This is a technical amendment which corrects an incorrect reference to a subsection. It specifically proposes, on page 7, line 26, to delete section 35(a) and replace it with section 33(a).
Vehicle Clamping Bill 2014: Committee Stage
Section 1 agreed to.
SECTION 2
Government amendment No. 1:
In page 7, line 26, to delete “section 35(a)” and substitute “section 33(a)”.
Amendment agreed to.
Section 2, as amended, agreed to.
Sections 3 to 12, inclusive, agreed to.
SECTION 13
Amendments Nos. 2 and 3 are related and may be discussed together by agreement.
Government amendment No. 2:
In page 13, line 33, to delete “or”.
These amendments contains two particular points. First, on page 13, line 33, to delete the word "or." Second, on page 13, line 35, after the word duties to insert the following: "or a vehicle used in connection with the operation of electronic or other apparatus referred to in section 81(1) of the Road Traffic Act 2010 under an agreement in accordance with subsection (7) of that section and which is at a location determined by a member of the Garda Síochána not below the rank of Superintendent." As Senators will be aware, in this part of the Bill we focused in on vehicles that would be exempt from clamping. This amendment now includes vehicles that have safety cameras located within them. The reason we have made this change is because I believe it is appropriate that vehicles involved in road safety work, and detecting individuals and drivers who are involved in speeding, would not be clamped or relocated while involved in that work.
The other proposed amendment to the section is a consequence of inserting the additional type of vehicle referred to into the Bill.
Amendment agreed to.
Government amendment No. 3:
In page 13, line 35, after “duties,” to insert the following:
“or
(iv) a vehicle used in connection with the operation of electronic or other apparatus referred to in section 81(1) of the Road Traffic Act 2010 under an agreement in accordance with subsection (7) of that section and which is at a location determined by a member of the Garda Síochána not below the rank of Superintendent,”.
Amendment agreed to.
Section 13, as amended, agreed to.
SECTION 14
Amendments Nos. 4, 10 and 12 are related and may be discussed together by agreement.
I move amendment No. 4:
In page 14, between lines 14 and 15, to insert the following:
“(2) In prescribing the maximum charges the NTA shall take into account the costs of wrongly parked vehicles at parking places.”.
Go raibh míle maith agat, a Leas-Chathaoirligh. I also welcome the Minister with whom I used to discuss many transport issues in days of yore in the economics department of Trinity College. It would be hard to believe then that out of 20 amendments the Minister would have tabled 11 to my nine amendments. I think people then would have said, "Let us send for the D'Unbelieveables". I noted the Minister's presentation at the meeting of the transport committee earlier. He said that when he presented this Bill on Second Stage he chose to come here even though his alternative engagement was a meeting of the European Council of Ministers of transport. His loyalty to this House and priorities are very welcome.
Let me turn to my amendment. We had a very good discussion on clamping on Second Stage and there are contrasting views about it. On the one hand it is viewed as a menace, a nuisance, a threat to the future of transport as we know it and that it ruins people's weekends and so on. On the other hand, clamping is essential. If one allows completely uncontrolled parking cities will not be able to operate. That is why we are trying to steer a middle course here.
During the week somebody put it to me that clamping cures people because once it happens one makes sure to never again park in a place where one can be clamped. It has a deterrent value. In the discussions leading up to the presentation of this Bill I thought that clamping was pro-clamper but anti-driver. However, I did not recognise the cost to businesses and cities if people parked wherever they like and it is for this reason that we must steer the middle course.
Amendment No. 4 states that in prescribing the maximum charges the National Transport Authority, the body designated by the Minister in the Bill, shall take into account the costs of wrongly parked vehicles at parking places. We found that the main problem is public car parks with uncontrolled access. I have been told that off-street car parks, where people pay on the way out, do not become involved in clamping in the main. Therefore, we have to deal with what is already controlled on streets which are in the main operated by Dublin City Council. Many other cities appear to no longer use clamping. The Minister mentioned that the rest of the parking facilities concern people who have hotels, shopping centres, hospitals and schools.
People are annoyed at the level of charges. In the Bill there is a penalty of €100 and it will cost €50 for retrieval in cases where a vehicle is towed away. However, both penalties represent minuscule amounts compared with the damage caused to a business. Let us remember that the property is theirs. Let us also remember that it is their private property to which we as members of the public have access. It is intended that the parking outside hotels and shops will be availed of by people who want to do business in them. What if that space is blocked by people who have to be clamped? The real cost is not removing the clamp. The real cost is that business in those shopping centres becomes impossible to conduct if commuters going somewhere else avail of parking.
I ask that the National Transport Authority, in setting the cost to be imposed on wrongly parked vehicles, takes into account that the space is on private property and on land that is intended to promote the businesses which have paid for the property and that unlawful and wrongful parking in this regard should be taken into account.
