/ Motoring

We quiz the RAC Foundation about the clamping ban

Car with clamp on wheel

The Protection of Freedoms Bill proposes to outlaw clamping on private land and was debated yesterday in the House of Commons. We talk to the RAC Foundation’s Stephen Glaister to find out what it all means.

1. What does the RAC Foundation think about the plan to ban clamping on private land?

The plan in the Protection of Freedoms Bill to ban clamping on private land has certainly caught the headlines. But the real problem for motorists has always been caused by lack of regulation of the parking industry, not wheel clamps per se, which will continue to be used legally by local authorities.

While the legality of wheel clamping on public land is clearly set out in law under the Traffic Management Act 2004, the situation on private land has been quite different with very little restriction on wheel clamping activities.

As a result, rogue wheel clampers have been able to exploit their essentially unregulated position to charge motorists punitive amounts of money to have wheel clamps removed from their cars.

Government did introduce the statutory licensing of wheel clamping operators in 2001 but this failed to stop the cowboys. Throughout, ministers have avoided the best option – thorough and wide-ranging regulation of the private parking industry.

2. Are there any alternative deterrents that could be introduced?

Proposed changes in the law to make the owner of a vehicle, rather than its driver, responsible for parking infringements will act as a deterrent to some motorists who use a loophole to avoid paying penalty charges incurred on private land.

In small car parking areas, rising bollards and other obstacles could be used to stop ad hoc unwanted parking. Local Authorities will still retain the right to clamp cars and can be asked to take control of areas where there is a significant nuisance from inappropriate parking such as a supermarket car park near a town centre or station.

3. Could we face a situation where cowboy clampers turn to cowboy ticketing?

A penalty charge may be irritating but it doesn’t have to be paid immediately – motorists have a period of time, stated on the ‘ticket’, to pay. After that, a car park operator who is a member of an Accredited Trade Association (ATA) will send a demand for payment by post, having got the car owner’s details from the DVLA.

But not all those operating car parks are members of an ATA. So yes, some operators who have relied on wheel clamps to get money from motorists may well now turn to heavy-handed ticketing methods.

Since they cannot legally access DVLA records to send out reminders by post, they will want to ensure payment before drivers leave the parking area. Others may simply chance issuing tickets on land where they have no right to be in the first place and demand instant payment.

4. What protection will be available for car owners who could now be at the whim of cowboy ticketers?

The Consumer Protection Act 1987 provides certain legal safeguards. Part 3 of the Act makes it a criminal offence to give consumers a misleading price indication about goods, services and accommodation or facilities.

Other laws have been used by Trading Standards to pursue rogue clampers and could be used to stop ‘rogue ticketers’ but the procedures are complicated, time consuming and expensive.

We think the easiest solution is for all private car park operators to be regulated and signed up to a government-endorsed code of practice.

5. Will the Freedom Bill introduce protection for private landowners who need to stop people from parking on their land?

The expression ‘parking on their land’ evokes ideas of wealthy landowners keeping out the peasants.

The reality of the situation is that many small businesses and shops with one or two parking spaces, and owners of private parking spaces for which they have paid a premium, may find they can’t access that parking because others are parked there.

To compensate, the Bill will extend the powers of the police to remove dangerously or obstructively parked vehicles from private land.

But our understanding is that the police will use this power only at their own discretion, and it’s likely they’ll only attend if there is a real risk of harm from the nuisance vehicle.

6. What changes or measures would you like the Freedom Bill to introduce?

The Freedoms Bill has been sponsored by the Home Office and so is not an appropriate piece of legislation to deal with the wider issues of operating car parks on private land which the public pays to use.

However, we hope many MPs see that another government department should now consider how to protect motorists better by demanding:

  • Compulsory membership of an ATA;
  • Compulsory compliance with a government endorsed code of practice; and
  • Compulsory support for an independent appeals system (for motorists who want to contest a ‘penalty’ charge) for car park operators.

