JOINT COMMITTEE ON THE ENVIRONMENT, TRANSPORT, CULTURE AND THE GAELTACHT díospóireacht -
Tuesday, 21 Feb 2012

Regulation of Vehicle Clamping Industry: Discussion (Resumed)

Chairman

We are now in public session to discuss the regulation of the vehicle clamping industry. The committee has met with a number of stakeholders over the past few weeks to discuss this issue and this is the first time an Oireachtas committee has been involved at such an early stage in the legislative process and will contribute to shaping the final heads of the Bill. We hope to report shortly to the Minister for Transport, Tourism and Sport, Deputy Varadkar, with recommendations on any new legislation in this area. We will have two sessions today on this topic.

I thank the various members of the representative organisations for local government for coming before the committee this afternoon. As I mentioned, this is the concluding module of this process and it is a unique opportunity for members of this committee and local government to have an input into the shaping of legislation before the heads are formulated. I welcome the delegations and thank them for their involvement in the process and the assistance they will give in our deliberations.

From the Association of Municipal Authorities in Ireland we have Councillor Ted Howlin, president, and Mr. Tom Ryan, director. From the Local Authorities Members Association we have Councillor Martin Brett, Councillor Pádraig Conneely and Councillor Irene Winters. From the Association of County and City Councils we have Councillor Hilary Quinlan, vice president, and with parent council of Waterford City Council, Councillor Kieran O'Hanlon, executive committee, and with parent council of Limerick City Council, and Councillor Dermot Lacey, executive committee and with a parent council of Dublin City Council. I thank them for their attendance.

Before commencing I draw witnesses' attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, you are protected by absolute privilege in respect of the evidence you are to give this committee. However, if you are directed by the committee to cease giving evidence in respect of a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you should not criticise or make charges against any person or persons or entity by name or in such a way as to make him or her 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.

Mr. Ted Howlin

I thank the committee on behalf of the Association of Municipal Authorities in Ireland, AMAI, for allowing us the opportunity to address the committee. The AMAI membership includes city boroughs and towns, and clamping is used more widely in cities than in rural towns. Nevertheless the association feels that given the rise in the number of cars on our roads and the necessity to ensure that roads and parking areas are properly controlled and safe, there is a need to have the deterrent provided by clamping available.

The practice of clamping can be very traumatic for the person who is clamped, and as such it must be carried out in a manner that conforms to standards laid down in legislation. The main problem with clamping is that it is unregulated when practised on private property. This can lead to abuse of the facility as clamping is carried out almost exclusively by private operators, so it can be used with a view to maximising the income of these companies. Overuse of clamping can have a very negative effect on business and social engagement in an area.

Clamping on private property will often take place in apartment complexes or gated estates overseen by management companies. The operation of some management companies, which have become very prevalent in recent years, is often more with a view to making profit than maintaining their own developments. Any legislation introduced should ensure that in such areas the highest standards are met and clamping can only take place when these standards are complied with.

The AMAI seeks the following. All activities relating to clamping should be subject to oversight by a regulator. The decision to clamp on public property or public roads should be decided solely by each local authority within its own functional area and any legislation should clearly set out the conditions and guidelines under which clamping can take place. Companies involved in clamping should be licensed, and this licence to be renewed annually based on an audit of the company's performance and benchmarked against criteria laid down in the licence. Staff employed by such companies would be vetted to ensure that they are of good repute and such staff should be required to display personal identification and details of licence when on duty. An appeals process should be put in place to ensure that appeals are dealt with speedily and fairly, and adequate signage should be provided to ensure that the public would be aware that clamping can be used in an area. This signage would clearly set out the details of the area involved and the declamping fee. A standardised rate of fees can be imposed on motorists who park illegally. In a well regulated, licensed environment it may be an advantage to allow clamping operators access to the national vehicle registration file, which could aid the declamping of vehicles in a timely manner.

The AMAI wishes the joint committee well in its deliberations and is confident that the members, having listened to the views of many stakeholders at this early stage in the legislative process, will make a valuable contribution to the eventual legislation.

Mr. Martin Brett

I thank the committee for the privilege of allowing us to address it. This is a first both for us and the committee. The use of immobilisation of vehicles is a relatively new occurrence which has limited use in this country, with Dublin, Galway and Cork being the main locations involved. Officials in Cork have just decided they do not want to use the practice any more in any case.

Clamping in recent times on private property is on the increase where public access is allowed, whether subject to paid parking or not. We feel it is necessary to retain clamping on public roads, where it should be a last resort, and I will address private roads later. It is of paramount importance that the scheme which emanates from these discussions should have the confidence of the public, its costing system should be transparent and councils across the country must be in control of what is happening in their own area. In Dublin, it takes an average of one and a half hours to remove a clamp from a vehicle. Aside from the cost involved there is the inconvenience of being without the use a vehicle for that period. A balance must be found, keeping in mind that we are not very compliant in this country when it comes to parking, and a system that is too rigid across the country would deter people from using the city centres.

Clamping of vehicles is governed by section 101 of the Road Traffic Act 1961, section 9 of the Dublin Transport Act 1987 and sections 34 and 35 of the Road Traffic Act 1994, under which an authorised person may affix a device to immobilise a vehicle. Section 247 of the Road Traffic Act 1998 allows for a release fee to be charged. The use of clamping in Dublin is carried out as per these regulations and is managed by the parking enforcement officer in partnership with the city manager and the strategic policy committee on transport. The Office of the Ombudsman intervenes in specific instances where representations are made for and on behalf of members of the public.

New legislation in respect of clamping on public roads should include the following measures if relevant local authorities deem them to be necessary in their area. The members of local authorities should be able to set a release fee. The charge has not been changed since it was set in 1998. Local authorities should be empowered to legislate for vehicles that are parked for the purpose of advertising. While this activity is prohibited under the Road Traffic Act 1993, legislation to enforce same is not in place. A penalty should be imposed on any person who removes or interferes with a clamp and the owner of the vehicle should bear the costs in such instances. The use of clamping on private property, whether housing, commercial or industrial, is widespread. Regulation in this area is far from adequate and needs a complete overhaul because this practice is increasing.

Legislation in respect of non-public roads needs to be effected keeping the following in mind. Local authorities should be designated as the licensing authority in order that they can set parameters within which clamping may apply. Fees to be charged, including a release fee, should be laid down and a national register of private operators kept. Penalties should be introduced for non-compliant operators and operators who clamp without authorisation. Private operators should comply with the following requirements. They should have a registered office, be tax compliant, have proper employer and employee insurance and all employees should have valid PPS numbers.

In future, legislation should address areas in which local authorities may allow clamping if they so wish, including parks available to the public, barrier controlled car parks with restricted access, pay and display car parks available to the public and free car parks with or without maximum stay times. Any site prescribed should have proper signs stating if clamping is in operation, the release fee, areas of prohibited parking and conditions applying to valid parking. I thank members for their time.

Chairman

I ask Councillor Hilary Quinlan to make his contribution.

