Protection of Freedoms Bill

Memorandum submitted by the Automobile Association (PF 31)

1. Background

1.1 The AA will confine its comments to the sections of the Bill relating to the enforcement of parking on private land. Unwelcome encroachment onto private land and non-compliance with private parking rules is not condoned by the AA. However, landowners and car park operators can and should do more to clearly mark the boundaries between their land and public highways and they should clearly sign any restrictions or regulations. In many instances better land management, manual patrols, physical barriers or even clear signs can often solve private parking problems. Lured by free parking enforcement services and promises to ‘maximise revenue’, many landowners have turned to private parking enforcement companies. Driven by ‘profit’, first wheel clampers and now parking ticket issuers are exploiting private parking control knowing there is ineffective regulation and public protection.

1.2 Over the years the AA has received a very large number of very serious complaints about unscrupulous wheel clampers and now receives increasing complaints about private parking tickets.

Chapter 2

2. Vehicles left on land

Clause 54

Offence of immobilising etc. vehicles

2.1 The AA has been campaigning on the subject of wheel clamping on private land since problems first arose in the late 1980’s and has been sickened by the antics of unscrupulous wheel clampers and their ‘terror’ tactics. Thousands of vulnerable people have been held virtual hostage by clampers and they have often suffered the indignity of being taken to cash machines by the clamper to obtain large sums of cash to free their vehicles. The sums demanded and threats used have been extortionate and disproportionate and are far above what is morally right. (Case studies are attached in the appendix).

2.2 We are in full support of this clause which will put an end to what is, at best, a draconian punishment, for often minor parking misdemeanours or mistakes, and at worst extortion, theft or blackmail. This is no exaggeration as some clampers have been convicted of these offences.

2.3 The AA does not believe there should any dilution of this clause during the passage of this Bill. We do not support wheel clamping being allowed to continue under an approved operator scheme which would link to a non-mandated code of practice. We firmly believe that this would not work if there was no legally mandated operating code independent of industry or public right to a fully independent appeal process. Clamping on private land should be outlawed.

3. Clause 55

Extension of powers to remove vehicles from land

3.1 The AA does not oppose the proposal to extend Road Traffic law so as to sanction the removal of vehicles which are obstructing private land or car park access. However, this is on condition that only the police should authorise such a removal and this should be under the Removal and Disposal of Vehicle Regulations, as if the offence were committed on the public highway i.e. they will facilitate a removal under the relevant police contract and that the prescribed fee will be levied.

4 Clause 56

Recovery of unpaid parking charges

4.1 The AA is very concerned about this clause. The key objection is that there is no statutory basis upon which parking enforcement on private land is conducted. These are civil ‘contractual’ matters between the landowner/occupier/agent, enforcement company and vehicle driver. There are also no statutory regulations in place, governing the management of private parking areas, which set out operational practice, particularly the level of enforcement charges. There is also no fully independent appeal process.

4.2 The term ‘parking charges’ sounds innocuous but in fact generally refers to the parking charge notices (penalties) issued because of any breach of the parking rules on private land. These charges are not prescribed in law. In practice they grossly exceed the penalty levels for on-street parking offences, including the infringement of yellow lines which exist to preserve safety. A Penalty Charge Notice for a yellow line offence outside of London, if paid promptly, is set at £35. On private land a minor parking offence, for example, staying longer than the permitted time, usually results in a demand for £150 which is usually reduced by 50% for prompt payment.

4.3. The ‘business model’ for private parking enforcement is wrong in that it generates revenue to operate the enforcement scheme and provide profits for the company doing this. Those employing private parking enforcement firms are also offered incentives – often a percentage or fixed amount of every penalty paid. This is completely contrary to on-street enforcement where the goal is maximising compliance but not profiteering from penalty sanctions. One major parking company website states:

Our Standard parking enforcement is totally free as we generate our revenue from the tickets we issue.

Another offers £10 to the hirer of their services for every parking ticket issued.

4.4 Some private parking enforcement companies are allowed electronic access to the DVLA vehicle record to obtain ‘keeper’ information – they then can then post Parking Charge Notices (which closely resemble official Penalty Charge Notices, which are prescribed in law unlike the private parking charge notices).  At present if the keeper does not pay, because they were not the driver, nothing can be done.  The new legislation will allow ‘keepers’ to be pursued if the Parking Charge Notice remains unpaid. 

4.5 Offences on the public highway and local authority car parks are governed by statute which prescribes ‘keeper liability’ for civil parking and moving offences. This guarantees independent adjudication in the event of disputes with councils and penalty charge levels are prescribed in law.  The Secretary of State is required to issue statutory and operational guidance to councils carrying out civil enforcement. If passed into law Clause 56 will create a constitutional anomaly. It will mandate the collection of unpaid private parking tickets whilst ignoring the fact there is no statutory basis upon which this enforcement can take place. Far from protecting people’s freedom this clause will allow vehicle keepers to be pursued for parking tickets which the keepers have no legal right to challenge. There is also no protection regarding the way the enforcement is carried out and sums of money demanded.

