Memorandum submitted by the RAC Foundation (CR 03)

 

 

 

 

Context

1. My name is Chris Elliott. I was for 20 years a systems engineer in aerospace and defence and am a Fellow of the Royal Academy of Engineering. I then qualified as a barrister and practiced in public and environmental law. I now work as a freelance, advising governments, industry and NGOs on regulated engineering, particularly in transport matters.

2. In April 2009 I was asked by the RAC Foundation to review the legal framework of immobilisation and removal of illegally parked vehicles (what I shall refer to from now on simply as "clamping"). My report, prepared with the assistance of a second barrister, was published by the RAC Foundation on 6 July 2009 is available on the following link: http://www.racfoundation.org/assets/rac_foundation/content/downloadables/clamping%20-%20elliott%20-%20090709%20-%20report.pdf

3. Possibly as a result of that and other publications, government Ministers made positive statements that action would be taken to curb the excessive, and I argue, illegal actions of clampers. However, the published Bill appears to fall short of what was promised for two reasons:

· It fails to take the opportunity to address those issues that require primary legislation

· It leaves for a yet to be specified Code of Conduct the important details that will determine whether clamping is properly regulated.

4. I believe this matter is critically important. Every time someone finds that a few minutes parking results in a charge of £500 or more and that this is apparently legal and that the government has issued a licence to the clamper to do it, he or she loses faith in the rule of law. The implications for society run much wider than illegal parking and the proposed legislation falls short of what is needed to rectify this injustice.

 

Legal issues

5. The clamp release fees that are charged are often much greater than that which could be justified to recompense the harm done to the land owner. They therefore constitute a penalty or fine. It is a fundamental principle of our law that it is illegal for any person other than the Crown to impose such a punishment on any other person. The actions of the clampers are therefore illegal and the licence granted to wheel clampers cannot overthrow such a basic principle. This argument was reviewed by several senior lawyers before publication and has subsequently had a great deal of exposure. No legal expert has disputed my conclusion.

6. It follows that every clamper who charges an outrageous fee is committing a crime (possibly extortion or more simply theft), regardless of the licence.

7. I therefore submit that it is not enough to allow this point to be left to the Code of Conduct. The Bill before the House is an opportunity unambiguously to establish the legal principle that the fee charged must reflect the harm done to the land owner (including the costs of clamping and collection).

8. The other major legal issue is that the basis in law for clamping is ill-defined. The judges hearing the leading cases in the Court of Appeal have reached differing interpretations of the legal right that is being exercised by the land owner by appointing a clamper. Some have argued that the land owner is exercising the ancient right of distress damage feasant, but this is a right to remove animals, not to detain vehicles. There is some debate as to whether the land owner has to prove actual loss. It is also claimed that the vehicle owner, by parking where not permitted, has consented to be clamped (otherwise a trespass against his vehicle) in the same way as a rugby player consents to actions that would otherwise constitute assault. It is not clear that one can "consent" to a punishment; the Courts will not uphold penalty clauses in contracts to which the parties have explicitly consented and it is therefore hard to infer consent in the less certain tortious regime of trespass.

9. The Bill before the House is an opportunity unambiguously to establish the legal basis for clamping. As with the quantum of the fee (para 7), it fails to do so.

 

Policy issues

10. The details of the new regime will be determined by the Code of Conduct but there is no evidence that the House will be shown even a draft of this before being asked to vote. There are many issues that should rightly be determined by the Code of Conduct. Among those that I identified in the attached report were:

· the body that accredits and polices clamping companies should have the necessary competence and resources and its performance should be monitored and audited

· the Code of Conduct for clampers should be robust, credible and enforceable and the accrediting body should hold the clampers to it

· it is common for the clampers, rather than the land owners, to keep the release fee; such incentives for over-zealous enforcement should be avoided

· there should be an effective, accessible and well-publicised appeal mechanism or ombudsman.

 

Conclusion

11. One Honourable Member has recently referred to wheel-clamping as a "State-sanctioned extortion racket". That emotive description may be accurate; I have sought only to summarise the legal arguments. However, it is manifest from the reactions of the public that clamping is a source of considerable disquiet that undermines faith in the rule of law.

12. At the risk of going beyond my brief, I am surprised that, in an election year, this issue is not receiving a much higher political profile. Action to suppress the "extortion racket" would attract almost universal support from the electorate. The Bill before Parliament merely extends the scope of those who may be licensed to clamp and does nothing to regulate their behaviour.

 

January 2010