This cost probably is far more than the fines of €100 and €50 envisaged in this provision, as clogging up an entire shopping area could do serious damage to the businesses whose property it is. That is the purpose of amendment No. 4, namely, that the cost of illegal parking does not pertain to operating the clamping but to the damage it does to the hotels, schools and hospitals. Some serious examples were provided when the Minister was here on the last day of people who block access of ambulances at hospitals. This would be a serious case that would merit a charge that was much greater than €50 or €100.
The second amendment the Acting Chairman has asked me to take together with amendment No. 4 is amendment No. 10. This amendment proposes to insert on page 16, between lines 15 and 16, a proposal to take account of "complaints from property owners in respect of the costs to them of wrongfully parked vehicles". The provision concerned pertains to the complaints procedure and my comment in this regard is it reminds me of when I used to do a certain amount of such work within the university where, when complaints arose, the rule always was audi alteram partem, that is, hear the other side. If people who have been clamped have a right to complain to the National Transport Authority, NTA, in law, do those who lose out also have a right to be heard as otherwise, one will get a completely one-sided case? Of course people are cross, annoyed and so on but the Minister might consider this new section 17(6) on Report Stage, whereby this complaints procedure is open to both sides. As matters stand, the procedure is one-sided and perhaps the Minister might like to review this before the next Stage.
The final amendment I have been asked to discuss is amendment No. 12. It proposes to amend section 21, which provides for the hearing of appeals. I have made the case that the procedures should take account of those who lose out because of the unlawful parking. Section 21 provides that the "NTA may prescribe procedures for hearing and determining appeals". It decides the form in which the appeal will be lodged, on the fees and on the making of submissions, whether oral or written, to the clamping appeals officer. It also prescribes procedures on requests for further information by the clamping appeals officer and examination by the clamping appeals officer of the appellant, that is, the person who feels aggrieved, and any other person. While "any other person" might include the person on whose property the parking infringement is alleged to have taken place, it seems strange to leave that discretionary and this is why I have included this provision. As I said earlier, it is on the principle of audi alteram partem. Perhaps these amendments might be considered before Report Stage.
In summary, do the charges reflect the cost? Is it the right of those who have paid for this land in their shopping centre or hotel to be heard? While an annoyed person will of course approach the clamping body and feel extremely cross and so on, there are two sides to the argument. Are the costs reflected adequately in the level of penalties? I should state that while the costs in Dublin City Council are €80 for declamping and €160 for tow-away, I believe that on top of that, it loses approximately a further €20. If the private sector is unable to recoup the cost of illegal parking on its land, will it lose out in equity in this regard? The goal is to try to get people to stay for two or three hours and then to leave. However, if they stay there all day on other people's property, are they covered? I note some of the charges envisaged in the Bill are less than those being imposed by Dublin City Council, which is losing money on it. Consequently, would all this add up as a proper deterrent for unlawfully or wrongfully parked vehicles?
I thank the Senator for the amendments he has tabled. To give some context, as the Senator is aware, he has tabled nine amendments to this Bill in total. I believe three later amendments in particular contain proposals and thinking that will improve the Bill. I will revert to those particular three amendments on Report Stage, with the Senator's consent, to ascertain how they can be incorporated, albeit perhaps with new and different language, to better achieve the objectives the Senator seeks to deliver. One guiding point underpinning the Senator's amendments - and to which he referred a moment ago in his contribution - is the concept of trying to achieve a better degree of symmetry between the three parties that are involved in all of this. There is the person whose vehicle has been clamped, the person who or the organisation that is doing the clamping and then the third party, namely, the individual, business or community that is suffering a cost or incurring an opportunity cost due to a vehicle being illegally parked and being therefore the subject of clamping. My understanding of the amendments tabled by the Senator is that he seeks to achieve a greater degree of balance within the Bill to ensure that the views and needs of those three parties are recognised in a better way. As I indicated, I believe that within some of the other amendments the Senator has tabled and to which we will turn in a moment, there are provisions and ideas that, when incorporated into the Bill, will make it better.
While I do not propose to accept the particular amendments under discussion, I wish to explain the reason to the Senator and to take him through my thinking in this regard. These amendments pertain to sections 14, 17 and 21 and seek to recognise parties who suffer due to an illegally-parked vehicle being in their facilities. The Senator seeks to amend the Bill to ensure that their needs are better recognised. However, my response regarding such needs is that if one considers the process established within this Bill, the NTA itself will have the ability to specify the level of clamping fee. It also will have the ability, if it chooses to use it, to establish a code of practice regarding any part of this industry. Moreover, for the fee to be advanced by the NTA, it must advertise in a newspaper, must place it on its website and it must be subject to a period of public consultation at the end of which the authority then will make its determination as to what will be that fee. My concern regarding the incorporation of these amendments into the Bill is there may be other issues or views that the other parts of the triangle to which I referred - the person who is clamped, the clamper and the business or community within which the clamping takes place - wish to advance within the consultation process. My concern regarding the Senator's proposals, which is why I will not accept them, is they would specify one matter in particular that might be raised with the NTA in advance of the authority putting in place a process for maximum charges. In the legislation as drafted at present, I do not wish to be prescriptive about stating which particular issue should be considered by the NTA during the consultation process. This is a matter I want it to consider, after which I want all other parties to have an opportunity to have an input therein. My view of the Senator's amendments is they raise issues that would be dealt with better within the consultation process.
