JOINT COMMITTEE ON THE ENVIRONMENT, TRANSPORT, CULTURE AND THE GAELTACHT debate -
Tuesday, 14 Feb 2012

Regulation of Vehicle Clamping Industry: Discussion (Resumed)

Chairman

The committee will meet a number of stakeholders with a view to contributing at a very early stage in the legislative process to shape the final heads of the Bill for legislation in this area. We have had two meetings to date and following our deliberations we will make a report to the Minister for Transport, Deputy Leo Varadkar, with recommendations regarding new legislation.

I welcome the following: Mr. Conor Faughnan, director of policy at AA Ireland; Mr. Joe Langan, technical services administrator, AA Ireland; Mr. David Fitzsimons, chief executive officer, Retail Excellence Ireland; and Mr. Keith Rogers, chairman, Retail Excellence Ireland. I thank the delegates for attending.

The committee is charged with setting out the scope of legislation to deal with the way clamping is regulated, legislated for and set in law in Ireland. Our deliberations to date have produced a number of findings, namely, that there is no legislation governing clamping on private property; there does not appear to be uniformity of approach, even across the 34 local authorities; and licensing and regulation of the industry is not set out in law, although there is a code of voluntary practice in place that may be adhered to but for which no penalties exist if people step outside that code of conduct.

I draw the witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give to this committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or persons or an entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses, or an official, either by name or in such a way as to make him or her identifiable. I call on Mr. Faughnan to address the committee.

Mr. Conor Faughnan

I thank the committee for the invitation to attend today. We are AA Ireland. We are known as Ireland's premier motoring organisation and consumer services organisation. We have an emergency rescue facility for people at home and on the road. We have approximately 200,000 Irish insurance customers. We fix approximately 140,000 broken down cars every year, and we are in close and regular engagement with Irish motorists. We conduct regular surveys of motoring opinion and engage with members as part of our traditional role to represent the interests of motorists and the motoring consumer. We employ approximately 480 people across Ireland in our team.

We want to make some points on the subject of clamping. We have made these points to Government previously. We sent in a submission in 2009 in which we made recommendations. For reasons I cannot fully fathom there were no regulations introduced at that time, despite recommendations by the AA and others.

Clamping is not popular. When cars are clamped motorists find the experience unpleasant. It is a bit like the dentist's chair but it is undeniable, and we know from our own surveys on motoring opinion that a little less than 7% of AA members had their cars clamped last year. Approximately two thirds of people whose cars are clamped are inclined to feel aggrieved to some extent. They often change their view on reflection but the immediate experience of having one's car clamped is an unpleasant one and frequently a motorist's instinct is to complain about it. At the same time it also has a high degree of acceptance because 94%or 95% of motorists whose cars are not clamped every year say it is an appropriate and effective way of controlling illegal parking.

In Dublin city every year there are about 58,000 enforcement events, mostly clamps but some tow-aways as well. Of that number less than 5% are appealed and of the number that are appealed, approximately one third of those appeals are held up. In the round, therefore, many motorists would think of clamping as being something of a necessary evil even though they never enjoy the experience themselves.

We also know that prior to the introduction of clamping in Dublin city centre in particular illegal parking was a scourge on the city and completely frustrated traffic, traders, businesses and motorists alike.

It is important to mention that there are two different types of clamping going on here. First, there is clamping by local authorities, which is a very different proposition from clamping by private operators. In Dublin, for example, clamping is carried out on behalf of the city council by Dublin Street Parking Services. The cost of fulfilling that contract is about €9 million per annum. Revenue from clamping is only about half that. It has been wrongly suggested that this means that clamping operates at a loss. I am aware that some local authorities have mooted the idea of charging up to €150 for a declamp fee. The AA would find that unacceptable. That would be a punishment completely out of proportion to the offence. If a speeding offence that put lives in danger carries an €80 fine, to charge somebody €150 for overstaying on a meter, irrespective of the cost problems the local authority believes it has, is unacceptable.

We must also reflect that it appears that clamping costs money when one looks at only part of the equation. In fact, Dublin City Council makes about €30 million per annum through legitimate on-street parking revenue, and that figure would be much lower if it was not for the existence of clamping or at least without the existence of a proper mechanism for controlling illegal parking.

Broadly speaking on local authority clamping, we take the view that because local authorities are democratically accountable and there is an effective appeals system in place, and the maintenance of revenue from paid parking is important for local authorities, and control of illegal parking is essential for the smooth functioning and commercial life of an urban area the decision as to whether to use clamping as a means of enforcing parking by-laws should remain the prerogative of elected representatives at local government level.

Private clamping is a different matter. Private clamping is carried out in many locations throughout the country and it is even less popular with ordinary motorists who frequently believe they are victims of very rough justice when it happens.

It would be easy for the AA to say that clamping should not be allowed. It would be a populist sound byte but it would not be helpful to local authorities or to local businesses if we did not recognise that there is a legitimate need to control parking. Local authorities frequently use private clamping companies. For example, Dublin City Council makes extensive use of private clamping companies in areas of public housing where spaces need to be preserved for residents. However, we find it unacceptable that private clampers ape the behaviour of legitimate clampers and assume equal legitimacy with local authority sanctioned clampers. They are not of equal legitimacy in our view. One frequently sees a sign displaying the words "parking prohibited - fine €120", but that is not a fine. A fine is a legal instrument that is backed up by legislation. A charge applied by a local landowner is completely arbitrary.

