Reply from MP re: Schedule 4

bargepole

This is what I recently sent to my constituency MP:

Dear MP,

The Freedom Bill, currently in committee, is a welcome step in reducing the number of bad and outmoded pieces of legislation; however an area of great concern, and a possible severe impact on people who have nothing whatsoever to do with a tortious liability incurred by another, is Schedule 4, which makes provision for the recovery of unpaid private parking charges from the keeper of a vehicle in cases where it is not known who was driving the vehicle when the charges were incurred.

Schedule 4 states:
"The first condition is that the creditor
(a) has the right to enforce against the driver of the vehicle the
terms of the relevant contract which require the unpaid parking charges to be paid; but
(b) is unable to enforce those terms against the driver because the
creditor does not know both the name of the driver and a current
address for service for the driver."

This is a step too far within Civil Legislation as it appears to place
on a third party a Civil version of the Criminal S172 Road Traffic Act where a keeper or owner MUST name the driver of a vehicle on pain of Criminal sanction that could lead them to loss of licence and possibly livelihood as a consequence of refusal to name.

I feel also this provision opens a breach within the Law of Contract
itself, by appearing to disregard the Privity of contract, by
attempting to bind third parties with no knowledge of an alleged
contract until the Parking Charge (itself a potentially unlawful civil
penalty) arrives. This "penalty" is often way above any actual loss
that the parking agent has suffered, as in £0.00 for overstaying in a
free car park.

It is not unreasonable to assume that other companies and individuals may well try to extend this new definition of privity to other areas governed by contract law, say a bank or lender putting a clause binding a debtors parents in as guarantor without their express consent or signature.

Notwithstanding the potential for clash with the Unfair Contract Terms Act 1977, where certain PPC's have signage small print that attempts to bind "Anyone with a Proprietal interest in a vehicle parked" by the driver's action in parking there, potentially making a finance company liable for the Parking Invoice; I feel that this Section of the Freedom Bill is fundamentally flawed and should be removed.

It fails the test of reasonableness as it appears to legitimise
excessive and wrongful civil penalties by an already out of control and badly regulated "industry" and the potential for sensational headlines when a parking contractor relentlessly pursues a Motability car user, or a pensioner for their ludicrous charges is immense.

It appears that the trade body for PPCs, the British Parking
Association (BPA) have been given far too much influence over the
wording of this section of the Bill, and are even now in discussions
with DVLA over release of registered keeper details. It is disgraceful that sections of HM Government should be in bed with such a disreputable and discredited organisation, whose only interest is in lining the pockets of its money-grabbing members. The whole Private Parking industry is set up to scam the motorist out of money through fake tickets, empty threats and general scaremongering. Would HMG amend the law to allow Nigerian 419 scammers easier access to victims? This is not very different.

Yours sincerely, etc.

And this was his reply:

Dear Mr Bargepole,

Thank you for your email. Having served on the Committee, I know we completed that work before the summer recess. These were issues we debated and I learned a great deal during Committee about just how difficult it is for a back bench MP to influence the course of a Bill against the forces of the civil service.

I have considerable sympathy with your complaint. The remaining Commons stages of the Bill will be taken on the day we return after conference. I am asking Jane to forward your email to the Minister, asking if the Government intends to address these points and Tim will ensure I enter the chamber with this argument to hand. However, it is likely that the best that might be hoped for now is amendment in the Lords.

We will see what the Minister says.

... So it would appear that the Sir Humphrey Applebys of this world are, as usual, pulling the strings. Some people may remember, under the previous government, there was a public consultation about regulating private clamping. Banning clamping altogether was not even an option on the response form, yet a substantial majority responded saying this was the way to go. It seems the Civil Service don't like the general public, or elected MPs, going against their wishes.

robredz

My MP wrote back to me that he had sent my letter with a covering note direct to the minister, let's see what happens...

HO87

As I have said on many previous occasions the fundamental problem with our MP's, the minister and the "Sir Humphrey Appleby's" (together with the vast majority of the public) is that they just do not understand the utterly unique business model that PPC's are using. Yes, they may well have an appreciation of the way in which the Bill may impact the law of contract (particularly with regard to privity), the implications for other legal rights and the controversial nature of "car park management" as a so-called industry (and, believe me, that this is the biggest misnomer since man discovered fire) but have not the faintest idea of what the reality is.