With the powers I am giving the NTA it will be in a better place to handle the matters the Senator raises.
The Minister’s three part division of this issue into the person who is clamped, the clamper and the business is the correct way to go. I share the spirit of what he has said.
Amendment, by leave, withdrawn.
Amendments Nos. 5 and 6 are related and may be discussed together by agreement.
I move amendment No. 5:
In page 14, line 17, to delete “€100” and substitute the following:
“€120 per twenty four hours or part thereof and with a surcharge of €35 for release between 22.00 and 08.00”.
These amendments deal with the penalties. The Minister has already said this will be a matter for the NTA. The penalties envisaged in section 14 are €100 for a clamp release charge and €50 for a relocation charge. I did a survey in the west of Dublin at the weekend. The figures in the amendment are the present charges. If the industry is in equilibrium they could be pegged back to €100 and €50. The Dublin City Council relocation charge is €160 if one’s vehicle is towed away. I presume relocation means that one has to find out where the car is and releasing it from there is regarded as more serious than being clamped on the street where the council charges €80.
The Bill contains a default position and it is open to the NTA to decide charges. Were the Bill to enforce the €100 and €50 charges it would damage the businesses which now feel it necessary to charge €120 for 24 hours or part thereof. Keeping clamp release vehicles on a 24-hour basis costs money so the operators have a surcharge. It costs much more than €50 to retrieve the car from where it has been relocated and that is why I put in €150 in amendment No. 6. My concern was that is what it costs to do this and any expectation people reading the Bill might have that it could be done for €100 or €50 is not right. The council is not doing it for that price. There are typically surcharges in places such as university campuses and shopping centres if one wants to be released at night. This could lead to a situation where the system would not be enforced at all at those low prices. Presumably those fines are necessary to ensure discipline in parking in the places concerned. It costs a great deal to get a clamper to come out after midnight. That is why I have tabled these amendments.
I do not agree with the surcharge Senator Barrett proposes. Being clamped can be traumatic for certain people. The Minister is right to ask the NTA to set a fixed rate for a clamping fee. A surcharge may be abused in certain circumstances.
On Second Stage I asked the Minister to draw up a charter of rights for people whose cars are clamped requiring that they be released within a certain time of the person contacting the clamper. I do not know whether that is part of the Bill.
What is the duty on the clamping company to notify the owner if his or her car has been towed away? If a person’s car is missing, even if it was illegally parked, he or she would contact the gardaí first to report it as stolen. The Minister should make some provision for that. I asked that the gardaí be the only ones allowed to be present when a car is being towed away and that people are notified. Can they be texted? When people tax their cars they provide an e-mail address or mobile telephone number. Even if people are breaking the law or taking up spaces on private property there must be a duty to inform them if they are clamped.
Senator Barrett’s description of the operation of this Bill is correct. His amendments refer to the clamp release and relocation charges in non-statutory areas. If he went on to say "in those areas where the NTA does not exercise its power to put in place a fee", a foundation of this Bill is that it would lead to the introduction of default charges. In the absence of the NTA putting in place a charging structure the Bill would provide that structure in non-statutory areas.
We are not seeking to create a one-size-fits-all approach. I expect that the NTA would avail of the power this Bill grants it and use that power to put in place a charging regime that would reflect the fact that clamping is taking place in a non-statutory area and deal with issues such as timing and where the vehicle is clamped. However, the Senator’s amendments make two points that are worthy of further consideration. The first is whether €100 is adequate and the second is the notion of timing. I differ from Senator O’Neill in one regard because Senator Barrett has mentioned symmetry and the need to recognise the fact that there are certain kinds of things for which someone who is clamped incurs a higher cost. Similarly, there is a certain kind of clamping that costs more. Senator Barrett is asking how we can ensure that the higher cost for a person who is clamped is recognised but also if a clamper incurs a higher level of cost that should be recognised too. The amendment makes an important point. While I cannot accept the amendment as drafted I will consider these points for Report Stage and see if the amendments could be amended to reflect some of Senator Barrett’s thinking.
In response to Senator O’Neill’s point about a charter of rights, I propose and expect that the power I am granting the NTA as a result of the Bill would mean it would then have the power to address the kind of issues to which he has referred.
