Traffic Law (Keepership)

– in the House of Commons at 12:30 pm on 27th November 1996.

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Photo of Mr Steven Norris Mr Steven Norris , Epping Forest 12:30 pm, 27th November 1996

First, I congratulate warmly my hon. Friend the Minister for Transport in London, the hon. Member for Battersea (Mr. Bowis), on his appointment. I imagine that it must have been a matter of great regret to him to leave the Department of Health, where he had had an extremely distinguished tenure of office, to come to the Department of Transport. I know that the people of London believe that my hon. Friend has made an enormously valuable contribution already to transport matters in the short time that he has been in his present post.

I know also that he will find the job, to my sure and certain knowledge, one of the most fascinating that is available to any Minister of the Crown, not least because he is dealing very much with real issues. The issue which I wish to raise is probably one of the least readily penetrable of all the titles of Adjournment debates that one sees on the Order Paper, but it deals with a very real issue.

I say by way of outline that, under the Road Traffic Act 1991, parking offences in London were decriminalised. The scheme has been working extremely successfully during the past few years. I pay tribute to the work of Nick Lester, the parking director for London, who had the responsibility of co-ordinating the activities of 33 individual London boroughs, drawing them into some coherent whole and establishing a framework for parking policy in London, one which has proved to be enormously workable and effective. Bearing in mind the huge pressures on London, which my hon. Friend will recognise in representing Battersea, it is fair to say that London's control of parking is a remarkable success.

As my hon. Friend knows, part of the 1991 Act was the introduction of the parking appeals service. It is a mechanism by which there can be appeal against the issue of parking notices by those who feel that they were not justified. It is essentially a two-part process. There is appeal in the first instance to the local borough. If the local borough that issues the ticket in the first place insists on the ticket remaining in force, there is then an appeal to the parking appeals service, a specialist tribunal of adjudicators that considers appeals against the liability to pay a penalty charge.

From the inception of the service, the chief adjudicator has been Caroline Sheppard, whom I have known since she first took up office, before the scheme was formally instituted. She has done an excellent job in gathering around her a marvellously eclectic mix of adjudicators. They are all extremely well legally qualified and they come from a range of backgrounds. That means that parking adjudication is practical, rapid and effective.

My hon. Friend will not have had in his postbag—nor did I over the many years when I was the responsible Minister, during which time the 1991 Act was in force—any complaints from members of the public in a city of nearly 8 million people about the way in which the parking system works. I think that it is perceived that the system is fair. It is fundamental to the scheme that the public have confidence in it, and that they do perceive it to be fair. I fear that a recent case in the Court of Appeal may mean that the benefits of the 1991 Act will be substantially undermined. That is what I want to describe.

In October, the Court of Appeal made a decision that gave guidelines on the definition of keeping a vehicle. That resulted in a curious state of affairs, in that individuals who take their cars to a garage for repair and subsequently find themselves liable for a penalty charge notice—in other words, a parking ticket—that had been issued on the vehicle because the garage had, unbeknown to the owner, left the car in a position where it incurred the penalty, find themselves facing substantial charges.

The issue came before one of the parking adjudicators, who had to determine appeals under the Act. He consolidated a number of different cases. One case involved the London borough of Bromley, where a garage habitually left its clients' vehicles in the street outside the premises. Many members of the public received notices requiring them to pay the penalty. I know that my hon. Friends the Members for Beckenham (Mr. Merchant) and for Ravensbourne (Sir J. Hunt) have been in correspondence about the matter.

There was also a case in the London borough of Hammersmith and Fulham. A vehicle had been left with a garage for a considerable period, and ultimately it was disposed of. It is ironic that my hon. Friend the Minister will know the third case extremely well. I understand that the person involved is one of his constituents. I am sorry if that causes my hon. Friend any embarrassment. As my hon. Friend will know, the lady concerned left her car with a garage for three weeks for repair. When she collected the car, she found herself facing £240 in penalty charge notices.