Mr. Hilary Quinlan

I thank the Chairman and members of the committee for the invitation to the Association of County and City Councils to attend this meeting. I am vice president of the association and a member of Waterford City Council. The association represents the county and city councillors of the 34 county and city councils in the State and embraces city, suburban, urban and rural environments. I am accompanied by a number of experienced councillors with first-hand knowledge of clamping issues. They are Councillor Kieran O'Hanlon from Limerick City Council, Councillor Dermot Lacey from Dublin City Council and Councillor John Sheahan from Kerry County Council.

We have all experienced the sickening feeling and mounting sense of dread when we approach our car and see a yellow clamp attached to its front wheel. What follows is a frustrating exercise in attempting to telephone the clamping company, generally through the labyrinth of a call centre. Frustration often turns to anger when one has to fork out €80 or more to have the clamp released. This is enough to ruin anybody's day.

As elected councillors, we are in the front line when complaints are made about clamping incidents. Contrary to public belief, local authorities outside of the Dublin area do not have clamping policies on public streets. However, this does not insulate councillors from the clamping issue. On the contrary, we are in the front line of complaints from members of the public irrespective of the locations at which clamping takes place. Virtually all clamping complaints arise from incidents involving motorists who are parked in private car parks such as those attached to shopping centres. Such locations are effectively public in respect of their usage.

On the Chairman's question as to whether clamping should be regulated, on balance we believe regulation is required, if nothing else, to sort out genuine complaints made by those who have tried to push their luck as regards parking rules. That said, we realise that introducing a new code of licensing and regulation brings its own problems. At a time when we are seeking greater efficiencies in public administration, we need to structure a clamping regulation system that requires the least possible degree of administration and bureaucracy. In this context, there is a strong case for county and city councils to be designated as the clamping regulators for their respective localities. Local authorities have personnel with experience of all types of traffic management scenarios. Given that parking is an extension of traffic management, regulating clamping under the auspices of county and city councils is an efficient proposal.

I thank the Chairman again for the invitation to appear before the committee. I will hand over to my colleagues who are members of major local authorities and whose views are derived from first-hand knowledge of clamping issues as they effect citizens in local authority areas on a daily basis.

Mr. Kieran O’Hanlon

As a public representative with experience of clampers, I welcome the opportunity to express my views to the committee. While Limerick city does not operate a system of clamping, private operators engage in the practice. From my experience of dealing with members of the public, the activities of some clampers bring to mind vultures and parasites.

Chairman

I ask Mr. O'Hanlon to be careful about the language he uses.

Mr. Kieran O’Hanlon

I am not referring to any individual.

Chairman

I did not get the impression Mr. O'Hanlon was referring to Dublin Zoo.

Mr. Kieran O’Hanlon

I will restrain myself in terms of the language I use to describe people who wait around corners for members of the public to park before pouncing on their cars with a clamping device. Vehicles which are parked dangerously or obstructing emergency vehicles should be towed away. I do not have a problem with that practice. Two years ago, a young lady from Deputy Dooley's lovely county of Clare visited Limerick with her small child to watch the St. Patrick's Day parade. She parked on a public road, a small section of which may be owned by a private operator. When she returned to her car she found it had been clamped. It was a public holiday, her car was not causing an obstruction and there was little traffic. She did not have the €120 release fee with her and had to wait for two hours for others to arrive with the money because the clamper would not release her car. When I contacted the Garda and local authority, I discovered they did not have any powers in the matter.

The appeals system is a joke because the private clamping companies make and interpret the rules and decide which appeals are allowed and not allowed. I have a serious problem with this. Local authorities should be the licensing authority for any company that is operating in their jurisdiction. An appeals system independent of the company engaged in clamping must be introduced and standard charges should apply. In some shopping centres belonging to supermarkets the release fee may be €80, whereas at other locations, perhaps in more affluent areas, the same supermarket will decide to charge €120 because it believes people in the locality can afford it. The charges applied are not subject to any control.

While many people do not like traffic wardens, the system is at least fair and subject to an appeals mechanism. If a person believes a wrong has been done, he or she can make a case before a judge who will accept or dismiss it. People at least have a right of appeal in what is a fair system.

The signage in many private car parks leaves much to be desired as one would need to have very good eyesight to be able to read the small lettering that features on some signs. Lettering should be of a standard size if clamping companies are to be licensed. Part of a particular street in Limerick is owned by a private company and part of it by the public. People get confused when they park there because they think it is a public road. Where that happens, there should be clear road markings to show it is private property and clamping is in operation.

Mr. Dermot Lacey

Councillor O'Hanlon has covered most points. There is no doubt that clamping has worked to an extent in the city but the intensity of the activity makes it deeply irritating to the vast majority of people. I have said before that if the rest of the public service was half as efficient as clampers, the country would have no problems, given how quick they are able to attach a clamp.

There is a need for an independent appeals policy. It is unacceptable the private company that attaches the clamp is also the agency to which the owner must appeal. In Dublin, not alone must the appeal be made to the private company, but the company must be paid to make an appeal when there is no indication that the car owner might get any of the money back.

There has been an increasing tendency in Dublin to privatise spaces that were public. Spaces that would be judged with common sense to be public are having cars clamped because the roads are actually private, even though there is no indication of that. My own car was clamped on what is to all intents and purposes a public road opposite the RDS in Ballsbridge. There were yellow lines but the road had been flooded and the yellow lines had been wiped out. When people arrived back they found their cars had been clamped. That is unacceptable and leads to a lack of credibility for the law.

There should be an independent appeals process, clarity of signage in public spaces if cars are at risk of being clamping and as many decisions as possible should be made locally. Any regulation should be determined by the local authority and certainly not by bodies such as the National Transport Authority, which is accountable to no one.

Chairman

Central to the purpose of the three representative organisations coming before us this afternoon are the delegation and division of powers between national and local government and the role of city and county managers. We must also ask if income derived from this activity should be retained at a central or local level. The presentation said that each local authority should be able to choose on its own behalf to have a clamping regime. Should the licensing and regulation that would then operate be run by the local authority or should there be national or local regulatory system?

Should there be 34 different appeal processes or, as the industry itself proposed, should there be a single national appeals office, which is a secondary appeals process if a person is not dealing with his local authority? Dublin City Council operates such a system.

LAMA representatives spoke about release fees. Should the release fee be set by each local authority across the country or should legislation set out a parameter for local authorities or private clampers? We are talking about between €80 and €120 and the local authority would choose the fee that would apply for that region.

Conor Faughnan from AA Roadwatch made the point last week that it beggars belief a local authority might charge €80 while a private clamper would charge €120 just metres up the road. Should the penalty be uniform?

The ACCC presentation mentioned the need for regulation. Should this be national or local? Should local authorities consider clamping operations in planning? Councillor O'Hanlon raised the issue of signage. If a residential estate that is privately owned is being built or a retail centre and it will operate clamping, should signage be a condition for the granting of planning permission?