Those issues could include the rights of the person who has been clamped or having a consistent procedure in place regarding the movement of vehicles which would provide clarity for everyone on what should or should not be done. There are many matters that could be addressed by the NTA but if I were include this proposal in the Bill, I would do two things. First, I would end up undermining the ability I want to give the NTA to act in terms of its powers. Second, I, as Minister, would be unnecessarily prescriptive in saying these are the issues that should be considered. If we are giving the NTA these powers, we should allow it the space to say these are the issues that should be examined, allow members of the public to have a say and then let the NTA make a decision on it. I genuinely believe that is the best way the issues to which the Senator referred, which are consumer-oriented and relate to people's rights in such a situation, can be dealt with by the NTA in terms of the powers conferred on it by the Bill.
Would it be in order for us, as public representatives, to make a submission to the NTA on matters that should be considered, bearing in mind that the Minister said that he cannot do that in his role as Minister?
I certainly believe it would be in order for the Senator to give her view, once the body is set up, on the power that it would be able to use. I would go further and say that given that this Bill very much reflects the input of the Oireachtas transport committee, it would be a good morning's work, on enactment of the Bill which will give the NTA such powers, to invite the representatives of the authority to appear before that committee to have a discussion on these issues and to ask them if they are matters they would contemplate considering. I expect they would be but given the role the committee has played on this Bill to date, it is appropriate that its members would continue to be actively engaged in this respect and give their views to the NTA regarding the work they think it should be considering.
I accept the points the Minister has made. There is no dispute in regard to the statutory areas and parking in that they are defined in terms of double yellow or single yellow lines or areas where motorists can park. The issue arises in non-statutory areas such as hotel car parks and parking outside schools where somebody makes a decision that a motorist is illegally parked. A silly example of that would be if I were to go into a hotel or a supermarket and buy a cup of coffee at 8 a. m. but leave my car parked on the premises for 24 hours. Would that purchase entitle me to park outside the premises for 24 hours? Who would make a decision that a person has parked outside a premises for more than three hours and that the car should be clamped?
I agree with the Senator's first point. Greater clarity needs to be brought to the practice that is allowed in the non-statutory areas and how it should work. Speaking as someone who has been clamped on two occasions, as I said on Second Stage, a particular area that should be examined is the appeals process in respect of the non-statutory areas. The Senator gave the example of a person who purchases a cup of coffee or another item in a premises and leaves their vehicle parked outside it for the full day. I would hope that the NTA would have a code on practice that would cover that and other such matters. That is the reason I do not want to include such matters in legislation. If I was to prescribe particular matters that the NTA should do, such as the consideration of the issue the Senator mentioned, that would undermine the autonomy it currently has, and it does a very good job. It would also prescribe and limit the number of areas it could examine through the powers it will have to issue a code of practice.
I thank the Minister for his reply. We wish the NTA every success in dealing with these issues. Perhaps some study or document on the wide variety of practices, including time-of-day charging, removal charges and so on, would be appropriate. In the context of what the Minister said, I will not press this amendment and I do not intend to move amendment No. 6.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Question proposed: "That section 14 stand part of the Bill."
I congratulate the Minister on the introduction of this Bill. I believe it will eradicate the cowboy operators.
I have not been clamped, but many of our third level institutions and universities hold open days. NUI Galway holds two open days and UCD and other institutions throughout the country also hold open days at various times during the year. If I was to park in the campus of DkIT in Dundalk I would be clamped, although there is no signage indicating that clamping is in operation. Two constituents of mine, a mother and her daughter, recently attended an open day in NUI Galway. The mother drove 160 miles to the university and had not been there previously. Her daughter was anxious to do a course of study at the university. They had a great day and came back to discover that their car was clamped. This was a traumatic experience for the mother and her daughter started to cry. I discussed the matter with the mother for quite a while. She told me she had traversed the car park for 20 minutes and when she could not find a place to park, she decided to park in an area that was available where there were no yellow lines and where her car was not obstructing traffic. When she returned to her car and found it clamped, she noticed there were at least two or three other cars clamped. That was her first time to go to NUI Galway; she did not know the parking arrangements that were in place there. She paid the fine of €60 or €80 and was declamped. I suggest consideration should be given to accommodating parking for people attending open days at our third level institutions. I am not saying people should be able to park for free but a designated parking area should be provided for visitors to the campuses on those days. Those who attend those days traverse the country. In this instance, those people travelled to NUI Galway and the mother and her daughter, a potential student at the college, left the college with a sour taste in their mouths. I do not know if the NTA has the authority to do this or if we can ask the campuses to provide an area for parking on open days, which only number two days in many of the colleges.
Does the Minister wish to comment on that point?
I will respond to the Senator's point. A university campus would be a non-statutory area. It is part of the amendment we are discussing and therefore it is a relevant point. It sounds as if it was a counterproductive day for those people who went along to the university to check it out and then had that experience. The reason I cannot prescribe such a provision in the Bill is that if I was to prescribe the location the Senator proposed and not prescribe other locations, it would raise a question regarding the status of the non-prescribed locations. If I was to start prescribing locations, I would end up limiting the power of the NTA in terms of a code of practice that it may issue in the future. As I said to Senator O'Neill, I genuinely believe that the matter Senator Brennan raised is better dealt with through the power that the NTA would have.
