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Freedom Bill (again)
The_Slithy_Tove
Posts: 4,111 Forumite
As the Freedom Bill seems to be the big discussion point at the moment here (at least for one or two posters), rather than hijacking one of the existing threads, I thought I’d start one of my own.
Based on a previous thread here (Reply from MP re: Schedule 4), I emailed my MP using some of the words lifted from bargepole's post, and added some of my own
DearMP,
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 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. This has a possible severe impact on people who have nothing whatsoever to do with a tortious liability incurred by another.
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, e.g. £100.00 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 debtor's parents in as guarantor without their express consent or signature.
Notwithstanding the potential for clash with the Unfair Contract Terms Act 1977, where certain Private Parking Companies (PPCs) have signage with 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 appear to 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. If you are of the opinion that PPCs fulfil a valuable and useful service in controlling parking in private car parks, then you only have to look at various on-line forums (e.g. http://forums.moneysavingexpert.com/forumdisplay.php?f=163) to realise that many are operating purely as money-making machines with little concern for the impression they give about the owners of the car park (normally retailers or residential landlords), and that their actions are bordering on the unlawful, their hollow threats used to intimidate people into paying off their "penalties". Allowing Schedule 4 thorough would give them more ammunition to follow their shabby and disgraceful practices.
In case you are still unclear about the consequences of Schedule 4, let me give you a couple of analogies to make it clear:
I hope that this makes you realise that Schedule 4 is nothing more than a bit of unnecessary "pork" being added to the Bill as a result of lobbying from a self-interested party, and does not act in the public good, and would also potentially conflict with other areas of law and established practice (i.e. privity: you cannot make a third party liable for a contract they had no part in making). I understand that this is to be debated very soon after Parliament resumes next month, so I urge you to look at this with some urgency.
Yours sincerely,
etc
I got a response a little later saying
Thank you for your email. I have written to Theresa May, who is the Minister responsible for the Protection of Freedoms Bill to ask her to address your concerns over Schedule 4. I will of course get back to you once I have received a reply but please let me know if there is anything that I can do in the mean time.
About 6 weeks later, I got a fuller response with an attached letter
I have now received the attached letter from Norman Baker who is the Minister responsible for this issue. As you will see the provision in the Protection of Freedoms Bill is in line with our commitment in the Coalition Agreement. Mr Baker also outlines the protections that he is putting in place to protect motorists, namely that the proposed powers will only be use by parking companies that are members of the British Parking Association's approved scheme and that they will not be introduced until an independent body has been established as final arbiter. I hope that this reassures you and clarifies the government position.
Unfortunately, this letter doesn't really tell us any more than we already knew, particularly regarding the "value" of the BPA (i.e. none at all), the independent appeals process (at least we have confirmation that it will be needed before the RK's liability comes in), and the fact it is and will be a civil matter. However, there is, as ever, a complete lack of understanding of the parasitic nature of the PPCs, their bending of the law to breaking point, and how it's nothing to do with effective control of parking, but purely a money-making exercise. He obviously didn't follow the link to this forum that I sent.
I guess I should be polite, and thank my MP for his efforts, but I should also (politely) point out all the pieces that he missed along the way.
Based on a previous thread here (Reply from MP re: Schedule 4), I emailed my MP using some of the words lifted from bargepole's post, and added some of my own
DearMP,
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 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. This has a possible severe impact on people who have nothing whatsoever to do with a tortious liability incurred by another.
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, e.g. £100.00 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 debtor's parents in as guarantor without their express consent or signature.
Notwithstanding the potential for clash with the Unfair Contract Terms Act 1977, where certain Private Parking Companies (PPCs) have signage with 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 appear to 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. If you are of the opinion that PPCs fulfil a valuable and useful service in controlling parking in private car parks, then you only have to look at various on-line forums (e.g. http://forums.moneysavingexpert.com/forumdisplay.php?f=163) to realise that many are operating purely as money-making machines with little concern for the impression they give about the owners of the car park (normally retailers or residential landlords), and that their actions are bordering on the unlawful, their hollow threats used to intimidate people into paying off their "penalties". Allowing Schedule 4 thorough would give them more ammunition to follow their shabby and disgraceful practices.