We have some sympathy for private landowners, places like churches, gyms, car parks of small shopping centres or private apartments. If one has invested money in providing parking facilities that are necessary for one's commercial success, it is not fair if there is nothing one can do to prevent the abuse of the use of those places. However, we are concerned that the practice currently in that respect is unregulated and there is no protection against rogue behaviour. We learned this lesson through our colleague organisation in the UK where private clamping got completely out of hand. It is an industry into which some undesirable elements had moved and it was essentially demanding money with menace. We heard stories from the UK about little old ladies being charged £400 or £500 for declamp fees, tow truck cancellation fees and spurious charges of that sort. The behaviour of those in the industry in the UK was so bad that the British Government took steps to regulate and may ultimately ban private clamping. We have not had the same problem here, mostly because we have better people involved in the industry here who make a reasonable, good faith attempt to self-regulate in most cases.

However, we believe it is not acceptable that these people should be operating without any legal basis. They are essentially making up the rules. In effect, private clampers operate a form of kangaroo justice because both the punishment and process are made up privately. The fees they charge are made up privately. Even when it exists, the only form of appeal is carried out by the same people who set the rules and who put the clamp on one's car. In a sense it is kangaroo justice. They have become rule makers, enforcers, judges and a redress mechanism all rolled into one. It is clearly unacceptable that a person handling one's appeal is the same body that is being paid the money when one is charged a clamping fee. That is unacceptable.

Private clamping may have a role subject to regulation and permit by a local authority. A local authority might decide to give a small shopping centre, church or a residential car park permission to use a private clamping company, but we believe it must be regulated by the local authority.

We have four specific recommendations. First, private clamping should only ever be permitted under licence from a local authority. Second, clamping personnel should display clear ID, as is now required by private security personnel since September 2009. Third, the permitted fee should be pegged to the fee charged by the local authority in the same area. If a declamping fee is €80 in Dublin city, there is no good reason a private clamper should be able to make up a fee of €120. The fee should be no higher than that charged by the local authority. Fourth and, most important, there should be a clear structure for independent complaint or appeal. We suggest that private clampers should be brought under the auspices of the parking appeals system of the relevant local authority, where it has one. If a local authority does not have one, we believe that Dublin City Council, which operates a very good parking appeals process and does so transparently, would be in a position to take up the slack. If a local authority area does not have its own appeals mechanism, we believe that Dublin City Council should be appointed to handle those appeals on behalf of the other local authority.

If we get those things right, clamping can perform a useful and, to some degree, necessary function. I would like to be able to say that we can wholeheartedly recommend throwing all clamps off the island and never permitting a car to be clamped again. However, we have a responsibility, in representing the number of motorists that we do, to be realistic in what we propose. There would not be much sense in us proposing something that ties the hands of local authorities, frustrates traffic flow and efficient management of parking and severely hamstrings private businesses and private residences. In order to be realistic, we believe there may still be a role for clamping but it must be regulated and carried out only under licence from the local authority.

Mr. David Fitzsimons

I thank the Chairman and members for the invitation to address them. I will be brief. Our organisation would echo what Mr. Conor Faughnan said in terms of private clamping. We are approaching this from the perspective of public clamping in that many of our 9,000 store members, who are retailers around the country, depend on customers feeling good about coming into town and parking and hopefully spending a good deal of time, what we call "dwell time", in the shops. We know that dwell time in shopping centres around the country is far more extensive than on the high streets. Clamping and rigorous parking enforcement are key fundamentals in that respect.

Our 9,000 store members believe that anything that we can do to encourage car bound shoppers and customers to come into our towns and cities should be done. One point to note is that customers who are car bound spend far more than those who are public transport bound. When they have their car with them, they spend more money.

To set the scene of where we are at from a retail industry perspective and in terms of the fortunes of city centres and town centres, government, centrally and locally, has inadvertently conspired to implement policies in recent years that undermine our cities and town centres. To illustrate this point, local authorities are granting planning to big box developments, massive grocery-anchored, 80-store, 100,000 sq. ft. shopping developments on the outskirts of towns and cities. There is one in Balbriggan, one in Naas and planning for one in Ennis was just rejected. They sell everything. They have groceries as the footfall driver but they sell fashion, electrical items, optical items, pharmacy goods, books, toys and music and it is a pure replication of the high street in a field out in the countryside.

While a member of Government might be invited to cut the ribbon to open such a development, these formats invest 6% or less of their turnover in labour, in jobs, and the businesses they displace, the specialist on the high street would invest 15%. Fundamentally, that does huge damage to stores on the high street.

The rateable valuation calculation, which now links rates to rent, has an onerous effect on the big rent payers, which are the stores on the high streets and in town centres around the country. There is a penalty applied to the person who travels into town to shop in many cases, namely, excessive car parking charges and, more important, the rigorous enforcement behaviour of clampers.

It is our view that this committee and Government should do everything it can to breathe a little more life back into town centres and high streets which are bereft of some of the big footfall destination brands such as Forever 21, Zara, H&M and all those new, great brands which are members of our organisation that have come to our country but who prefer to locate in the shopping centres. What is left on our high streets are the telecom brands, bookies, coffee shops and charity stores, which are also members but they do not generate footfall, rather they feed off it.

