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Seanad Éireann debate -
Wednesday, 22 Oct 2014

Vol. 235 No. 2

Vehicle Clamping Bill 2014: Report and Final Stages

Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except for the proposer of an amendment who may reply to the discussion on the amendment. Also, on Report Stage, each amendment must be seconded.

Government amendment No. 1:
In page 10, line 4, after “imposition” to insert “or the amount”.

This amendment to section 9 of the Bill refers to the regulatory powers of the National Transport Authority, NTA, in restricting the imposition of additional charges on top of the maximum clamp release and vehicle relocation charges provided for in section 14. As well as being able to restrict the imposition of any such charge, the amendment will enable the NTA to limit their monetary amount. What this does specifically is to give the NTA the ability to play a role in relation to the monetary amount of a clamping fine. The intent of this particular regulatory function is to future-proof the Bill against any charges above and beyond the clamp release or vehicle relocation charge that clamping operators or parking controllers may contemplate imposing. An example of such a charge might include the imposition of an administrative charge for processing clamp release or vehicle relocation payments. Therefore, the amendment enhances the role of the NTA in relation to additional charges that may be brought in in the future.

Amendment agreed to.

Amendments Nos. 2 and 4 are cognate and may be discussed together, by agreement. Is that agreed? Agreed.

Government amendment No. 2:
In page 10, line 34, after “circumstances” to insert “, different hours of the day”.

These amendments, particularly amendment No. 4, relate back directly to the debate we had on Committee Stage, specifically proposals and amendments that were put forward by Senator Sean D. Barrett.

Amendment No. 2 elaborates on the different circumstances under which the NTA may set various requirements and conditions in relation to the regulation of clamping authorities. Explicit reference will now be made to the different hours of the day in which clamping activities are conducted. Although, on reflection, I believe the reference in subsection 2(c) to different circumstances is broad enough to grant this flexibility to the NTA, I nonetheless do want to explicitly underline this principle within the Bill.

Amendment No. 4, which follows on from amendment No. 2, arises directly from Senator Sean D. Barrett's suggestion and proposed amendment last week on Committee Stage. Consistent with that approach, this amendment makes clear that when making regulations to specify maximum charges, the NTA may specify different charges for different times of the day. Having already made the point in relation to amendment No. 2, the reference here to different circumstances is now sufficiently wide to grant flexibility to the NTA. In the interests of consistency within the Bill, I want to reiterate this principle in section 14.

To relate this back to the debate on Committee Stage, one of the concepts that Senator Barrett was articulating was the need to relate the cost of the activity to the time of day in which the activity takes place. The point the Senator made is that there could conceivably be a different cost involved in unclamping a car in the middle of the night as opposed to unclamping a car in the middle of the day, that being driven by the cost of wages, operating equipment and so on. He made the point that it was important that there be recognition of this within the Bill and recognition that undue and disproportionate costs can be incurred not only by the person being clamped but also by the clamping operator.

Amendments Nos. 2 and 4 relate to sections 9 and 14 which focus on non-statutory clamping areas, and seek to bring this broader recognition of unusual costs that may be incurred by the clamping operator. They seek to deliver the objective of Senator Sean D. Barrett's proposed amendments on Committee Stage through what I believe to be stronger and more specific drafting.

I welcome this change by the Minister and thank him for taking on board what Senator Sean D. Barrett proposed on Committee Stage. Will the Bill now read: "different circumstances, different hours of the day and different areas"? Is it correct that different areas will still be included in the Bill? We said the last day that the NTA might set a charter of rights through regulation.

If somebody's vehicle is clamped, he or she still has a right in regard to the length of time that the vehicle may be clamped. Will the Minister try to provide in regulation and through the NTA that different charges will apply if a vehicle is left clamped for longer than 30 minutes or one hour, or by the time the individual concerned has contacted the clamping agency? Is that what will apply depending on the time of day and the area in which the car is located?

I thank the Minister for describing the amendments very eloquently. Differing circumstances strike me as a lawyer's goldmine, whereas extra costs may be incurred getting a car back at, for example, 2 a.m. We reflected that in the literature. It would also get the point across to the person whose vehicle is clamped that it is what the Parliament decided, whereas the notion differing circumstances may lead to more arguments at 2 a.m. A nearby university campus imposes additional charges. That is not profit maximisation; it is the campus trying to make its property available for students, staff and visitors. It is not in the business of making a profit at anybody's expense but it is expensive to deal with people who want their cars back at 2 a.m. or 3 a.m. after they were illegally parked. I strongly support amendments Nos. 2 and 4.

