Clause 39
Crime and Security Bill

Frank Cook (Stockton North, Labour)

I remind the Committee that with this it will be convenient to discuss the following: new clause 3-Limitation on powers to immobilise, restrict or remove vehicles-

'(1) The Private Security Industry Act 2001 is amended as follows.

(2) After section 4 there is inserted-

"4A Limitation on powers to immobilise, restrict or remove vehicles

(1) A person may not carry out an activity to which paragraph 3 (immobilisation of vehicles) or 3A (restriction and removal of vehicles) of Schedule 2 applies unless he is either-

(a) a public authority, or

(b) acting on behalf of a public authority.

(2) For the purposes of subsection (1), the person carries out an activity on behalf of a public authority in particular-

(a) if he is, and is acting as, the public authority's employee, or

(b) if he is acting pursuant to a contract for the supply of services with the public authority only where that contract does not allow him, or any other person, to benefit from a variable financial incentive which is dependent on the number of vehicles immobilised, restricted or removed."'.

New clause 27-Prohibition of immobilisation or restriction and removal of vehicles-

'(1) A person commits an offence if the person carries out any of the following activities-

(a) the immobilisation of a motor vehicle by the attachment to the vehicle, or to a part of it, of an immobilising device;

(b) the demanding or collection of a charge as a condition of the removal of an immobilising device from a motor vehicle;

(c) the moving of a vehicle, or the restriction of the movement of a vehicle, by any means;

(d) the demanding or collection of a charge as a condition of any release of a vehicle which has been so moved or restricted;

unless that activity is carried out with the consent of the owner, keeper or user of the vehicle.

(2) A person who is an occupier of any premises commits an offence if-

(a) another person carries out, in relation to vehicles on those premises, any activities falling within subsection (1), and

(b) those activities are carried out with the permission of that occupier or for the purposes of, or in connection with, any contract for the supply of services to him.

(3) A person guilty of an offence under this section shall be liable-

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.

(4) The Private Security Industry Act 2001 is amended as follows-

(a) omit section 6;

(b) in Schedule 2 omit paragraphs 3 and 3A.'.

New clause 30-Code of conduct (Private Security Industry Act 2001)-

'The Secretary of State shall by regulations make provision for the introduction of a code of conduct in respect of vehicle immobilisation activities and the issuing of penalties for parking on private land undertaken by any business licensed under section 4A of the Private Security Industry Act 2001 (inserted by section 39 of this Act), including making provision for requirements for appropriate signage on private land and maximum levels of penalties which may be levied.'.

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

I was responding to the right hon. and learned Member for Sleaford and North Hykeham who was, unusually, promoting the notion of a ban-albeit a delayed one-that would be introduced, ironically, through a statutory instrument. Therefore, I assume that this is a rather academic discussion.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

The Minister will recall that I suggested an amendable statutory instrument.

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

Amendable, but a statutory instrument nevertheless. That will not be necessary because the short history of the issue shows that the Government have moved from the licensing of individuals involved in wheel-clamping to the current proposals on the licensing of companies. We have demonstrated our intent, and we would not have got to this stage-a major part of a major Bill-were we not determined to take the correct action that will have the desired effect. I do not accept that we should have a ban, albeit one that hangs like the sword of Damocles.

I shall respond quickly to my hon. Friend the Member for Stoke-on-Trent, South, who suggested that we could avoid the problems if the owners of private land simply fenced it off. We had a short discussion about whether that was mainly a rural issue. It is an urban issue, too, because there are many areas, including old people's homes, hospitals and a variety of private land, that require some form of parking control. There is a host of areas for which it would be impractical to insist that if owners did not want people to park there, they should fence them off. That is why we are making our current suggestions.

The hon. Member for Romford highlighted the need for the action we are taking, because he gave a number of examples of the type of unacceptable behaviour that we are trying to get rid of. These include release fees, signage and so on, which will be an important part of the code of practice.