In respect of clamping, we would like to make our cities and town centres more engaging for customers. The regulation of vehicle clamping can play a significant role in achieving this. I would make four specific points. It is our view that there is a necessity to regulate the clamping industry, both public and private, and that there is clarity about the process of clamping, how one gets one's vehicle declamped and the fine that one pays. Second, we understand that clamping is a punishment which is disproportionate to the vast majority of parking offences. Thus the legislation must limit the circumstances where clamping can be applied. We believe that clamping should not be used to penalise underpayment or non-payment of car parking charges. The application of a fine is a good deterrent to that behaviour. Where clamping is allowed, perhaps the committee would consider the following consumer centric rules. The clear highlighting of the fact that clamping is in operation within that jurisdiction or area and that it is not a trap. Notice must be given to customers that their vehicle will be clamped and perhaps prior notice could be given. When a person returns to his or her car and finds a parking ticket on it, the person knows it has been ticketed, but it would be useful as well as the parking ticket if there was also notification that in two hours time the vehicle would be clamped unless the car bound person pays the parking charge or moves the vehicle. We must ensure there is ease of release of vehicles. I echo Mr. Faughnan's comments about the UK, which really turned into the wild west. There should be a guarantee that the clamped vehicle will be released within one hour of payment of the fine. The legislation should perhaps provide for a maximum declamping fee. This is similar to the point made by Mr. Faughnan.

While Retail Excellence Ireland is cognisant of the need for rules pertaining to how and where we park our vehicles, and we do not propose a free-for-all, we must also appreciate that the fear of clamping is a real turn-off for consumers and drives customers to choose out-of-town shopping and hospitality alternatives rather than coming into town and city centres. It is imperative that the legislation restricts the circumstances in which clamping is allowed. I will pass over to Mr. Keith Rogers, who is the chairman of Retail Excellence Ireland and a retailer himself - I am sure we all know the footwear brand Ecco - to explain the issue from a retailer's perspective.

Mr. Keith Rogers

I thank the Chairman and committee members for the invitation to appear before the committee. I agree with what Mr. Fitzsimons and Mr. Faughnan have said. As a retailer, Ecco trades in two formats - on the high street and in shopping centres. As retailers have been under enormous pressure over the past four years, we have issues in every format. I take the opportunity to remind the Chairman that we are looking forward to the Government's reopening of the issue of upward-only rent reviews, which is a major problem for us, particularly in shopping centres but also in many other developments. As a retailer I recognise the great job shopping centres do in attracting customers to out-of-town sites. They have proper access, a good parking environment and, once one is inside, a good ambience. We must ensure our local authorities realise they are in competition with these out-of-town centres and ensure there is equally good access, parking, amenities and general ambience in town centres.

I support what Mr. Faughnan said earlier: we have no issue with motorists' cars being clamped when they are parked on double yellow lines or causing an obstruction. We have no wish to go back to the days when all town centre spaces were full before trade commenced in the morning. However, at the moment, we are penalising the consumer who spends an extra 20 minutes in the shop, spending maybe an extra €20 or €30 on consumable items. It is crazy stuff. I hear anecdotal evidence of what is happening in towns and cities all over the country every day as I move around our stores. People are just afraid to shop in the high street and they are going to shopping centres instead.

Mr. Fitzsimons and I recently attended a British retail consortium at which the UK was mentioned twice. The UK Government and all of the local authorities there work with the retail industry when it comes to planning, procedure, laws and so on. We would certainly welcome an opportunity to give good guidance to local authorities when it comes to planning and making guidelines for parking and other factors on the high street.

Chairman

I will make a few points before I invite members to speak. On the licensing of clamping companies, from our examination of companies that have come before us, I know that some are acting as agents while others actually own the sites they police. I refer to private sites. There has been a suggestion that personnel should be subject to Garda vetting. If one is taking €80 from somebody, he or she will not smile; there will be a certain attitude from the person who is paying. Do the delegates have a position on Garda vetting of front-line staff in the area?

Regulation of the industry at the moment consists of a code of conduct. This committee will consider putting that in a legislative framework, including determining the type of legislation that would govern a code of conduct. Do the delegates have a view on what the tariff range should be? Can they suggest a ceiling or floor?

One of the suggestions made by the Irish Parking Association at a previous meeting, in response to a point made by Deputy Stanley, was that parking companies should be allowed to issue on-the-spot fines. This was something its representatives felt strongly about. They cited as an example the fact that in a hospital, somebody may leave a car in a place that is not the most desirable, because there is an emergency, only to come out and find that his or her car has been clamped. This is an immediate difficulty that must be dealt with after the medical emergency by paying €120. If there were a fines system, it would allow for a more benign appeals process. A similar approach could exist in retail parks.

That brings me to the appeals process which was mentioned by Mr. Faughnan. We had a detailed presentation about this last week. One suggestion - local authority managers seem very much opposed to this - is that, whether for a private housing estate or a private development such as a retail park, there should be some requirement for companies to specify at the planning stage how a clamping system will be operated, including signage and so on. What are the views of the delegates on this? Mr. Rogers mentioned the possibility of the retail industry assisting local authorities. Does he envisage some requirement for the system to be outlined at the planning stage if clamping is to be used in a certain area?

