Protection of Freedoms Bill

Memorandum submitted by the British Parking Association (PF 14)

1. Thank you for inviting the British Parking Association to give evidence to the Bills Committee on the Protection of Freedoms Bill.

2. The BPA is Europe’s largest professional parking Association with over 700 corporate members including Local Authorities, commercial parking providers, equipment manufacturers, bailiffs and many others.

3. Amongst other services we have established an Approved Operator Scheme for private parking provider members which requires them to comply with a Code of Practice. This Code requires members to act in a reasonable way in managing parking on private land, particularly in relation to the fees they charge, the signs they display and how they generally manage the land.

4. The BPA is an Accredited Trade Association at the DVLA that only companies that are members of the ATA can access the vehicle keeper data from the DVLA. We have established strict standards to ensure that operators comply with the Code, including the appointment of a third party auditor and a sanctions scheme which ensures both compliance with Code and rising standards in the sector.

5. To date, we have terminated five memberships of the scheme for failure to comply with the Code.

6. The Approved Operator Scheme is a voluntary scheme attempting to self-regulate the sector and we have long campaigned for regulation of the private parking sector, encouraging successive governments to adopt the model of the AOS in a regulatory framework in which membership of an ATA would be compulsory to ensure that all parking providers comply with an industry code.

7. Chapter 2 of the Bill provides for the banning of all immobilisation and removal of vehicles on private land without lawful authority. The BPA supports any move by government to deal with the rogue elements of the parking sector, including those who clamp and remove without compliance with our Code of Practice. However, we believe that a total ban on clamping and removal is a step too far and will deprive many law abiding landowners and their operators of an important tool to protect their land.

8. Our comments therefore, are related to the need to properly manage private land and to recognise that the issues addressed by Chapter 2 of the Bill addresses only part of the issue and we believe the Bill should go further:

9. Firstly we believe that clamping and removal should be retained at least as a last resort for land owners. It is a known fact that a small number of drivers continue to ignore parking regulations both on the public highway and in car parks and it is necessary to ensure that sufficient safeguards are in place to prevent this small minority of drivers from causing significant difficulty both the landowners and to law abiding motorists. We believe that the last resort is necessary for the following category of vehicle:

10. a) Vehicles not registered in the UK, for which there is no recourse in UK law.

b) Unregistered vehicles – we believe there are a significant number of vehicles not properly registered at the DVLA.

c) Persistent evaders. This category of motorist simply will not accept the issue of parking tickets as a means of changing their behaviour.

d) Removals to deal with obstructive parking where there are vehicles parked across fire exits, ambulance bays or in disabled person’s bays.

11. We are concerned that if clamping and towing away is banned that this will not deter the rogue elements of our industry. Rogue clampers will simply migrate to rogue ticketing. There are already examples of companies which ticket vehicles without following them up via the DVLA but rely on the motorists paying the ticket on receipt of it. Typically motorists will pay 30%-40% of such tickets. Our concern therefore is that simply by banning clamping in order to tackle the government’s concern about rogue clamping the problems simply move into another part of the parking sector and will defeat the government’s objective of ridding the sector of these unacceptable activities.

12. In order to properly address this issue we believe the Bill should set out a proposal to regulate the sector. Local authorities are already regulated in relation to both their activities on the public highway in relation to parking enforcement and in their own car parks. We see no reason why the private parking sector should not move in the direction of this regulation which is currently contained within the Traffic Management Act 2004.

13. We do recognise, however, that the government is not keen to introduce new regulation and we have therefore prepared a proposal which was submitted to the Secretary of State last November which sets out our thoughts on independent regulation of the sector. The heart of this proposal is to make it compulsory for parking operators to be a member of an Accredited Trade Association, thereby ridding the sector of any rogue elements whether engaged in ticketing or clamping.

14. We believe that as part of the need to regulate the whole sector, the government should introduce into the Bill the principle of keeper liability. We are pleased that clauses already set out this principle but we are concerned that this clause only relates to circumstances where tickets are issued to the vehicle at the time of the event. This effectively rules out the principle of keeper liability for parking tickets issued in car parks managed by ANPR (Automatic Number Plate Recognition) systems. These ANPR systems are increasingly attractive to landowners in managing their car parks and to create a separation between these two types of activity both denies the technological developments taking place in the parking sector as well as further confusion for the motorist. We believe that the principle of keeper liability should apply in all circumstances.

15. We also believe that an independent Appeals Service should be introduced to protect the consumer and that this should go hand in hand with the introduction of keeper liability. These two principles are already established under the Traffic Management Act and the BPA has been piloting an Appeals Service with a view to delivering a permanent service subject to the establishment of keeper liability in all circumstances in private car parks.

16. We are concerned that the Bill will effectively prevent landowners from removing vehicles from their land. This seems to be an extraordinary imposition on private landowners, especially in the case of trespass, bearing in mind that such a description includes large car park operators (such as supermarkets and shopping centres) through to private individuals (such as private driveways and access roads). The solutions proposed in the Bill, that the Police will be given discretion to remove vehicles in circumstances where they deem it necessary, is clearly unworkable as the Police are unable to resource such a commitment and we believe that this discretion will hardly ever be used.

17. There is discretion in the Bill for landowners to relocate vehicles in the car park being managed. It is extremely unlikely in the case of the vast majority of landowners that they will have at their disposal the means to relocate such vehicles when they cannot recoup the cost from owners of those vehicles. Our conclusion is therefore, that these provisions are unworkable and will cause significant problems for landowners by providing false comfort.

18. The Impact Assessment prepared by the Home Office contains a series of assumptions and inaccuracies which we are drawing to the Home Offices’ attention. We are particularly concerned that the Equality Impact Assessment in Annex 2 assumes that there will be no impact. Over many years organisations representing disabled drivers have campaigned for disabled persons bays to be introduced into car parks and for landowners to ensure that they enforce these bays. There is much evidence that such enforcement is taking place but it will cease if this Bill becomes law in its current form. The simple fact is that issuing a ticket to a vehicle parked in a disabled persons bay will not free up that bay for a disabled person and we are concerned that all the work done to encourage private landowners to embrace the needs of disabled people will be lost if they are unable to tow vehicles away to free bays up or to threaten to tow vehicles away to create a deterrent in the first instance.

19. We are concerned that the Bill proposes only a fine for the offence of clamping or removing without lawful authority. We do not believe this is sufficient a deterrent to rogue clampers and there is a risk that without the threat of imprisonment rogue clampers will continue to operate in certain circumstances, playing off the income they derive from the potential of a fine. We encourage the Committee to consider including imprisonment as a penalty for clamping without lawful authority.

20. In conclusion, we believe that without the above issues being addressed the rationale behind Chapter 2 of the Bill is flawed. The Bill is clear in that clamping and removal will continue with lawful authority, which means that these activities will still take place on land managed by Local Authorities, where the DVLA use their powers, and in certain other circumstances where byelaws permit landowners to continue to clamp and remove. Many of these activities are already regulated through primary legislation and we believe that to be consistent the Bill should be addressing the need to regulate the private parking sector and introduce a "level playing field" alongside public land managed by local authorities. This would provide consistency for the motorist and landowner and would be much better understood by all concerned. By simply banning clamping and towing away on private land, the Bill risks creating much more confusion in this area and leaving both landowner and motorist no better off as rogue activities continue and the rights of reasonable people are undermined.

21. The author would be delighted to provide more information and clarification on the above at the Committee Meeting.

March 2011