The BPA unwittingly or otherwise (I have no clear idea which way or the other they really fall) have created the overriding impression that parking management should be a crucial element of of the government's integrated transport policy (actually the previous government's but as it's linked to our country's need to reduce carbon emissions we're stuck with it) - one of the objectives (amongst many) of which is to reduce commuting and increase the use of public transport. One of the legs of this policy is the use of what might be called deterrence measures - making life slightly difficult for the commuter - particularly car parking. The BPA has thus, courtesy of its expansionist plans, played straight into the policy-makers hands. This why it seems that government is falling over itself to assist.

You see, generally, our MP's, the general public and particularly the civil service wonks seem to fondly believe that PPC's occupy little sheds at the entrances/exits to cinder car parks (such as those that proliferated in the 1960's on former bomb sites) collecting parking charges and keeping their car parks clean, well-ordered and weed-free. There are even well-known larger PPC's that effectively fit that stereotype albeit in an updated fashion having replaced the cinder surface with a multi-storey and their huts with solar-powered ticket machines. Allowing these companies to legally pursue those who wantonly or carelessly avoided paying their parking fees is perfectly reasonable. Surely?

The truth is that PPC World is dominated (numerically at least) by companies that do not own (nor even rent) the car parks they operate on. They have rarely if ever invested in ticket machines and certainly expend no effort in keeping the car parks clean and tidy. Occasionally, there may be a member of staff present but he most certainly will not be occupying a hut at the entrance or exit, won't be doing any weeding and is only there for one purpose - and that is not to collect parking fees. Sometimes CCTV cameras are installed. Not for the purpose of securing the car park in any way other than to enable the companies to monitor movements. Inevitably, the only common investment these companies ever make in the car parks is to seed them with doubtfully worded 'contractual' signs. The only visible service that the companies actually offer is to passively allow the car park to operate.

These companies have only one objective and that is to catch motorists breaching the terms and conditions displayed on their signs most commonly by overstaying some arbitrary time limit in what are often otherwise free car parks. The signs are usually impossible to read whilst driving and rarely display the full terms and conditions referring users to a website or some remote office. This is how these companies make their money. They do not trade in a traditional sense, selling their services in return for a fee ultimately managing margins to maximise profits. They seek out landowners (not the other way around) who have car parks - such as large shopping centres; supermarkets and at private developments - and offer to manage their car parks by deterring prolonged use, abuse and abandonment - for free - with the proviso that they keep the revenue from the parking charge notices they use are part of the means of "managing" the car park. In some cases landowners are offered a percentage of the take.

As this is these companies sole or at least major means of revenue there is every incentive to "capture" increasing numbers of motorists and minimise any other expense. Nothing could better illustrate this than the frequently offered "self-ticketing" schemes offered by numerous PPC's who sell ticket and sign kits to car park owners. The owners erect the PPC's signs and issue the parking charge notices themselves. Payments are made direct to the PPC who only then pay a percentage - usually amounting to a few pounds - to the owners. In such cases, having sold the signs and tickets (at a profit) to the owners in the first place the revenue from issued tickets is maximised. This isn't management by any common definition.

Then there is the issue of the design and wording of the parking charge notices; the use of identical plastic wallets to those used by council DPE and the police; the wording and design of letters; the quoting of no-existent "case law", the misquoting and misapplication of law; the assumption of legislative powers they do not have and, above all else, (given that they are desperate to persuade the government to institute - and pay for - an independent appeals process) an appeals process that is an insult to the name.

All this is intended to more speedily separate a motorist from his money for arbitrary wrongs that more often than not he is entirely ignorant of.

However, now that there is an increasing knowledge that such claims for charges can only be pursued against the driver at the time; are often not based in law at all; are sometimes actually illegal, and backed up by processes that are at best marginal the PPC's want to have Parliament move the goalposts for them and in so doing overturn hundreds of years of established law in the process. Not content with making their profit on the back of information obtained for a pittance from the DVLA they now want more.

Don't just witter on about what these PPC's do on a day-to-day basis - that's bad enough. We should be exposing this all too common business model for what it is. Such companies bring absolutely nothing to modern life except the emptying of pockets to the benefit of the few and whilst there are plenty of other examples of exactly the same business behaviour that is no reason to permit and encourage another.