Mr. Conor Faughnan

On Garda vetting, we made that point when I said clamping personnel should display clear ID. It goes with the territory that there should be a requirement for Garda vetting to ensure the personnel are of good character. We have not had as big a problem here yet, but we cannot overstate how bad this problem has become in the UK, where some of the worst individuals one can imagine set themselves up as clamping cowboys and effectively demanded money with menaces. We want to keep people such as that out of the legitimate industry, and Garda vetting is a must for this reason.

Our suggestion for the tariff range is that it should be pegged to what the local authority charges. If Dublin City Council charges a declamping fee of €80, we do not see any legitimate reason another company can pick its own fee of €120. There might be some debate about the extent to which this is economical for companies, but by the same token, as a matter of principle and fairness, we must bear in mind some sort of proportionality. If I am guilty of a speeding offence that could kill somebody, the fine is €80; it does not seem at all appropriate or fair that a person could be charged more than that for a parking violation unless he or she is blocking an ambulance entrance or something of that sort, in which case the vehicle would be towed away.

To give credit where credit is due, the existing private clamping companies in Ireland have made a good effort to self-regulate. I believe they are trying to operate in good faith. They have put together a code of conduct for themselves, although it has no current basis and they are not always brilliant at adhering to it. We know this because we hear it first-hand from motorists. The AA does regular surveys of motoring opinion, and when we carried out a survey last week in which we asked people about their experiences of clamping, we received 19,000 completed questionnaires. That is a tremendous volume of feedback. As an addendum to our submission to the committee, we put in 100 sample comments from among those we received so that the committee could get a feeling for the tone and flavour of what people are saying. It is necessary for the clamping industry to have a proper code of conduct; we could debate the nuances of what should be in it, but we all know it should be based on common sense. Clampers should be well behaved and polite and carry out their business in a professional manner.

The notion of allowing private entities to issue parking tickets is an interesting one. It is a creative idea, but my instinct is to be deeply uncomfortable with it. I do not think the people concerned are agents of the State. They do not have the same legitimacy as the Garda, for example, or as a clamping organisation operating with a mandate from a democratically elected local authority. I would be concerned about the blurring of the issues of who can and cannot impose a fine. It is my instinctive belief it should only be done by an agent of the State. I would be uncomfortable if it were otherwise.

We have heard suggestions about imposing penalty points on driving licences to police all sorts of other measures. It was suggested one could have penalty points imposed on one's licence for overstaying at a parking meter. We were absolutely against this because it would be abusing road safety law just because it was effective. If road safety law is used in that way, its reputation will be undermined. I would have also feel discomfort about allowing someone who is not a democratically accountable agent of the State to issue an on-the-spot fine. Having said that, it is a reasonably intelligent idea which is perhaps worthy of debate.

The suggestion of an appeals process is a no brainer. There has to be a proper appeals process. Even though the industry has made an attempt in good faith to apply some of this, it is acting in a legal vacuum. Our suggestion was that it should be handled by the local authority. If the local authority does not have a facility, it should be handled by Dublin City Council.

If we are regulating the system of clamping and allowing local authorities to make local rules about it, they will stipulate rules about signage requirements and the accuracy of displays and so on. As to whether that needs to be part of the planning process, other voices in the room would be more expert than mine. Is it necessary to include it at that stage? Surely a local authority can make sensible rules and apply them sensibly.

Mr. David Fitzsimons

We concur with Mr. Faughnan regarding fees and so on. The divergence of opinion is on the vetting side, as we would go further. We think a generic uniform should be issued and mandatory identification provided. We would not go the way of the United Kingdom.

Clamping in public areas needs to be restricted. It is a punishment far in excess of the crime - returning to a vehicle ten minutes late.

This is a tiny aspect of good town or city centre management. It is important that local authorities refocus away from developer levies to ensuring rates are collected and that they do more from scratch. They should use zero-based budgeting and critically assess everything on which they are going to spend money this year. They should follow the thinking methodology of Don Nugent, centre director of Dundrum Town Centre, and think clearly about how they can creatively engage with customers to make our towns and cities vibrant places in which to shop and enjoy a meal or a couple of pints. If that does not happen, we will not be talking about clamping in a few years time, as our town and city centres will have been devastated.

Deputy Brian Stanley

I thank the delegations from the Automobile Association and Retail Excellence. Do I understand correctly that there is no private clamping in England, Scotland or Wales?

In some parts of the country management companies of multi-unit complexes of apartments or houses clamp the cars of residents who are late in making payments of management fees. I have come across this practice. Clamping is used as a means of leveraging payment of charges which are often in dispute. What are the delegates' views on this?

I agree with the point made on Garda vetting. In some cases the person in control of such a management company might have the chain of the local Lions Club or Chamber of Commerce hanging around his or her neck. He or she might not come from Tallaght or O'Moore Place.

I am interested in what the level of fees should be. Mr. Faughnan's proposal about local authority licensing is a good one. If we are to have such a system, it would bring some order to the issue and clamping within the remit of a body with a democratic arm to it. It should be democratically controlled. If we had proper local authorities, that is how they would look. They have proper local authorities in other countries, but, unfortunately, we do not yet have them here yet. The fee should be the same in all local authority areas and in public and private areas.

