HOUSE OF LORDS

CORRECTED MINUTES OF EVIDENCE

taken before the

UNOPPOSED BILL COMMITTEE

on the

LONDON LOCAL AUTHORITIES

AND TRANSPORT FOR LONDON BILL

Wednesday 25 April 2007

Before:

Brabazon of Tara, L. (Chairman of Committees)

 

[Mr Allan Roberts, Counsel to the Chairman of Committees, in attendance.]

 

 

MR ALASTAIR LEWIS appeared as Agent

1. THE CHAIRMAN: Good morning. It is half past ten, so I suggest we begin. First, could I welcome you to the Unopposed Bill Committee. My name is Lord Brabazon, Chairman of Committees. On my right is Allan Roberts, my counsel, and between us we will go through this Bill. Mr Lewis, could I ask you to introduce the Bill and its main provisions and the people you have brought with you.

2. MR LEWIS: Thank you, my Lord. First of all, starting on my right, we have Nick Lester, Director of Transport, Environmental and Planning, who I think you have seen before ‑‑‑‑

3. THE CHAIRMAN: I have indeed, yes.

4. MR LEWIS: ---- at London Councils which is the relatively new name for the Association of London Government, the representative body of the London borough councils, and Mr Lester will be giving evidence where necessary today. To his left is Patrick Troy, Head of Traffic Enforcement at Transport for London, and he will be swearing the preamble to the Bill in the proceedings on behalf of Transport for London. To his left is Gary Blackwell, again a familiar face, Head of Litigation at Westminster City Council who are co-Promoters of the Bill with Transport for London. To my left is Terry Sugrue, a solicitor at Transport for London. To his right is Rikki Hill who works with Patrick Troy in Traffic Enforcement at Transport for London. To his right is John Mason who has responsibilities around congestion charging and, therefore, may be able to make some contribution today if the need arises. To his right is Oliver Hatch, the parliamentary and public affairs representative for London Councils.

5. THE CHAIRMAN: Thank you very much.

 

 

 

MR NICK LESTER, called

MR JOHN MASON, called

MR TERRY SUGRUE, called

Examined by MR LEWIS

 

6. MR LEWIS: My Lord, hopefully you have, of course, the Filled Bill and a further additional paper of amendments which I have been in discussions with Mr Roberts about over the last few days. Also, I hope you have been given Part 5 of the Bill, a clean version, showing in it all the amendments which we propose to make today. We will be coming to Part 5, which is the major part of the discussions today, later on.

7. I have also handed round a short bundle of exhibits which we will be referring to as we go through the clauses. As I mentioned, Transport for London and Westminster City Council are joint promoters of this Bill. Westminster City Council promote it on behalf of all the 33 London borough councils which includes the Corporation of London as well. This is the second joint bill. The 2003 Act, since it has come into force, I am told has worked very well. You will remember those provisions, my Lord, including the enforcement of moving traffic offences by way of a civil enforcement regime, including yellow box junctions. In fact, it has been picked up by the Government, as these bills quite often are, in the Traffic Management Act 2004. A joint bill is needed because TfL and the local authorities both have joint responsibility in London for highways, street and traffic matters as authorities in respect of all those areas. We have, of course, complied with all the statutory and standing order requirements, including the passing of resolutions by all the local councils and the Local Government Act 1972, and the Greater London Authority Act requirements have also been complied with by Transport for London.

8. Moving on to government reports, the Bill has through its progress attracted reports from the Department for Transport at various stages, as you know. The first was deposited shortly before the Bill was considered in the House of Commons Committee and, as a result of the combined opposition of the Department and others, the pedicab and footway cycling provisions of the Bill were lost at that stage. Since then in the face of continued opposition the Promoters have decided, as you will see from the Filled Bill, to leave out three further clauses, and I will deal with the view of the Department and matters relating to consultation when we get to Part 5.

9. You will see as evidenced by Mr Viner's letter of yesterday, which is at tab 1 in the bundle of documents, that the Department is now content with the drafting of the whole bill.

10. A brief mention of human rights, my Lord. The Minister's report, which he is required to make when the Bill is deposited, raised no concerns about human rights. The Joint Committee on Human Rights raised one concern relating to Clause 11. Their concern was satisfied by a letter written by my firm to the Committee. We will come on to Clause 11 in due course.

11. Clause 4 we can deal with very briefly, parking and loading, waste collection and street cleansing vehicles. This Clause has been dropped in light of government objections.

12. Clauses 5 and 6 can be taken together, unpaid charges on the unlawful release of a vehicle. Clause 5 deals with issues relating to wheel clamping and, as you will know, when a parking attendant finds a vehicle parked unlawfully, he has the option of simply leaving a parking ticket under the windscreen wiper, having it removed to the pound or having it wheel clamped. In the case of clamping, what would normally happen is that the motorist would contact the council or TfL and ask for the clamp to be removed which the authority must do if they receive payment for the parking penalty itself and the release fee. If the wheel clamp is removed unlawfully then the motorist can just drive away without having to contact the authority and will only remain liable to pay the penalty charge assuming the owner of the vehicle is identified. This results in an anomaly whereby a person who honestly phones up the authority to seek removal of the clamp has to pay the additional clamping removal fee, whereas the person who removes the clamp unlawfully does not. It is a criminal offence to remove the wheel clamp unlawfully and the maximum penalty is £1,000; first of all, it should be stressed that is the maximum penalty.

13. In case your Lordship is concerned what has been proposed is tantamount to double jeopardy, I might say just a few words on that. For a start, it would not be easy in many cases to get a prosecution off the ground for the unlawful removal of the wheel clamp. It would be difficult to prove beyond reasonable doubt who committed the offence, particularly if there were no witnesses. It could not be assumed that the registered keeper was the culprit as there is evidence that third parties will offer their services to remove clamps illegally. There has even been a self‑styled superhero called "Angle Grinder Man", who performed the removal on request dressed in full costume. A website offers hints and tips on how to remove clamps and I have included a print‑out of that website in the bundle and - it is at tab 2 - I only printed it out last week. Even if the culprit was caught red-handed, the fact is that the release fee is meant to cover the cost of the clamping regime. Although the council and TfL might not have had to remove the clamp, they would have incurred costs in placing it and, if it had been removed, they would need to replace it if it is damaged or lost. It might also be concerned about a motorist whose car has been clamped and then unlawfully de-clamped and stolen by the same person. In such a case, whilst there is some sympathy for the victim, the fact is that he would have been parked illegally in the first place for the clamp to have been applied and it is irrelevant, as far as the Council and TfL are concerned, if the vehicle is subsequently stolen. Moreover, despite stories which sometimes appear in the press to the contrary, authorities will usually only resort to clamping in more serious cases and whilst the motorist attracts some sympathy, it is likely that he would have parked in a place that causes more problems for road users than if he had been parked illegally elsewhere. It is also questionable how often the situation arises; one does wonder why a thief might wish to choose a car that has been clamped over one that has not. I have asked Mr Lester to be standing on guard at the end of each of my expositions on these clauses to answer any questions that you have, my Lord.

14. THE CHAIRMAN: I was going to ask on that, the so‑called "stolen cars". It must be a very fairly small incidence where a car is stolen that has got a clamp on it?

(Mr Lester) We are not aware of any cases, my Lord, that have come to my attention. I had asked my colleagues to ask the borough councils if they had come across that, we are not aware of any cases. I think, as Mr Lewis has said, it is much easier to steal a car that is not clamped if you are going to steal a car.

15. THE CHAIRMAN: You would have thought so.

16. MR LEWIS: Also, Mr Lester, perhaps you would like to remind the Lord Chairman how many prosecutions you are aware of having taken place recently in relation to the unlawful removal of wheel clamps as a single offence itself.

(Mr Lester) Again, we have made inquiries. We are not aware of any prosecutions for unlawful removal of a wheel clamp because of the difficulty of initiating and securing convictions.

17. MR LEWIS: That does not mean it has not happened.

18. THE CHAIRMAN: How often does it happen?

(Mr Lester) It happens slightly less than 100 times a year as far as we are aware, so it is a reasonably frequent occurrence, but the difficulty of mounting a prosecution is so great that there have been no prosecutions for unlawful release of a wheel clamp.

