House of Lords
Statutory Instruments Committee
The Committee examines the merits of any statutory or other legislative
instrument which is subject to parliamentary procedure. The Committee
draws to the "special attention of the House" any instrument laid in
the previous week which it considers may be interesting, flawed or inadequately
explained by the Government. The Committee's current full terms of reference
provide more detail.
The Committee meets every Tuesday when the House is sitting and aims
to publish its report the following Thursday. It normally comments on
statutory instruments within 12-15 days of their being laid before Parliament.
This maximises the scope for a Member of the House then to pursue the
matter by asking a question or tabling a motion for debate within the
40 day ''prayer'' period for rejecting negative instruments.
Civil Enforcement of Parking Contraventions (England) Representations
and Appeals Regulations 2007. 26th Report from the Statutory Instruments
Committee
Baroness
Crawley rose to move, That the Grand Committee do report to the House
that it has considered the Civil Enforcement of Parking Contraventions
(England) Representations and Appeals Regulations 2007.
The noble Baroness said: These regulations are part of a package of
regulations and guidance that will put into place new procedures for
parking enforcement by local authorities in England. They make no
changes to the procedures used by the police and traffic wardens.
They cover only England, and similar regulations for Wales will come
before the House later this year.
The regulations are made under Part 6 of the Traffic Management Act
2004 and form one component of the Government's strategy to make better
use of the existing road network by improving road safety, reducing
congestion and minimising the impact of road traffic on the environment.
The Traffic Management Act gives local authorities a specific duty
to manage their networks, and fair and effective parking enforcement
has a key role to play in this. When a local authority takes over
this responsibility from the police, it frees up police time to concentrate
on more serious matters. It also means that parking regulations are,
often for the first time, enforced throughout the area and at all
appropriate times. Although this does not always please motorists,
it is essential to facilitate the safe and smooth use of the highway.
There are over 28 million vehicles on the roads in England and each
of them spends an average of 23 out of 24 hours parked. Managing that
demand is what we ask local authorities to do. These regulations will
help them to do it in a fair, transparent and effective manner with
the overarching objective of keeping traffic moving safely.
The regulations before your Lordships set out the procedures for disputing
a penalty charge notice, a vehicle immobilisation or a vehicle removal.
Some drivers believe that a penalty charge notice or the clamping
or removal of a vehicle is never merited, but it may genuinely be
the case that the charge was served or the vehicle restrained or removed
in error. That might be because the driver was delivering or collecting
goods and had left the vehicle to do so; or a valid permit, ticket,
voucher or badge may have been displayed on the vehicle at the time;
or the owner who received the payment reminder was not the owner at
the time of the contravention. A penalty charge notice, or parking
ticket, is not a serious matter and does not involve endorsements
on the driving licence, but it does have a financial impact that a
fair society should levy only when merited.
Clamping and removal are a considerable inconvenience, even when merited.
When they are not merited, far stronger language springs to mind.
The measures put in place to challenge penalty charge notices, vehicle
immobilisation and vehicle removal are an important part of delivering
a just enforcement system.
The procedures for representations and appeals set out in these regulations
largely replicate those in the Road Traffic Act 1991. That Act replaced
a costly and time-consuming procedure in the magistrates' court with
a simple and streamlined independent adjudicator who dealt only with
parking matters. That original vision has been changed to some extent
by adding bus lane, certain moving traffic and congestion charging
contraventions to the responsibilities of the adjudicators. However,
we need to ensure that the procedures remain simple and easily accessible
to the public, avoiding the fear that they will need costly legal
or other representation to make their case properly.
We believe that the draft regulations before the Committee deliver
the continuation of simple and straightforward procedures for representations
to the issuing authority and appeals to the adjudicator that are easily
accessible to the public. They have been subject to extensive consultation
but few comments were received on the representations and appeals
provisions, and the changes that have been made since the consultation
largely result from reconsideration by government.
We have also had the benefit of expert and robust advice on our proposals
from the entirely independent adjudicators. This reflects their expertise
in dealing with many thousands of individual cases and we are grateful
to them for their advice.
I draw the Committee's attention to the areas where the draft regulations
now improve on the current procedures. As recommended by the House
of Commons Transport Committee, the penalty charge notice will itself
state the procedures for representations and appeals. The committee
was of the view that there is widespread ignorance of the challenge
procedures and that putting them on the penalty charge notice would
help to resolve this.
The circumstances in which a representation and an appeal can be made
have been widened specifically to include instances where the enforcement
authority has not followed the correct procedures. This ground would
cover things such as an authority's failure to observe the correct
time limits or include the right information in notices, or a case
where a local authority had served a penalty charge notice by post
when it was not authorised to do so.
Finally, the adjudicator will have the power to return to the local
authority for reconsideration of a case where a contravention has
taken place but in mitigating circumstances. That could cover cases
where a driver had to pull over because someone in the car had become
ill or the cheque for a resident's parking permit had been banked
by the local authority but the permit had been lost in the post. Local
authorities have long had the power to cancel a penalty charge notice
in such circumstances but a few have shown some reluctance to use
this power. The adjudicators will now be able to ask them to consider
the case again.