To underline the fact that the three cases to which I have referred are not the totality of the problem, I understand that the adjudicators have received about 100 appeals where this situation has occurred.

It must be obvious that, when the 1991 Act was introduced, it was never intended that a member of the public should pay for parking tickets incurred by a garage that leaves vehicles clogging the surrounding streets. It was of course intended that local authorities should be able to collect the penalties due from whomever was responsible for committing the offence, without motorists passing the buck from one to another.

The Act therefore made the owner liable for payment of penalties issued in respect of the vehicle. However, under the Act, the expression "owner" is defined in the same way as it is defined in the Road Traffic Offenders Act 1988, which relates to criminal offences, and the Vehicles Excise and Regulations Act 1994, which governs the Driving and Vehicle Licensing Agency.

For the purpose of all these Acts, an owner is the person by whom the vehicle is kept. So, in the garage parking cases, the adjudicator highlighted the difficulty that there is no statutory definition of a keeper. He said that it was a matter of fact and degree. He considered that the length of time for which a vehicle is in someone's possession is an important element in deciding who is the keeper of the vehicle, but suggested that other factors might have a bearing on the issue.

In the case of the garages, the adjudicator concluded that, as the garage was clearly in possession of the vehicle under a contractual agreement, it could be subject to a workman's lien, in so far as the owner of the vehicle had no right to remove it until the repair bill had been paid. That relationship obviously affected the keeping of the vehicle, and the garage could be said in those circumstances, so said the adjudicator, to be the keeper for the purposes of liability for penalty charges.

The adjudicator explained that he was mindful of the purposes of the relevant legislation, particularly the Secretary of State's traffic management and parking guidance, which was issued by the Department when introducing the legislation. A passage in the guidance reads: Local authorities should ensure that the new system of parking control is effective in their areas so that it makes a significant contribution to helping the movement of traffic, reducing accidents and improving the environment and managing the overall level of traffic". The adjudicator also took account of the part of the guidance that places local authorities under a duty to act fairly. He made it clear that whether a person is the keeper of a vehicle should be construed in the spirit of traffic management issues.

In both the 1991 and 1988 Acts, there is a presumption that the person who is registered as the keeper at the DVLA is the de facto keeper of the vehicle. The Court of Appeal said that, where that presumption exists, local authorities, parking adjudicators, and presumably magistrates when dealing with criminal jurisdiction, must go first to the person named as the keeper on the DVLA register, and then decide whether there has been a disposition or acquisition of the vehicle that would render a change of registration at the DVLA necessary. That implies that, even if an authority knows perfectly well that a vehicle is in someone else's keeping—it may even have issued that person with a resident's parking permit—it has to ignore that information, and approach the registered owner at the DVLA.

The Court of Appeal applied that principle, and decided that a garage having a vehicle for a short time does not constitute an appropriate disposition to merit a change of registration at the DVLA. The registered owner would be liable for parking tickets incurred by the garage.

If I allowed my hon. Friend the Member for Sheffield, Hallam (Sir I. Patnick)—a jewel in the Sheffield crown, if I may say so—to drive my extremely valuable car, although he would think that I had taken leave of my senses, he would not constitute a "keeper" for the purposes of the 1991 Act merely because he happened to be driving the car at the time. If he incurred a ticket while driving my car, responsibility for paying it would be a matter between him and me.

The point about the workman's lien is that I would not be able to take my car away from the garage until I had paid for the work done. The relationship between the person who has control of the vehicle and the registered owner—the "keeper" for DVLA purposes—is quite different. That is the nub of the case.

I do not pretend that this is an easy matter. Nor am I asking my hon. Friend the Minister to come up with an instant solution. I am drawing the problem to his attention, and am asking him to take on board the issues involved. I know that he will be keen to do so, because he represents a London constituency.