19. THE CHAIRMAN: When you say the difficulty of prosecution is great, the fine is still outstanding presumably for the reason the clamp was put there in the first place against the vehicle?

(Mr Lester) The fine is still outstanding but not the release fee. The principle by which we set the release fee is that it is to cover the costs of the whole operation.

20. THE CHAIRMAN: Somebody coming out to do it, yes.

(Mr Lester) It covers the costs of placing the clamp in the first place, the communication and then somebody coming out and releasing it.

21. MR LEWIS: The release fee can only be charged if the release has taken place lawfully by the council or TfL.

22. THE CHAIRMAN: Now the idea is that the release fee would be charged even if the clamp is unlawfully removed whether from a stolen car or not?

(Mr Lester) Indeed, my Lord. The overwhelming majority of these cases would be where the clamp has been unlawfully removed at the keeper's or driver's behest. Whether or not they have done it themselves is a different matter and we feel the current law provides a perverse incentive for people to do that because if they pay £20 to Angle Grinder Man, or the equivalent, it is a lot less than paying the release fee which is currently £65, so they will save money.

23. THE CHAIRMAN: Under this new proposal, just explain to me again what happens.

24. MR LEWIS: In essence, what will happen is if the car is clamped and is unlawfully unclamped then the councils and TfL will be able to recover both the original parking fine for the contravention for which the car was clamped in the first place and will also be able to recover the release fee which they would not, apart from this course, be able to do, because they can only do that where the release has been lawfully carried out.

25. THE CHAIRMAN: I am quite conscious that we are dealing with another world out there, of which perhaps, fortunately, I am not too aware.

26. MR LEWIS: Another world is dealt with by Clauses 7 and 8 as well, my Lord, limitation on service of notice to owner. Here we are dealing with cases where the council or TfL thinks that a payment has been made in respect of a parking fine, for example, by way of credit or debit card. It is becoming increasingly frequent now, of course, that payments can be made over the telephone, on the spot, when one finds that there is a parking ticket on the windscreen. The problem which comes from that is once the council thinks the payment has been made, the person who has made it stops the payment and that does happen quite frequently. It can be done quite easily, as I am sure Mr Lester will explain, and he has put in some figures which, I am afraid, are rather out of date. These are the figures we put to the House of Commons Select Committee, I am afraid we have not had an opportunity to update them. If I could give you an idea of the problem, if you turn to the second page, you will see that TfL supplied their figures and in the previous week after they were asked by somebody from London Councils about the nature of the problem, they said: "We had 34 chargebacks", that is in one week.

27. THE CHAIRMAN: A chargeback is?

(Mr Lester) A chargeback is where the credit or debit card of the company or the bank responsible charges the amount back if the original credit card user when he sees the bill coming through says, "This is nothing to do with me", and he rings the credit card company. The credit card company will cancel the payment and charge it back from the person to whom it has already been authorised.

28. MR LEWIS: The problem that the Clause is attempting to address is that under the existing legislation, which applies to London in relation to parking, bus lanes and moving traffic offences, there is a limitation period after which the council and TfL may not serve a penalty charge notice in respect of the contravention or rather a notice to the owner is probably a more important aspect in this respect. If that period has expired the council is unable to serve a penalty charge notice or a notice to the owner, as the case may be, even in cases where the initial payment which the council had thought had been made has, in fact, been stopped. All we are trying to do here is to extend that limitation period so a fresh notice to the owner can be served on the owner if he has stopped the payment.

29. THE CHAIRMAN: This is quite a big problem, the figures in just a few months you have given ----

(Mr Lester) It is, my Lord, a significant problem and, as people understand they can do this and get away with it, they will do it more.

30. MR LEWIS: I think the website which was exhibited previously is dedicated not just how to unlawfully de-clamp a vehicle, it goes a longer way than that, it gives hints and tips and publishes books about how to use the system.

31. THE CHAIRMAN: I must say, I was perfectly aware that you could stop a cheque, but I did not realise you could stop a credit card payment after it had been made.

(Mr Lester) I have had personal experience of this where a company which I paid using a credit card changed the amount after I bought it on a paper written slip. I queried it with my credit card company and they stopped the payment.

32. THE CHAIRMAN: The proposal here would be to allow more time basically?

33. MR LEWIS: Indeed. My Lord, Clause 9 parking on footways and footpaths, I will be quick on this Clause. The Clause was the subject of a petition, as you may know, which was disallowed on grounds of locus. It makes provision for some amendments to the pavement parking regime which applies in London but not elsewhere in the country.

34. The Clause has three main purposes. The first is to provide some clarity as to the meaning of "footway parking" which is needed in the light of the decision which comes from parking adjudicators; the second is to extend the provisions to public footpaths; and the third is to do away with the requirement that the footway has to form part of an urban road, the definition of which either Mr Lester or I can regale you with if you need to hear it. It involves reference to speed limits and the number of street lamps, I understand.

35. THE CHAIRMAN: Something to do with wheels on the road?

36. MR LEWIS: That is the definition of "footway parking" which we are trying to alter, yes, and there have been some cases ‑ Mr Lester can probably explain better than I ‑ particularly involving motorcycles where motorcycle wheels have been allowed to rest above the road because it has been jacked up onto a stand. The requirement at the moment under the existing legislation is that there must be a wheel resting on the footway.

37. THE CHAIRMAN: That is a fairly technical point then?

38. MR LEWIS: It is a technical point, but I think it is an important one.

(Mr Lester) It is a case where adjudicators have allowed an appeal where the nature of a motorbike stand lifts both wheels above the footway. Most motorbike stands just lift one wheel and leave the other one touching but some stands lift both wheels above so none is touching.

39. THE CHAIRMAN: They are free, therefore, to leave their bike wherever they want on that basis then?

(Mr Lester) Exactly, and on another occasion it was a piece of paper between the wheel and the footway.

40. MR LEWIS: Clause 10, parking of commercial vehicles, I can deal with this quickly and you can see it has been struck from the Bill. I would like to mention for the record that the Promoters hope the Government will discuss positively the Promoters' concerns which led to the promotion of this Clause, and, in particular, the need for councils to place signs on both sides of every single road in the area of a controlled parking zone where parking of commercial vehicles is prohibited overnight. My Lord, just briefly, there are requirements as to signage in respect of these areas which cover vast areas of London. The councils have to sign the entry to each of the zones informing HGV drivers that it is unlawful to park overnight if the vehicle is over a certain weight, but also they have to put a sign on each side of every single road within the zone. I do not know whether you live within one, my Lord, it is a tiny little sign. I have got one outside my house and you can barely read it. It is an onerous requirement which the Promoters would argue is perhaps disproportionate.

41. THE CHAIRMAN: There are far too many signs anyway on London roads at the moment. Where I live, which is in a controlled parking area, there is a parking for however many hours it is and then these lorry ones.

42. MR LEWIS: I am afraid in most cases, there is very little that the councils and TfL can do, they have to sign where they have to sign.

43. THE CHAIRMAN: The proposal here is they should only need to sign at the entrance but not anymore.

44. MR LEWIS: That was the proposal but not anymore.

45. THE CHAIRMAN: A shame.

46. MR LEWIS: It is something which could be addressed, my Lord, by regulations, and I think efforts will now be made to try to convince the Department that maybe the regulations can be altered to allow this to happen.

47. Clause 11 is obscured registration plates. It is an issue which crops up occasionally but, nonetheless, is of importance to the Promoters given the underlying climate, whereby a minority of motorists will go to any lengths to avoid incurring penalty charges for parking contraventions. The only practical way in which the authority is able to collect penalty charges is by obtaining the keeper details from the DVLA after searching against the registration number. In the case of parking contraventions, as the law stands, is the parking attendant places the penalty charge notice under the windscreen wiper, as I have mentioned, and takes a note of the registration number at the same time. If the penalty charge is not paid within the statutory time limit, then the authority is entitled to serve notice to owner on the person in whose name the vehicle is registered, hence the importance of knowing who that is. Obviously if the attendant cannot see the number plate, then ultimately the authority cannot take any enforcement action. It is, of course, a criminal offence to keep a vehicle on the road without displaying a registration mark. However, parking attendants do not have any powers to enforce criminal law and so if they wish to take the registration mark of a vehicle whose number plate has been obscured, they will need the assistance of the police to remove whatever it is that is obscuring the plate if they are to escape any liability for damage caused. I am instructed that in some cases, particularly in the case of motorbikes, tarpaulins are used to cover the whole vehicle and then a padlock is used to prevent removal. An example of the type of motorcycle cover we are talking about is at tab 4. I should make it clear, of course, that the Promoters have no objection to the use of motorcycle covers per se, particularly if the bike is not parked on the highway.