In regard to Senator Pat O'Neill's question on whether different areas will be retained, the answer is "Yes". That is most clearly outlined in respect of section 9, which retains the reference to areas, circumstances and, now, hours of the day. In regard to his point on a charter of rights for people who are clamped, this is an issue that the NTA could consider based on the delegated powers this Bill will accord to it.

In regard to the points made by Senator Sean D. Barrett, the amendment as currently drafted retains the word "circumstances" because it is something the NTA would need to be aware of when it prescribes its charges. By inserting a reference to different hours of the day, the amendment seeks to introduce another factor which will be considered when the costs to which the Senator referred are being developed. As I have noted, it is a worthy addition to the Bill based on the input offered by the Senator and I am pleased to incorporate it.

Amendment agreed to.
Government amendment No. 3:
In page 14, to delete line 23 and substitute the following:
“(b) in respect of a relocation charge, is €50,
or such other amounts as stand, for the time being, prescribed by the Minister in lieu of the charge, after consultation with the NTA.”

This amendment pertains to section 14 of the Bill and deals with the issue of maximum clamp release and relocation charges in non-statutory areas. It provides that the default charges of €100 and €50 for clamp release and vehicle relocation, respectively, can be varied by the Minister by order, following consultation with the NTA. This amendment is related to the amendment tabled by Senator Sean D. Barrett on Committee Stage. This part of the Bill creates a default power for the Minister if the NTA does not make use of prescribing relevant charges. If it does not prescribe charges, section 14 permits a default charge to apply. This amendment gives the Minister greater power to determine the level of charge, as opposed to the original Bill which specified the level of charge and gave no power to the Minister to vary it. The default charges are a backup mechanism because it is my expectation that the NTA will make use of its new powers. This section seeks to create a power that would only be exercised if the NTA does not make use of the powers that are being granted to it and the amendment gives powers to the Minister of the day to vary the charges.

I am happy to support the Minister in this regard and wish the NTA well in its efforts. In regard to the relocation charge of €50, I understand Dublin City Council charges €160. It might actually displace illegal parking into the premises with which we are dealing. During the debate on the Valuation (Amendment) (No. 2) Bill 2012, the Minister of State at the Department of Finance, Deputy Simon Harris, pointed out that parking spaces will continue to be taken into account in the valuation of shops for rateable purposes. The idea that this is free space is not accurate because costs arise for the businesses concerned and we do not want to create incentives for people to use their spaces for unlawful or wrongful parking simply because the local authority's relocation charge is higher. The Minister captured what we were trying to achieve in our earlier debate and I support the amendment.

It is a fair point that a displacement effect could unintentionally have been created by the earlier draft of the Bill. My expectation is that the new powers granted to the NTA will be used, although that will be its choice. Section 14 seeks to create a default power that would be available to the Minister of the day to vary the charge if the NTA does not use its powers.

Amendment agreed to.
Government amendment No. 4:
In page 14, line 28, after “circumstances” to insert “and different hours of the day”.
Amendment agreed to.

Amendments Nos. 5 to 8, inclusive, and 12 form a composite proposal and may be discussed together. Is that agreed? Agreed.

Government amendment No. 5:
In page 15, lines 24 and 25, to delete “or, where no such period has been specified, as soon as is reasonably practicable”.

These amendments focus on section 16, subsections (5) to (8), inclusive, and section 31. These sections refer to the removal of clamps or the release of vehicles and amend section 101B of the Road Traffic Act 1961 in respect of the immobilisation of unlawfully parked vehicles.

This group of amendments seeks to deliver the objective that was outlined by Senator Sean D. Barrett on Committee Stage, namely, that the Bill ought to specify a default period of two hours within which a clamp must be removed or a vehicle released once the relevant charge has been paid. If we go back to one of the last amendments that we discussed, that created a default power for the Minister on the issue of charging. This is seeking to be consistent with the last amendment in creating a default power for the Minister in relation to the period within which a clamp must be removed or vehicle released once a relevant charge has been paid.

In section 16, which deals with the removal of a clamp or release of a vehicle, I have provided the default period in a newly inserted subsection, subsection (3). This insertion gives rise to a number of consequential amendments to subsections (1), (2) and (4), the most important of which are to delete from subsections (1) and (2) the references to "as soon as is reasonably practicable".

Amendment No. 12 carries this two-hour default provision into the newly substituted section 101(b) of the Road Traffic Act 1961. This is inserted by section 31 of the Bill, which provides for clamping activities on the public road. In subsection (8)(c)(ii) I have replaced the words "as soon as is reasonably practicable" with "not later than two hours".