Do the delegates think it feasible that an appeals system should operate in smaller local authorities? They mentioned that there is a good appeals system in Dublin. What should the level of fees be?

What are the delegates' views on the practice I outlined of clamping being used to extract management fees? Will they give us some idea of how parking is regulated in England, Scotland and Wales, where there is no private clamping? I have received one parking ticket in my life. I received it in Trim when I went into a restaurant to have breakfast and did not notice a warning of a €45 fine. I would not be happy to find my car had been clamped. Clamping may be justified if a car is causing an obstruction or blocking an entry to an emergency service but not for overstaying at a parking meter.

In some European countries there are no tickets or clamping systems. A spider truck comes and removes a vehicle. I witnessed this happening once and there was a considerable argument between the owner of the vehicle and the policeman and the driver of the removal truck. Nevertheless, the car was taken away. We do not want to go that way either. There was no clamping, no tickets and no argument. That is how it was done, but I would not agree with it.

Mr. Conor Faughnan

Some Irish local authorities have those tow-away vehicles which are a sight to behold in operation. They literally lift a car up and take it away. Cork City Council recently decided to do away with clamping, although cars are still towed away. The council is reverting to a system of ticketing. It will be interesting to see how it gets on with that experiment, which has almost never been tried. We used to have a parking ticket system that was so discredited it did not work. If would be interesting to see how an efficient and well run ticketing system would work. This may be a decision the council in Cork will come to regret. It may be that traders in Cork city centre will revert to the local authority and ask that it be reimposed. Everyone agrees that one cannot allow a parking free-for-all, which is what happened before clamping was introduced.

We, too, have heard some of the stories about apartment management companies using clamping to enforce payment of community fees or charges, whether genuinely owed or disputed. That is a completely inappropriate use of clamping, for which I cannot see any justification. In theory, the management company is operating under the direction of the residents. A resident who is a victim of that practice is a part owner of the complex which has engaged the management company, although I know this is frequently unsatisfactory. It is a classic example of what should not be allowed and would not be allowed if the clamping company in question had to receive its licence from, say, Meath County Council. That is an example of a behaviour we should eliminate.

My colleague Mr. Joe Langan might be able to say something about the situation in the UK.

Mr. Joe Langan

Private clamping takes place in most of the UK. Our understanding is that since 2005, the British Government requires clampers to obtain a licence from the Security Industry Authority, which is the equivalent of the Private Security Authority in Ireland. Clamping of any description has been outlawed in Scotland since 1992.

Deputy Brian Stanley

Is that both in public and private areas?

Mr. Joe Langan

Yes. It is being tightened since 2005 in the UK, but they are looking for even tighter regulation.

Deputy Brian Stanley

What about the level of fees?

Mr. Conor Faughnan

Our view is that those clamping on private land should never be allowed charge more than the local authority is charging in the area.

Deputy Catherine Murphy

Most of us are acutely aware that there is a difference between the private and public sectors in this case. That point has been made by many of us over the last few weeks.

A principle that must be set down is the purpose of the sanction. The sanction might be to free up spaces to make them available to people, or to share a limited resource. These are the principles that should be set. After that, the appropriate fee is the next issue, along with the way it is organised. We all have a direct relationship with the local authority in the area we represent, and also perhaps because we were formerly a member of it. It depends on what part of the country a person is in, and there has to be some universality to how we create laws. If somebody arrives in Dublin from Limerick, he or she should have some level of similar expectation.

There are four different companies in north Kildare doing enforcement in the same town, in different bits of buildings or shopping centres. They compete with the free car parking space that is within 20 minutes' walk. We have to look at the relationship between the main streets and the smaller shops. I think there is a resistance to paying too much attention to that by the local authorities. It is as if we have to fight them to have that recognised. We will end up with empty streets or streets with charity shops only if we are not very careful. That is not the best way to showcase our towns. It is a serious issue.

I recognise a lot of what is said in the comments from the survey because they are the kind of things that I encounter. These operators are sitting in the bushes, or they are waiting for the time to elapse. There is an unfairness across the whole process. I was clamped once and I changed my behaviour. I never went back to the same place and I will not go back to the same place because of what happened. That is the kind of behaviour that changes people. I appealed the decision and I got refunded the money because the signage was all wrong. It is infuriating when it happens and the sanction is so beyond the infringement. I do not have a problem with cars being towed away from disabled bays. I do not have a problem with clamps being used at disabled bays or loading bays, because we must have some rules that allow people to function.

When the local authority managers were in here, they were very hesitant to have any kind of role in the licensing mechanism of private operators. They said that there would be a potential conflict of interest. I could see that conflict of interest if the appeals mechanism had that kind of tertiary side to it that would go to the local authorities. Where parking by-laws exist, most local authorities have the double arrangement whereby if they are not enforcing it themselves, they will get a company to enforce it. There will be a first round of appeals and the second round will go to the local authority. This will generally hinge on personal circumstances, such as an old age pensioner collecting a pension who only overstayed for five minutes and who does not have the ability to pay. I think they will make decisions on that basis. There will be a difficulty with the local authority making those decisions for a private company if it was exclusively a private company. It would create conflict and we should consider other ways.