7. What are your thoughts on yesterday’s debate in the House of Commons?

The danger is that the Freedoms Bill tackles the wrong thing, targeting the clamp and not the rogue clamper who will simply turn to another form of unscrupulous activity to fleece the public.

The majority of MPs who spoke on the matter welcomed the ban on wheel clamping on private land but didn’t debate the need for regulation of the parking industry.

Does this answer all your questions about the clamping ban? Do you agree with the RAC Foundation or do you think other measures should be taken?

Trevor Whitehouse says:
6 April 2012

Aren’t we Clamping down on the rogues after they’ve bolted

Why should the activities of a ‘tow-truck operator’ force reputable clamping companies out of business and threaten the interests – and rights – of landowners, specifically when tickets and barriers won’t work?

“Why is it that successive governments have failed to see that it’s the tow-truck operators who have utilised their vehicles to extort additional fees and nothing more?” proclaims Trevor Whitehouse, chairman of National Clamps. (Extracted from Total Politics) “In my 22 years at the helm,” he adds, “we have been responsible for the immobilisation of well over 150,000 vehicles. However, we have been forced to tow no more than 150 vehicles away and this figure came to a dramatic halt with the government’s scraping scheme.

“True, there was a real problem with ‘rogue’ operators, which has been raised by successive governments, besides the unclear signage, excessive fees and menacing behaviour by the minority. The introduction of the tow truck has tarred the whole industry, when the most law-abiding companies try to provide the proprietor and the public with a service.”

There has been overwhelming support for some years for the introduction of regulations on wheel clamping on private land. When the Security Industry Association (SIA) was created to administer private security licensing, wheel clampers were included. Unfortunately,” continues Whitehouse, “the five months it took to obtain a licence, the £400 training cost, plus the £250 the licence fee, forced reputable companies to look the other way, and kid-glove unreasonable employees, leading to even the best companies having to lower standards.”

This didn’t go far enough, so in 2009 a consultation was published and industry views were sought on a range of options, including: a voluntary code of practice; compulsory membership of a business licensing scheme for all clamping companies, and a compulsory Approved Operator Scheme (AOS). These provisions were included in the Crime and Security Act 2010, Sections 42, 43 and 44. Unfortunately, the election happened before they could be activated.

The coalition could well have introduced them: the consultation was thorough; a wide cross-section of industry views had been sought, the measures balanced the interests of landowners and car parkers alike, and adequately dealt with the issue of ‘rogue’ clampers. Job done, surely?

But then – and probably in response to some tabloid horror story – out of the blue a proposal to introduce a ban on clamping was bolted onto the Freedoms Bill, which had already been agreed by the coalition. It may seem a popular move. A minority of drivers who hate being clamped, also hate the speed cameras and the breathalyser. Someone in government probably thought this would go down well with constituents.

But – and it’s a big ‘but’ – this ban isn’t about clampers, and has nothing to do with freedom. It’s an attack on landowners’ rights and interests, on their freedoms and the principles that have governed the laws of this land since the Magna Carta. It’s not even about the freedom of car owners; this panders to the most ignorant of drivers and wrongs the proprietor, European Human rights Article 1 protocol 1 “The right to enjoy ones property”.

This is the essential issue:– Clamping protects the interests of landowners. There probably isn’t a private car park in the UK that doesn’t use it, or, more importantly, the threat of it, as a parking control method. If its so ‘Draconian and evil’ ask yourself “Do you know an open car park that doesn’t use clamping to deter?

What’s more, the law already recognises this. As far back as 1995, in the case Arthur and Another v Anker, the Law Lords ruled in favour of the landowner’s right to clamp, based on the ruling Volenti non fit injuria: ‘No wrong is done to one who consents’. If the signs are clear, the driver has been warned and is responsible. In fact, in 99% of clamping cases, the motorist has been in the wrong.