The Court of Appeal said: The whole concept of ownership for the purpose of this part of the 1991 Act is related to what is or what should be the position in the public record. One starts with what is the position because ofthe presumption in section 82(3). One then considers what ought to be the position at the time of the offence if there were instantaneous registration"— that interesting concept was introduced for the purposes of this judgment— of a material disposition or acquisition. How do parking adjudicators, local authorities, the police or magistrates apply that test? Must they decide whether the vehicle has been sold or bought? If "owner" means the person by whom a vehicle is kept, should they consider whether the keepership of the vehicle is being disposed of or acquired? How do they decide who should be registered?

I shall give examples from cases that have recently come before adjudicators for a decision as to who is liable for payment. In one case, the registered keeper was in prison, but the vehicle was kept by someone else for the duration of the prison sentence. In another case, the vehicle belonged to a parent who lived outside London, but was kept and used by an offspring in London. Another vehicle was owned by a couple, but was registered in the name of one of them. On the break-up of the relationship, it was taken and kept by the other one at an address that was unknown to the initial owner.

The registered owner of another vehicle went abroad and allowed a relative to keep and use it while he was away. Two families swapped vehicles for a time, because the ever-increasing family needed the use of the people carrier, whereas the other family was reduced to two elderly parents who preferred to use a smaller sports or family car.

Those are real, practical cases, and such events happen every day in this city. Surely Parliament intended that the people who keep and use the vehicle, not the registered owner, should be liable for parking tickets. The Court of Appeal test of the imaginary instantaneous registration, far from helping, merely complicates the issue.

Problems should be identified at an early stage. I accept that the Court of Appeal was faced with tricky law, and that my hon. Friend will not have an instant answer. These problems were recognised by Parliament and the Department of Transport, because they allowed the presumption of keepership created by DVLA registration to be rebutted by evidence provided to parking adjudicators or magistrates to show that, notwithstanding the DVLA register, the vehicle was kept by someone else. That practical concept should be capable of interpretation by the parking appeals system.

As the parking adjudicator in the garage case emphasised, whether a person is the keeper of a vehicle at a particular time is, ultimately, a matter of fact and degree. The High Court agreed with him that the matter should be determined by the adjudicator, but the Court of Appeal's decision to overturn the initial decision has strengthened the DVLA presumption of keepership, and has imposed a stringent test for parking adjudicators and the courts.

During the passage of the 1991 Act, did Parliament intend that upright citizens who take their responsibilities seriously by maintaining their vehicles in good order and with current MOTs should be liable for penalties incurred by a garage that, entirely without their knowledge, act s irresponsibly and refuses to disclose the fact it has received a parking ticket, and refuses to pay the penalty? One could argue that one would never go back to a garage that took that attitude, but garages in London's crowded streets behave in that way. It is a problem, and people have a right to a fairer system.

Was it ever intended that the drivers of company cars should have their statutory rights ousted? Was it ever intended that the police should make three inquiries before they can ascertain who is driving a vehicle? Having grappled with this issue for several years, I believe that we should acknowledge and clarify the dual purpose of the DVLA register, so that the real keepers of vehicles are liable for payments of penalties incurred by them for infringements of road traffic law without that prejudicing the DVLA's task of excise duty collection.

Photo of Mr John Bowis Mr John Bowis , Battersea 12:46 pm, 27th November 1996

I thank my hon. Friend the Member for Epping Forest (Mr. Norris) for his kind opening remarks. I could not be more pleased to take on the role that he carried out with such distinction for four years. To step into his shoes—or to lower myself on to his saddle—is awe-inspiring.

I am grateful to him for bringing this matter to the House's attention. He has been typically robust, but has considered the issues calmly, coolly and collectedly. When I read about the case to which he referred, I thought that it seemed odd. I examined the issues carefully, and I hope to respond to the points that have been raised, to set the context, and to keep an open mind about whether we need to change the law.

My hon. Friend asked about a vehicle taken in for work. He referred to the workman's lien. The issue is whether the subject of the contract is the work on the vehicle or the vehicle itself. That is a matter for lawyers to examine carefully, and neither he nor I come into that category.