In some locations - it often depends on who owns the land on which the private company operates - the first choice as to the mechanism of enforcement is clamping. There is the option of the barrier system, whereby the barrier does not open unless the customer puts a ticket into the machine, yet they go for an option whereby without people being clamped, they would not cover the cost of paying for their service. They go for a small number of people paying a very heavy price, rather than many people paying a small price as a proportion of the cost. The business seems to be to opt first for clamping. Has the AA looked at the range of options that might be available?

The option of a fine is not open to private land, because the infringement is on the law of trespass rather than about parking. If that was a sanction that private operators could use, through the database, it would provide them with another option. What would the AA witnesses say about that? I presume we are talking about this in the context of a properly regulated sector that is vetted and licensed. There seems to be a resistance by the local authorities to get involved. Their managers are saying that there is a conflict of interest. I am not so sure that it is, and I would be interested to hear about it.

It would also be useful to hear from the witnesses from Retail Excellence Ireland. They made some good points of principle in their submission that would be worth taking on board. While it is easy to look at big areas such as city centres, the towns around the country are increasingly being regulated in this way, especially land to the rear or to the side of adequate car parking spaces provided by the local authorities, even though they may have received quite a lot of money in development contributions towards the provision of car parking spaces. Have the witnesses done surveys on how that is impacting on the retail sector? I see what they are saying about the rateable valuation. The smaller businesses on the main street are not getting a reduction in their rates, yet their ability to do business is impacted seriously by a big multinational on the outskirts of town which can offer free car parking, while the main street only has pay parking. It seems we are providing a serious benefit to big out of town centres, even from a car-parking perspective. We do not have the ability to impose a penalty to create a resource to provide corresponding car-parking spaces in town centres. I would be interested to hear about surveys conducted by the delegates, not necessarily in city centres but in suburban areas throughout the country.

Mr. David Fitzsimons

We have not conducted a specific survey on the topic. We assess the trading numbers of 3,500 stores every quarter, including all of the big department stores, and let me be clear: things are dire. January last year, when the universal social charge was introduced, was awful and January this year was worse. Some of the biggest brands which are well able to fight for themselves and which have never complained before are complaining now.

The fundamental element is choice, not clamping, parking or lighting. If a customer does not feel a town centre is appealing he or she will not go there. We are heartened by the work done by the British Retail Consortium and the British Government, with David Cameron appointing Mary Portas. We need a blueprint to encourage certain types of retailer to our high streets that will sit alongside the indigenous outlets which might get through this with good professional neighbours. At present the only reason the local authority knocks on retailers' doors is to ask for rates. There is no support of any type and no plan. Cruises Street in Limerick is an absolute disgrace. Some of the biggest retail brands in Limerick are considering giving up. Retail parks and shopping centres have been built in a beautiful doughnut around Limerick and the city centre has been left to die.

Some very good points have been raised with regard to the purpose of clamping. Mr. Faughnan made the point that 94% of people have never been clamped and this tells a tale. Most of us pay for our parking when we go to town to work, shop or meet someone. I concur with Deputy Murphy that clamping does not work as a deterrent. Most people are clamped by accident because they are running late or something has gone wrong and it puts one off for life. However, one can breeze into Dundrum or a beautiful retail park and park for free and have everything under one roof with beautiful restaurants. We need to give the high street a competitive advantage. We definitely do not call for the application of clamping or parking fines in retail parks. When we call for parity we mean greater equity on the high street rather than more punishment in other locations.

Having a beautiful, rigorous and transparent equitable appeals processes is one thing, but no matter how good it is the damage has already been done. A consumer who gets clamped in Cork city and has to go through an appeals process will not turn around and say the appeals process was great; that person will not go into Cork city again but instead will go to Mahon and park the car for free. We need to look at this from the consumer's perspective and be as fair as we can to the 94% of consumers who do not go out to break the law. We cannot over punish them if something happens. We cannot be too rigorous.

Mr. Conor Faughnan

Mr. Fitzsimons has made a very strong point. I also concur with Deputy Murphy's point on the principle of this. It must be underpinned not just by well-written legislation but there must also be a strong point of principle. I have described clamping as a necessary evil. We should only ever do it if it is necessary to control limited space because one cannot have city centre spaces full to the detriment of traders and the business life of the city. We know from experience that fines alone do not prove to be a sufficient deterrent to this practice. This is why clamping was introduced. Nobody particularly loved the idea prior to its introduction. It is done as a point of principle where it is necessary for the economic life of the town or city to ensure parking is available. However, this is extended to small country towns where realistically there is no pressure on parking.

One frequently finds in small towns a strip of tarmac at the back of the retail outlet with a number of parking spaces which are not full and under no pressure because of the depressed high street. It is madness to clamp cars in such spaces. If this is happening because a private clamping company has an expectation of 14 clamps per week to meet its bills it is a ridiculous case of the tail wagging the dog. This is for what local authorities are supposed to be democratically elected. Surely if it is in the gift of local authorities to state that clamping will not take place in such a case or they can decide clamping will only apply if a car has been parked for five hours or longer or some such rule. There must be ways to do it.

