Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

I move: "That the Bill be now read a Second Time."

The Vehicle Clamping Bill 2014 addresses the commitment in the programme for Government to legislate to regulate clamping. The impetus for this commitment stems principally from public concerns about the activities of some clamping operators and the extent to which clamping may be carried out in a less than fair manner with no obvious consistent or transparent recourse to appeal against perceived abuses. The issues of greatest public concern relate to the frequent absence of appropriate information signage for motorists, the level of clamp release charges applied and the lack of a clearly identifiable and accessible clamping appeals process.

Section 101B of the Road Traffic Act 1961, as amended, provides for the clamping or relocation or both of vehicles unlawfully parked on a public road. A member of An Garda Síochána, a person appointed in writing by a local authority or a traffic warden can carry out the act of clamping or relocation.

However, there is currently no regulation of clamping activities carried out on private land. The legal issues surrounding the situation where a clamp is placed on a vehicle, in circumstances other than those provided for in existing legislation relating to the public road and certain State agencies, primarily relate to the manner of the contract between the owner of the land or car park and the car driver or vehicle owner. No account is taken of the need to regulate clamping activities in the broader public interest, nor do such circumstances carry with them the same transparent safeguards for motorists as apply to clamping activities carried out under statute. It is appropriate, therefore, that clarity be given in legislation to this situation in order to protect the rights of citizens and property owners alike in relation to an activity which has become an increasing feature of urban life in Ireland.

In December 2011 my predecessor, Deputy Leo Varadkar, presented a discussion document to the then Oireachtas Joint Committee on the Environment, Transport, Culture and the Gaeltacht in which he set out the principal issues to be addressed, together with proposals on the shape of appropriate legislation, on which he invited the committee's views. The committee responded in a comprehensive report which contained a number of recommendations, the majority of which have been taken into account in the Bill.

A number of options for proceeding were contained in the discussion document. For example, the question was posed as to whether the primary focus of the legislation should be on those individuals or companies undertaking the clamping activity or, alternatively, if the circumstances surrounding the activity of clamping a vehicle should instead be regulated. The issue of whether related activity of relocating vehicles should be regulated was also raised. The broader issues of who might regulate, how regulation might be funded, the setting of maximum clamp release charges, the provision of an independent appeals process and other relevant matters were also outlined for the committee's consideration.

The joint committee invited a number of representative stakeholders to make oral presentations to it or submit written submissions for its consideration. The stakeholders who presented at the hearings or made submissions to the committee included local authorities, representative bodies in the sector, AA Ireland, representatives of the clamping industry, business organisations such as Chambers Ireland and Retail Excellence Ireland, the Irish Patients Association, Dublin City Council's independent parking appeals officer, the Irish Property and Facility Management Association and officials from my Department. The hearings and submissions raised some important and interesting matters and, after due consideration, the committee formed the view, as part of the options for reform, that any legislative proposal on clamping should ensure harmonisation in the processes and procedures involved, regardless of where clamping took place, be it on public roads or private property.

Most of the core suggestions arising from the main areas of concern identified by the joint committee have been provided for in one form or another in the Bill. They include the designation of the National Transport Authority, NTA, as regulator of clamping activities; the setting of maximum permissible clamp release charges on private lands; an obligation to provide clear and prominent signage in areas where clamping is operated and the establishment of a two-tier appeals process. The Bill does not provide for the registration and licensing of clamping operators. Although the provision of such a measure was outlined in the original general scheme of the Bill, following detailed consideration of the issues involved, including extensive consultation with the Office of the Attorney General, a different approach was decided on and is set out in the Bill.

It was felt a compulsory licensing and registration regime for clamping operators, complete with the associated requirements and stipulations attaching to such a regime, would not, in terms of cost and practical effectiveness, represent the most appropriate manner of addressing the issues of public concern which had been represented to my Department. In the final analysis, the introduction of a statutory licensing regime was deemed to be excessive and too costly to implement, both for the taxpayer and clamping operators. Owing to the relatively small number of sizeable parking enforcement and clamping operators in existence in the country, the public would have been hit on the double in the establishment of such a regime. It could have ended up subsidising what might have been, in essence, an economically unsustainable licensing regime, while at the same time having to pay increased clamp release charges imposed by clamping operators who chose, as part of their business model, to increase such charges to offset licensing fees imposed by the State. It was decided that the issues arising would be more appropriately addressed through the statutory regulation of clamping activities, irrespective of the location in which they were carried out. In choosing to regulate the activity of clamping, rather than licensing the person or company carrying out the activity, the provisions of the Bill will cater for all scenarios in which a vehicle is clamped, whether by a local authority, a State body, an individual or a contracted party such as a clamping operator on public or private land.