Mr. Tom Ryan

There is no one better placed to operate licensing than local authorities. There is a national regulator for taxis but taxis and hackneys are operated locally with local licences. That sort of thinking could be applied to this situation; local authorities would know the operators and have a better store of knowledge. If it was too remote, the system would not be transparent. We suggest annual licences based on how a company is performing its duties according to strict criteria that would be set out in the licence. If a company had a lot of appeals against its activity and anecdotally appeared to operate in a high-handed manner, its licence could be reviewed in the following year. Charges and clamping fees could be set nationally. I would not say who should do it but there should be a standard across the State, although it is really a surface issue.

Mr. Dermot Lacey

The appeal process must be independent so citizens can be sure they are appealing to a body that does not have a vested interest and that is not the case at present.

On the application of charges, money raised locally should be spent locally and the decision on the level of the charges should be determined by local councillors. If local councillors are prepared to take responsibility for setting higher or lower charges, they should have the freedom to spend the money locally, which is in keeping with the principle of subsidiarity. If one council is prepared to levy a fine of €120 and the adjacent local authority levies a fine of €60, the first council can spend that extra money if it is prepared to take the flak.

Mr. Pádraig Conneely

I am against clamping; we had a bad experience in Galway city for many years. Clamping is draconian because those operating the system are, in the words of our local parish priest, like little Hitlers going around the city on a Sunday morning. We had to get rid of clamping in 2007. It was a national issue at the time after a young child was in a doctor's surgery and the doctor sent him to hospital. When his father went to take him there, he found his car was clamped and he had no money on him. He could not get the clamp off so he called a garda and he could not remove it either. The clamper would not remove the clamp and the garda had to pay the money so the child could get to hospital. That caused a local and national furore and after that we got rid of clamping on behalf of the city council, although there is still clamping on private property, which is just as bad. I will not name anyone.

Chairman

I hope not.

Mr. Pádraig Conneely

Absolutely not. It was a disabled driver from Belfast who was in Galway. He could not get a disabled spot and parked privately beside one because he wanted to go to the local hotel to use the bathroom. His car was clamped when he came out, even though he had his disabled driver's badge displayed on the windscreen. The clamper would not release him, so he had to pay €100. I am currently negotiating with the company. They issued a receipt but there was not even a name or office address on it, just a mobile telephone number. The management companies are also clamping companies, so they have a little double-earner going. They employ people to clamp vehicles.

I was examining the records of the Irish Parking Association which show there are ten organisations registered with it. There are 11 clamping companies in Galway city, yet there are only ten registered nationally. Somebody is codding us somewhere. The Irish Parking Association is talking about self regulation but I am opposed to that. There is something wrong with the figures the association is providing. There can be three clamping companies in a private estate, so there is total confusion.

Clamping is a problem. As regards parking tickets, the Irish Parking Association says it does not have access to vehicle registration files. However, if one gets a parking ticket I have a suggestion. If authorised regulations were passed under legislation, a clamping company - if registered and above board - could take the car registration number. It could then go to the Garda station and swear an affidavit that this is the relevant car, so a garda could then issue the name of the vehicle owner. Under that system, I would pay the parking fine. I would not give such companies carte blanche to access vehicle registration files, but perhaps it could be done in a restricted way. Perhaps that method could be examined.

Mr. Martin Brett

I have a couple of points. We believe that, in fairness, the fee should be set nationally. It should be regulated at local level so that fees would come back to the local authority. Local authorities have too few powers at this stage, so we should take any more powers we can garner for ourselves.

A fee in the region of €100 should be charged. As my colleague, Councillor Pádraig Conneely said, there are so many private clamping companies out there, it is absolutely incredible. All these people should be regulated so they have registered offices, are tax compliant, reasonable and seen to be operational. In addition, there should be a national ombudsman to decide appeals. Every local authority should have a planning operation with a regulator in every such authority and a national ombudsman at the top.

Ms Irene Winters

To expand on what Councillor Brett said, we think there should be guidance from the Department of Transport but local authorities are probably best placed to regulate in their own areas.

Chairman

Both the public and private companies?

Ms Irene Winters

Yes, we should be able to regulate private companies with guidance from the Department of Transport, Tourism and Sport once the Bill is enacted. There should also be a central appeals process for both public and private companies. It might be possible to have an appeals office which is funded by local authorities. In addition, an external candidate could be appointed as the parking appeals officer for a limited, non-renewable contract period. There should also be clearly defined time limits for accepting appeals and responding to them. Appeals that are not responded to within the specified period would be deemed successful, similar to the manner in which the planning appeals system works.

We also feel that parking offences should be categorised and that proportionate penalties would be attached. At the moment, if a car is illegally parked in a bus lane it incurs the same penalty as somebody who is legally parked in a parking space but who has failed to return on time. It is not right that the same penalty should apply to both offences; the penalty should be proportionate to the actual offence committed.

As regards the heads of the Bill dealing with transparency and openness, if a local authority is managing parking, the revenue would come back to that authority. The authority's annual report should include a parking policy report, including expenditure, parking enforcement and revenue collected by category, whether by penalties or parking fees, as well as the surplus involved. The report should contain the number of appeals that have been upheld or refused.

Deputy Dessie Ellis

I thank the councillors, as well as representatives of the Association of Municipal Authorities in Ireland and the Local Authorities Members Association, for their presentations. We have all faced this problem over the years and, in my opinion, clamping should be a last resort. Unfortunately, however, there are many private companies involved. I agree with many of the points that have been made here. I believe in regulation, licensing, vetting and proper staff appointment procedures. In addition, local authorities should handle the appeals process.

I would like to hear the witnesses' opinions on clamping in car parks at hospitals and train stations. To take Blanchardstown hospital as an example, a number of my constituents have been clamped after travelling there for emergencies. Do the councillors, as well as the AMAI and LAMA representatives, believe that should be the case in hospital car parks? Hospitals are such vital areas that there should be alternatives, such as fines or being stopped at the gate. It is wrong, however, that someone attending hospital for an emergency should leave a few hours later to find their car clamped. I do not think it is right but I would like to hear the witnesses' opinions in that regard.

Do the witnesses all accept that there should be a penalty for the removal of clamps? At what point do we agree? I know it is our job to put as much of this into legislation as possible, including our own ideas, but I am trying to tease out whether there is general agreement that people should have to pay for the removal of clamps.

I am not sure about clamping companies having access to the national vehicle register, although there has to be some access. I am not sure what is the best way to access such information. It is normally done through the Garda Síochána but there must be another means of finding out who owns a vehicle. Perhaps the witnesses have some ideas on how that could be done.

The staff of a lot of these clamping companies do not seem to have proper training, so they should be regulated in some way. Do the witnesses have any ideas on how that could be done? We do not have as much control over private companies as public ones. Do we need to establish some special unit? Could local authorities deal with this and set it up?

Mr. Dermot Lacey

I wish to raise two matters. I do not think it is fair to tar all clamping companies with the one brush. In fairness to the people who operate the Dublin street parking services, they behave with incredible restraint at times when they get the most horrendous abuse because they are enforcing rules that we as councillors have drawn up. While I have been annoyed, irritated and angered by them, we must acknowledge that they work in very difficult circumstances and show restraint in their dealings with people. It appeals to the populace to say that we should have free parking in hospitals, train stations and so on. If, however, free parking is available in those places, the spaces will be occupied all day and the people who need to gain access to hospitals or other public areas will not be able to do so. I would prefer that we deal with breaches of the parking regulations in hospitals by imposing a heavy fine rather than by clamping the vehicle. We cannot provide free parking spaces in these places because the facility will be abused and people who need the spaces will not be able to access them. We must balance conflicting rights.

