay double—I know that that is an issue that concerns many hon. Members. Local authorities are encouraged by the Welsh Assembly Government and the Department for Transport to reinstate the 14-day discount period that is initially offered to encourage early settlement. We do not want to fetter and prescribe to local authorities, but there is strong encouragement for them to reinstate that 14-day discount.
The issue of cloned vehicles has also been raised previously, quite rightly. It is the issue of an individual who finds that they have been served with a notice and a fine, only to find that there is a vehicle somewhere in the north of England or elsewhere that has cloned their vehicle. Local authorities applying for CPE will need to agree with the Driver and Vehicle Licensing Agency about the provision of information that should reduce the number of cases where there is inadequate information to trace a vehicle owner who has been issued with a PCN. Normally, those who challenge the notice because of a cloned vehicle can provide evidence that it was not them and have a good alibi that they were in the other end of the country at the time. The initial information returned to an enforcement authority following a request to the DVLA will be taken from the DVLA’s vehicle record. Where a vehicle appears to be registered in the UK but the identity and address are not registered or are not correctly registered on the database, the enforcement authority should consider alerting the police, which I know is common practice.
On the issue of the EU and three-dimensional chess, I would say that in this Committee we are very good at three-dimensional chess; in our experience of introducing legislation we are used to it. On the particular issue of EU approval and why that was necessary before the approved devices order could be introduced, the Technical Standards and Regulations Directive 98/34/EC, which all hon. Member are familiar with, seeks to prevent the creation of new technical barriers to trade and lays down a procedure for the provision of information in the field of technical standards and regulations. In the UK, any statutory instrument that prescribes technical standards, as this does, should be brought to the attention of the Commission. Consequently, the Department for Transport also required that approval in respect of the England regulations.
Mrs. Gillan: On that point, am I given to understand that approval has been sought, but not yet given? If that is the case, when will such an approval arrive and what are the contingency plans if it is not given?
Huw Irranca-Davies: I can reassure the hon. Lady that approval has been given. In terms of the timing, which I have mentioned already, and liaising with the Welsh Assembly, it is worth saying that there is, literally, daily intensive dialogue with the Welsh Assembly Government and officials to ensure that this comes in on time and well-crafted. I know that the hon. Lady referred me to as Superman; perhaps in relation to Wales it should be SuperTed.
In terms of low take-up, the hon. Member for Ceredigion mentioned that there were six sets of proposals, but as of today or yesterday I understand that there are seven, and of course there are more than 200 in England. So the propensity is there, and the clarity within the regulations and the subsequent guidance will encourage others to come forward. I would encourage them, where they feel that there is a traffic management issue, to look seriously at the powers that we are giving them.
The issue that the hon. Gentleman raised was also raised in response to Lord Hanningfield in another place. It might be helpful for me to clarify again whether a local authority is bound to reconsider a case referred back to it by the adjudicator. I repeat the assurances given before, that under regulation 7(5), the local authority must consider such a case—there is no doubt about that. If the authority does not make a decision within 35 days, it is deemed to have accepted the adjudicator’s recommendation and must cancel the notice to order. I believe that I have covered all the points that have been raised, which were helpful and constructive.
Mrs. Gillan: The Minister has indeed covered all my points, but I make a plea to him to provide the Committee or me with up-to-date statistics, because I quoted from what I believe was a Which? report in December, and the statistics that he gave me were from the 2005 annual report. The Committee deserves at least the accurate statistics for 2006, if not indeed for 2007, when considering an instrument of this nature.
Huw Irranca-Davies: I am more than happy to try to provide more recent statistics. I believe that we will have inspiration to do that. I thank members of the Committee for their forbearance and interest in these vital matters for traffic management, which will affect all our constituents, and for the constructive way in which they have dealt with them, under your sublime stewardship, Mr. Jones.
Question put and agreed to.
That the Committee has considered the draft Civil Enforcement of Parking Contraventions (Representations and Appeals) (Wales) Regulations 2008.
Committee rose at five minutes past Five o’clock.

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