I expressed sympathy for the privately owned small shopping centres which have invested in car parking spaces but because they are near train stations they fill up every morning. One must have reasonable measures for such cases. It is also worth stating that other private centres are opportunistic and clamp because they can and not to serve a genuine need. This is what happens when the sector is unregulated and one does not need the permission of the local authority. I also agree that there must be a common practice, and a common look and feel, throughout the country so the signposts and messages are all the same and one immediately sees what the rule is and it is clear.

With regard to local authorities fearing a conflict of interest if they were to license clampers or to control the appeals process, I am a little baffled by this in the context of the rows we have with local authorities about setting speed limits correctly where they drive us demented because standards vary so much throughout the country. We reluctantly had to make the case that it is a power the Government should consider taking back from local authorities and centralising because it is not being done uniformly or well. It is particularly ironic to have another topic where we are trying to push power towards the local authorities and they do not want to take it.

I have faith in the ability of many local authorities to manage this. It is not that difficult a task for the democratically elected local authorities to devise a proper code of practice to decide when and where they will allow clamping and state these rules to private companies and shopping centres which want to engage in clamping. If an individual has a problem with the manner in which they are clamped he or she would have access to an appeals mechanism under the auspices of the local authority. I struggle to see the conflict in this. I imagine local authorities deal every day of the week with issues which bring them closer to being conflicted than this.

Mr. Keith Rogers

I agree with most of what Deputy Murphy stated. One of the strongest points retailers make is that this is one piece of the jigsaw for local authorities to take on. It is imperative that local authorities examine the town centres of which they are in charge and see them as being in competition with shopping centres and out-of-town centres and take them on whether through traffic management, access to the town or street lighting.

Deputy Murphy asked about surveys. In the Chairman's constituency this time last year 96 FM did a survey of the three major shopping streets in Cork, namely, Patrick Street, MacCurtain Street and Oliver Plunkett Street and found 25% of the buildings empty. I come from Tralee where there were nine failings in the year gone by. One of our stores is in Dun Laoghaire where the high street is disappearing as business after business closes. Mr. Fitzsimons mentioned Limerick which is competing with the shopping centre in Dooradoyle which is a tremendous success. It is one of the most fantastic out-of-town centres in the country. Limerick City Council is making no attempt to compete with it.

We also have a store in Castle Lane in Belfast city centre. I was delighted when in the first week of January the city council sent around a team of people to work with businesses and ask us how we performed over Christmas; how was the access to Belfast, the parking and fees and the trading; and whether we were happy with the business hours in the community. At the end of the busiest period of the year they wanted to hear where they went wrong and in what areas people would like to see them improve for next year. Nobody in the Republic of Ireland in terms of local authorities is paying any heed to business other than the invoice coming in every year for the rates. Retail Excellence Ireland would love to help prepare a document, give guidelines and direction and work with local authorities on parking, clamping, access and lighting, and where there are derelict buildings and business failings to add colour into the windows to do whatever it would take to make the high street attractive and get people back in for the weekend, as Mr. Fitzsimons said, to do the shopping, enjoy lunch, go for a beer while the wife is shopping or whatever it is. We need to react or we will lose our high streets.

Deputy Dessie Ellis

I thank Mr. Rogers for his presentation. Much has been said and many good ideas have been put forward. Does he believe clampers should have special training courses so that they would know the rules attached to everything they do in terms of signage and taking photographs on the spot?

Mr. Rogers indicated that local authorities should be the licensing body. There are many different local authorities and they vary in how they do their business. Is there any way we can ensure continuity across local authorities in terms of laying down the rules, and should strict rules be laid down right across the board so that no local authority is different to another?

I took on board what was said in terms of fees and price but I do not necessarily accept what was said; that people involved in clamping were losing money. Would it be possible to have two fines - one for a more serious offence - but keeping the amounts at a reasonable level that would not drive people mad when they get a fine or their cars are clamped?

The existing Dublin City Council appeals system seems to be the fairest as it offers flexibility in terms of reviewing fines and in some cases recouping a partial amount. Does Mr. Rogers envisage that approach being rolled out across the country? The system is reasonably fair and the council writes down the fines in some cases.

I raised previously the issue of hospitals. I am aware of a situation in Blanchardstown where a man who was very ill went to hospital but had to stay overnight. When he came out the next morning his car was clamped. Does Mr. Rogers believe there should be a choice in terms of whether clamping is used or a fines system, in particular in terms of a hospital or train station where a train could run late? Surely there must be a mechanism to deal with a train running late so that one does not get off the train to find a clamped car. It seems the wrong way to go. If a person's car is clamped and he or she telephones the clamper and pays over the telephone to have the clamp removed, should there be a reduction in that case?

I listened with interest to the discussion about a person parking in a disabled parking bay whose car is clamped. That ties up the bay and prevents it being used by others. It is not good for business or anyone else. There must be a better way of dealing with the issue other than putting a parking bay out of use possibly for a day. That does not make sense.

We are all anxious that legislation would address parking in public and private spaces. There must be continuity and such measures must not drive business away. We have all experienced a situation clamping. People do not forget, and in general they do not go back to the area. I am aware of a person who got a parking fine in Finglas village who said he would never go back. It was ridiculous that the person got fined. The location of the machines in Finglas does not make sense. We are driving people out of many of the areas into which we are trying to attract them.