The regulations will be widely welcomed by local authorities and the
public. It has taken a lot of hard work to balance the needs of local
authorities for a strong and effective enforcement regime and the
needs of motorists for one that is flexible and fair. The regulations
are based on the successful regime put in place by the Road Traffic
Act 1991 but make a few key changes to help to deliver a fairer and
more transparent system of effective parking enforcement by local
authorities. I beg to move.
Moved, That the Grand Committee do report to the House that it
has considered the Civil Enforcement of Parking Contraventions (England)
Representations and Appeals Regulations 2007. 26th Report from the
Statutory Instruments Committee.-(Baroness Crawley.) Remit
Statutory Instruments Committee examines the merits of any statutory
or other legislative instrument which is subject to parliamentary
procedure. The Committee draws to the "special attention of the House"
any instrument laid in the previous week which it considers may be
interesting, flawed or inadequately explained by the Government. The
Committee's current full terms of reference provide more detail.
Lord Hanningfield: We support the thrust and the policies behind
the regulations and behind the whole legislation. We support what
we hope will be an improvement in road safety and congestion problems,
as well as a reduction in carbon emissions that would follow as a
result. Therefore, we support the theme and ideas behind the regulations.
As many know, I am the leader of a local authority and therefore welcome
the local authority part of the regulations and the strength that
they give local authorities. However, I have one or two points to
raise about natural justice and how the public can appeal. At the
end of her statement, the Minister went to some lengths to present
the result of the various negotiations and discussions on the regulations
in the House of Commons Select Committee and elsewhere, but my understanding
is that there is still some unease about how the public might get
treated by local authorities.
As we have just been told, there is an appeal process, which will
be mentioned on the ticket displayed on the car. If motorists are
unhappy, they can make an appeal to the public adjudicator, who will
consider it; they can then ask the local authority to reconsider,
but the local authority is not bound to do that. There could be a
problem with natural justice there. The local authority should be
bound to reconsider the matter if the adjudicator goes back to it
and says that there is a problem. At the moment, as I understand it,
the local authority could just ignore that. I do not think that that
is right in terms of natural justice. If the adjudicator feels that
there is a real problem, the local authority should be bound to reconsider.
I hope that the Minister will consider that further because I have
received representations that there is a little flaw in the regulations.
Apart from that point, I support the whole recommendation.
Lord Bradshaw: I, too, support the regulations. I believe that
the duties placed on local authorities better to manage the highway,
which we will move on to in a moment, are quite onerous. Some local
authorities are taking them seriously but I am not sure that all are
doing so. However, anything that keeps matters out of the courts,
simplifies procedures and, in particular, takes them out of the hands
of the police I warmly welcome.
Baroness Crawley: I thank noble Lords for their support, with
one or two reservations, for the regulations. It is generally a good
news story-and the covenant between government, local authorities
and the public always needs to be monitored continually so that the
public feel that they are being fairly treated on parking and other
issues relevant to these regulations.
The noble Lord, Lord Hanningfield, said that there was still some
disquiet that the public could not appeal, in that local authorities
were not bound to take the decisions of the adjudicator into account
in the last resort. Perhaps I may go over with him the mitigating
circumstances that are now part of the regulations but were not there
before. Although it may not answer his point completely-I do not think
that I can do that-it may give him a little more confidence.
An adjudicator will have the power to refer a case back to the enforcement
authority for reconsideration where a contravention has taken place
but in mitigating circumstances. The department's statutory guidance
makes it clear that such a case should be referenced to the local
authority's chief executive so that, when it is referred back, it
goes not simply to one department but gets a wider view by the local
authority. The thinking behind that is that other voices may then
come in on the side of the person whose case has been referred back
because of that wider view.
This provision was introduced into Section 80 of the Traffic Management
Act at the specific request of Parliament, which was at one with the
noble Lord, Lord Hanningfield, over this concern. The Government believe
that their response is as far as we can go on this at the moment.
There will, of course, be a review to ensure that it is working properly.
As I said, the provision was introduced at the specific request of
Parliament. Government policy is that the function of the adjudicator
is to determine whether any of the statutory grounds of appeal apply
and to allow appeals only where he or she makes a finding to that
effect. Local authorities have wide discretion to cancel a PCN-they
always have had. Giving this power to the adjudicator would strongly
discourage local authorities from deciding cases involving mitigating
circumstances. It would also substantially increase the number of
penalty charge notices that motorists take to appeal.
Judges who have looked at cases involving mitigation have taken the
view that decisions on cases such as these should be based on policies
but that those policies should not be used rigidly or formulaically.
Adjudicators are not in a position to make policies, let alone follow
them consistently. Making policy is the responsibility of elected
councillors, and that is why it should ultimately come back to the
council's decision.
A High Court challenge to an adjudication can be made only on a point
of law. Very few cases have been to the High Court since this system
was introduced. If adjudicators can use discretion, there will a substantial
increase in the number of cases going to the High Court because their
decision will be seen as random rather than based on a balance of
probabilities as to whether a contravention took place. That is not
what parking enforcement should be about. On that basis, I hope that
I have answered noble Lords' questions.