As one Police spokesman from Gwent said: “The concept of legislation which removes the disincentive to behave irresponsibly is somewhat incongruous.” However, in a speech in June 2010, Home Office minister Lynne Featherstone said: “We should adopt an approach that is proportionate, and which balances the rights of the motorist to have access to their vehicle with the rights of landowners to use and control access to their property. Clamping should not simply be used as a means of generating revenue from motorists… We have been clear about our commitment to tackle rogue clampers.” There was no mention of towing away or making the distinction.

But the principal purpose of clamping is to deter illegal parking and protect private property, not generate revenue; with a 95% deterrent rate, it wouldn’t be much of a revenue generator anyway. And it’s not rogue clampers who need to be tackled, but the rogue tow-truck operators. As anecdotal evidence suggests, most of these now operate in the ticketing side of the industry precisely because they neither need SIA licences nor to join accredited trade associations. Recent prosecutions and jail sentences have surely curbed their antics.

Physical barriers are costly, often impractical or financially unviable. Often, highways agencies and the Police won’t even permit barriers, particularly where it leads to queuing or causes a traffic hazard on exits to public roads. And they are un-feasible for residents’ parking spaces outside homes or flats. 37% of clamping incidents are residents who flout the housing managements rules.

The alternative, ticketing, is ineffective. Only 40 to 60% of tickets are ever paid and, for many drivers, this results in bailiffs at the door and lengthy court proceedings, where the costs to motorists can be far greater, with fines of up to £400. That aside, seeking keepers’ details through the DVLA is not accurate enough. An estimated 15% of vehicles are unregistered and 6% are foreign and therefore beyond pursuit. Without the recourse to clamping, landowners and the public will be at the mercy of the selfish parker.

So if the government wants to cite complaints about clamping, just wait until constituents discover that they can’t find a space to do their shopping,can’t park at school, work or the station and, in some cases, their own homes; there will be a tidal wave of complaints. The problem is that clamping is so effective that the public doesn’t know how beneficial it is. Introduce a ban, however, and they soon will.

A ban may play well for now in the popular media but not for long. If Ms Featherstone had sought consultation she might have realised this. The Police have and they’re concerned. A spokesman for South Yorkshire Police said: “From a policing point of view, my initial impression is that this change of policy is a case of being ‘as bad burned as scalded’.”

The government’s solution is to extend Police powers to remove vehicles in certain exceptional circumstances. The Police are not convinced. Currently they have the power to remove vehicles on public roads that are dangerously or obstructively parked, have been stolen or involved in a collision. Should these powers be extended to private land, they could find themselves inundated with requests from landowners, creating additional workloads, an unfulfilled public expectation – or use of the very tow-truck companies which induced the clamping ban.

As a spokesman from South Yorkshire Police said: “There appears to be a blurring of the fine line between criminal and civil law, which will inevitably lead to a public expectation that the Police will enforce civil trespass law.” This legislation would be difficult to enforce, create greater conflict between landowners and ‘selfish parkers’ and confuse the public about the Police’s role. After all, define ‘exceptional circumstances’…

Today, most wheel clamping operators respectfully go about their business. The only bad publicity is when former rogues get their comeuppance which is considered good publicity. Unfortunately, most of this took place two and three years ago and has taken far too long in the Crown Courts for sentencing. The good news is that the Police, CPS and magistrates are now armed with precedence, and have made several arrests, with many more prosecutions pending.

And the rogues have taken wing and flown… ironically, cleaning up the industry. Those who have flown may well land in ticketing in order to make another fast buck: this (it’s proposed) is with the coalition’s blessing. Some cry: “Will a parking offence or an outstanding ticket warrant a bailiff and the seizure of goods?” I don’t think so, but how else can anyone enforce a parking charge notice? Letting sleeping dogs lie in this case may be the best policy.

The proposed ban has simply not been thought through. Only regulation through licensing and enforceable punishment will drive out the cowboy operators. It’s ‘fag-pack’ politics: the proposed ban is ill-considered, off-the-cuff, and designed to win popular approval in response to knee-jerk reactions to media horror stories. Unfortunately, for landowners and residents alike, this kind of politics will prove fatal. Let’s only hope wiser heads prevail !