Mr. Ted Howlin

Most hospitals charge for parking. The point raised by Deputy Ellis refers to parking in an emergency area or a space dedicated for ambulances where the hospitals operate clamping. It has happened in our own hospital where, in a genuine emergency, people pull up and go into the hospital for a short time and are clamped. If we had licensing laws on clamping, we would be able to determine the length of time that people would be allowed to drop off a person in emergency areas. Nobody would agree that a person should park in a place reserved for ambulances. I had a case where a person in his 80s had to attend a hospital for a procedure that takes ten minutes. The car park is too far away for him to walk, so I made a request that the hospital manager would give him a card to put on the car for a certain length of time. I think with prior discussion with the hospitals, these types of problems can be overcome. I do not approve of clamping, but when clamping operates, the company personnel should check the reason a car has been parked in an undesignated area and, if there is no genuine explanation, they should go ahead.

In response to Deputy Ellis's concerns, the important considerations are the speed at which vehicles are declamped and an appeals procedure that is seen to be fair and where one can make a case, if one feels that one has been wrongly clamped. People remember where they were clamped. It is not good for the business or tourism in towns when people are clamped. I mentioned to people that I was coming before this committee to discuss clamping and three people to whom I spoke were able to remember the time and place where they were clamped.

Mr. Martin Brett

I do not think anybody would want to see vehicles in hospitals clamped when they went over the time they had paid to park. That does not take away from the fact that anybody who is clamped in a hospital faces fines and fees that can accumulate and must be collected. I do not agree with the operation of clamping in hospitals, but unless one operates a barrier system in train stations, where one pays to go in, one must operate a clamping system. It should be a function of the local authority to determine where clamping operates, and this control should be used as a last resort. The fee should be set at national level but taken on board at local level.

Deputy Catherine Murphy

In the past number of weeks, we have heard people from different backgrounds express their views on clamping. What is very obvious is the different perspectives on public and private spaces and the role of the local authority as compared to private companies. There is common ground on the operation of an independent appeals process and the installation of uniform signage. When the city and county managers made their presentation a number of weeks ago, they stated that there had been no increase in the fee that can be charged to release a clamp. Would this point have been raised at the strategic policy committee meetings? It is quite useful to know if the views of local authority members differ from those of the managers on this issue.

The business model used in private car parks - I am not referring to underground car parks - for example, surface parking spaces in small shopping centres or beside railway stations, is that the charge for parking is low but if a vehicle is clamped, the clampers must be paid. The problem is the range of choices for parking. Where barriers operate, one pays for a ticket and the barrier rises when the ticket is inserted on the way out. That is self-enforcing paid parking. Taking account of the staff embargo, do the witnesses see the local authority having the capacity, in appropriate locations, to enforce parking regulations in private car parks as they have access to the national vehicle register and could ensure uniformity in dealing with breaches of the regulations? Irish Rail hire private clamping companies that operate 24-7. I had people come to me after a bank holiday Monday to tell me they were clamped at noon on a bank holiday. That is not a time one expects to be clamped but it frequently happens. Some of the public agencies need to be regulated on this, although they have no option but to engage a private operator to impose that sanction. Would the local authorities have the capacity to operate in such areas?

Even if there were national parking laws, the local authorities would need by-laws to designate areas where clamping would be permitted. From my experience, framing by-laws is time consuming and conducting reviews in a timely manner, within eight or ten weeks, to tweak the system to make it more user friendly is difficult. Do the witnesses have a view on improving the procedures on by-laws? It can be advantageous to the company which is charged with managing car parking to be vigilant in clamping vehicles and collecting fines. There may not be a bonus for doing it but certainly one would be kept on for doing it by some of the companies. I presume the representatives agree that should not be part of the regime but it appears in some cases that they are the most favoured companies.

The issue is about being fair to people and ensuring a system where public roads are not encroached upon where that would cause problems for others, such as blocking spaces. I do not think any of us has a difficulty with that but where the system is unfair or perceived to be unfair, that is where most people would find common ground. Whatever we do, that is what we have got to keep in mind, bearing in mind the principle of turnover of limited spaces and keeping areas free that should be free.

Chairman

I call Mr. Ryan and then Mr. Winters.

Mr. Tom Ryan

It came to our notice last week that one local authority, due to the embargo, is no longer in a position to hire new traffic wardens. Therefore, instead of taking this under its own wing it has outsourced its traffic regulations whereby the traffic wardens operating in the town comprise a private company which has been hired to do the work. Perhaps some local authorities would be in a position to regulate the system itself but that is becoming increasingly unlikely given the position in which they find themselves.

Ms Irene Winters

Similar to what Mr. Ryan has said, unfortunately there is not the capacity within the local authorities to take on that role. Certainly in Wicklow all parking enforcement is outsourced as we do not have the necessary staff. However, clamping should be seen as a revenue generating procedure for the local authority while being the absolute last line of defence when all other measures have failed. There should be proper signage, education, parking fines and graduated fines for repeat offenders. To clamp a person's car and deprive him or her of its use for an hour to an hour and a half until the clampers arrive to remove it, should be as an absolute last resort. It should not be used as a way of making money but that is the only way one can get those people to comply. It should not be a revenue generating exercise and we should not seek to set a fee of, say, €100 to €160 where it would be possible for the local authority or the private operator to make money. The fee should be an inconvenience to the person who has not adhered to the parking regulations but it should not be set so high that it becomes advantageous for the clampers to put on clamps. If they were not making money, they would only put them on cars where it was the only way to ensure adherence to the regulations.

Mr. Martin Brett

I have a couple of points. I would be worried if a bonus scheme for clamping was in operation because that would be totally-----

Deputy Catherine Murphy

I am not suggesting it.

Mr. Martin Brett

Neither am I. While I appreciate the Deputy did not suggest that, if it emanated from the committee that we were speaking about bonus schemes, that would be crazy. In 1998 a fee of €80 was set for clamping in Dublin. Some of the fees set by private companies across the country are appalling and bear no resemblance to what should be the rate. The regulation has to move in terms of where the private operator is operating. There would have to be serious training for the private operator where he is operating and what is happening would have to be seen to be transparent.

In regard to how the system is managed and by whom, most local authorities manage their own system. Given that a certain number of people will be moved around due to the transfer of responsibility for water from local authorities to a national body, some manpower will be freed up and that may be a solution to the problem. The other issue is how one circulates the regulations. There are section 8 regulations which we leave out for people to see what is available in regard to planning. To answer Deputy Murphy's question, if that was done it would be a way of assessing the parking regulations and they could be reviewed on an ongoing basis. The public would see the ongoing regulations and if they want to make comments or recommendations they could do so and they could come back to the local authority afterwards.

