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Viscount Astor: My Lords, I thank the Minister for his response. Indeed, I believe he has gone as far as he can and as far as I would ask him to go in dealing with this issue. I shall study carefully what he said and if I have any questions I hope that he will allow me to discuss them with his department between now and the next stage. I fully accept that as regards his amendment and mine we have a no score draw. My amendment did not entirely do what I wanted it to and I think that by not moving his we achieved the same effect. I hope that we have come to an understanding on what we both agree is a sensible way forward. I am extremely grateful to the Minister and, indeed, his officials, for
 
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the helpful and constructive way in which they have dealt with this issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 115 and 116 not moved.]

Clause 77 [Representations and appeals]:

Viscount Astor moved Amendment No. 117


"( ) enabling an adjudicator to make any decision made on, or in the course of an appeal taking into account mitigating circumstances."

The noble Viscount said: My Lords, this amendment concerns adjudication. The Minister will recognise that this has been brought to his and my attention not only by those who have had difficulty achieving what they regard as the desired result from the adjudicators but, indeed, by the adjudicators themselves, who have felt restricted by the circumstances in which they find themselves operating and the rules. It is a concern which has been expressed on both sides. For the system to work it must be fair, reasonable and respected by both sides, as we have always tried to emphasise.

The difficulty is simple to explain. I start with an example that we used in Grand Committee and which took place in the spring of this year. Traffic wardens placed notices on cars that were abandoned because of snow. The police said the road was blocked. The local authority had not cleared the road. The next morning, before people had a chance to move their cars, the traffic wardens ticketed the whole lot. Clearly, that was not terribly fair and no doubt the traffic wardens received a huge bonus from being able to issue so many tickets in such a short period of time. Having done so in extremely cold circumstances, it enabled them to go off for the rest of the day and have a nice cup of coffee, thinking that they had reached their quota.

One would have thought that those poor unfortunates to whom this happened would be able to appeal to the adjudicator. They did. The adjudicator was extremely sympathetic but he had a problem. Because of technical points he was not able to say that the behaviour was unreasonable as he was not allowed to take into account those circumstances. That is the issue.

I say to the noble Lord that I am not sure whether my amendment is right. The noble Lord, Lord Borrie, who is nearly in his place, quite rightly gave me a frightful ticking off in Grand Committee for putting the amendment in the wrong place, which I fully accept. I apologise to your Lordships' House for doing so. I hope that I have got it in a slightly better place now. However, I hope that the Minister will take my point and set out the Government's view and how they consider they can deal with the issue. It is an important issue because a system has to work for it to have respect.

As I said at the beginning, this issue has been drawn to my attention both by those who adjudicate and those who have been adjudicated on. It is not one side against the other; it is both. So it would be extremely
 
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helpful—I have to say that the Minister has been enormously constructive throughout the passage of the Bill—to your Lordships' House if he could say what the Government can do to take into account the genuine concerns which have been raised. There are many examples. I just happen to have given one. I beg to move.

Lord Davies of Oldham: My Lords, I fear that I shall clash with the noble Viscount, Lord Astor, over this issue because I think that there is a significant difference of principle and interpretation between us on this point. Therefore, I shall not be able to move very far down the road in following his argument.

I hear what the noble Viscount says about mitigating circumstances. We all know that the quality of mercy is not strained and that it helps therefore if people can take into account circumstances affecting offending behaviour. I am afraid that that is for a law court and a judge or a magistrate; it is not for an adjudicator. The adjudicator is not in that position. He is in the position of being a tribunal of fact and law. His or her role in considering an appeal is to determine the facts of the case and to resolve any questions of law should they arise. It is not to make judgment on the nature of the offence and whether there are any mitigating circumstances.

The noble Viscount has quite rightly identified a hard luck case. I cannot think of a harder luck case than the one he illustrated where one gets blocked on the road and gets ticketed the next day before one can remove one's car. I certainly think a local authority might look somewhat sympathetically on that situation. It is for the local authority to make up its mind whether it prosecutes at that stage; it is not for an adjudicator. To enable adjudicators to take into account mitigating circumstances and to make policy decisions about enforcement would alter the whole nature of the process. They would be asked to make decisions about reasons, motives and circumstances that fall short of a defence as currently understood. Taking into account mitigating circumstances is the role of the local authority undertaking civil enforcement of any traffic contraventions. There is no compulsion on an authority to enforce penalty charges. It has the discretion to cancel a penalty charge if it believes that there were mitigating circumstances.

The noble Viscount, Lord Astor, cited an occasion where a local authority's sympathetic interpretation of a car-owner's problems might have been entirely appropriate, but I am not in full possession of the facts, as the noble Viscount will appreciate. It is for local authorities to take such a decision. After all, the situation is analogous on a more significant scale to the Crown Prosecution Service's deciding whether it is in the public interest to pursue a prosecution even if an offence was clearly committed. It is for the authority to decide that. The real need is to get enforcing authorities properly to consider mitigating circumstances in the first place. Existing guidance on decriminalised parking
 
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enforcement contained in local authority circular 1/95 suggests circumstances in which local authorities may feel it appropriate to cancel penalty charges.

In publishing guidance under Clause 84, we will certainly look to reinforce the message that authorities should consider mitigating circumstances in dealing with representations from recipients of penalty charge notices. There will be a new statutory duty on authorities to have regard to that guidance, including when they decide whether to pursue penalty charges when mitigating circumstances are put forward.

As it stands, Clause 77 is a wide-ranging power to make regulations in connection with representations and appeals. I assure the noble Viscount that in drafting those regulations we will consult the chief adjudicators of the National Parking Adjudication Service and the London Parking and Traffic Appeals Service to see how we can address what are perceived to be constraints on their roles in deciding appeals. But regulations made under Clause 77 will in any case be subject to the affirmative procedure as recommended by the Select Committee on Delegated Powers and Regulatory Reform.

I hope that that fact, coupled with the assurance that I have given on strengthening guidance to the authorities, which take the prime responsibility for prosecution and the enforcement of a parking penalty, will be taken into consideration. It is the authorities that must consider mitigating issues; it is not the responsibility of adjudicators, who have a different role. I hope that, on that basis, the noble Viscount will feel able to withdraw his amendment.

Viscount Astor: My Lords, I am disappointed by that reply for a number of reasons. First, it is not only respondents who are complaining; adjudicators, including the chief adjudicator, have said that the system is not working satisfactorily. It will become even more important, because under the powers in the Bill we will extend the role of civil enforcement officers. As a result, there will be more situations, they will be more complex and the issues will be more difficult. It will become even more important that adjudicators can look at all the circumstances.

The Minister rests his case on the argument that it is for local authorities to look at mitigating circumstances and that there will be guidance and perhaps regulations made under the affirmative procedure. I accept that point, but my point is that the Bill should contain a clause that says that the adjudicator may take into account mitigating circumstances. Guidance could then dictate what those circumstances may be, but there must be provision in the Bill.

I cannot accept the Minister's reply. I think that he is wrong. This is an important issue that will become more difficult and more prevalent. Bigger issues will arise in the future. I am disappointed by the Government. I do not intend to divide the House on this issue this evening; but I will come back to it at the next stage. In the mean time, I hope the Minister will consider the representations that have been made to
 
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him on all sides and that we might see whether there is some way forward. If there is not, I assure the Minister that we will take this issue very seriously at Third Reading. It is particularly important because of the extension of powers of civil enforcement officers that are in the rest of the Bill. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82 [Prohibition of double parking etc.]:

[Amendment No. 118 not moved.]


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