I want to concentrate slightly longer on the comments made by the hon. Member for Winchester, who set out a range of objections to the route we are taking. I shall try to persuade his colleagues and others that ours is the right route. He advocated that local authorities should take control of the situation. Like the hon. Member for Romford, I cannot recall from the evidence session that the representative of local authorities showed a great deal of enthusiasm for the idea of them taking this on. We kept coming back to the perennial cost question and an acknowledgment that, were we to go down that route with an entirely different model, there would be a cost involved. I am not sure that the local taxpayer should pick up the cost. The way in which we are proceeding represents a fairer and more proportionate system.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

I wonder whether the Minister can recall any enthusiasm from the witnesses for the Government's solution.

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

The hon. Gentleman says that but, in fact, we have been consulting on a range of proposals for some time. I accept that nobody came out in complete support of everything that we were doing. However, by and large, we have managed to satisfy a majority on most of the issues raised in those sessions and during the consultation process, such as what a code of practice would look like, or crucially whether there should be an independent appeals mechanism. I admit that at one point it was not clear that that was what we were proposing-but we are. People often have their own views and put forward alternatives. However, in the absence of a clearly more acceptable alternative, I think that we have broad support for our suggestions.

The hon. Member for Winchester mentioned incentivisation, which we have discussed before, with regard to whether there will be a great incentive to carry out wheel-clamping to maximise profits. Incentivisation might have an attraction now, because there is a fairly open-ended and loose system through which people can make extortionate profits, but part of what we are doing is to put limits on things such as release fees and to address issues regarding what happens if vehicles are impounded overnight and whether people have to pay for that. Many incentives that might have been in place will not exist under the scheme that we are advocating. The hon. Gentleman also mentioned the need for an appeals procedure. As we will discuss later, there will be not only such a procedure, but an independent one.

The hon. Gentleman also spoke about some entirely unacceptable examples of people who were forced to abandon their cars during the bad weather coming back to find that they were wheel-clamped. I cannot give a complete undertaking that that will not be possible in the future, but if we address issues such as signage and release fees, many of those problems could be resolved. If Members of Parliament and others are thinking about going to the companies and saying, "Surely this is unfair," please remember that companies will need to have an appeals procedure and, under the code of practice, they will also need to have a complaints procedure. Beyond that, there will also be an independent complaints procedure, through which I am sure some such complaints could be not only heard, but upheld.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

With regard to the appeals procedure and its independence, who will determine the criteria that the independent appellate body will have to apply?

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

The code of practice will set out clearly what companies will be allowed and not allowed to do. It will deal with issues such as how much had been charged, whether the signage was adequate, whether there was information about whom one could complain to, which company was responsible in the first instance, and how one could get in touch with the appeals procedure. All that will be dealt with in the code of practice. Therefore, in a sense, the independent adjudicators will not only be addressing the code of practice because, as we will get on to later, legal minds will be brought to bear, so I am sure that they will be able to bring some reasonableness and common sense to the issue.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I am sorry to press the Minister on this matter, but it is important. An element of discretion will always be involved, and I am trying to ascertain whether the independent adjudicator in the appeals process-

Frank Cook (Stockton North, Labour)

Order. I ought to advise the Committee that we are straying into the area covered by Government amendment 110 and Government new clause 10. It is not strictly relevant.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

Given that the issue has been raised, Mr. Cook, whether it would be convenient to deal with it now is a matter for you. If not, I will postpone my comments-whatever you think fit.

Frank Cook (Stockton North, Labour)

That would be the proper way to approach it.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

Then that is what we will do.

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

The hon. Member for Winchester also raised the question of self-regulation. We are not going down that route. He talked about some of the problems that have arisen with ticket parking. We are determined not to go down that route because we want to ensure that our proposals have teeth. He also asked, as his defence of using local authorities as the best route on this matter, whether the proposal amounted to a licence to print money. I remind the Committee that we intend to cap fees and, through that, to change business behaviour.