48. Parking attendants are naturally reluctant to interfere with the owners not just through fear of their public safety but fear of incurring personal liability for any damage caused. That would particularly be the case where a lock or fastening device has been used to secure a cover around the vehicle. The effect of the Clause would be to enable the parking attendant to remove the cover and, if necessary, break the lock. Sub-section 2 provides an immunity for liability except where the removal of the cover is carried out in bad faith or with a failure to exercise due care and attention, also as to prevent an award of damages made on the grounds that the action was unlawful by virtue of the Human Rights Act. Such a provision is precedented in government legislation and a good example would be the provisions of the Antisocial Behaviour Act, which enable local authority officers to remove graffiti from private property. The Joint Committee on Human Rights, as I mentioned initially, has expressed some concerns about this Clause but their concerns have been met by a written explanation of its purposes. I do not know if Mr Lester has got anything to add to that?

(Mr Lester) Only one thing, my Lord, which is the other way that number plates are obscured, by sticking tape over them, so they cannot be seen. That is also a problem. In the period when the police were solely responsible for this sort of enforcement, it was easy for the police to take action at the time, but now it is very unlikely the police will take action, they have to be there and willing, and their action would only be to initiate some sort of action for failing to display a number plate. It is very difficult to get that level of action from the police because necessarily their priorities are quite different.

49. THE CHAIRMAN: Absolutely, but there has been something in government legislation about this as far as speeding cameras as being an obstruction of registration plates not so long ago, I think?

50. MR LEWIS: You may be right, my Lord. I seem to remember that the Government was thinking about putting a provision like this in the Traffic Management Bill when it was going through and, in fact, I think that was mentioned in the first government report, but they decided not to do it because I think they thought that it was unnecessary, but we say it is necessary.

(Mr Lester) My Lord, the legislation connection with speeding has been about using the MOT system to ensure that the number plates are properly fixed in the proper format and font, and that is absolutely fine for the permanent display. What we are concerned about here is a temporary cover.

51. THE CHAIRMAN: I see your picture here of the motorcycle covers, but before I saw that I was thinking more of the vehicle car ones where you do see cars with covers on them occasionally. A pukka one will have a hole on the windscreen where you can see the tax disc. That presumably is good enough, is it?

(Mr Lester) That is good enough, my Lord, we only have to see what the registration mark is.

52. THE CHAIRMAN: Not necessarily the plate itself. In future, you will be allowed to cut these things off?

53. MR LEWIS: Indeed. Clause 12, driving on the footway has been dropped in the light of government opposition, my Lord, and I make no further comment on that.

54. Clause 13 deals with overhanging trees and this Clause would enable the councils and TfL to remove vegetation which obscures those traffic signs we were discussing, including road signs. The only outstanding point is in relation to the remarks made by the Select Committee in the House of Commons on this Clause in which recommendations were made in response to concerns raised by the London Cycling Campaign. The LCC considered that Clause 13 should be amended so that it clarified the Clause should apply to cycle paths. By that I think they meant to refer to cycle tracks, which is a statutory term of art. The Committee said they could not see a difficulty including cycle tracks within the scope of the Clause and recommended that the Promoters either amend the Bill as necessary or explain why a clarification of the current definition would require an additional provision. They said that the matter could then be taken further in committee in the House of Lords. The Promoters take the view that an amendment to Clause 13 is not necessary and will potentially create more difficulties for cyclists than the LCC might appreciate. The way that Clause 13 is drafted, as you will see from subsection (1)(a), is to apply the provisions to any highway, for which a London authority are the highway authority. If the concern is that cycle tracks fall outside that scope, then the concern is misconceived in the view of the Promoters. The Highways Act 1980, which is the main piece of legislation dealing with the responsibilities of highway authorities as respects highways in their area, provides a definition of "cycle track" in section 329 and it specifically makes clear that cycle tracks are highways either in their own right or because they form part of a larger highway. If, by definition, a cycle track must always be or be part of a highway, section 13, it therefore follows, will always apply to cycle tracks. The view of the Promoters is that an amendment is unnecessary and might even have the effect of placing doubt on the status of cycle tracks where at the moment there is none. Happily, Mr Roberts agreed with my assessment.

55. THE CHAIRMAN: This is a cycle track on or beside the road, is it?

56. MR LEWIS: Yes, a cycle track can form a separate part of the highway with a kerb between the two, or I think it can form and be incorporated into the carriageway itself but marked.

(Mr Lester) It could, my Lord, even be a separate track away from any other part of the road, a highway just for cyclists.

57. THE CHAIRMAN: One going through a park?

(Mr Lester) A park is more questionable because there would be other legislation governing the park. It might be within a new development, a cycle track that links two conventional roads and that cycle track linking them would in its own right be a highway.

58. MR LEWIS: Clause 14, removal of abandoned apparatus from the street and, again, I am pleased to report there is no controversy in relation to this Clause. I can ask Mr Lester to explain further if necessary, but the rationale behind the Clause is to enable the street authority to take action where apparatus, which has clearly been abandoned, remains on the highway.

59. THE CHAIRMAN: This is about telephone boxes?

60. MR LEWIS: Correct, and that is the example I was going to make, a telephone company that went bust seven, eight or nine years ago now, New World. You can see their boxes all over the place. Mr Lester reminded me this morning that the way the law works at the moment is I think that councils do have the power to remove the kiosks but do not have the power to remove the equipment inside the kiosks, which in itself could create more of a danger if that is the way the council decided to proceed, which I presume is not the way they are proceeding, but that is the understanding of the law at the moment and obviously allows removal of the whole lot.

61. THE CHAIRMAN: When can you remove the whole thing? What triggers the removal? If the company has gone bust in this particular case, or if the thing is no longer used?

(Mr Lester) It would clearly have to be abandoned, not working, and the authority would need to firstly determine that it thought it was a nuisance or detrimental to the amenity which, in most cases, it would, but also they would have to make reasonable steps to enquire as to the owner and ask the owner to take steps in the first instance. These powers would only be used if the owner was not in existence.

62. THE CHAIRMAN: Okay, understood.

63. MR LEWIS: We come on to Part 4, which we will take as a whole, filming. Again, there is no opposition to this part of the Bill, and the intentions behind it are self-evident. London is, for obvious reason, already an attractive place for films to be made, not just because of the locations which are available but, also, because of the expertise which is found here in the film industry. In 2005 a major study on the impact of film production was conducted by the leading economists Cambridge Econometrics and Optima for the UK Film Council, and a group of national and regional screen and development agencies, including the London Development Agency and Film London. The study identified that London's screen industries had income of £13.6 billion and a total expenditure of £10.4 billion. There are some 71,500 permanent jobs in London relating to the screen industries.

64. A number of famous films, for example The Da Vinci Code, are set in London, and even Woody Allen has decided to start making films here.

65. London has to compete with other world cities as a film location and the ability for London authorities to close streets to enable filming to take place on them is seen by the industry as an incredibly valuable string to their bow. The way that the clause works is to apply provisions of the Road Traffic Regulation Act 1984 with amendments. That Act contains a number of special provisions which were introduced under a Private Member's Act promoted at around the time that the Tour de France first came to Britain.

66. Those provisions, unfortunately, only enable the traffic authority to close streets for certain "events". Although the carrying out of filming involving Hollywood starts might be seen by some as an event, the film industry and the traffic authorities would obviously rather have more clarity about the position. The provisions of the 1984 Act would be modified slightly to enable the authority to close sections of the highway with very short notice, because, as you can imagine, the vagaries of the London weather will always have some influence.

67. My Lord, you will see that Clause 17 has been removed, mainly on the basis that it was decided it was not really required. It would have entitled film companies to place props and other articles on the highway, but given that they are entitled to do so anyway, so long as it does not constitute an obstruction, it is considered that the clause is no longer needed.