In case you are still unclear about the consequences of Schedule 4, let me give you a couple of analogies to make it clear:
- If you borrowed a relative's car and you gained a private invoice (which is what one of these parking "tickets" is), should that the relative be held responsible for that invoice if you refused to take responsibility?
- If you were in a restaurant where they put a sign up saying you have 2 hours to eat your meal, and if you overstay £50 will be added to your bill, would you be happy to pay? (That is the kind of "penalty" that PPCs apply.) Now, if your mother had booked the table and was not even there you would be horrified if the restaurant then sued her for the £50, wouldn't you? That's the kind of thing that Schedule 4 would allow.
I hope that this makes you realise that Schedule 4 is nothing more than a bit of unnecessary "pork" being added to the Bill as a result of lobbying from a self-interested party, and does not act in the public good, and would also potentially conflict with other areas of law and established practice (i.e. privity: you cannot make a third party liable for a contract they had no part in making). I understand that this is to be debated very soon after Parliament resumes next month, so I urge you to look at this with some urgency.
Yours sincerely,
etc
I got a response a little later saying
Thank you for your email. I have written to Theresa May, who is the Minister responsible for the Protection of Freedoms Bill to ask her to address your concerns over Schedule 4. I will of course get back to you once I have received a reply but please let me know if there is anything that I can do in the mean time.
About 6 weeks later, I got a fuller response with an attached letter
I have now received the attached letter from Norman Baker who is the Minister responsible for this issue. As you will see the provision in the Protection of Freedoms Bill is in line with our commitment in the Coalition Agreement. Mr Baker also outlines the protections that he is putting in place to protect motorists, namely that the proposed powers will only be use by parking companies that are members of the British Parking Association's approved scheme and that they will not be introduced until an independent body has been established as final arbiter. I hope that this reassures you and clarifies the government position.
Unfortunately, this letter doesn't really tell us any more than we already knew, particularly regarding the "value" of the BPA (i.e. none at all), the independent appeals process (at least we have confirmation that it will be needed before the RK's liability comes in), and the fact it is and will be a civil matter. However, there is, as ever, a complete lack of understanding of the parasitic nature of the PPCs, their bending of the law to breaking point, and how it's nothing to do with effective control of parking, but purely a money-making exercise. He obviously didn't follow the link to this forum that I sent.
I guess I should be polite, and thank my MP for his efforts, but I should also (politely) point out all the pieces that he missed along the way.
0
Comments
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The_Slithy_Tove wrote: »
that they will not be introduced until an independent body has been established as final arbiter
.
Er, how exactly is this BPA assembled non-statutory body supposed to take on the role of the County Court as final arbiter of civil issues regarding Breach of Contract or trespass ?
Surely there would need to be some proper statutory footing for them to exercise that juridisdiction.Would any decision they reached by binding on a County Court ?
Which is where this still has to go , if and when, the "independent body" dismisses the appeal the keeper / driver still does not pay !0 -
I also emailed my local MP three months ago and also got a reply from Norman Baker.
He is using a template response as the words are exactly the same in his response as has been quoted above. The only difference is the last paragraph where he made a statement about 'motorists are covered by the Consumer Protection Act 1987'. I won't bore you with the details as the words are just the usual tripe.
I have responded back to Norman Baker directly via email and, amongst other things, I have forwarded him copies (got them from the MSE stickie) of all of the letters that TCP send to alleged parking offenders, advised him that TCP is a member of the BPA's Approved Operators, all other members of Approved Operators modus operandi is the same as TCP's, motorists are also protected under contract law to pay only for material loss to the landowner, etc.
I sent these emails over 4 weeks ago and have been chasing. I have been promised that a response will be with me shortly and as soon I get it, I will advise accordingly on MSE.