Mr. Dermot Lacey

I will answer Councillor Murphy's question about whether the County and City Managers Association represent us.

Deputy Catherine Murphy

It took me a while to get here.

Mr. Dermot Lacey

Sorry Deputy Murphy. I consider being a councillor a higher calling than being a Deputy. I was praising the Deputy.

Senator Terry Leyden

Long may Mr. Lacey believe that.

Mr. Dermot Lacey

The Deputy asked if the County and City Managers Association fully represents councillors. The short answer to that question is, does it ever? It represents the views of the bureaucracy but not necessarily the views of either the councils or the people.

Deputy Murphy raised two issues one of which was whether local authorities have the capacity to develop and devise by-laws. I do not normally call for Department of the Environment, Commumity and Local Government interference in local government but this is an area where the Department could help local government. There is no reason by-laws could not be drafted by the Department to be sent as guide by-laws for local authorities which they could twist and tweak as they deem fit. That is something the Department could usefully do as opposed to what it does most of the time. Similarly, there is scope for inter-local authority co-operation. For example, there is scope for Dublin City Council and the four Dublin local authorities to operate the clamping and tow-away company as suggested. It may not operate in some of the smaller counties but there would be the capacity to do that in Dublin.

On the issue of depriving a person from using his or her car, we must remember that a car is clamped only because it is depriving proper use of a public space. I am not talking about cases where there are appeals. A car is clamped because it is not paying what it should pay or it is parked in an area where it should not be parked, therefore, the punishment is to clamp. If that car is injurious to other people, we should not reward the owner by allowing the car to remain there. There is a view that we are only depriving the person of the use of the car that has been clamped but the person is depriving the proper use of a public space if a car is parked in a manner in which it should not be parked.

Mr. Kieran O’Hanlon

To repeat, where a car is causing an obstruction it can and should be towed away by the Garda or somebody representing the Garda in most cases. Deputy Ellis asked about staff training. That is an important issue. I understand that in the security industry, security officers in night clubs must have an annual licence and undertake certain training. The same should apply to those who operate on behalf of clamping companies, because they are dealing with the public and it is important they know what they are doing, that they are courteous and treat people with respect. On the question of fines, it was stated that there should be access to the national vehicle register. If local authorities are licensing operators to carry out clamping in their local authority area and if they are legitimate and licensed, they should have limited access to the national vehicle register through the local authority. This measure should form part of the licensing conditions.

Finally, VAT numbers are noted at the bottom of all receipts issued by legitimate companies but a lot of private clamping companies do not print one on their receipts. I have one here if members wish to see it.

Senator Denis Landy

I shall try to be brief as I know people are getting tired. I thank the three deputations for coming here. I am delighted that my request to invite them was acceded to by the Chairman a number of weeks ago. It is important that local government is consulted on matters that have a bearing on the work of local representatives.

Having listened to the discussion so far it is quite clear - and if anybody disagrees please say so - that none of the associations wants clamping rolled out in selected public areas. We are dealing with clampers operating on private property. With the exception of Dublin, we had the City and County Managers Association here a couple of weeks ago and, believe it or not, Cork found it difficult to break even using clamping. Many people have the perception that a lot of money can be made from clamping. Mr. Hilary Quinlan will be glad to know that the Waterford city manager did not want to introduce clamping and was quite happy with the way his local authority was being run. Earlier Mr. Conneely spoke about Galway and we have also heard about Limerick so Dublin is the only city operating clamping on public roads administered by a private operator. Local authorities do not want clamping in their areas but want to control existing private operators and put some "manners" on them through regulation. I disagree with Deputy Ellis when he said that clamping at hospitals, etc. should not happen and is not fair. As Mr. Lacey said, a driver breaks the law if they park illegally on public or private property and the owners of the property are entitled to do something about it. In this case the solution is clamping.

I have had difficulties with clamping and I will tell one story about it. Somebody from my own area went to Waterford Regional Hospital with her disabled husband. While her husband was being brought to the accident and emergency unit, having suffered a heart attack, she parked outside of the hospital door because there were no disabled parking spaces free and she was clamped. I appealed on her behalf and was told I had no right of appeal but out of the goodness of their hearts they halved her fine. There is no proper appeals system but we need to regulate for one.

If local authorities do not want to roll out clamping in their own areas do their representatives believe they are entitled to a say in the regulation of private operators working on private property? How can they stand behind such a claim? They are going on to somebody's private property demanding the right to dictate what clamping operators do.

How can a local authority have a say in the appeals where a private clamping company is operating at a railway station, hospital or in some cases at hotels?

Finally, local authorities should have as much involvement in these matters as possible and have people will already know my track record on local autonomy. We must be practical when it comes to legislation and whether it will be acceptable and effective.

Mr. Martin Brett

I thank the Senator for his comments. He is right when he said that we want to be in charge of private clamping. As I said earlier, we should also be allowed to operate clamping in our areas if we need to.

Senator Denis Landy

I have a rhetorical question. Do local authorities want clamping?

Mr. Martin Brett

Yes.

Senator Denis Landy

Do they want clamping on public roads? I am trying to establish the facts because the committee will formulate legislation. Do local authorities want the right to introduce clamping in their areas? They can do so under by-laws.

Mr. Kieran O’Hanon

The same would apply if local authorities wanted the right not to introduce it.

Senator Denis Landy

I want to clarify the situation.

Mr. Martin Brett

The point is whether we want that right. Either a local authority or the State should take charge of private clamping operators. I think a local authority should regulate private operators. If nobody takes charge there will be a free for all system that will grow out of all proportion. One could have as many as ten different clamping operators and different charges applying to each one. We need a controlled mechanism for clamping to work thus leading to a proper appeals system. Perhaps somebody in a local authority could manage it but, if not, it will have to be someone at a national level. If it is controlled by a local authority then it can designate clamping areas. It is the same as planning permission where a planning application must be approved by a local authority. If one is going to have clamping operating on private lands then it should be controlled by somebody. Therefore, it is better that we be in control rather than leave it a free for all situation.

Senator Denis Landy

I thank Mr. Brett. I just wanted the matter clarified.

Mr. Dermot Lacey

I wish to comment on a point made by the Senator. One difficult area is the semi-private space. There are private lands that the public has used over the years such as railway station and shopping centre car parks or roads that are not clearly private and perhaps are outside the gates of developments. We need to ensure that there are some controls over these spaces. There is clarity on private spaces and where we operate clamping on public roads in Dublin. We do not have the same degree of clarity when dealing with semi-private lands and I will allude to one. There is a new zone for institutional lands in the Dublin city development plan - and I have just forgotten what it is called - where lands that were used by the community are in private ownership. We can find a legal way through it but it is a grey area.

Mr. Ted Howlin

In response to Senator Landy's comments, I agree with Councillor Brett that local authorities would welcome, and it should be within their power, the ability to grant a clamping licence and operate an appeals system on private and public roads in their areas. Conditions should be laid down for private operators applying for a licence. Some members have alluded to this earlier but signage is appalling in some cases and clear clamping signs with conditions and fees should be prominently displayed. It would be better for local authorities to operate the licensing scheme.