4.6 Since civil parking enforcement started there have been huge problems in the way some local authorities manage unpaid penalties through the debt collection process. Once started, debt collection is an unstoppable machine and there have been a considerable number of serious errors made meaning bailiffs end up chasing an innocent party. Usually at fault is the process by which vehicle keeper details are obtained. Often a vehicle may have changed hands but the pursuing debt collector or bailiff may be relying on ‘old’ data. The system also relies heavily on the post. Allowing this debt collection process to extend to a practice ungoverned by statute without appeal rights would be a massive mistake and injustice.

4.7 When the new law bans wheel clamping there is nothing stopping clampers becoming unscrupulous and heavy handed enforcers who issue parking ‘tickets’. They may well turn to issuing these tickets personally with the same threats and intimidating manner they used when they were wheel clampers. They will not be able to secure the ‘vehicle keepers’ address to pursue the debt but will use threatening behaviour and words enough to scare people to pay up and there will be nothing stopping them demanding extortionate sums.

4.8 Some argue that the industry code of practice for approved operators is a solution. We disagree. We believe this code:

· Is very one sided.

· Encourages a tougher regime with higher penalties sums.

· Gives no independent appeal process.

· Allows fewer grounds to challenge tickets.

· Encourages the early involvement of non-court approved debt collection process.

· Has a weak disciplinary code.

The BPA code says:

d. Charge recovery and court action

If you do not receive a payment following the final reminder, you may instruct a debt collector to recover the charge …………….

4.9 The AA believes that during the passage of the Bill clauses must be inserted to afford greater public protection by statute. These must at minimum include:

· Prescribing private parking enforcement processes (including signage).

· A statutory basis for prescribing parking ticket levels (penalty level amounts).

· The creation of a fully independent appeal system based on a levy on enforcement companies.

· And possibly introduce parking enforcement company licensing through local authorities again through a levy on parking enforcement companies.

APPENDIX

Summary of common parking charge notice (ticket) issues and problems;

· Amounts demanded disproportionate to the ‘offence’.

· Inadequate or unclear signage.

· Errors made by number plate reading cameras and operators (very common).

· Not all number plates comply with number plate regulations.

· Enforcement firms very hard to contact and often ignore correspondence.

· Threats made at early stage to involve debt collectors.

· Appeals not invited and when they are they are only considered by issuing parking company - there is no independence.

· Employers of enforcement companies often unable to intervene even when they want to as contracts often preclude this.

· Self ticketing is questionable (how can ticket issuers be vetted)?

· Why are there so many ticketing sub contractors in approved operator scheme? Lack of transparency.

Example cases (ticketing)

· Mr H’s vehicle parked in Manchester not displaying a permit – he did not know who was driving at the time but parking firm passed case to debt collector which said:

1. "We have already fulfilled all legal requirements (comment: except going to court, the letter went on to say if it went to court) there would be "far reaching consequences":

2. "Substantial legal costs and statutory interest added to your debt";

3. "Your name being listed on the register of judgements affecting your chances of further credit in the future".

4. "Seizure of your assets by bailiffs".

5. "An order to obtain information from judgement debtor".

All these threats and actions were carried on outside of the legal process and against the vehicle keeper not the driver.

· Mr B’s car incurred private penalty in a Glasgow hospital car park when in fact he and his car were in the South of France. The company involved commenced debt recovery procedures.

· My husband (an AA member) has been issued with a parking charge notice by xxxxxxxxx. He parked in the (major DIY store) car park in ………. while my son, who accompanied him, spent over £1000 in the store. It took some considerable time choosing goods etc. Today he received a Parking Charge Notice from xxxxx stating he had overstayed the maximum permitted 3 hours by 19 minutes and therefore had to pay £80 reduced to £50 if paid by 22 October.

· A Bristol driver whose car spotted during 2 different visits to a fast food chain but the camera or operator took it to be one visit and sent a penalty for 41 days parking. http://www.thisisbristol.co.uk/news/Bristol-driver-fined-spending-41-days-McDonald-s/article-1522220-detail/article.html

· Two AA executives were sent parking charge notices by post for infringing unclear bay marking rules in a local supermarket. Both challenged the parking charge notice but were threatened with damage to their credit rating and bailiff visits should they not pay. All for what was a minor breach of unclear rules.

Example cases (wheel clamping)

· Andrew Baker of Interpark UK in the Midlands was jailed for 2 years for what was described as "ruthless exploitation" and a "confidence fraud" – the company operated on land without agreement and triple charged.

· Emily Ritson – Birmingham – Midway Parks - £523 awarded by court (left young teenager stranded overnight)

· Pensioners Mavis and her ill husband Brian were clamped and double charged by Parking Control Management (PCM) in Maidenhead - charged £370 – investigated by The Times and they were refunded.

· Martin Halstead clamped and double charged also by PCM (£330). After AA assistance and threat of court action Mr Halstead received cheque in post for £130 – he rejected this and PCM then reimbursed him £200 which he accepted.

· Ms SH (Kingston) car clamped by Prime Guards in Surbiton refunded £150 after company admitted that the clamper was "a little over eager".

· Ms SG car in Ealing clamped and removed by Safeguard Security £350 demanded cash only – threatened legal action resulted in refund.

· AA patrol vehicle clamped while dealing with female member’s car breakdown in Ilford (November 2010) – patrol unable to park on double yellow lines so moved to private road. Clampers demanded £1,080 and used threats and blocked AA vehicle.

March 2011