Let me say-I do not think that this has been raised, but it is pertinent to the whole of our deliberations-that while the proposal is about changing the behaviour of the businesses currently involved in vehicle immobilisation, it is also about changing motorists' behaviour. The reality is that quite a number of people who are clamped are clamped for valid reasons-they should not be parking where they have parked. Therefore, we must have a system that is proportionate.

Finally, the hon. Gentleman expressed concern that if it was left to the companies, and not the local authorities, the companies would simply disappear, and rebrand and relaunch themselves. I have two points to make about that: first, they would still need a licence if they attempted to do that; and, secondly, the Security Industry Authority is very experienced in dealing with such practice, because it has been attempted in other areas of its activity. It is very good at holding to account people who try to evade the rules and directors who think they are being clever by setting up a different company. I am confident that we are taking the right route.

By restricting wheel-clamping activities to local authorities, new clause 3 would effectively ban wheel-clamping on private land, because of course local authorities have no power to control parking on private land. We  would be taking quite a big step if we went down that route. Some people have advocated that as a way forward, but we believe that a system of licensing businesses will deal with the matter more effectively.

Let me briefly turn to new clause 27(1), which would ban wheel-clamping and related activities, restriction and removal against a release fee. Subsection (2) of the new clause would mean that an occupier of the premises would be committing an offence automatically if anyone else carried out wheel-clamping and related activities on his premises with his permission. It would only require the occupier to have given permission for the activity to take place, or for those activities to be carried out under a contract for the supply of services to him. That would not be the right approach. It is appropriate to allow wheel-clamping on private land in England and Wales to continue. I know that that is not a universal view, but that is our belief, subject to the new controls on the wheel-clamping businesses. We want to strike the right balance between the rights of motorists and the rights of landowners, who are entitled to control or prevent parking on their land. For example, businesses in a town centre or near a railway station will quite reasonably want to keep their parking space free for customers. We do not believe that we should limit their choice of how they do that, provided that they comply with the law. We want to ensure that the sector is regulated properly and that we get rid of exploitation and excess, which is what our measures will do.

New clause 27(3) would restrict the penalties available to a fine without the option of imprisonment. As we discussed that matter earlier today in relation to amendments 90 to 93, I will not go into any more detail.

New clause 30 would create a statutory requirement to make regulations that would provide for a code of practice for the business licensing scheme. The provision is unnecessary because the Private Security Industry Act 2001 already provides for regulations to be made whereby the Secretary of State can specify the conditions to be attached to any licence that the Security Industry Authority issues. We have made it very clear-and I am happy to repeat it again-that we plan to make regulations that will be the basis for a code of practice. We expect that they will cover warning signs, release fees and a range of other matters. We will put it in secondary legislation because, having listened to a fairly lengthy debate both inside and outside the House, we want to decide on the contents, and consult publicly on the details. I hope that I have explained sufficiently why new clauses 3, 27 and 30 are not necessary, and I hope that clause 39 will stand part of the Bill.

Shona McIsaac (Cleethorpes, Labour)

Thank you for calling me to speak in this debate, Mr. Cook. I shall try to be brief. I tried to catch your eye earlier, but the Under-Secretary stood up and blocked me.

Frank Cook (Stockton North, Labour)

Order. In view of what has just been put on the record, and given my 27 years of experience in the House, may I offer the hon. Lady a small word of advice? In future, when choosing a seat, make sure you are in full view of the Chair.

Shona McIsaac (Cleethorpes, Labour)

I have already taken that advice on board, Mr. Cook, which is why I have moved from where I was sitting this morning. I will now be able to catch your eye whenever I wish this afternoon.

I have sympathy with some of the new clauses about wheel-clampers. During the evidence sittings, it became apparent to me that we do not really need wheel-clamping firms. Whatever the Minister says about people who park illegally, surely we do not need clamping firms to enforce regulations. We should have a properly regulated ticketing system, which I will talk about later.