68. Now, my Lord, we move on to Part 5, non-payment of penalty charges, on which we will dwell for some time.

69. THE CHAIRMAN: This has obviously been a fairly controversial part and, in some ways, it is rather surprising not that we are dealing with it here today but that it seems to have got this far without petitions against it, and so on.

70. MR LEWIS: We will come on to the consultation and other matters. We are expecting that we may not have a completely smooth ride on third reading, my Lord, but we will have to wait and see on that score.

71. Non-payment of penalty charges is a subject which, following initial outright opposition from the Department for Transport, has resulted in an acceptable compromise for the Promoters, and which is the subject of the vast majority of the amendments in the Filled Bill and supplementary paper of amendments - hence the production of a clean copy of Part 5, which I hope is in a much easier format for you to digest than the Filled Bill.

72. There are a number of reasons why it has taken so long to get to this stage, following the Select Committee proceedings, and undoubtedly the main one has been the ongoing discussions with the Department.

73. In its Special Report, the Commons Select Committee indicated that the detailed scrutiny of what is now Part 5 should be left to this House, and that in the meantime the Government should continue discussions on the detail with the Promoters. That is indeed what has happened, but I ought to give you some background as to what level of discussion has been taking place between the Promoters and Government before then.

74. It goes back a long, long way. My Lord, way before you were in your current post and in the year I became an agent, the London Local Authorities Act 1995 was passed. The Bill for that Act was deposited in November 1992. Section 7 of that Act contains provisions allowing the Secretary of State to make regulations for London to deal with unpaid penalty charges - that is, the problem of persistent evaders. I put a copy of Section 7 in your documents at tab number five. It was a problem then and it has been a problem ever since. Since 1995 the London boroughs and, latterly, TfL, to whom this Section 7 now applies (and after having been amended under the GLA Act), have been trying to convince the Government to make regulations under Section 7, but none was. Mr Lester will, I am sure, be able to answer any questions you might have about how persistent the councils have been in that time, but he has told me that the subject was never dropped. So, my Lord, when this Bill was introduced, persistent evaders was not a new subject as between the Promoters and the Government - quite the opposite.

75. As you know, there are statutory provisions about the advertising of draft Bills promoted by TfL. A little later than hoped, the draft version of this Bill, containing the persistent evader provisions, was advertised in the Evening Standard on 28 October 2004. The Bill was sent to the Department on 29 October, and I am sure that through contacts between the Promoters and the Department or the Government Office for London, there would have been earlier discussions of the impending provisions. The Government submitted a formal response on 18 November 2004, stating that they would object in principle to the persistent evader provisions. The line they took and, indeed, maintained up to and beyond the Select Committee proceedings in the Commons was that the provisions were undesirable due to the lack of uniformity with their proposals for dealing with the subject under the Traffic Management Act 2004. The Promoters are glad not to have backed down at that initial stage because the Government are now satisfied that the provisions of Part 5 are acceptable for London, albeit heavily amended.

76. So we moved from a stage, relatively recently, of outright opposition to detailed opposition. My Lord, since the Bill has been in this House, but more particularly through the autumn of last year and winter and spring of this, the discussions have been intense, detailed and productive and that is why we are here now rather than September, November or at any of the other proposed dates that have passed. The Promoters offer their apologies to you, in particular for the last minute adjournment of this stage last time, but it truly has provided the time that was needed to meet not only the concerns of the Department but those raised by Mr Roberts too.

77. Staying with consultation, but moving from the Department, you will wish to know who else was consulted on the draft Bill. You have in your bundle, at tab six, a letter which is dated 1 November 2004 but which, I believe, was sent out on 3 November, together with a list of the recipients. Amongst them you will see the RAC and the AA.

78. As you mention, my Lord, this Part has attracted no petitions at all, despite the wide consultation which was undertaken in the first place. I should also mention that TfL, as I think has now become a regular occurrence with their own singly promoted Bills, have put a copy of the draft Bill on their website as well, at around the time that consultation took place.

79. If I can now move on to the substance of Part 5, it is estimated that at any one time there are around 165,000 persistent evaders in London accounting for some 1.32 million penalty charge notices. Only a small percentage of these penalty charges will be recovered, usually because the keeper details associated with them are incorrect or out-of-date or, in some case, non-existent, meaning the keepers can contravene parking and traffic controls with impunity.

80. In a TfL-commissioned report "Driving Down Crime" in 2003, intercept officer operations carried out by 23 police forces across England and Wales identified that, of those keepers of vehicles who committed traffic enforcement contraventions, 21 per cent were of immediate interest to the police, 33 per cent had a criminal record and 18 per cent were known or suspected of using the vehicle in crime. It is "the other world", I think, my Lord, of which you were speaking earlier.

81. To understand fully why the provisions are needed, I am afraid a short explanation of the existing procedure for enforcement of penalty charges is needed first. I should mention that there are different ways in which the penalty charge procedure can be instigated in the first place, depending on exactly what type of contravention is at issue. There are basically three different types of contravention which would be covered by Part 5.

82. First, parking contraventions. London borough councils have existing powers to issue penalty charge notices by placing, as I have mentioned before, the notice under the windscreen wiper of the vehicle, handing it to the driver, or by using camera enforcement and sending the penalty charge notice by post to the registered keeper. If the penalty charge is not paid within a certain time then the council can serve a notice to owner or Enforcement Notice on the registered keeper and if that is not paid within a certain time then the council can issue a charge certificate which is then registered as a debt at the county courts, and the bailiffs can be required to enforce any warrant issued. Recipients of a notice to owner can make representations to the council or TfL and, if those representations are rejected, can appeal to an independent adjudicator. So that is the process as it stands.

83. Next, there is enforcement in relation to bus lanes under the London Local Authorities Act 1996 and for moving traffic offences under the London Local Authorities and Transport for London Act 2003. In these cases, enforcement is done using camera technology and the procedure is almost identical to the parking procedure, except that with the moving vehicle offences the additional stage of the notice to owner is not included. I should mention that under the Traffic Management Act 2004, these regimes will be replaced by regulations, which will have broadly the same effect. That is catered for in the draft of Part 5.

84. Finally, there are contraventions of the congestion charge scheme, which also relies on cameras and the enforcement regime is almost identical to the moving vehicles regime. I should mention, at that stage, of course, that the congestion charge is the responsibility only of TfL; it is nothing to do with the local councils, of course, some of whom have registered their objection now and again to the imposition in their areas.

85. Part 5 is intended to deal with the problem of unpaid penalty charges which remain outstanding despite the procedures which I have outlined above. In short, what Part 5 will enable the authorities to do would be to take additional action in respect of vehicles against which there are three or more penalty charges outstanding. Let us just go back to the scenarios described to see what will have happened first before the penalty charge can be recorded as outstanding. It must remain unpaid despite (1) a penalty charge notice having been issued or served; (2) in certain cases a notice to owner having also been served; (3) the opportunity having passed for representations to have been made; (4) the opportunity having passed for an appeal to an adjudicator to be made where the initial representations were unsuccessful and (5) a charge certificate having been served.

86. In other words, a lot of hoops would have had to have been gone through by the council or TfL before a penalty charge can even be regarded as outstanding, and a good deal of opportunity would have been given to the recipient to make representations. It goes without saying that generally these are people who never had any intention of paying the penalty charge at all.

87. Part 5 would enable a council or TfL, where it has reason to believe that there are three outstanding penalty charges in respect of the vehicle, either to clamp the vehicle or tow it away to the pound, depending on whether or not the name and address of the keeper of the vehicle were known. All three outstanding penalty charges must have been incurred in relation to the same authority, so the vehicle could not be clamped if there were one penalty charge outstanding in relation to Camden, one in relation to Islington and one in relation to Westminster.

88. One particular facet of the provisions is the fact that the vehicle could be clamped or removed even if not parked unlawfully. It only has to be stationary on a road in Greater London for the provisions to apply. I am instructed that since the introduction of the Road User Charging regulations in London, in February 2003, 5,414 persistent evaders' vehicles have been identified parked on the public highway. I should mention at that point that under the congestion charging scheme there are already provisions, similar, but certainly not identical, to what is being proposed here, to deal with persistent evaders, and those provisions have been used quite successfully by TfL.