Out of the different amendments that have been made, the key one is to replace the phrase "as soon as is reasonably practicable" with the wording "not later than two hours"

I welcome the Minister. People are cross, annoyed and furious when this happens, but we cannot really expect the clamping or declamping vehicle to be nearby. I have seen in some of the places around town where clamping is liable to happen, the two-hour figure mentioned. I suppose the message is, "We know it is annoying; please calm down and come back in two hours and collect the car." There is no point in fuming around getting increasingly cross because it is unreasonable to expect to be released quickly, particularly at night, when it may take some time to mount the whole operation. It also creates a legitimate and rational expectation in the mind of the customer, who may think that a vehicle is immediately going to whistle up and release the clamp once the charge has been paid. These are complex operations covering large areas of the city and I think that the Minister has chosen an interesting and worthwhile solution. People will know what they can expect, namely, the declampers will be back within two hours but we cannot guarantee anything less and the best thing is not to get too irate. They are probably irate enough already having been clamped. That captures what we were trying to accomplish on Committee Stage. I am delighted to support the Minister on this provision.

I welcome this provision also. It is what I was getting at in relation to a charter of rights. It is important that we have a time period in the Bill in order that if somebody's vehicle is clamped, he or she knows that the vehicle has to be released within two hours. If not, the charter of rights will have to come into effect in relation to what rights customers have. It is welcome that there is a timescale in the Bill and I thank Senator Sean D. Barrett for tabling that amendment.

Amendment agreed to.
Government amendment No. 6:
In page 15, lines 29 and 30, to delete “or, where no such period has been specified, as soon as is reasonably practicable”.
Amendment agreed to.
Government amendment No. 7:
In page 15, between lines 31 and 32, to insert the following:
“(3) Where no period stands specified, for the time being, in clamping regulations in which a clamp fixed to a vehicle in a clamping place shall be removed or a vehicle shall be released in the circumstances mentioned in subsection (2), the clamp shall be removed or the vehicle released, not later than 2 hours, after payment of the relevant charge.”.
Amendment agreed to.
Government amendment No. 8:
In page 15, line 34, after “concerned” to insert “or subsection (3)”.
Amendment agreed to.
Government amendment No. 9:
In page 17, line 23, to delete “under this section”.

This is a technical amendment. Section 20 refers to the role of the clamping appeals officer. The reason we are proposing to remove this phrase is that the independence of the clamping appeals officer extends to all sections of the Bill under which they have duties and functions. On reflection, the words "under this section" are not appropriate because they infer that the independence of the role is limited to a particular part of the Bill. An appreciation of and respect for their independent duties is a theme for the entire piece of legislation.

Amendment agreed to.
Government amendment No. 10:
In page 18, to delete lines 10 to 15 and substitute the following:
“(5) Where a determination of a clamping appeals officer is to revoke a decision of a parking controller under section 19, the parking controller concerned shall refund to the appellant any fees or charges that were paid by or on behalf of the appellant in respect of the clamping activity concerned.
(6) When making a determination under this section, a clamping appeals officer may make such order as to costs as he or she considers in the circumstances appropriate.”.

This refers to section 21 of the Bill and the role of the clamping appeals officer in relation to hearing appeals. It deletes lines 10 to 15, inclusive, in page 18 and substitutes two new subsections (5) and (6). The first of these concerns the parking controller. Subsection (6) is a key subsection. It refers back to the concept of symmetry that was introduced by Senator Barrett on Committee Stage. He made the point that if somebody who is being clamped should have the ability to allow unreasonable or undue costs to be considered in relation to the charge that is levied upon him or her, then surely the clamping operator should also have the ability to guard against frivolous or vexatious appeals. This is particularly relevant in the context wherein an appellant wins an appeal, in which case the Bill provides that the appellant's costs in bringing the appeal must be refunded by the parking controller to the extent determined by the appeals officer. However, as Senator Sean D. Barrett pointed out, there is no corresponding provision to allow the parking controller to recover some of his or her costs if it turns out the appeal was vexatious in nature. These amendments seek to create a more level playing field in this area. I believe that the impartiality and judgment of the independent clamping appeals officer will be brought to bear on the issue of costs. This Bill does not bias the officer one way or the other, but it does seek to deal with the issue of vexatious costs being generated by somebody who has been clamped. This amendment creates the ability for that to be recognised.

I welcome this amendment. There can be fault on both sides and they are now provided for. That is to be commended.

Amendment agreed to.
Government amendment No. 11:
In page 20, line 37, to delete “Act” and substitute “Part”.

This is a technical amendment. The Bill should now state that "a direction or notification under this Part shall be addressed to the person concerned."