Senator Cáit Keane

I welcome the three organisations here today and thank them for their considered submissions. As Mr. Brett said, this is the first time that a committee has dealt with an issue while preparing for a Bill whereas normally it would go to the Dáil and the Seanad. The submissions will help us when we draft our submission for the Minister.

There is a lot of commonality in what was said by the three organisations. Obviously nobody likes parking fees and we would get rid of them if we could but we cannot. Various issues have come up including clamping operations, their licensing, their regulation, appeals, who sets the fees and parking in private or public areas. Ms Winters rightly said it should not be a fee-raising issue.

In Dublin city, the clamping contract was issued to Dublin Street Parking Services and its fee is €9 million per year. The moneys taken in from de-clamping come to €4.5 million. It shows how one must be careful for what one looks. Legal parking through parking meter fees brought in €30 million to Dublin City Council. If there were no clampers in the city, there would be less legal parking and, therefore, less money, coming into the coffers. It is the only way to get at people in the city. The country can be different. As Mr. Conneely said Galway and Cork got rid of clamping services for the good reason there was no regulation.

The regulation of private clamping operations has to be introduced. Who will be the regulator, however? Will it have to be done nationally? Local councillors know the business on the ground and know what works locally. Accordingly, the licensing can be done locally, as has been suggested. The fees can also be decided on a local basis. Mr. O'Hanlon said the fees should be on a national basis. When I was on South Dublin County Council not too long ago, we had set different fees for different areas. To help businesses in an area, it must be ensured that people can park for ten minutes to run into a shop for a newspaper. The further away from an urban area, the lower the parking fees was the general rule. It is about local horses for local courses and there are no better people to know the local course than the local councillors.

Fees should be set locally but regulation should be applied nationally. If one breaks a law, one breaks a law. The fine of €80 was set in 1995 and has not increased since then. The clamping industry at the moment claims this is why it costs €9 million, which is an exorbitant fee, as the fines only bring in €4.5 million. The clamping industry claims €150 would make a break-even situation but the AA has said no way. I do not know if any concrete analysis has been done on the actual costs of clamping but clamping companies are not in this for the good of their health. They make money out of it.

There is a difference of opinion between the Local Authority Members Association, LAMA, and the Association of Municipal Authorities in Ireland, AMAI, on whether the national vehicle and driver file, NVDF, should be handed over to the clamping authorities. The AMAI believes it should. This committee must examine this issue because it is a serious development to hand over such information to anyone other than a statutory legislative body.

Chairman

Senator Keane needs to question the delegations.

Senator Cáit Keane

Should we hand over the file, as they do in France?

Would the delegations suggest parking on private property should be legislated for nationally rather than locally? There are different issues pertaining to local areas.

Mr. Tom Ryan

There is not really a difference between the AMAI and LAMA on access to the NVDF. LAMA suggests access should be allowed in a well-regulated licence environment through the Garda or the local authority. It would make the de-clamping process as efficient as possible in, for example, an emergency.

Senator Cáit Keane

Would it be through the Garda or the local authority?

Mr. Tom Ryan

Yes, I would not like the de-clamping companies going around with their own access to that information.

Chairman

The issue of Garda vetting has been raised. In the UK, when private clamping operators come on a car inappropriately parked, they have once-off access to the UK's national vehicle registration and not online access in their offices for example. Is Mr. Ryan suggesting a similar system?

Mr. Tom Ryan

This came up because of a clamping in a hospital emergency situation. It could have been resolved more quickly if the operator had access to the NVDF.

Many years ago the security industry had no regulation. People could put on a dress suit and a dickie bow and claim they were security. This has all changed with proper training, licensing and vetting of the industry. The same must be applied to the clamping industry.

Mr. Martin Brett

I agree with Mr. Ryan on the access to the NVDF. Senator Keane answered her question herself on the cost of clamping in that it costs Dublin City Council to have clampers.

We are all saying in more ways than one, private operators are cleaning out the system and it is a money-making operation. Deputy Catherine Murphy asked earlier should there be almost a bonus system which we discarded. Private clampers are setting their own fees and operating their own way. Legal parking would work if there were a barrier system in a car park where one had to pay to exit it.

If the local authorities are in control of their own areas, they will know exactly what is happening and will be in control over the costing system. That is of paramount importance. Mr. Lacey earlier spoke about the semi-private element to it. If we are not in control, we have no hope of controlling it. It will not happen at national but local level.

Ms Irene Winters

All parking enforcement service operators, the tendering process for their services and their management should be regulated. While the licensing may be done at a local authority level, the Department of Transport, Tourism and Sport could draft model contracts for the local authorities to bring some degree of uniformity to this. In the UK, the British Parking Association drafted contract documents with the UK Department for Transport for local authorities. These could be used as a starting point, subject to the UK authorities' consent. Guidance forms should also be set down even though licensing would be local.

Chairman

I must bring in the Department of transport to conclude this later on. I must also allow Deputy O'Donovan and Senator Leyden to contribute. I ask people not to repeat other commentary or what has been said previously.

Mr. Dermot Lacey

The second part of Senator Keane's point must not be ignored because she is right that the reason there is a high income is because of clamping. That income would not be generated if we did not have a tough parking policy.

The second point is that if one asks leading traders in Dublin city, they do want a controlled parking policy because it leads to more spaces being available, which promotes trade. That is the simple fact of the situation.

Mr. Kieran O’Hanlon

The people who remove clamps from cars should be in some way identifiable if people want to make a complaint. The gardaí have numbers and one does not have their names. In a recent case I asked a person removing clamps for his name and he used some unparliamentary language to me which I cannot repeat. Those who get licences to clamp must be identifiable in some form or another, like the Garda, taxi drivers and others operating in the public domain.

Deputy Patrick O’Donovan

I welcome the delegation. I would like to get its views on regulation. The suggestion was made that increasing the amount of regulation and levelling the playing field would somehow make the industry better. However, in my experience any time one introduces a regulator or a regulation, one increases costs as one must pay for the office of the regulator and its work. Ultimately, the motorist will pay for it. As representatives, we must be careful about what we would wish for, because if we introduce a national regulator with a set of regulations across the board who will in turn levy local authorities, they in turn will levy the person parking, which will mean increased parking charges. Towns and city centres will come under even more pressure from out-of-town developments. I would welcome comments in that regard.

On by-laws that would be required, the Department of the Environment, Community and Local Government would set out the legislation, but much of the property would be owned by port authorities, CIE, the HSE and voluntary hospitals. The land would be publicly owned. Local authorities only have a remit to extend by-laws to lands owned by them. I question how that would work in practice.

Many car parks have been built with planning permission where the opening hours and type of activity allowed in them is restricted by Part 8 planning permission. Alternatively, if it was a private planning permission and the car park was built under the auspices of a local authority by a private contractor who then leased it back, it was built under a standing planning permission and one cannot retrospectively apply conditions to it. In some cases there will be contractual obligations between the operator of the car park and the local authority. The contract with the local authority might be for 20 or 30 years and the application of retrospective regulations might nullify it.