89. Just going back to that figure again, since the introduction of the Road User Charging regulations in London, 5,414 persistent evaders' vehicles have been identified parked on the public highway. Enforcement action has been taken against 5,093 of those vehicles, most of the remainder having been driven away before enforcement action could be taken. Of those vehicles enforced against, 1,208 owners of clamped vehicles paid all outstanding charges (and that includes at least three penalty charge notices, as I have said) at the initial clamp stage, with some 3,539 vehicles being removed to a secure storage pound - either removed rather than clamped or removed as clamp not paid.

90. Since inception only 36 of the 3,539 vehicles removed have been the subject of an appeal to the adjudicator - that is about 1 per cent. Of these, five appeals have been allowed, 24 refused and seven non-contested. None of the appeals allowed were on the basis of a change of ownership, which is an important point when we come to discussing the innocent motorist later on.

91. There are significant differences between TfL's existing congestion charge regime and the one which is proposed in the Bill. Those differences have increased in number, as you can see by the very significant amendments proposed, and they provide significant extra protection for the motorist. The Bill sets out procedures whereby the motorist can pay a bond to the authority, rather than discharging all the outstanding penalty charges, in order to recover the vehicle. I will discuss that in more detail later on.

92. One of the concerns which you may have, my Lord, and which had certainly been expressed by the Department, is whether the sort of enforcement proposed here is over-zealous. We can explain that issue head on by providing evidence as to the level of avoidance which is in issue here, and the reasons for it, and in particular why the councils and TfL are unable to do anything about it under the existing legislation, despite the fact that ultimately enforcement is available by way of county court order and action by the bailiffs. It is worth pointing out as well, my Lord, that the principle of this activity, which is now hopefully going to be authorised in Part 5, has been accepted before by Parliament in the London Local Authorities Act 1995.

93. The legislation is directly mainly towards the motorist who goes one step further than your ordinary driver who may feel slightly aggrieved about having received a penalty charge notice, refuses to pay it and attempts to test the system. In the case of the ordinary motorist who has properly registered his details at DVLA and kept them up to date, it is fair to say that eventually the councils or TfL will catch up with him and he may encounter a visit from the bailiffs. Where all the keeper details are correct, there is no real reason to suspect that that would not be the case. If the bailiffs do not recover the penalty charge, then either they are not doing their job properly or there must be a huge amount of penalty charges outstanding.

94. A more typical case that we are dealing with here involves motorists who deliberately avoid the system, or may have more nefarious reasons for doing so, by providing false information to DVLA in the first place about their address or their name. Worse still, they "clone" somebody else's number plate or a non-existent number plate so that they never actually receive the penalty charge. That sort of behaviour, of course, is illegal in any event, but the police cannot be expected to prioritise investigations into this sort of activity all the time, and it is a continuous problem. By far the most common situation is where the vehicle is registered to what appears to be a legitimate name and address but the "keeper" has long since moved away with no forwarding address. Let us not forget that the keeper is under a duty to inform DVLA of any change of address and that it is an offence not to do so.

95. In your bundle, my Lord, at number seven, I include a report from The Times of 26 January which tends to back up the Promoters' own views that those who are deliberately cheating the system by registering false details at DVLA or cloning plates are also likely to be involved in other criminal activity. I have also included at number 8 a report from the Evening Standard of 22 January 2007, the headline of which speaks for itself: "The driver who owes £21,000 in unpaid fines".

96. The Promoters recognise that there might be occasions where an innocent motorist might fall foul of these provisions, which is why additional protection has been built into Part 5, particularly by way of the bond. The circumstances in question would include where the motorist had recently purchased a vehicle, not knowing there were three or more outstanding penalty charges registered against it. Under those circumstances he might find that the vehicle is clamped or taken to the pound even thought he was not responsible for the penalty charges in the first place. If there could be an absolute safeguard against that happening then the Promoters would include it in the Bill. However, there is not one which is workable. Instead, there are two major provisions inbuilt into Part 5 which are designed to assist the motorist under these circumstances.

97. First of all, the recipient of the penalty charge notice would be able to make representations to the council, and thereafter appeal to the adjudicator in order to ensure that he or she is not liable to pay any additional penalty charges arising from the fact that the vehicle has been clamped or towed away. Under Part 5 the council or TfL would otherwise be able to claim those charges in addition to the outstanding penalty charges.

98. One of the grounds on which representations can be made is that the owner of the vehicle was not the owner at the time when the outstanding penalty charges were incurred. Recognising that the representation and appeals provisions go only some way to addressing the issue for the innocent motorist, the Promoters are adding or have added additional safeguards. I would emphasise again that these safeguards are not included in the existing congestion charging regime and certainly will not included in the Government's own legislation if it comes into force next year in line with the current drafting. That will apply outside of London.

99. First of all, the Promoters have introduced a preliminary set of procedures which must be gone through before a vehicle is taken to the pound. If the ownership details are known then the procedure set out in Clause 20 of your clean version of Part 5 is followed. The authority would first have to send a notice to the owner, giving the owner the opportunity, in seven days, either to pay all the outstanding charges or to pay a bond. If the bond is paid then the authority must issue a certificate which, if displayed in the vehicle, will prevent further action being taken for the time being, giving the recipient time to make representations in respect of the outstanding charges. If neither is done then the vehicle can be removed to the pound, whereupon the owner will be given the opportunity to recover it, if he pays the outstanding charges, subject always to his right to make representations.

100. In cases where the ownership details are not known, the authority cannot serve the notice under Clause 20, of course, so they follow the procedure under Clause 19. Here, they can clamp the vehicle and they must remove the clamp if the claimant gives them his name and address (with proof of it) and - if it is not him - the name and address of the owner. If he does not have the proof of his own name and address or does not know the name and address of the owner, then, like in Clause 20, he has the opportunity to pay a bond and the council can give a certificate of immunity. In this case, however, the certificate only lasts for 21 days, which is considered long enough for the authority to be given the ownership details. Once they have those details, then action cannot be taken under Clause 19 again, but could be taken under Clause 20.

101. As I mentioned before, these provisions are not contained in the current regime which is applied in relation to the congesting charging zone. Once these procedures have been gone through, if the outstanding charges are not paid then the provisions, including the provisions of Schedule 2, ensure that if the vehicle is taken to the pound the claimant will always have the opportunity of being able to pay a bond, pending the outcome of any representations or appeal which he chooses to make.

102. Further protection by way of a bond payment in cases where despite the preliminary procedures having been gone through applies when the vehicle is actually removed to the pound. On payment of the bond the vehicle would be released and the claimant would be given a certificate which, again, would provide him with the immunity from further action for a period long enough to enable him to make representations to the relevant authority. Once representations were made the vehicle would remain immune from further clamping or removal until the representations were disposed of. If no representations were made then the certificate would expire after a certain time and the vehicle would be susceptible to removal or clamping once again. The next time round it is unlikely that the motorist would be able to take advantage of the bond provisions. If the person did make representations and failed then, if he did not pay the outstanding penalty charges, the vehicle would be susceptible to clamping and removal again. If he made representations and was successful then, obviously, he would have a clean slate and there would be no threat of being clamped or removed again.

103. The response of the Promoters to the legitimate concerns of the Department and of Mr Roberts has left a complicated (necessarily so) web of procedures which provide the innocent motorist with a significant amount of protection. Unfortunately, it also provides the not-so-innocent motorists, who make up the overwhelmingly majority of motorists who will fall foul of these provisions, with more opportunities to play the system and cause delay. Whilst the bond provisions have been introduced to assist the innocent, they will inevitably be used by the guilty, but the Promoters accept that inevitability.

104. The bond itself would, I expect, be a relatively modest sum. I cannot now give you an accurate figure as to what the amount of the bond might be, but it would be logical to expect it would be a sum which is less than the total sum of the three outstanding penalty charges. Mr Lester or Mr Troy might be able to give an indication of the sort of sum they have in mind.

105. It is acknowledged that whilst the bond goes a long way towards addressing the issue of innocent motorists being caught by these provisions, it is not perfect but never can it be. However, I would ask your Lordship to focus on my introduction when I described the sort of motorists who are most likely to be caught by these provisions. Councils and TfL take great efforts to ensure that all outstanding penalty charges are collected, if necessary through the county court procedure, so the most likely type of motorist to be caught by Part5 are serial offenders who also commit criminal offences relating to false registration of the vehicle details and owner details.