The Senator made a point on what was a common theme in some of the contributions on Second Stage, namely, where the signage should be located and the messages on it. Those are the issues I hope the National Transport Authority, NTA, will be able to address with the powers given to it in this Bill and measures such as a code of practice for the industry. I accept the importance of the Senator's point, which feeds back to the way we regulate non-statutory areas, but the best way to deal with that is through the powers provided to the NTA in the Bill.
Question put and agreed to.
SECTION 15
Amendment No. 7 is in the name of Senator Barrett.
The powers of the NTA have been covered comprehensively by the Minister so I do not wish to move the amendment.
Amendment No. 7 not moved.
Section 15 agreed to.
SECTION 16
I move amendment No. 8:
In page 15, line 20, after “practicable” to insert “within two hours”.
This issue was raised by several Senators. When the money is paid, when can someone expect to have their car released? In one shopping centre it was clarified that, on average, it takes two hours for that to happen because the clampers might serve a number of areas. Not knowing when their car will be released seems to make people even more annoyed, and as other Senators said, it is a traumatic experience. In some cases the clampers say they hope they will be back in two hours. Would it help the person who is annoyed to know their car might be released in two hours? Anything else might be unreasonable.
Can those in the clamping business get back to everybody quickly? I appreciate what Senator Brennan said but on another campus the fine is €80 for 24 hours or more, with a €30 release fee after 7 p.m. That happens on campuses. Presumably the fear is that they would be used as free car parks, which is unfortunate. On this particular issue, does the two-hour waiting period help? Under a code of conduct the person being clamped will have to be informed when it is reasonable to expect the clamp to be released after they have paid. We would all like that to happen immediately, but I came across a case where the waiting time was two hours. If they could do better they would, but that was the normal waiting time.
I stated on Second Stage last week that there should be a time limit within which the clampers would return to release a car. In that way people will not have to wait for hours for their car to be released. If the clampers do not return within the required time, there should be a reduction in the fee or the fee should be waived. That could be inserted in what Senator O'Neill referred to as the charter of rights. The NTA might examine the issue and, as the Minister suggested, the Oireachtas committee should examine it also.
Senator Barrett has made a good point, and I will come back on Report Stage with an amendment to reflect it. Section 16(1) of the Bill refers to the release period. It states, "as soon as reasonably practicable", but there is a provision in subsection (2) regarding the release time for a vehicle that has been relocated. Senator Barrett has identified an omission in the Bill. In describing the role of the NTA earlier, I stated that it will have the power to propose charges and examine issues such as release fees and, in the absence of that, a default level would be applicable. What Senator Barrett is proposing is that a similar default time would kick in in the way a default cost would apply if the NTA did not use that power. It is a good point. There is a need for us to be consistent in that if we are saying there should be a default setting for cost, there should also be a default setting for release time of a clamped vehicle, particularly as I recognise that point elsewhere in the Bill in reference to vehicles that have been relocated. I will come back on Report Stage with an amendment phrased in a way that reflects the input of the Parliamentary Counsel. It will be applicable to subsections (1) and (2) of section 16 on which the Senator is focusing. I thank him for bringing this issue to my attention.
I thank the Minister again. I will not press the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 15, line 35, after “owner” where it secondly occurs to insert “and such unauthorised use was notified to An Garda Síochána”.
This amendment deals with the statement by the owner of the vehicle that the use was not authorised by him or her. The Bill states that when the owner succeeds in that claim, the controller or operator shall waive the relevant charge and he or she shall remove or cause the removal of the clamp from the vehicle. The wording was a little loose because if one's vehicle has been stolen, why would one not notify the Garda rather than saying it was stolen while parked outside a hotel, especially if there is no evidence of a break in? Is that a loophole? The person may not know the vehicle has been stolen but if he or she is using that as a defence, An Garda Síochána should be invoked. That is the reason I tabled the amendment.
This is a very interesting amendment which was considered carefully by me and my officials because it goes to the heart of an important point regarding road safety legislation. The Senator is focusing on section 16(4) which states that if a vehicle is stolen, the person who owns the vehicle is not subject to the clamping fee if he or she can state that the vehicle was stolen. As currently drafted, this section does not require the person to notify the Garda that the vehicle has been stolen because this is consistent with the way we handle an issue such as this one across the body of our road safety legislation. Having consulted with the Attorney General, I am advised that if we were to raise the onus of proof regarding this issue in the Bill, it would raise questions as to how we handle this issue in other road safety legislation. I cannot accept the Senator's amendment, although I understand the reasoning behind it, because of the consequences of this change in this Bill for the remaining body of road safety legislation.
