LEGAL PERSPECTIVE
ON THE RIGHT M
Emily McCunn assesses the likely impact of the Protection of Freedoms Act
any of you will be aware that the landscape for the private parking sector is due to change
considerably in October, when the Protection of Freedoms Act becomes law. Whilst the Act covers a wide range of issues, it is the ban on clamping and towing away on private land that will affect the parking profession most. However, with the ban comes the introduction of keeper liability, and the launching of an independent appeals service, and we will look at this in more detail in the next issue of Parking News. In the run up to 1 October, the BPA is delivering a programme of activities designed to assist our members in the transition to this new regime. Going under the name of TRACK, members of the Approved Operator Scheme (AOS) have been able to participate in one of 10 workshops, receive email updates and submit questions, the answers to which are then published on the BPA website. These can be read in full at www.
britishparking.co.uk.
Those of you not directly affected by the Act may have a few questions yourselves, and we have selected some of those below. Of course, this is just a sample, and we would welcome further questions. Please send them to
info@britishparking.co.uk
What exactly is the Protection of Freedoms Act? The Protection of Freedoms Act is a piece of legislation passed by the coalition government to return ‘freedoms’ to the British public that they feel have been eroded or removed over time, through the implementation of other legislation. As well as the clamping and towing ban, it deals with a wide range of issues, including reforms of the Criminal Records Checks and storage of DNA data.
www.britishparking.co.uk
NEWS
The Act and its guidance notes can be read on the government’s legislation website, which you can access at www.
legislation.gov.uk.
Where will this clamping ban apply? It is important to note that clamping and towing has not been banned in all circumstances. The law says that the clamping ban will only apply in England and Wales wherever there is not ‘lawful authority’. Clamping and towing away on private land has been banned in Scotland already. In Northern Ireland the ban will not apply.
What is ‘lawful authority’? ‘Lawful authority’ applies where specifi c legislation is in force that allows for vehicles to be immobilised or removed. There are obvious examples – such as the public roads – where Road Traffi c Regulations could apply, and statutory authorities that retain the ability to clamp, such as the police and DVLA. However, there are also parking areas where by-laws have been created that provide for parking enforcement. A good example of this is railway station car parks. Under the Railways Act 2005, by-laws allow for vehicles to be immobilised or removed in certain circumstances.
Where will clamping still be legal? Clamping will still be legal on land where other measures have been specifi cally created to regulate parking. These will include, but
are not limited to, the following: Public roads Airport car parks Ports and harbours River crossings
Will this Act tackle the problem of ‘cowboy clampers’?
Because the act of parking and enforcing on private land is still not completely regulated, it is possible that some ‘cowboy clampers’ will turn to ticketing instead. However, companies that wish to enforce by using tickets will need to be members of an accredited trade association and adhere to a code of practice so that they can access the DVLA database for keeper details. ‘Cowboy ticketers’, therefore, will still be able to give out parking tickets, but they will not be able to pursue those tickets by applying to DVLA for the registered keeper’s details.
AUGUST 2012 19
ransition egulation
ppeals lamping eeper Liability
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