106. My Lord, I have a few questions for Mr Lester, the answers to which I hope will give you some further essential background and reassurance.

107. Mr Lester, can you explain, in your view, the proportion of outstanding penalty charges which will lead to innocent motorists being subject to Part 5 and confirm for the Lord Chairman the more typical subject of Part 5?

(Mr Lester) I think, my Lord, the number of innocent motorists being caught is really very small indeed. We have seen the examples from congestion charging where it is very small indeed, no appeals at all have been subject, and we can see, really, two categories where an innocent motorist might be caught up. The first is where a vehicle has changed hands - somebody has bought it from a persistent evader - and the DVLA has not caught up with the change of ownership. The DVLA normally reacts within about four weeks but can take up to six weeks to update its register. We would expect that the authorities would check the register immediately before using the powers in Part 5 so they would check on databases, but if they happen to fall within that four to six week period it is possible that the register would still show the old owner and not the current owner. The second possibility is that any of the authorities' systems are in error - either they have failed to record a payment of a penalty properly against the right penalty charge number or they have made some other error in some way. The number of occasions where this happens is extremely small indeed, but we cannot pretend that it might never happen. The overwhelming majority of cases will be those who are genuinely flouting the law and seeking to avoid payment of the penalty, particularly if you take the view that once powers such as these are in place it will not just be that a parking attendant might incidentally come across the persistent evader but the authorities will be actively looking for persistent evaders. Very frequently the persistent evasion takes place in the same area, so that if you have a record of a vehicle that is consistently parked illegally in or around about the same place the authorities will actually go and look for that particular person there, and there will be very clear indications that that is much more likely - almost certainly will be - to be the person to whom these particular powers are directed and addressed. If the vehicle had been one of those that had changed hands it is unlikely that the same pattern of illegal behaviour in the same location would have continued. So that those are the types of people that we would expect to see being the overwhelming majority of the vehicles subject to these powers. I should add one category of vehicles which Mr Lewis did not mention, which is foreign registered vehicles, where, currently, we have no powers to deal with those at all. There is certainly increasing evidence that some drivers are fully aware of the fact that a foreign plate gives them almost immunity and they flout the regulations regularly. I think there was a congestion charge case of a French vehicle which had only failed to enter the congestion charging zone without payment on two charging days in a year. That is, they entered every single day apart from two, without payment, knowing full well that they could not be caught up with. The powers that are in these provisions would enable us to address those persistent evaders as well as others.

108. THE CHAIRMAN: What is the national law at the moment about how long you are allowed to drive on foreign plates in this country?

(Mr Lester) It is complex. In principle, a circulation order allows you six months before you have to change and reregister, but there are exemptions to this. There are exemptions for students - undefined, so that anybody claiming to be a student, even a student of life, could be exempt - and there are exemptions for commuters - again, undefined. You can see where it came from: somebody who lives in Antwerp and works just across the border in Holland and does it every day, that is where the basis comes from, but there is no definition of "commuter" so that anyone who is a commuter is, effectively, exempt. In fact, there have been no prosecutions for people who should have reregistered who have failed to do so.

109. That is a problem for the Government.

(Mr Lester) That is a problem for the Government but it is a growing problem, and at present the authorities have no powers to deal with this. Indeed, between London councils and TfL, with the support of others including the support of the Department, we are looking at other mechanisms to try and get the law changed to enable foreign-plated vehicles to be treated squarely and evenly with British-plated vehicles, but that is a long haul and involves international treaties and, maybe, action by the European Commission and the European Union, which will not happen overnight.

110. MR LEWIS: What are the causes of there being wrong or even no information about the keeper of a vehicle at DVLA, and the frequency of that as well?

(Mr Lester) DVLA can make errors. They can make simple errors such as failing to put line breaks in the addresses as they put them on the system, and then in automated transmission that ends up with gobbledegook at the other end, but also DVLA make no checks on the nature of the person registering the vehicle, so that a false name or a false address can continue to be on the registration file. There was a case you may recall, my Lord, a couple of years ago where an aggrieved parent got very upset in the media because their child had had a visit from the bailiffs because of outstanding parking penalties. Well, the child only had the visit because the parent had registered the car in the child's name, and there have been incidents of vehicles being registered in pets' names as well - not too many "Tiddles'" but it can happen - and whereas presently this is blamed on the DVLA or on the enforcement authority for getting the wrong person, they are only getting wrong person because deliberate attempts have been made to register it in the wrong name.

111. Could you explain in more detail than I did, perhaps, what vehicle cloning is and how prevalent it is in London?

(Mr Lester) Vehicle cloning is where a vehicle is replated using plates or a VRM that has been issued to another vehicle. In some cases this is fairly easy to detect because you have a different make and model and colour of car, but in sophisticated cases people will use the same make, model and colour of car, and all of the penalty charge notices and the other notices will go through to the genuine owner who may well make representations and say: "Well, I was not there, it is not my car." Indeed, I have received letters from people who are very upset about this, and people have written to the Prime Minister about this because they continue to get the notices through and it is actually a cloned vehicle; it is somebody else driving a car which is the same make, model and colour with the same false registration plate on that. It is a problem particularly for any camera enforcement system because there is no way that the enforcement authority will have any knowledge as to whether that particular vehicle was the genuine one or the cloned vehicle, and even if the genuine vehicle is, for example, registered in Aberdeen, you cannot assume that someone never drives from Aberdeen to London so you have to start with the genuine owner. We are developing a register of cloned vehicles that we are aware of amongst all the enforcement authorities in London, and that will help relieve some of the pressure on the genuine owner who does not deserve to get caught up, but it will not without powers such as we have in these provisions enable us to catch up with the cloned vehicle. Again, it is an illegal act and police do catch up with it from time to time, particularly using automatic number plate reader checks, but it is very limited and this is another way of dealing with that level of illegality.

112. Generally, can you explain why you think what is now contained in Part 5 is superior in terms of safeguards for motorists than that which already exists in congestion charging and, more importantly, what the rest of England and Wales can expect under the Traffic Management Act regulations?

(Mr Lester) Well, I think we have two particular types of improvements by just working through the detail and also using the experience that congestion charge has had. Firstly, we have a reduced scope for those vehicles that might be eligible within these provisions than under the draft regulations of the Traffic Management Act, simply by controlling and limiting the opportunities to pick up vehicles where they have changed hands. The provisions we have for dealing with vehicles where they have changed hands are significantly better, but we have also mitigated the impact on innocent motorists compared to both congestion charging and the Traffic Management Act draft regulations by firstly sending out a notice which will inform people that they are on the register and they can expect to see action taken against them unless they contact the authorities and, secondly, with the bond provision as that appears in several places, whereby you would not be expected or obliged to pay maybe £21,000 to get your car back before you could challenge what you believed was an unfair penalty. It is a matter that I have had considerable concern about, that if somebody turns up in a pound and they are told they have to pay £21,000 and they claim no knowledge of any penalty at all associated with that vehicle, we must have a way of dealing with that because not many people could lay their hands on £21,000.

113. THE CHAIRMAN: No. Not many of the cars we are talking about probably in this situation are worth £21,000.

(Mr Lester) Indeed.

114. What happens if you accrue all these penalties and your car goes to the pound and you decide your car is not worth claiming back?

(Mr Lester) Ideally you will sign a transfer notice over to the local authority at the pound and give them the keys. If you do not do that and you just say: "I am not even bothering to go to the pound", it stays within the pound for a reasonable length of time; the authority has to make two efforts to contact the owner; if they do not respond at that point then the authority will dispose of it, and it is an issue particularly with pound space being at a premium in London that pounds get full up of relatively old bangers.

115. Will the owner still be pursued?

(Mr Lester) The owner would still be pursued if we have a record of the owner, but at that point ‑‑

116. ‑‑ you probably have not?

(Mr Lester) Exactly, and certainly some people who are not that interested in the type of car they have will buy cheap cars, not register them properly, often not insure them properly, run them into ground until they get towed away and then go off and get another one, and my colleagues in Kent tell me increasingly they are going to Calais to get them because they are no more expensive and there is even less chance they will be caught up with.

117. MR LEWIS: Can you give an idea as to what further safeguards could be contained in the guidance that will have to be published under Part 5?