Deputy Sandra McLellan

Most of the issues have been covered. I thank the delegates for coming before the committee and sharing their thoughts with us. On whether clamping works, personally, I do not think it does. To justify clamping, there must be a serious breach such as parking in an ambulance bay or across a fire station or hospital entrance. One must encourage shoppers into the retail areas. If people's cars are clamped they will not go back there again. Parking tickets are probably the right way to go. I hope that Cork city will prove that in the long run. We all agree that rules and regulations must be made.

On the standardisation of fees, it was indicated that it could be different across various local authorities. Fees should be standardised. One should pay the same fee no matter where one goes. I agree also that signage should be uniform. People moving from one area to another should know the rules.

Speakers referred to a maximum fee for the removal of a clamp. I agree with that suggestion. Mr. Rogers suggested one hour in terms of the ease of release of vehicles but what would happen if they are not released in one hour? Should a penalty be imposed on the person who clamps or does the person who is clamped not have to pay the fine?

Is discretion provided for in the system? I spoke to a taxi driver last week who told me that his car was clamped. He helped an old lady out of the taxi and across the street into a doctor's surgery. He was gone for four minutes - he knows that from the fare - and his car was clamped. When cars are clamped in such a short space of time could discretion be used whereby the clamper admits he or she is wrong and that he or she made a mistake or is that the end of it once one starts to write a ticket or processes it?

Mr. Conor Faughnan

The points are well made. As has been said, there must be uniformity across the country. The Dublin authority considers that €80 is an appropriate level for it, but I suggest that the views of the local populace in a rural village would probably be that €80 is an outlandish fee. Our instinct would be to specify that it should never exceed whatever the local authority in the area is charging.

In terms of grace periods, the subject has come up a few times previously. The people carrying out clamping on behalf of local authorities are supposed to operate a grace period. The four minute example provided by Deputy McLellan should not happen if the clamper is acting as an agent of a local authority. It is precisely that sort of thing that gets upheld on appeal when a case goes to appeal. Sadly, the behaviour of private clampers can sometimes be very poor in that regard. If I had to guess about the case of the taxi driver I suggest that it was probably a private clamper rather than a local authority one who got him.

Broadly speaking, nobody is ever going to like clamping. The only reason we would ever contemplate it is if it is necessary to help the commercial life of a city. Perhaps my memory is coloured by what Dublin used to be like before clamping was introduced. I was very much a sceptic but there is no denying that illegal parking had strangled Dublin city before clamping was introduced. It caused problems for traffic flow and seriously frustrated businesses. It even presented a road safety hazard on many occasions. In the absence of a meaningful punishment there was no control on parking behaviour. In the absence of a meaningful punishment, it did not control parking behaviour. We have seen this situation elsewhere. While fines sound good in principle, they do not tend to be effective. For example, fines for speeding were always collected efficiently, yet they never had a deterrent value. Penalty points had a major deterrent value and behaviours changed as soon as they were introduced. We could all watch Cork and see if it proves the case. We would be happy if we could round up every clamp on the island, pitch them all into the Irish Sea and never see them again. However, I fear that we would revert to strangled urban areas frustrated by illegal parking and regret the move. If it is to occur, it must be done carefully and under licence, as we cannot allow private operators to do whatever they want, which is currently the case. The best agencies to make decisions on the ground area by area are the democratically accountable local authorities.

Mr. David Fitzsimons

I agree with Mr. Faughnan. In the good old days, none of us knew how to park a car or understood bus lanes. Many elements were new. A robust fine system is more than suitable for certain parking crimes. In cases of the slight underpayment of fines, being ten minutes late or something happening after having parked in a legitimate parking space, 94% of people are willing to accept their punishments, pay their fines and get on with their day.

The taxi driver whose productivity was lost was mentioned. With the assistance of the committee, the Minister needs to consider the matter from the consumer's perspective. Standardisation is required. In Dublin, Cork, Limerick or anywhere else, there should be standard processes, regulations and fines. One does not go into McDonald's in Dublin and pay €5 for a Big Mac, yet pay €10 in Cork.

Whoever provides the service must be regulated and, as the Deputy stated, adequately trained. Given the fact that there is a conflict between the consumer and the person enforcing a significant penalty, training is a must. Mystery shopping of the service could weed out bad practices.

This matter is a question of reasonableness. If shoplifters steal millions of euro, we do not cut off their hands. Likewise, the application of a clamp to a wheel to make a vehicle immobile is an overreaction. A fines system is more than good enough. It has worked for years in many other sectors. We should limit clamping to ridiculous parking, for example, at access points, in disabled parking spots, on double yellow lines, in bus lanes and so on, where people know they have done wrong.

Chairman

I thank Mr. Faughnan, Mr. Langan, Mr. Fitzsimons and Mr. Rogers for assisting us in our deliberations. This discussion will help to inform us when making our recommendations. This is a unique situation, in that it is the first time a committee has taken on board the responsibility of drafting the outline of legislation. The witnesses' assistance is greatly appreciated. We will conclude this module next week when more witnesses will attend. Our current guests are more than welcome to watch those events on-line or to come to the building itself. Should they wish to make further submissions to the committee before we set about making recommendations, we would be delighted. The witnesses are excused.

Sitting suspended at 4.25 p.m. and resumed at 4.30p.m.