On instantaneous registration, when a car is taken to a garage for sale, either by part exchange or for cash, the contract shows that the vehicle has changed hands and that the garage has taken ownership. That is instantaneous registration, because the vehicle has ceased to be the property of the vendor. If the car is in the garage on a sale and return basis, that is different, because the vendor retains ownership.

Let me begin with the genesis of the Road Traffic Act 1991, which my hon. Friend will recall well. It provided for the transfer of responsibility for the enforcement of most non-endorsable on-street parking offences from the police and traffic warden service to the London boroughs. Since then, the arrangements have been extended to Winchester, and they may well apply to other centres now; but, for the time being, we are concerned with London boroughs. Such offences then ceased to be criminal matters, so the Act had to establish civil enforcement arrangements.

The system introduced by the Act replaced enforcement by fixed penalty notice, issued by a police officer or traffic warden and payable into court, with enforcement by penalty charge notice, issued by a parking attendant employed by the borough. Income from that is retained by the local authority to finance the enforcement process.

When a penalty charge is not paid within 28 days of issue, a notice is served by or on behalf of the borough on the person who appears to have been the owner of the vehicle when the alleged contravention occurred. Service of the notice to owner triggers a period during which representations may be made to the borough, setting out reasons why the notice should not be allowed to stand.

When the borough concludes, after studying the representation and any other evidence supplied, that the grounds upon which the appeal is made have not been established, there is a further right of appeal to a parking adjudicator employed by the parking appeals service, an independent body funded through the Parking Committee for London.

My hon. Friend paid tribute to the committee. When I visited it recently and sat through some cases, I was very impressed by the quality and efficiency of its proceedings. Like my hon. Friend, I commend in particular the work of the chief parking adjudicator, Caroline Sheppard, and the parking director for London, Nick Lester.

Two principles underlay the development of the decriminalised parking enforcement system. First, it was important to ensure that the public regarded the new arrangements as credible and equitable. Secondly, the new regime should as far as possible be self-financing, the costs of the enforcement and adjudication systems being met from the proceeds from penalty charges, supplemented by income from legitimate on-street parking.

My hon. Friend drew attention to a possible cause of tension between those two principles—the ability or otherwise of the owner of a vehicle to transfer responsibility for payment of a penalty charge to another party. Where parking has not yet been decriminalised, there is provision for an owner to pass on responsibility for a fixed penalty notice to a named individual alleged to have been in charge of the vehicle at the time of the offence.

It was clear to the Government when they drew up the proposals that became the 1991 Act that, if applied to a civil case, the system was capable of abuse. Cases could be protracted, and expensive to resolve. When a possible criminal record and even loss of liberty is at stake, that is a price that must be paid; but we concluded that different considerations applied to a decriminalised enforcement regime.

The proposition put to Parliament was therefore expressly based on the principle of owner liability. Exceptions were deliberately kept to a minimum, being limited to cases in which the person responsible for the contravention was in control of the vehicle without the owner's consent, and in which a formal statement of liability had been signed by a person entering into a hiring agreement with a vehicle hire firm.

Section 66(2) of the 1991 Act states that any penalty charge issued in respect of a parking contravention is payable by the owner of the vehicle. Section 82 states: the owner of a vehicle shall be taken to be the person by whom the vehicle is kept". In the determination of who was the owner of a vehicle at any time, it shall be presumed that the owner was the person in whose name the vehicle was at that time registered". The parking adjudicator has argued that that presumption is rebuttable. She took the view that it should be a question of fact and degree in each case whether someone other than the person registered was in fact the keeper of the vehicle at the time of a contravention. My hon. Friend gave examples of circumstances in which that might be an issue.