My understanding is that the reason clamping was introduced as a solution is that fines are an unmitigated failure in that, by and large, they are not paid. Many people ignore fines. We have seen with social welfare and other areas that the collection of fines is a very expensive system for local authorities, especially for litter or uncollected rents. The cost of having a solicitor acting in court on behalf of a local authority far exceeds the cost of having a man remove a clamp. Having been a member of a local authority I suggest that the County and City Managers Association would examine the matter in terms of a cost-benefit analysis. We must examine how regulation will impact on consumers, how attractive it will make towns and cities and what cost burden would be legally imposed on local authorities to examine those issues.

Chairman

The question Deputy O'Donovan is putting-----

Deputy Patrick O’Donovan

There is a multiplicity of them.

Chairman

There is, but the question he is putting is whether local authorities wish to retain the prerogative on clamping. That has been answered already this afternoon. I am still unclear as to what the Deputy seeks on tariffs. Mr. Lacey has already answered the question to the effect that clamping works in particular circumstances and that it has delivered a dividend.

Deputy Patrick O’Donovan

I asked about by-laws and the regulator as well. If we introduce a parking regulator it will drive up costs. Are local authorities agreeable to parking costs being increased to pay for a regulator?

Mr. Dermot Lacey

I am not too sure who is looking for a regulator.

Deputy Patrick O’Donovan

How can one enforce regulation?

Chairman

There is a problem with a telephone.

Deputy Patrick O’Donovan

It is turned off.

Chairman

Members must ask questions. If they make a Second Stage speech we will come to a halt.

Deputy Patrick O’Donovan

I have asked-----

Chairman

Deputy O'Donovan should ask a question.

Deputy Patrick O’Donovan

This is the third time I have asked it. If one wants increased regulation and a level playing field it will involve a regulator of some form, be it the Department of transport, the Department of the Environment, Community and Local Government or a parking regulator akin to a taxi regulator. That bureaucracy will have to be paid for. Who will pay for it?

Mr. Martin Brett

As Deputy O'Donovan is probably aware, as a former local authority member, most car parks - public or private - have a barrier system involving the payment of a fee. The biggest problem occurs with car parks that do not have a barrier system, they have a system on board and nobody is in charge of regulating what occurs in such parking lots. The ground could be privately or semi-privately owned. The problem is that if we do not regulate it, who does, because at the moment there is no regulation.

Chairman

The question was broader than that, in that the Dublin Airport Authority can set its own rates. CIE can also set its own rates. Local authorities are players but they are not the overarching authority. Regulation must govern local authorities and other parties. If I understand correctly, the pitch from local authorities is that they see themselves as the regulator and that they would support a system involving 34 different regulating regimes.

Mr. Martin Brett

That is right.

Senator Terry Leyden

I thank the Chairman for allowing me to contribute as a visitor to the committee. I welcome the delegation. I am most impressed by the attendance. There is practically a quota for the Seanad at the moment which is rather encouraging. I do not require a reply in response to my questions but I will outline my experience in Prospect Hill, Mr. Pádraig Conneely's area.

Chairman

We are taking questions now.

Senator Terry Leyden

I was fined in a private car park in Galway. The main point of today's discussion is the way car parks operate. If one wants to prevent people going into a small car park then why not put up a barrier. I was led into a car park in Prospect Hill in Galway, like a fly into a spider's web. There were little signs. By the way, I got the money back - €125. I had undertaken to introduce a Private Members' Bill, based on that of the Minister, Deputy Coveney. I commend the Minister, Deputy Varadkar, on introducing a Bill. I note what was said by Councillor Brett and other councillors in terms of local authorities having a say in that regard. It was a terrible experience. I got elected as well. The point is that people were patrolling the area waiting for people to come in to clamp them. A poor settled Traveller ran out of petrol on Prospect Hill. He pushed the car into the car park for a few minutes and they clamped him while he went to get petrol. I decided there and then that this was a total abuse of power. I am delighted the Government is introducing legislation. I have no problem with people being clamped on clearways where they are obstructing traffic. That is a separate issue and must be addressed. County Roscommon imposes no parking charges. In my small private carpark, no charges or fines are imposed.

The Department will take into account today's participation and the views expressed. Local authorities know best and should control parking in their areas instead of applying another charge.

Chairman

I will allow Senator Keane to ask a brief supplementary question. Deputy Coonan also wishes to contribute. When the witnesses' respond, I ask that they make their concluding comments so that we might close this session.

Senator Cáit Keane

Is the Local Authorities Members Association, LAMA, separating regulation? The Chairman stated that there would be 34 regulators, but I see it differently, in that the local authorities would have the power to award licences, set fees and make decisions locally. However, the types of ID and training people must have and what type of rules they are governed under can be regulated nationally.

Mr. Martin Brett

Yes.

Deputy Noel Coonan

I welcome the deputation, in particular, the chief executive of the Association of Municipal Authorities of Ireland, AMAI, Mr. Tom Ryan, my old sparring partner. It is good to see such a healthy bunch of people representing local government. It is in safe hands.

I will not delay the meeting, but there was uproar some time ago about parking in Templemore from where I come. People were discussing clamping and so on. That was when the Garda college was going well, but now Templemore is like a ghost town. The current problem is how to attract people into the centre of town. Local authorities need to be careful about the parking issue. Has anyone suggested that clamping in public areas be banned? There are other ways and some novel suggestions should be made as to how to deal with parking. For example, authorities could consider penalty points. We need to be careful not to scare people away from town centres. We want to attract people so that they can do business.

This is like the septic tanks issue, in that it can get out of hand through scaremongering. We have an ayatollah for septic tanks and do not want another for parking. I am concerned about the issue of clamping. Many local authorities have dropped it altogether. This should be the way forward. We should work on alternative means of regulating traffic in the interests of doing business in town centres.

Ms Irene Winters

Deputy O'Donovan asked about the by-laws only covering local authority areas. If regulations are set nationally, only licences will be set by local authorities. The same rules would apply to the lands owned by the port authorities, Iarnród Éireann and so on. This matter could be examined when the Bill is being drafted. Once a penalty for an offence was applied, it would apply nationally, but the rate might differ between counties Wicklow and Cork, for example.

Mr. Dermot Lacey

I will make a comment that relates to all four of the Deputy's points. My opinion is simple - local knows best. Allow us to do the job. Allow Nenagh to adopt the traffic approach it wishes to take and allow Dublin to adopt the approach it wishes to take. Every decision does not need to be determined in the Department. We need to allow local decisions to take place.

I did not understand the comments on retrospective legislation.

On the question of the collection of fines, I am not a Member of the Oireachtas, but the members are. Let the Oireachtas simplify the method of collecting fines. We cannot do that, but we could control our traffic situations better if politicians at national level allowed us.

Chairman

I thank the witnesses - Councillors Quinlan, O'Hanlon, Lacey, Howlin, Brett, Conneely and Winters and Mr. Ryan - for their attendance and for assisting us in our deliberations. This has been an informative discussion. We will now meet a delegation from the Department of Transport, Tourism and Sport. Should the witnesses have other considerations, they should submit them to the committee. We would welcome them. We will make our recommendations to the Minister in the coming weeks.