In policy terms, it is not the aim of the Bill to determine in what places clamping should or should not take place. Neither does it set out to decide parking policy. Bodies responsible for parking areas, be they local authorities in respect of public roads, State agencies in relation to their parking areas or owners of private lands, will continue to determine parking policy and appropriate parking controls. The Bill sets out that if clamping is used as a means of parking control, its provisions must be complied with. It is entirely reasonable that landowners can deal in a fair and cost effective manner with nuisance parking. For example, on the parking of cars all day in a shopping centre to the obvious disadvantage of other customers or in apartment complexes to the inconvenience of residents, the owners or managers involved should have the right to take reasonable action. However, the manner in which clamping activities are carried out needs to be proportionate and consistent. There is a clear need to establish broad rules governing these activities and the manner in which these rules should be complied with. Local authorities have a responsibility to ensure effective traffic management in towns and cities, as well as to facilitate the optimum use of finite parking resources on the public road. However, while the use of clamping as a parking enforcement mechanism is highly effective, the rights of landowners and the responsibilities of the State should not be exercised to the detriment of the individual motorist. These competing rights and responsibilities should at all times be exercised in the interests of both the individual citizen's rights and the good of society as a whole.

Bearing these issues in mind, I am proposing in the Bill to regulate clamping wherever it takes place. Irrespective of where clamping activities are carried out, the Bill provides for the regulation of such activities in a non-discriminatory and proportionate manner across the public and private sectors. In essence, it aims to provide a balanced regulatory framework within which clamping operators may operate, while also protecting motorists from any disreputable practice. As well as regulating clamping activities, the role and responsibilities of those persons or bodies that engage clamping operators are addressed. Under the Bill, landowners or persons responsible for places in which clamping is operated will be obliged to provide appropriate signage in accordance with regulatory requirements, as well as providing for a statutory appeals process.

I will outline the main provisions of the Bill which is in six Parts. Part 1 deals with technical matters such as the Short Title and commencement, definitions and interpretations of terms used, the laying of regulations and orders before the Oireachtas and matters relating to regulations made by the NTA. It also allows for other places where clamping is carried out under statute to be brought within the ambit of the Bill.

Part 2 contains many of the recommendations suggested by the then Joint Committee on the Environment, Transport, Culture and the Gaeltacht relating to the regulation of clamping activities. I am confident that this Part’s provisions will address the regulatory requirements that need to be put in place for the operation of clamping activities on private land.

Under section 10, persons responsible for enforcing the law or rules applicable to parking in a particular place where clamping is operated, referred to as parking controllers, will be obliged to provide prominent regulatory advisory signage which clearly indicates that clamping activities are in operation and detailing the clamp release and vehicle relocation charges that apply. A parking controller who fails to provide regulatory signage commits an offence and is liable on summary conviction to a class C fine of up to €2,500.

Other than on the public road where the Minister will retain responsibility for regulatory signage under section 95 of the 1961 Road Traffic Act, the NTA, as regulator, will make regulations with respect to clamping signage, including its location, information content, dimensions and design, symbols to be displayed, as well as the number of signs to be provided in a particular place. Under section 14, the NTA will be conferred with regulatory powers to set the maximum clamp release and vehicle relocation charges. It will be able to prescribe the maximum clamp release and vehicle relocation charges that may be levied in non-statutory clamping places such as private car parks and car parks associated with shopping centres, retail parks, sports stadia and so forth. Where no maximum charges stand prescribed by the NTA, the Bill provides that the default clamp release charge will be €100 and the vehicle relocation charge, €50, or such other amounts as may be prescribed by the Minister following consultation with the NTA. A person who imposes or attempts to impose clamp release or vehicle relocation charges greater than the set maximum charges commits an offence and is liable on summary conviction to a class B fine of up to €4,000.

In statutory clamping places such as at State airports and railway stations the bodies responsible will be obliged to have regard to the recommendations made by the NTA in setting their charges. The Minister, after consultation with both the Minister for Justice and Equality and the NTA, will continue to prescribe clamp release charges on the public road.