(Mr Lester) There are two types of safeguards. Firstly, that we have the intention of proceeding as we did with moving traffic offences whereby we piloted the approach in a limited number of authorities initially; that London councils give specific authority to further authorities to take part in the scheme when they have learnt the lessons from the pilot authorities. Always in cases of this sort there will be concerns that are raised in principle which do not turn out to be important in practice, and there will be issues in practice which nobody has thought of, and that is why piloting is terribly important, to make certain we get the best advantage from this. But there are issues that we have already considered would be sorts of safeguards that we would include within the guidance, for example, that you would not clamp a vehicle parked lawfully unless the last penalty notice was issued within the previous six months, so that is already starting to say, if you have had a pattern of unlawful behaviour that has stopped or gone away, there is a reasonable prospect the vehicle has changed hands at that point, so if it is not within the last six months you would not follow that particular route if the vehicle is parked lawfully. Issues of that sort we can already see as types of guidance we would give. I think I mentioned also needing to check the DVLA register immediately before any clamping or removal takes place, again as a final check to see if there is no change of owner on record. I do not think any of the authorities want to see the headlines in the Evening Standard of a poor, particularly a single mother who is found at the pound but she has to pay several thousand pounds and it is nothing to do with her, she is entirely innocent. That is not in our interests; we have no desire to pursue and prosecute people like that, but we also want to avoid the position which again the BBC picked up in the context of speed cameras last week or the week before that effectively those people who are more likely to have to pay the penalties are those who voluntarily agree to pay the penalties, and that those people who try hardest to avoid payment normally succeed. It is that group that we want to try and put most focus of attention on.

118. THE CHAIRMAN: Yes. Now, you mentioned your liaison with the DVLA and obviously that is very important in the way the whole process operates, the fact that you rely initially on finding out the name and address of the owner from the DVLA and they will give it to you; they do not give it out to everybody but they give it to you.

(Mr Lester) That is correct.

119. And you also say that you check with the DVLA whether the vehicle has been registered as having changed hands. Is there not scope for more liaison with the DVLA in telling them of outstanding fines, for example?

(Mr Lester) We could, my Lord, but the DVLA are not particularly interested in knowing about the outstanding fines. They are interested in the information we get as to potential keepers, and one of the main points that appears in clause 19 is that for vehicles where there is currently no record of a keeper, or certainly not at DVLA, we will get a name and address and that will either be the keeper or the keeper's agent. Now, the DVLA cannot change the records on the basis of that but they can start their own investigation teams working, and there is a degree of joined‑up activity here because the London councils also act in dealing with untaxed and unregistered vehicles as an agent to the DVLA, so there is a degree of joined‑up activity here that will help the register as well.

120. So if I want to buy a secondhand car I cannot at the moment inquire of the DVLA whether there are any outstanding fines?

(Mr Lester) No, but you may be able, my Lord, to inquire from us.

121. That is possible at the moment?

(Mr Lester) Yes. We will maintain the register of persistent evaders on a London‑wide basis. The Department for Transport in their consultation on the Traffic Management Act even considered whether they might ask us to maintain the register nationally, so there will be an opportunity for you or anybody else who wishes to buy a secondhand car, rather as happens with HPI at the moment ‑‑

122. The hire purchase?

(Mr Lester) Yes - to ring and say: "Is this a persistent evader?"

123. That is possible now?

(Mr Lester) It is certainly something we are very actively looking at.

124. MR LEWIS: It is subject to concerns over data protection.

125. THE CHAIRMAN: Of course.

(Mr Mason) You will be able to do that within the next two months with congestion charging. We are launching a service so if you have the registration number of the vehicle you are interested in purchasing you will be able to send that information to congestion charging and we will provide you not with the number but we will advise you if there are outstanding congestion charges.

126. THE CHAIRMAN: All you need to do is say: "Yes, there is a fine here" and then people will be alerted to that fact?

(Mr Mason) That is correct. So it is the same principle.

127. MR LEWIS: My Lord, I do not think I have any other questions to ask Mr Lester really on these provisions but if you are interested, just to give an idea of the training that the individuals who do the clamping and removal receive from the councils, it might be worth mentioning that very briefly, perhaps in comparison with those who operate the private clamping regimes which one hears about in the press often on private car parks.

(Mr Lester) There are two important points of distinction, my Lord. The first is that on‑street the clampers who are working for the councils and for TfL do not decide which vehicles to clamp, they are directed either by the authority or TfL as to which vehicles to clamp, whereas in the private areas it is the clampers themselves who decide: "I am going to clamp that one or not", and that is an the important point of distinction between the authorities have their own procedures, their own training, and the specific training under traffic enforcement powers for parking attendants to ensure they are not just clamping willy nilly. The attendants and authorities in their own right get no financial benefit from clamping or removing; in fact, each clamping activity loses a bit of money from most authorities, so they do not have an interest in clamping where it is unnecessary. The second important point of distinction is the ability of anybody who feels they have been treated unfairly to make representations and, if necessary, to appeal to the adjudicators. The adjudicators have no qualms about overturning penalty charge notices or requiring release fees to be refunded to the driver if they feel that is the right approach; the adjudicators are wholly independent, they are a legal tribunal, and that does not exist for clamping on private property. I should say in addition, and you may recall I have said this to you on an earlier occasion, that we put a great store on making the adjudicators accessible, and indeed the Leggatt review of tribunals in 2003 said that we had within the appeal service a degree of concern for the user which was unprecedented in UK legal activities.

128. THE CHAIRMAN: I used to be aware of the situation as far as clamping was concerned on private land and where in Scotland it was found in the courts to be theft or something like that, but where we have got to on it since I have no idea. I am satisfied, however, that yours is a different system altogether. Just tell me if I am wrong on this: that the congestion charge scheme is currently working and has been working since congestion charging came in?

(Mr Mason) That is right, my Lord.

129. THE CHAIRMAN: And that is, so far as you have described it from the motorist's point of view, tougher, if I can put it that way?

(Mr Mason) If I was to be blunt I think that the provisions we have had to put in to get this Bill through are making it more operationally difficult to achieve the kind of aims we need to achieve. The fact of the matter is, and I think we have provided clear evidence on this, that the congestion charging can enforce and has enforced successfully, and the kind of problems that these provisions have been put in to address have not really materialised.

130. THE CHAIRMAN: Then we have the Traffic Management Act regulations. What is happening about those? What is the form on those?

(Mr Lester) They, my Lord, were consulted on last year, and I know that the Department is considering the responses to the consultation and is expected to produce final regulations at some point this year, but the provisions in the draft regulations were very much simpler. Indeed, they provided no mitigation in the form of bonds or the initial notice that you were on the register. Effectively it was simply if there were three or more outstanding penalties against that vehicle you would have to pay them to get the vehicle back and to enter the representations and appeals system. That is, again, considerably more severe than what is in this Bill.

131. THE CHAIRMAN: Are you proposing they would overtake the current congestion charge rules?

(Mr Mason) That is what I have been led to believe, yes.

132. THE CHAIRMAN: But when the traffic management regulations come into force nationwide you would still, Mr Lester, like to have what you are proposing for this Bill, so you would have a more motorist friendly regime than nationwide?

(Mr Lester) I think we would like to have that, my Lord. We have agreed with the Department for Transport that we will make certain there is no conflict between the Traffic Management Act regulations as they apply in London and this Bill; we cannot be in a position where this legislation is all over the place; and we have given that commitment to Government, that we would make certain it was sorted out in that sense. But yes, I think we would prefer to have a more user friendly approach.

133. But you could do nothing now and just wait for these regulations to come into force nationally?

(Mr Lester) We could. We think it would cause problems because of the lack of safeguards within them, and that is why we have been pressing ahead with these provisions.

134. MR LEWIS: There is one other significant difference between these provisions and what the TMA regulations will provide, simply because of the restrictions on the Department, I understand, in terms of the scope of the regulations that they can make. These provisions will enable action to be taken in respect of any vehicle whether or not it is parked unlawfully, whereas my understanding is, and I think probably this is the reason we are here today promoting this Bill, that there are problems under the Traffic Management Act itself in terms of the scope which I understand mean that lawfully parked vehicles cannot be touched.

(Mr Lester) And if I can add this, which I should have mentioned before, the other big difference is that as the draft Traffic Management Act regulations applied, and again we wait to see what happens in the final regulations, they would not address the problem of unregistered vehicles, because they would only apply where all the notices had properly been served and in order to have that you have to have keeper information.