No one could reasonably take issue with encouraging and enabling industry to thrive but this is not an industry. At best these PPC's are carrying on a form of parasitical agriculture by seeding car parks with signs and harvesting the results whilst making no return to the environment at all.

bromsgrovebarry

I have very little understanding of the complexities of our legal system so please be kind to me. Could the proposed new law be in conflict with the Human Rights Act?

fb1969

HO87 wrote: »

As I have said on many previous occasions ...........results whilst making no return to the environment at all.

Probably the best post on this subject.

The only things I would add are:

1. PPCs currently get away with applying their rules for Blue Badges in disabled spaces which is in breach of the law. With nothing being done at the moment I can only see things getting worse in the future.

2. The way that the PPC business model in residential areas takes no account of the content of the lease for the property and parking. Often there is no mention in the lease of the requirement for permits, or similar, yet the PPC impose these after selling the whole idea to a managing agent - and many victims pay up because they think it is a genuine fine.

The_Slithy_Tove

As my MP is a front-bencher and member of the cabinet, maybe I'll send a letter using the OP's words to him. He won't have the excuse of being a lowly back-bencher.

esmerobbo

I am going to a diversity dinner tonight hosted by Keith Vaz MP, labour conference in town! There will be a few other labour MP's about so I shall be using my time well in discussing schedule 4!

I was going to leaflet a few cars, but the area is done up tighter then a ducks backside!!

esmerobbo

A few interesting discussions last night, firstly one MP thought it was right that a car park operator should be allowed to recover charges that someone has avoided. I explained most people did not have any problem with that, as long as it was a "recovery" and a fair amount for extra time spent in recovery of the charges.
I then went on to explain the supermarket situation saying that the vast majority of parking charges issued are not for people skipping pay and display car parks, but for staying too long while legitimately shopping! Also our old favourite disabled bay parking. I must admit they were taken aback when I showed them a couple of invoices, one for £60 for a 17min overstay and one for £90 for not being parked in a bay! I also showed them a Roxburghe/White and a DRP letter with the usual threats. I explained that these were the bulk of what people are receiving and if the freedom bill came in as it is people will be harassed beyond belief.

I asked them did they think it would be fair if they borrowed a relatives car and you gained a private invoice that the relative should be held responsible for that invoice if you refused to take responsibility? They answered of course not, well I said that's what these private companies want to be able to do.

A second one as well as going over the same as above, we were on a table eating and I pointed out, if this restaurant put a sign up saying you have 2 hours to eat your meal, if you overstay £50 will be added to your bill, would you be happy to pay? They said of course not and in fact would refuse to pay! So I says if your Mum booked the table and was not even there you would be horrified if the restaurant then sued her? They said of course I would then said they hadn't thought about it that way. I said if this goes though then that's what is going to happen!

Another stated the local authorities and the police hold the owner responsible if an offence is committed! Yes I said but a few differences firstly any owner/keeper should know that anyone who drives their car is doing so legally, then any offence or contravention they commit is covered by law or regulations, that the owner/keeper, driver should know. Then any offence, contravention can be appealed to a Magistrate or an independent authority! On the basis that any offence, contravention did actually occur, and the correct processes were followed in fining or penalising you were followed. I said the police local authorities do not use fines and penalties as a revenue earner! [we know they do but don't admit it] so its not about revenue.
Private companies who offer car park management want to make money, so look for any cause to penalise, and do not allow appeals in almost all cases.

I explained that the PPC's are relying on a contract they believe we entered into by entering a car park. If they allow car park operators to be able to penalise people by making the charges which are not for any loss, but are solely a penalty collectable, and the option of pursuing the owner/keeper for any charges, they will be opening the flood gates to many other businesses who will dream up ways of penalising people.

On a whole I don't believe the people I spoke to have given much thought to this schedule! I was given the impression that they believe this clause is solely to do with car park operators who offer car parking on a commercial basis, and not the PPC's who lurk in supermarkets, retail parks, and greasy spoon cafe's!

One person who wasn't an MP who was a lawyer said I don't see the problem really, you can have a penalty written into a contract, but you cant impose a penalty for contravening one! I said you know that, I know that unfortunately many people don't and pay these invoices, and when some of these cases do go to county court, the Judges hearing them don't know that!

robredz

Excellent post esmerobbo, it confirms what we knew,about the complacent attitude of MP's, time to fire off another letter to my MP using your excellent illustration of how the the law of "INTENDED" (by the PPC's) consequences, if they let this one through, will penalise people quite wrongfully.