The Bill makes provision to enable the NTA to regulate the actual physical processes involved in clamping. The principal day-to-day clamping processes that may be regulated include the period that shall elapse before a vehicle may be clamped and the maximum clamp release time after payment of the appropriate charge. The NTA may establish codes of practice under this Part for the purposes of providing practical guidance on clamping matters. It is envisaged that standards of general behaviour, performance of duties and the conduct of clamping operators in the carrying out of clamping activities and their interface with the general public will be at the centre of any such code of practice.

Part 3 makes provision for the establishment of a complaints procedure to address issues of perceived misconduct by clamping operators in the discharge of their duties, as well as providing for a two-tier appeals process to hear appeals against incidents of clamping or vehicle relocation. Although some clamping operators have put in place appeals processes to cater for such instances on private land, there is no uniform approach and the Bill addresses this issue. Under these provisions, a person whose vehicle has been clamped or relocated may appeal, in the first instance, to the parking controller responsible for enforcement of the parking rules in that place. Where the person is not satisfied with a determination made at this stage, he or she may lodge a second-stage appeal to an independent clamping appeals officer appointed by the NTA. A parking controller who fails to put appeal procedures in place commits an offence and is liable on summary conviction to a class B fine not exceeding €4,000.

In line with recommendations made by the Oireachtas joint committee, the Bill gives the NTA the power to put a procedure in place to consider complaints from members of the public about the discharge by parking controllers of their responsibilities, as well as about the conduct and behaviour of clamping operators.

Part 4 provides the NTA with the necessary legislative powers for enforcing compliance with the Bill’s provisions and regulations made under it. In particular, it makes provision for the appointment of authorised persons by the NTA and the specifying of their powers of investigation. It provides for the issuing of directions by the NTA to parking controllers and clamping operators in respect of their compliance, or otherwise, with the Bill’s provisions.

This Part also provides for the taking of proceedings by the NTA regarding the commission of an offence under the Bill. The Bill allows the NTA to operate a fixed-payment notice system for some offences committed by parking controllers or clamping operators. Similar to the fixed-charge processing system under road traffic legislation, the NTA will have the power to issue notices to alleged offenders seeking a payment of €250 within 28 days. Where payment is not made in that timeframe, an additional 50% payment will apply for the following 28 days. A person who receives a notice will, of course, be entitled to defend his or her position in court if he or she so wishes.

To emphasise the robustness of the powers of authorised persons under this Part, it will be an offence to obstruct or impede a person authorised by the NTA to investigate compliance with the Bill or knowingly give false or misleading information to such a person. This offence is liable to attract on summary conviction a class A fine not exceeding €5,000.

Part 5 provides for the application of equivalent regulatory provisions in the Bill to the public road. This is in line with the commitment to ensure the regulation of clamping activities provided for in the Bill is harmonised across all areas. As I stated previously, the Bill will regulate clamping activities, irrespective of where they are carried out, be it on private land, the public road or land belonging to or occupied by statutory bodies.

Part 6 provides for the amendment of various existing statutory provisions relating to the clamping of vehicles on land belonging to, or occupied by, CIE, the Railway Procurement Agency, State airports and harbours. The intention of these amendments is to bring uniformity to existing statutory provisions.

Through its various stages of drafting, every effort has been made to ensure provisions are put in place in the Bill to address the issues of greatest public concern with clamping activities. Chief among these are the setting of maximum clamp release charges, the establishment of an independent appeals process and the provision of appropriate advisory signage in areas where clamping is operated. In the early stages of drafting the Bill went through the consultation process with the Oireachtas transport committee which culminated in an initial report from the committee. That model of putting together legislation is to the benefit of the legislation and builds on the work committees do. The Bill’s focus is on how the activity of clamping is regulated. The breadth of that focus provides space in which many issues can be dealt with which are of concern to those whose vehicles have been clamped or those involved in the clamping business.

The final point is an issue of which I am very much aware and which became clear when I took this Bill through the other House. This is the balance that needs to be struck between the rights and responsibilities of people who are clamped, people who own public or private spaces and the companies who are involved in clamping. Legislation always has to strike a balance between the issues of rights and responsibilities. I believe this legislation, in the way it has been drafted, does this and I commend the Bill to the House.

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