135. THE CHAIRMAN: So there is a difference.

(Mr Lester) We did want to address both the point Mr Lewis has made but also the point about unregistered vehicles because they are the ones that in many respects are the worst of problem.

136. THE CHAIRMAN: But the significant point is the fact that it has to be illegally parked.

137. MR LEWIS: That is the difference between this regime and the regime under the draft regulations, as I understand it.

138. MR ROBERTS: Mr Lewis, this is really a point of clarification. As you rightly said, I think, the Traffic Management Act would not allow clamping or removal of lawfully parked cars, but would there not also be a problem with the mix and match with the congestion charge?

139. MR LEWIS: Yes.

140. MR ROBERTS: As I recall, under that Act it has to be a contravention of something under that Act, and therefore you could not count towards the total of three the congestion charging provisions.

141. MR LEWIS: I think that is right, and I think the point is that under this part the councils in TfL will be able to look both at congestion charging and parking together in counting up the number of -

(Mr Sugrue) Only TfL. TfL will be able to get to its three - one congestion charge, one bus lane, one parking - but because it all has to be PCNs from a single authority we cannot have one congestion charging and a parking from Westminster. It has all to be from TfL - and it could be three congestion charging ones.

142. MR LEWIS: And, of course, at the moment under congestion charging you cannot include red route parked vehicles as an outstanding penalty charge.

143. MR ROBERTS: You rightly point to the fact that the draft regulations under the Traffic Management Act do not contain the bond provisions but of course, with those regulations, one is talking only about clamping of unlawfully parked cars.

144. MR LEWIS: Indeed, that is right.

145. THE CHAIRMAN: I am not sure if I have any more questions really. This is quite a complicated issue.

146. MR LEWIS: It was a complicated issue and has become more complicated, but necessarily so.

147. THE CHAIRMAN: There is a difference on parking offences where you can stick the ticket on the car's windscreen as opposed to photographic ones, with either the yellow boxes or congestion charge or a bus lane?

148. MR LEWIS: Well, parking enforcement by camera is allowed in London and has been ‑‑

149. THE CHAIRMAN: It is growing, yes. As you say, it is yellow boxes and bus lanes as well as congestion charge.

150. MR LEWIS: And parking.

(Mr Lester) The important point, my Lord, is that where we have not got a keeper's name and address, where the vehicle has been spotted on a camera's enforcement, you cannot send any notice out.

151. THE CHAIRMAN: No.

(Mr Lester) And part of the issues and the complexity of these provisions has been dealing with those people who you have not been able to send any notices out to but are persistent evaders in any case and suddenly they find their car has been clamped or removed, and that is why a proposal for a notice to be sent out initially saying: "You are on the register and if you do not take action, action will be taken against you" is quite important because that gives people the opportunity to say very quickly: "Excuse me, I know absolutely nothing about these penalty charge notices, I was not there, something else has happened, your system must be at fault", and if they take action quickly and say that, as you would expect an innocent person to do, then everything goes on hold, and that is quite an important issue.

152. Just going back a bit as well, the question of tax insurance and MOT probably happens quite a lot with persistent offenders.

(Mr Lester) That must be right. Certainly the DVLA's records indicate that those people who are not properly registered are also likely not to be insured properly, may not be MOT'd, and the driver may not be licensed.

153. So you are getting together with the DVLA?

(Mr Lester) There is an important coming together on that because we work quite closely with DVLA on dealing with those issues and, as I said earlier, if we can get some information and a name and address associated with these vehicles, the DVLA will be very anxious to get that indeed.

154. MR ROBERTS: Mr Lester, you referred earlier to a pattern of unlawful behaviour for some of these persistent offenders, and I was just wondering, whether there were any figures which showed to what extent the sort of person that you are getting at is going to be unlawfully parked anyway. I suppose my question is why do you need to be able to have the powers with lawfully parked cars if there is a pattern of offending such that you could catch them when they were unlawfully parked?

(Mr Lester) I think the problem is more that they may not be unlawfully parked all the time; that you may find that somebody driving to work will sometimes be able to park lawfully and sometimes not, and if the lawful parking spaces are full then they just park on a yellow or a red line and hope to get away with it, and you cannot necessarily predict that. I think we would be in a trickier position in cases like that, looking for that particular person who may have many outstanding penalties and on that particular occasion they were parked lawfully. There is also an issue that comes up that has yet to be explored that you could only deal with him when the vehicle was unlawfully parked, and if the driver wanted to make representations on that particular event, that in practice they were not unlawfully parked and were subject to some sort form of exemption or other, would that invalidate the whole process of seeking the payment of outstanding penalties?

155. MR LEWIS: It is also worth mentioning the particular effect of that question in relation to the congestion charge, because you may have the situation where a chap is driving and parks outside his house in a completely unregulated area so therefore parks lawfully every evening when he gets home and until he leaves in the morning, drives in through the congestion charge, does not pay his charge, has a underground garage at the office so there may never be the opportunity to take action at all in relation to that sort of person.

(Mr Lester) And the same applies to bus lanes and moving traffic offences by box junctions.

156. MR ROBERTS: Thank you. On the consultation period, I did notice that the consultation letter sent on 3 November gave until no later than 19 November for a reply, and I wondered if anybody would like to make a comment on the duration given for that.

157. MR LEWIS: I said at the outset that we would have liked it to have been longer and in an ideal situation we would have very much liked to have sent it out earlier than that. The Bill was one of three being prepared at that time for the London Local Authorities; there was the Boroughs Only Bill as well as the Smoking Bill, which was less of a concern. Pressure on resources and the November deadline meant that it had to be that date. Of course, we would have preferred for that period to be longer. Of course, the organisations who were consulted at that point became fully aware of what was being proposed and had the opportunity to petition once they had seen the Bill after it had been deposited and none did.

158. THE CHAIRMAN: You did not have anybody coming back on 20 November saying "I do not like this"?

159. MR LEWIS: I cannot honestly remember that.

160. THE CHAIRMAN: They did have the opportunity to petition in this House?

161. MR LEWIS: Indeed, in both Houses, absolutely.

162. THE CHAIRMAN: We would like to talk about this for a little while if I may so if I can ask people to withdraw and we will call you back. Thank you very much.

Counsel and Parties were directed to withdraw and, after a short time, were again called in

163. THE CHAIRMAN: Thank you for all of that lengthy explanation of this Part 5 of the Bill. As far as I am concerned I think you have demonstrated that there is definitely a need for this. You have also demonstrated that the safeguards that you are proposing are good ones and should go a long way so, therefore, I am happy to allow Part 5 to stand part of the Bill. I do think there are issues for government here as well, one particular example was foreign registered vehicles. I do also believe that there is a strong case for even closer liaison between yourselves and DVLA at Swansea on the likelihood that vehicles involved in this kind of activity, if that is the right way of putting it, it probably is not, are quite likely to be committing other national offences at the same time of road tax, MOT and things like that. I think you have proved the case for this and with the safeguards you have proposed, complicated though they are, I am happy to let it go through.

164. MR LEWIS: Thank you very much, My Lord. I was not planning to say anything on the remaining provisions in the miscellaneous section.

165. THE CHAIRMAN: That is all right. We will move to the formal part of the proceedings and ask you to prove the preamble.

166. MR LEWIS: As with the last time we are doing it jointly, you might say. Mr Blackwell and Mr Troy, please step forward.

 

MR GARY BLACKWELL, sworn

MR PATRICK TROY, sworn

Examined by MR LEWIS

 

167. MR LEWIS: Are you Gary Blackwell, Head of Litigation at Westminster City Council the joint Promoter of this Bill?

(Mr Blackwell) I am.

168. MR LEWIS: Are you Patrick Troy, Head of Traffic Enforcement at Transport for London, the other joint Promoter of the Bill?

(Mr Troy) I am.

169. MR LEWIS: Have you both read the pre-amble to the Bill?

(Mr Blackwell) I have.

(Mr Troy) I have.

170. MR LEWIS: Is it true?

(Mr Blackwell) It is.

(Mr Troy) It is.

171. THE CHAIRMAN: Thank you very much. That concludes our proceedings. I will report the Bill to the House with amendments. Thank you.

 

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