The particular case taken through the High Court and the Court of Appeal related to the responsibility for penalty charge notices served on a vehicle while the owner had entrusted it to a garage for repair. I understand that the parking adjudicator believes that similar considerations about whether the registered keeper should invariably be deemed to be the actual keeper at the time of a contravention apply more widely; my hon. Friend gave examples. Her initial judgment that the garage should be held responsible was upheld in the High Court, but overturned in the Court of Appeal.

While we must be careful about referring to particular cases, I know that the borough concerned made it clear in its affidavit to the Court of Appeal that there was no question of the individual in this case being charged any fine, and that it was being taken as a test case because of its wider implications.

I shall say more about the position regarding vehicles left in garages in a moment; but I think that my hon. Friend would agree that, in most cases, it is reasonable that, if someone other than the vehicle's registered keeper—a friend, or a member of the family—is able to use it with the keeper's actual or implied consent, any penalty charge should be statutorily payable by the keeper. It is then for the two parties involved to sort out any subsequent repayment between them.

One would certainly expect that, in most cases, the person who had caused the fine to be levied would, according to natural justice, be the one to pay it, rather than letting the owner or keeper of the car pay it for him. That, I think, is common ground between my hon. Friend and me.

It seems to me that similar considerations must apply to other types of non-contractual relationship. My hon. Friend, freed from the shackles of office and resuming his successful career in the private sector, might take up an appointment carrying with it an official car—or even an official lorry—but one that remained registered to the company or organisation.

If, heaven forfend, my hon. Friend were to commit a parking contravention and did not pay the penalty charge himself, I suspect that the company would receive the notice to owner and would be legally responsible for paying it; but it would then take such steps as it considered appropriate to recover the amount. I have no doubt that there would be no need for that in the case of my hon. Friend, who would already have put the cheque in the post.

If owner liability had not been introduced in the Act, the company would have had the option of writing back to the authority that issued the penalty charge notice, passing the buck. That would seriously undermine the efficiency of the enforcement system. It would require the serving of a further, duplicate, notice, and additional administrative time and cost would be involved.

That would not be in the interests of the majority of drivers, particularly if it led to penalty charge levels or on-street parking fees being raised to cover the extra costs, and I do not think that it is what Parliament intended when it considered how best to marry protection of the interests of the individual with administrative efficiency.

I understand that the parking adjudicator in this case has yet to decide whether to seek to petition the House of Lords. That might affect the situation, but it seems to me that the relationship between a garage and a customer is qualitatively different from that between a keeper and his friend. It is much more similar to the position of a vehicle hire firm and its customers, for which the Act allows an exemption.

The Court of Appeal was categorical that handing over a vehicle to a garage would not, in the normal run of things, count as a formal transfer of keepership. It took the view that to be keeper of a vehicle involved both a degree of permanence and the right to use the vehicle for the purpose for which it was manufactured, namely use on the road". The House might rightly take the view that no reputable garage would knowingly risk incurring a parking ticket on a client's car, and would pay any charges that were incurred by accident or oversight—to do otherwise must be bad for business—but the Government will consider the position further. If there is a genuine problem, some form of agreed transfer of liability, statutorily backed or otherwise, may be possible.

One case has been brought to the House today, but I would need to be sure that there were many such cases, and I must say that I do not consider some of the cases listed by the adjudicator to be in that category. Nor would I include cases such as that of the couple who divorced, or perhaps separated: I think that, if the car is given to the owner's partner, the owner is making a clear decision. If there is a widespread problem in this narrow sphere, however, we will certainly consider whether we should do something to close the gap.

I conclude by urging a sense of proportion. As my hon. Friend has acknowledged, decriminalised parking enforcement, since it began in 1993, has brought clear benefits to London and to all those who work, live and shop there. Higher levels of enforcement, more closely directed at supporting the traffic management priorities of the boroughs, are delivering improvements in traffic flow and road safety.

Drivers are less likely to risk overstaying on parking meters, so it is easier to find legitimate parking spaces. Residents' and disabled persons' parking spaces are better protected, and responsibility for setting and enforcing restrictions is now clearly regarded as belonging to the boroughs.