It would raise questions regarding why that threshold was not adjusted elsewhere. It is for that reason that I cannot accept the amendment the Senator has proposed. As I have said, it points to an important theme in our road safety legislation. Those of us who have had our cars clamped know that it is a difficult experience for an individual to go through. If a person's car is stolen, and the stolen car is then clamped, it is a double misfortune for him or her. This Bill recognises that by making provision in cases in which people can prove the car was stolen. Proof of notification of the Garda, which most people would be required to do anyway, will be adequate under this Bill. I am not requiring such notification to take place because I want to be consistent about how we handle issues like this across all our road safety legislation.
I thank the Minister. He raised a most interesting point. When his predecessor was in this House to deal with road safety legislation, which of course has the support of everybody on all sides of the House, we considered issues like whether people should be required to have their driving licences with them now that we have moved to a credit card system. How does that make road safety difficult to enforce? I am concerned that people will use the provision that is being made for cases in which vehicles are stolen as a loophole. I have referred to the non-endorsement by the Courts Service of penalty points in cases in which people had been advised off the record not to bring their licences to the courts. I could also mention the current situation regarding penalty points and whistleblowers. We need to look at some of the things that have damaged attempts to promote road safety in this country. I do not suggest that should be done in the context of this small amendment this morning. It is a much wider task for the Office of the Attorney General. When it was suggested in one of the presentations that 40% of penalty points involve people with no licence, we said that could not possibly be the case. When the Minister's predecessor investigated the matter, it was found that this cohort of people was split equally between those who did not bring their licences to court and those about whom the whistleblowers have been talking. If we cannot get a tighter control on stolen vehicles, there will be safety implications.
When the Minister is considering the issue of road safety, perhaps he can examine certain rights that seem strange in the context of an industry that used to kill approximately 650 people each year. That figure has been lowered to approximately 160. The Minister was telling us earlier that this year's rate is similar to last year's rate. The recent deterioration has stopped. It seems peculiar that people do not have to report stolen vehicles. Action in this area would assist the Garda in relation to other crimes as well. Stolen vehicles are often hidden away and then used in robberies four or five weeks later. We need to keep a grip on this activity. The Minister has raised a wider issue. This amendment simply relates to a defence that is used. I do not know what would happen if someone stole my car and illegally parked it in a hotel for two weeks while I was on holidays. Some corroboration should be required in such circumstances. I appreciate the Minister's point. I will not pursue this amendment.
I thank the Senator for not pressing this amendment. As I have said, the main reason I am not in a position to accept it is that its acceptance would have consequences for other important legislation.
I would like to respond briefly to the point he made about road safety legislation. Before I came to the Seanad this morning, I attended a meeting of the Joint Committee on Transport and Communications at which the Senator was present. I place great value on what we need to do to reduce the number of deaths and serious injuries on our roads. At this morning's meeting, the Senator raised the serious and legitimate public concerns that exist regarding the issuing of penalty points. I repeat that this issue is being taken very seriously by the Government. I have received a report and a notification from a working group that was established to ensure the right lessons are learned from this episode. One of the measures I have provided for is the greater centralisation of individuals within the Garda Síochána who have the ability to cancel or change penalty points. This measures goes to the heart of addressing some of the concerns raised by the Senator. I thank him again for not pursuing this amendment and for showing an interest in how this Bill can be improved.
I wish the road safety implementation group, of which the Minister is a member, every success. It has to involve other Departments. I think it does. I thank the Minister again.
Amendment, by leave, withdrawn.
Section 16 agreed to.
Amendment No. 10 not moved.
Sections 17 to 19, inclusive, agreed to.
SECTION 20
Government amendment No. 11:
In page 17, line 19, to delete ", subject to section 21(2) and (3),".
This amendment relates to section 20(3), which provides that "a clamping appeals officer shall, subject to section 21(2) and (3), be independent in the performance of his or her functions under this section." I am proposing to remove the words "subject to section 21(2) and (3)" because I believe the requirement for the appeals officer to be independent in the performance of his or her functions under this section to be adequate. I do not believe the requirement to be independent in the carrying out of these duties needs to be qualified as it is at present. Therefore, I am proposing the deletion of the words in question
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21
I move amendment No. 12:
In page 17, between lines 33 and 34, to insert the following:
"(f) examination by the clamping appeals officer of the costs to the property owner of wrongly parked vehicles on premises which are the subject of the appeal.".
I do not wish to pursue this amendment because the Minister gave a comprehensive reply on the matter when we discussed it earlier.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 18, between lines 12 and 13, to insert the following:
"(6) Where the determination of a clamping appeals officer is not to revoke the decision of a parking controller the appellant shall refund to the parking controller such costs incurred by the controller as the clamping appeals officer may direct in the determination.".