Amendment agreed to.
Government amendment No. 12:
In page 25, to delete lines 21 and 22 and substitute the following:
"(ii) where no such period is prescribed, not later than 2 hours after payment of the prescribed charge or its waiver.".
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

On behalf of the Government group, I thank the Minister for bringing this important Bill before the House. People might not think clamping is a particularly pressing matter but, as everyone has said, it is an emotive issue. The Bill has strengthened citizens' rights and the rights of businesses and non-statutory premises in relation to the enforcement of clamping. The Bill progresses things. I hope it will not have to come back to the House for tweaks. The Minister has done a great job bringing it here.

I second every word Senator Pat O'Neill has just said. I thank the Minister. This has been a very proud and happy day for the Seanad. We have always wanted to play that role and the Minister has been very receptive to what we have been saying. The Bill goes to the Dáil incorporating many interesting new elements, which is one of the roles of the Seanad in assisting the total Oireachtas in the preparation of legislation. I have served in my previous career on many advisory bodies and State boards, but nothing beats Seanad Éireann when it comes to making public policy, as we have in the last few days. It has been very rewarding and shows that when the House performs and has a listening Minister, it can assist the Oireachtas. It is very important. As the holder of a university seat, I try to bring the wisdom of 64 academic departments to bear. We all want Ireland to make progress under so many headings and are impatient to do work like this every day. I thank the Minister for the role he has played.

The co-operation of the Minister and his officials with the Seanad is a model we hope to follow again many times. Over a year ago, the public decided they wanted the Seanad. Doing the work we have done with the Minister to discuss the various aspects of clamping was most important. We are really only warming up to repeat the exercise and assist on many further occasions Ministers and the Oireachtas as a whole in making Ireland a better place. The founders of Seanad Éireann and the original Senate in the Free State could be proud and happy about what has gone on here today. It would have been impossible without the Minister's approach to us. I thank him very deeply and personally for his participation.

I thank the Minister for bringing the Bill to the House. I reserved my thanks on Committee Stage until today when I knew the Bill was going through. I concur with Senator Sean D. Barrett on bringing Bills through the House and I thank the Minister in particular for taking on board suggestions and proposals from the Opposition and incorporating them in the legislation. It is great to see the Bill go through. I hope its passage in the Dáil is as painless. While the legislation and the amendments have been discussed in detail, it was great to see the Bill pass so easily. I wish the Minister the best of luck with it in the Dáil.

I commend the Minister and his officials for getting the Bill through the House. In particular, I thank the Minister for being in listening mode throughout and for picking up on valid points raised by various Members. I compliment him on his total command of his brief and the lucid, clear manner in which he has addressed each of the issues. I am quite impressed by his performance.

I thank all Senators for their contributions to the Bill as it has moved through each Stage. I thank my officials for the huge work they have put into the Bill and all the support they have afforded me during this process. The Bill has already borne the impact of the committee system within the Oireachtas. As I said on Second Stage, the Bill went through a consultation process at the Joint Committee on Transport and Communications, which produced a report. That report included the input of all the people who will be affected by the implementation of such a Bill. From that input, my Department asked what was the best way to move forward on issues which are commonly acknowledged to be of concern.

I want to pick up on a point made by Senator Pat O'Neill on clamping. While it is a matter which should affect a minority and then only rarely, like any activity, whether it happens frequently or infrequently, that is discharged in a public place and affects citizens, it must be done within a framework of good regulation and good law-making. That is what this Bill has sought to do.

I acknowledge in particular all Senators who have contributed. Concepts have been introduced including a charter of rights for those who have been clamped, a point on which Senator Pat O'Neill has touched. All other Senators dealt with areas of concern regarding issues such as signage, the times at which clamping takes place and the role of the clamping company. They are all issues I have sought to take on board at each Stage of the Bill.

I acknowledge, in particular, what Senator Sean D. Barrett did in terms of the number of amendments he proposed and the strength of many of them. I was very pleased to see that many of them really improved the legislation and will ensure that when I bring it to the Dáil it is a better Bill due to that input. I thank him for that and acknowledge all the other Senators who have spoken, deepened my own understanding of the issues and given me ideas for how to continue to strengthen the regulation of the sector.

I will bring other Bills to the Seanad on issues such as the influence of drugs on drivers and matters concerning the marine sector, and I look forward to hearing the views of Senators on those. I am sure I will hear further ideas then that merit work and changes to those Bills also. I thank my officials and all Senators for their work. The Bill leaves the House as a stronger piece of legislation.

Question put and agreed to.
Sitting suspended at 3.10 p.m. and resumed at 3.30 p.m.