I agree that we need good signage, limits on release fees and a code of practice, but, as we heard in the evidence sittings, the fear of the RAC and others is that the firms currently making a lot of money through practices that extort money from people will move to ticketing. I am sorry to say that the types of restrictions that we are introducing for wheel-clamping firms will not read across to ticketing. The same firms often carry out such practices. As we heard, they will put up a closed circuit television camera and small, insignificant notices, and if people overstay an hour's parking, they will end up getting a parking charge disguised as a penalty charge notice.

In my area-part of my constituency is a seaside resort-many visitors, as well as residents, keep getting caught out, because private firms operate alongside local authority car parks. We have to do something to prevent that leaching to ticketing. Those firms make their money through excessive charges. The right hon. and learned Member for Sleaford and North Hykeham may correct me, but I believe that there is absolutely nothing in criminal law that says that such firms can issue excessive charges. There is no way that they can take somebody to court or put points on a licence.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I think that is correct. The only way in which that could technically be done would be for the owner to lodge a civil suit for trespass. The unauthorised parking of a vehicle on private property is a trespass for which, in theory at least, one could claim damages, which would represent some form of rental charge. I think that is the only legal process that would ever be available to an occupier of private land in the circumstances under discussion.

Shona McIsaac (Cleethorpes, Labour)

I appreciate that clarification. It is, therefore, correct that the firms rely on ignorance of the law by issuing things that look, to all intents and purposes, like a penalty charge notice. They have the same lay-out and use the same typefaces, and they threaten to take one to court, even though they cannot do so. I am worried that the unintended consequence of what we are doing for the wheel-clamping firms-or vehicle immobilisation firms-is that they are simply going to make their money in an unregulated way.

I realise that there are limitations in the Bill, because we are dealing with the security industry. However, I understand that it is the Department for Transport that would have to do something to deal with ticketing if the firms choose to go down that road to make their money. What discussions has my hon. Friend the Under-Secretary had with the Department for Transport about those issues? Is there any chance that we can address those worries on Report?

Tom Brake (Carshalton and Wallington, Liberal Democrat)

I apologise on behalf of my hon. Friend the Member for Winchester, who cannot be here to listen to the Minister's detailed and considered response to the points made by my hon. Friend on new clause 3.

I listened carefully, but the bottom line is that the Minister is not in a position to give any assurances. The Minister cannot assure the Committee that someone who is clamped-whether legally parked or otherwise-on a cold and windy night and not sure who owns the land will not be fleeced by a wheel-clamper. New clause 3 makes the matter clear; it is very simple and straightforward.

The Minister may be right that local authorities would not be keen on the responsibility if they were required to pick up the operating cost themselves, but I am sure that there are ways and means of ensuring that that would not be the case, and that those seeking support for wheel-clamping, rather than the council tax payer, would pay the fee. We would support making sure that there was no linkage between the number of clamps applied and the fee that any company, local authority or private contractor employed by a local authority could obtain from the clamping.

Again, the bottom line has to be whether the measure will work to protect drivers in all circumstances. The Minister cannot assure the Committee that what he is proposing, for which there was no great enthusiasm among the witnesses, will do the job. When there is an opportunity to vote against the clause, I shall certainly do so.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

May I make this point to the hon. Member for Carshalton and Wallington? The problem about voting against the new clause is that, in theory, we are left with nothing, which is bad news. I would prefer the total ban, but I do not think that I shall be allowed to vote for that and, in any case, I do not suppose I have the big battalions. If we vote against clause stand part, we are left without any form of regulatory regime, which would be bad news. Although, personally, I am uncomfortable with the way forward and would prefer the course of action that I advocated to the Committee, I shall not be supporting the hon. Gentleman and I rather hope that my colleagues will not.