I'm not hoping for much but hey, it is worth a go.0 -
stephenliverpool1 wrote: »I also emailed my local MP three months ago and also got a reply from Norman Baker.
He is using a template response as the words are exactly the same in his response as has been quoted above. The only difference is the last paragraph where he made a statement about 'motorists are covered by the Consumer Protection Act 1987'. I won't bore you with the details as the words are just the usual tripe.
I have responded back to Norman Baker directly via email and, amongst other things, I have forwarded him copies (got them from the MSE stickie) of all of the letters that TCP send to alleged parking offenders, advised him that TCP is a member of the BPA's Approved Operators, all other members of Approved Operators modus operandi is the same as TCP's, motorists are also protected under contract law to pay only for material loss to the landowner, etc.
I sent these emails over 4 weeks ago and have been chasing. I have been promised that a response will be with me shortly and as soon I get it, I will advise accordingly on MSE.
I'm not hoping for much but hey, it is worth a go.
Given Norman Baker is known as a bit of a numpty around these parts and not unknown to lie ( remember the false Ditchling Beacon photograph or the 20 minute walk from Brighton Station to Wilson Avenue Norm ? ) I won't hold my breath for a sensible or accurate response !All aboard the Gus Bus !0 -
We keep hearing the keeper will be responsible for "parking charges". I wish some one would clarify what is a parking charge? Is it a charge for parking as in a pay and display or pay on exit. Or is it going to be any arbitrary charge a PPC dreams up?
It has always been the case were a charge was due it could be claimed through a county court, [meaning the actual loss] as long as they knew the driver! Now is it just going to extend the possibility to reclaim an unpaid fee from the keeper? So if you don't pay your £5 to park they can claim the £5 and a reasonable amount for admin from the keeper if the driver is not known?
I think the Government has been duped into believing these PPC's are trying to enforce legitimate claims were people have parked and not paid. I doubt any of them has bothered their ar5e to dig and have a look what these toe rags have been up to for years. I doubt then they would offer any form of legitimacy to them!0 -
Also, on top of the "parking charge", what about the silly amounts of money demanded by PPCs for breaking their silly rules. This includes having your wheel touch a white line, parking in disabled or P&C spaces or parking on yellow lines. They are not payments you pay to park, they are "penalties" for breaking their made-up rules.What part of "A whop bop-a-lu a whop bam boo" don't you understand?0
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None of this really matters any more. What does matter is that the government has put its weight behind this idea. They're happy that the industry creates its own 'independant' adjudication service (I think we all know how that will work) and thats all they care about.
The UK has gone down the pan guys.0 -
Well I was given a presentation from Parliament the other day and was advised NOT to contact the MP but to contact the Lords?0
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Because its currently going through the house of lords.
The next phase is Committee stage: House of Lords | 29.11.2011
As I understand it once its with the lords its out of the MPs hands but I'm not into politics.. I think they're all wasters.0 -
Yes so why is everyone going to Mp's? They should maybe do some research first, also word of warning all of the clampers and like are also contacting them to challenge this, the gov also make money from parking, they do and they know it hence why they need to agree to keep charges on private land. I even heard from DFT who said this! anyway who cares just don't park wrong, we all know how we can and cannot park. If you don't like the charges or fees or anything else for that matter, simply don't park. I would rather have these rules and then when I go to work and someone is in my space I can do something about it!.
And do you really think the cowboys that are out there will stop, no!, some people run these operations from prison and I have some proof of this should I be questioned as I quite often am. So why will the law changing stop them from holding you there until you pay up, and don't forget barriers are not banned so don't be surprised should they lock you in!.0 -
And do you really think the cowboys that are out there will stop, no!, some people run these operations from prison
:eek:
With regards to barriers, it will be illegal to immobilise a vehicle so thats actually a murky point from my POV. If you refuse to let a car out of a car park by keeping the barrier closed, does this count as immobilised?0
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