This amendment relates to an area about which people feel cross. I refer to the question of whether a clamping appeals officer has the right to say that an appeal is vexatious and therefore award costs against the person who brought that appeal. The officer can make an order to refund costs to the person bringing the appeal, but how will we deal with frivolous or vexatious appeals? As I said the last day, the relevant amount is €100 - it is not the end of the world. Do we want vast numbers of lawyers to get involved in this area? I am asking whether the clamping appeals officer should have the discretion to award costs against a person who brings a frivolous or vexatious appeal rather than against the person who has to attend. Perhaps the cost to the State or the National Transport Authority of having a clamping appeals service should also be considered in this context.
I understand the sentiment that underpins Senator Barrett's amendment. All public representatives, and indeed the public, are often aware that frivolous appeals are being made. This is particularly true with regard to An Bord Pleanála. We have a rule in this country that the polluter pays, but that does not seem to apply when people make frivolous appeals to An Bord Pleanála about planning permissions in which they have no interest. It has often been said that these costs should be borne by those who make such appeals. I understand the idea behind Senator Barrett's amendment. I will listen with interest to the Minister's reply. I would also like Senator Barrett to set out who will determine what the costs will be if it is to be permissible for costs to be granted to the parking controller in cases of frivolous appeals. Who will make the decision on what payment should be made?
Senator Barrett has pointed to an area in which this Bill can be improved. I will revert on Report Stage with a perhaps differently worded amendment to achieve a similar objective. If we are saying that someone who is clamped has rights in terms of unfair costs imposed on them, then the argument also goes the other way. This amendment recognises that fact, in that, if a process takes place and the appeals officer finds in favour of the person who is clamping, costs may also have been incurred by that person. This matter should be considered and relates to a point I made when responding to Senator Barrett's earlier contribution. His amendments are seeking to introduce a better degree of symmetry to the Bill between the three forces to which I referred, those being, the clamper, the clampee and the individuals in the environment where the potentially illegal parking takes place. When we incorporate the thinking behind the Senator's proposal in the Bill, it will improve the Bill's operation. While I cannot accept the amendment now, I accept the Senator's argument. With his support, I propose to revert with a further amendment on Report Stage to take on board the point that he has successfully made.
I thank the Minister for his comprehensive reply.
Amendment, by leave, withdrawn.
Government amendment No. 14:
In page 18, line 18, to delete "the" and substitute "any".
This refers to the hearing of appeals by the clamping appeals officer. The rationale is that, in circumstances where proceedings have been brought against an appellant for an alleged offence of unlawful parking in respect of which the vehicle concerned was clamped or relocated and where these proceedings have been heard but are dismissed or unsuccessful, any clamp release or vehicle relocation charge will be refunded. The use of the word "any" rather than "the" more accurately reflects the intent of this subsection.
Amendment agreed to.
Section 21, as amended, agreed to.
Sections 22 to 29, inclusive, agreed to.
NEW SECTION
Government amendment No. 15:
In page 22, between lines 4 and 5, to insert the following:
"Fixed payment notices
30. (1) Where an authorised person has reasonable grounds for believing that a person is committing or has committed an offence under section 9(4) or 10(4) he or she may serve personally or by post on the person a notice ("fixed payment notice") in the prescribed form stating that--
(a) the person is alleged to have committed the offence,
(b) the person may, during the period of 28 days beginning on the date specified in the notice, make to the NTA at the address specified in the notice a payment of €250 accompanied by the notice, duly completed,
(c) if the person does not make the payment specified in paragraph (b) during the period so specified, accompanied by the notice, duly completed, the person may, during the period of 28 days beginning on the expiration of that period, make a payment as specified in the notice of an amount 50 per cent greater than the amount referred to in paragraph (b) accompanied by the notice, duly completed,
(d) the person is not obliged to make the payment, and
(e) a prosecution in respect of the alleged offence will not be instituted during the periods specified in the notice and, if the payment specified in the notice is made during the appropriate period, accompanied by the notice, duly completed no prosecution in respect of the alleged offence will be instituted.
(2) Where notice is given under subsection (1) --
(a) the person to whom the notice applies may, during the period specified in the notice, make to the NTA at the address specified in the notice the payment specified in the notice accompanied by the notice, duly made at the appropriate time so specified in relation to the payment,
(b) the NTA may receive the payment, issue a receipt for it and retain the money so paid, and any payment so received shall not be recoverable in any circumstances by the person who made it,
(c) a prosecution in respect of the alleged offence shall not be instituted during the periods specified in the notice, and if the payment so specified is made during the appropriate period, accompanied by the notice, duly completed no prosecution in respect of the alleged offence will be instituted.
(3) In a prosecution for an offence under a provision referred to in subsection (1) the onus of proving that a payment made pursuant to a fixed payment notice has been made lies on the defendant.
(4) In any proceedings in respect of an offence referred to in subsection (1) a document purporting to be a certificate of receipt of posting or delivery by or on behalf of An Post or another postal service is evidence of the posting or delivery of the fixed payment notice.
(5) The NTA may make regulations prescribing any matter referred to in this section as prescribed or to be prescribed.