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

We have been looking at the issue for some time and I understand that there are different views about the best way forward. Should local authorities be responsible? Should we ban wheel-clamping in the first place? In reality, in many cases, private landowners need some way of regulating parking on their land and, in some cases, of preventing parking on their land. In the Bill, we are cleaning up an industry which, as it currently operates, has many examples of unacceptable practice.

That does not, however, necessarily lead to the conclusion that there is no room for wheel-clamping at all, which to some extent is a matter of choice for landowners. If they go down that route, then by licensing the businesses with a strict code of conduct, we expect the excesses to disappear and the industry to be as responsible as it can be in the circumstances.

On the issue of ticketing, clamping is dealt with because we are doing it through the SIA-clamping is dealt with through the Private Security Industry Act 2001, but ticketing is not. I have had discussions with colleagues from the Department for Transport, in particular when we were looking to secure an independent appeals  procedure and looking for models that we could either piggyback or replicate somewhere else, but the issue of ticketing is for them to deal with. In the Bill, we are dealing with wheel-clamping.

The hon. Member for Carshalton and Wallington claims that I am not in a position to reassure people that their circumstances will be better on a cold and windy night, when they risk being fleeced. However cold and windy it happens to be, unless there is adequate signage that is informative about what can and cannot take place in that area, the code of practice will be being breached.

If by "being fleeced" the hon. Gentleman means that people will be given excessive charges for release, I should say that that will not be allowed under the code either. If they are not happy and cannot come to some agreement with the company if wheel-clamping is taking place, there will be an independent appeals procedure which will have the final say. Ultimately, if a company acts in the way suggested by the hon. Gentleman, it risks losing its licence. If it loses its licence it cannot take part in the industry in future. I am not as pessimistic as the hon. Gentleman about the outcome of the Bill.

Tom Brake (Carshalton and Wallington, Liberal Democrat)

I thank the Minister for giving way. How will he ensure that drivers have a clear understanding of what they are supposed to be seeing on the notices on this hypothetical cold, windy and perhaps wet night? He cannot give those assurances. He cannot give an assurance that they will know what is required to be on display and therefore the risk of people being clamped in unacceptable circumstances remains, because they will not be in a position to challenge it.

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

That is precisely why we are consulting widely and thoroughly on not only the question of signage, but what would be on the signs. I take the point that if it is dark the signage needs to be lit. Many people in all of our constituencies use car parks on cold, windy and wet nights, but that is not an excuse to say, "I'm not going to pay that fine because I could not understand the sign". Those signs will have been worked out; the lighting will be adequate. The machines will be clear, so there will be no prospect of people's not knowing what their responsibility is if they park their vehicles.

Andrew Rosindell (- Shadow Minister, Home Affairs; Romford, Conservative)

The fact is that however a new law on vehicle clamping is implemented, there will be problems to be resolved. There is some consensus between the Government and the Opposition on the fact that if we do nothing, we leave a problem without a solution. Does signage need to be explained to every driver? Everywhere we go on every highway there is signage. Surely it is common sense that, if we park our cars somewhere, just as we do when we park in a public car park, we check the signs to see whether there is a fee to pay and what the rules are. If the Liberal Democrats oppose the measure, a lot of people out there will wonder why. A lot of people are very angry about the current law and they want it to be tightened. The clause may not go as far as we would like, but it is a step in the right direction.

Alan Campbell (Parliamentary Under-Secretary, Home Office; Tynemouth, Labour)

I am grateful for that support. It would not be the first time that the Liberals were on the wrong side of the public, and I suspect it will not be the last. The public are not fools, particularly when there is  publicity for such issues, and they know what their responsibilities are. I am sure that where there are anomalies or disagreements, if the two parties cannot agree, there will be an opportunity to resolve those matters once the complaints and independent appeals procedure is in place. There are many views about how the problems can be resolved, but we have produced a set of proposals that commands general support. I hope that the Committee will support them.