Vehicle immobilisation (clamping) ... The Protection of Freedoms Bill No. 4

The Protection of Freedoms Bill Part 3 Chapter 2 is headed "Vehicles left on Land."  There are 3 clauses -

• Clause 54 - offence of immobilising etc. a vehicle
• Clause 55 - Extension of powers to remove vehicles from land
• Clause 56 - Recovery of unpaid parking charges.

Parking charges on private land is very lucrative and numerous private car parks exist such as those at shopping centres, airports etc.  Few things have angered the motorist as much as wheel clamping of vehicles on private land, the disgraceful activities of certain clampers and large release fees.  As just one example, a clamping firm operating in Haworth (West Yorkshire) became exceptionally notorious for its stance - see BBC .  In Scotland, the judges had none of this and decided that clamping (other than under statutory authority) amounted to the Scots Law crime of extortion (Black v Carmichael 1992 SCCR 709) and see here at para. 3.19.  In England and Wales it is lawful to clamp vehicles on private land provided that adequate warning is given (e.g. by notices) and provided that the release charge is reasonable (Arthur v Anker 1992 and Vine v London Borough of Waltham Forest [2000] EWCA Civ 106).

As recently as September 2010 there was this exchange in Parliament:

Kelvin Hopkins (Luton North, Labour)

This very week, private wheel-clampers are in operation in my constituency, extorting vast sums of money from my constituents. May I urge the Minister to go further and abolish private wheel-clamping altogether, and hand it over only to local authorities and police forces so that it can be publicly accountable?

Lynne Featherstone (Parliamentary Under Secretary of State, Equalities Office; Hornsey and Wood Green, Liberal Democrat)

I am pleased to be able to inform the Hon. Gentleman that wheel-clamping is being abolished altogether on private land. Local authorities will still carry out wheel-clamping on public land.

It is reasonable to ask whether the Protection of Freedoms Bill will achieve this but, first, it is worth a brief look back at what has already been done in relation to clamping and clampers.

The practice of clamping grew considerably during the 1990s.  By 1998 there was overwhelming support for regulation of clamping.  The Private Security Industry Act 2001 created the Security Industry Authority (SIA) which administers
compulsory licensing schemes for various security operatives including clampers.  This licensing scheme has been in force since 3rd May 2005.  Significantly, the SIA does not regulate charges.  Further changes to the law were enacted in the Crime and Security Act 2010 but they have not been brought into force.  The 2010 Act plan was to improve matters by a licence scheme obligating licensees to abide by a Code of Practice; to  have a proper appeals process.  The Code of Practice was to regulate signage and maximum charges.  The coalition government does not intend to implement this and the future of the SIA is in doubt under the Public Bodies Bill having been identified as a candidate for abolition in the bonfire of the quangos. 

Proposed offence of immobilising etc. a vehicle (Clause 54) - A person commits an offence who, without lawful authority - (a) immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or (b) moves, or restricts the movement of, such a vehicle by any means - intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.   54(2) - The express of implied consent (whether or not legally binding) of a person otherwise entitled to remove the vehicle to the immobilisation, movement or restriction is not lawful authority for the purposes of subsection 1.   54(2) is hardly elegant wording but basically has the effect that "consent" is not to be taken as being lawful authority for the clamping.  "Consent" is frequently held to be implied by, for example, the existence of notices warning of clamping.  However, the "sting in the tail" is now coming in Clause 54(3) which deals with "barriers."  Subsection (2) does not apply where - (a) there is express or implied consent by the driver of the vehicle to restricting its movement by a fixed barrier, and (b) the barrier was present (whether or not lowered into place or otherwise restricting movement) when the vehicle was parked.  Thus, the existence of a "barrier" (which is not actually defined) will suffice to negate there being an offence and clamping will be lawful.  See Of Interest to Lawyers - Goodbye to Clamping.

The Bill (Clause 55) extends to private land the power already available for public land (e.g. roads) in the Road Traffic Regulation Act 1984 s.99 under which the Secretary of State may by regulations make provision for the removal of vehicles.  Thus, new section 99 regulations can be expected so as to also cover private land.

Clause 56 and Schedule 4 are concerned with Recovery of Unpaid Parking Charges.  This is rather complex but it basically enables landowners or occupiers to recover unpaid charges from drivers or from the keeper of the vehicle (who will usually be the registered keeper).  There is allowance made for cases where vehicles are "stolen" and abandoned on land though the wording of this may prove to be problematic.  Unpaid Charges will be recoverable provided certain conditions (set out in the Schedule) are met.  Interestingly, the Schedule contains its own Henry VIII provision - a practice recently deprecated by the Lord Chief Justice when speaking extrajudicially.

The Bill falls well short of meeting the promises made by politicians - e.g. see above.  One cannot help but feel that there is a degree of political legerdemain at work in placing these changes under the umbrella of a Protection of Freedoms Bill.

Reference: House of Commons Briefing Note on Parking and wheel clamping - August 2010.