(6) Income generated by the payment of prescribed fixed payment amounts under this section shall be disposed of in a manner determined by the NTA with the agreement of the Minister and the Minister for Public Expenditure and Reform.".
The proposed new section is on the operation of fixed payment notices. As Senators will be aware, the Bill provides that the National Transport Authority, NTA, may bring proceedings and prosecute summarily for offences committed under the Act. However, the only option in the Bill as drafted is for offences to be brought straight to the court system.
My proposed amendment will allow the NTA to operate a fixed payment notice system. As with the fixed charge processing system that operates under road traffic legislation, the NTA, where it believes an offence has been committed, will be able to serve a notice on an alleged offender for certain offences requesting the payment of €250 within 28 days. The offences involved are failing to comply with or contravening a provision of clamping regulations that is stated in the regulations to be a penal provision; failure by a parking controller to provide signage in accordance with section 10(1), other than in paragraph (c); and failing to comply with a requirement of a member of An Garda Síochána relating to the moving of a clamping vehicle that is endangering the safety of or impeding other road users. If the €250 is not paid within a 28 day period, the person has a further 28 days in which to pay an increased amount. If the payment is not made within 56 days, then court proceedings will commence.
The main benefit of this amendment will be a saving in court time and a reduction in inconvenience for the NTA officers and the alleged offenders. A person who receives a fixed payment notice will not be obliged to make the requested payment. As always under the State's laws, the person will be entitled to defend his or her position in court.
The rationale for the amendment is contained in the last few words I used. We all know how precious the court's time is and the costs incurred by individuals or, sometimes, the taxpayer in going to court. By introducing this new section, the amendment seeks to find a way of keeping clamping activity out of the court system and dealing with it more effectively and directly by the NTA while not undermining in any way the ability of an individual to go to court if he or she believes his or her rights have been infringed in any manner.
Amendment agreed to.
SECTION 30
Amendments Nos. 16 to 20, inclusive, are technical drafting amendments and may be discussed together. Is that agreed? Agreed.
Government amendment No. 16:
In page 24, line 24, to delete "(7) A notice" and substitute "(9) A notice".
Colleagues have the exact references for each of these amendments and, from a brief consideration, will see that they are technical amendments to subsections that were incorrectly numbered. By introducing these amendments, we will ensure that the numbering is correct.
Amendment agreed to.
Government amendment No. 17:
In page 24, line 28, to delete "(8) A person" and substitute "(10) A person".
Amendment agreed to.
Government amendment No. 18:
In page 24, line 31, to delete "(9) A person" and substitute "(11) A person".
Amendment agreed to.
Section 30, as amended, agreed to.
Sections 31 and 32 agreed to.
SECTION 33
Government amendment No. 19:
In page 26, line 26, to delete "(bb) make" and substitute "(ba) make".
Amendment agreed to.
Government amendment No. 20:
In page 26, line 33, to delete "subsection (4)(bb)" and substitute "subsection (2)(ba)".
Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 and 35 agreed to.
Title agreed to.
I thank all Senators for their contributions. I believe the Bill as first presented here was a good Bill due to the input that had taken place within the transport committee, and the opportunity for stakeholders to be consulted and for public consultation to take place. In terms of the points made by Senators on Second Stage, I reflected on them and responded.
Senator Barrett tabled amendments on Committee Stage. I was not in a position to accept all nine of them but they improved the Bill and I accepted their argument. I will come back on Report Stage with wording and suggested language that my Department believes will more effectively deliver the objectives that the Senator has accurately described. I am satisfied that when they are incorporated into the Bill it will lead to a better Bill. I thank everybody for their input into the Bill here today. In particular, given that Senator Barrett put forward so many amendments I acknowledge his role in improving this Bill.
I thank the Minister. As always, he is very welcome back to the Chamber where he started his Oireachtas career. He always carries out his business in an effective and efficient manner. I call Senator Barrett.
I thank the Minister. He showed his commitment to this House on the last day when he decided to come here instead of attending a conference of transport Ministers. He has showed his commitment again today. We are indebted to him.
I thank the Minister for moving the Bill. I look forward to Report Stage where he will bring forward some changes and we await with interest to see what they will be. I thank him for attending the House.
I commend the Minister and wish him well.
I might as well add my voice.
The Bill has not been passed yet.
I was going to wait until the legislation had been passed before paying compliments to the Minister.
Our colleagues were anxious.
I shall keep my comments until the next day.
I know we have it in a certain House but we could still pass it.
Bill reported with amendments.
When is it proposed to take the next Stage?
Next Wednesday, 22 October 2014.
Report Stage ordered for Wednesday, 22 October 2014.
I ask the Acting Leader, Senator O'Neill, to move the suspension of the House until 3 p.m.
I propose the suspension of the House until 3 p.m.
Is that agreed? Agreed.
Sitting suspended at 1.05 p.m. and resumed at 3 p.m.