Sitting suspended at 4.25 p.m. and resumed at 4.28 p.m.

Chairman

We will continue our discussion on the regulation of the vehicle clamping industry with officials from the Department of Transport, Tourism and Sport. I welcome Mr. Maurice Treacy and Mr. Kieran Baker, principal officer and assistant principal officer, respectively, at the road safety division. I thank them for their attendance.

Before the witnesses commence their presentation, I wish to draw their attention to the fact that, by virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of the evidence they are to give this committee. However, if they are directed by the committee to cease giving evidence in respect of a particular matter and they continue to so do, they are entitled thereafter only to a 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 they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person or persons or 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 invite Mr. Treacy to address the committee.

Mr. Maurice Treacy

I thank the Chairman. I wish to make a few brief introductory comments before dealing with the particular aspects that members may wish to explore.

As the Chairman mentioned at the committee's first meeting on this matter, the process of an Oireachtas committee becoming involved in legislation at this early stage is new to us all. Normally when a proposal such as this arises, the first that Members see of it is when, following its approval by the Government, it is published and ready to be laid formally before both Houses. Under the new process, the committee will assist the Department and the Minister in developing proposals before a general scheme is drafted and submitted to the Government.

This is the first time the new procedure has been tested and we are very interested to see how it works out.

The discussion document circulated to members represents the Department's initial views on how a regulatory regime for clamping should be provided and sets out the issues that the Department considers need to be addressed in drafting the legislation. We have not sought legal advice on the proposals, as yet, and other than an exchange of letters with city councils, we have not consulted with any of the appropriate bodies. We consider that the exercise being conducted by the committee over recent weeks will fulfil this function and we may not need to go over the same ground unless a requirement arises for clarification of any of the points discussed with the committee.

The discussions which have taken place to date with the committee have proven to be very useful. We have been developing our own thoughts based on the information that has been emerging. As has been remarked on a number of occasions, there is a legislative basis for clamping on public roads but there is no legislation currently in this country covering clamping on private land or property. A number of Acts provide that local authorities can make by-laws for the control and regulation of parking on public roads and provide that authorised persons can fix an immobilisation device to an illegally parked vehicle. An authorised person is defined as a member of an Garda Síochána, a traffic warden appointed by a local authority or a person appointed in writing by a local authority. Where a local authority employs clamping as a means of parking control, the parking criteria under which the clamping company is engaged are set out in a written contract.

The representations made to the Department and to the Minister suggest there is no great opposition to the practice of clamping but the difficulties seem to surround the activities of some clampers or the lack of clarity regarding the removal of the clamp or the lack of signage indicating clamping areas. In the main, these are the matters we propose to address with this legislation.

I am aware that the discussions at the committee over the past few weeks have ranged across a wide variety of areas that are somewhat outside the scope of clamping regulation. However, I propose, initially, to confine myself to dealing with the Department's proposals for the legislation.

The Department considers that the main purpose of the legislation should be to ensure that where clamping is used as part of parking management policy it is undertaken in a fair, responsible, efficient and effective manner. The legislation should provide that any company or person involved in clamping, whether on public roads or on private property, should be licensed. As a consequence, it will then be an offence for a clamping company to operate without a licence and will also be an offence to engage a clamper who is not licensed. Based on that principle, the main categories that need to be addressed include: a licensing and enforcement framework including the qualification criteria and standards that need to be met before a licence is granted; the circumstances under which clamping can take place; arrangements, including timescale, for removal of clamps; the appropriate de-clamping fees to be charged; signage and notification issues; and a satisfactory appeals mechanism. We propose to address these through a combination of primary and secondary legislation provisions.

The Department considers it appropriate that a single regulator be appointed. No decision has been made yet as to which body should become the regulator and this is one of the areas on which we would appreciate the committee's views and assistance. The Department is of the firm view that self-regulation would not be appropriate and it would envisage the responsibilities being undertaken by some existing State body such as the Private Security Authority or the National Transport Authority.

The role of the regulator will include: issuing licences to clamping companies; keeping and publishing a register of the companies licensed; outlining the circumstances in which clamping can take place; setting fees for removal of clamps; and setting out specific requirements in regard to issues such as signage and maximum time for removal of clamps. The regulator might be required to include many, or all, of these issues in a mandatory code of practice to which all licensed clampers would be required to adhere. The regulator would also be required to establish an appropriate appeals mechanism.

In order to gain access to the industry, to qualify for a licence, a company would be required to demonstrate competence, be appropriately insured and funded and obtain Garda clearance. Any employees of the company who are involved in vehicle clamping would be required to be trained to a high standard, be of good repute and would be required to carry identification. The committee heard details at previous meetings of the twin-level appeals mechanism applied by Dublin City Council and the Irish Parking Association. These appear to work satisfactorily and we propose to provide for a similar system in the Bill.

This has been an overview of the Department's proposals and we are happy to explore these or other matters with the committee members.

Chairman

I thank Mr. Treacy and Mr. Baker. This has been a learning curve for the committee members as regards the issue in question and in developing some proposals. I invite the delegation to explain to the committee the process and to provide clarification on some points. Is the appeals process proposed to be a primary or secondary appeals process? Will it be applicable to both public and private operations?

Mr. Maurice Treacy

I will explain how I envisage the process developing from now. The Department has not yet begun drafting any legislation as it will await the submission from the committee before drafting any legislation. We will then produce a general scheme of a Bill which will then go to the Minister for approval. If it meets with the Minister's approval, he will then submit it for approval by the Government. The Bill will then proceed to the Office of the Parliamentary Counsel for formal drafting after which the Government will approve its publication. The published Bill will undergo the normal legislative process in the Houses of the Oireachtas.

The Department will revert to the committee on any committee proposals which are not accepted for inclusion in the legislation and an explanation will be provided as to the reason they are not being included.

Chairman

Such proposals may well appear as amendments tabled by committee members which may be quite difficult for other members.

Deputy Dessie Ellis

The committee has consulted with many people across the board and it has been a useful exercise. I ask for the Department's opinion on some issues raised. There seems to be a general belief, particularly among councillors, that the local authorities should have a leading role in making decisions as to the rules and guidelines. Would the Department envisage including in the legislation a provision that all clampers should be uniformed and identifiable? We are all agreed on the need for legislation but the issue of the regulator keeps cropping up. I refer to the Dublin City Council model which seems to be working very well and is flexible-----

Chairman

Is the Deputy referring to the appeals process or to the regulator?

Deputy Dessie Ellis

I am referring to the practice in Dublin City Council where there is an appeals mechanism and a regulator in the form of a person who examines it. This system seems to work quite well. The private industry is the big problem. It is composed of many different groups and I refer to the issue of ID and how this needs to be addressed. Proper training and a clear set of rules will be required for this sector. Will these be provided by the local authorities?

Mr. Maurice Treacy

I did not answer the Chairman's question about the appeals mechanism and this has also been raised by Deputy Ellis. Dublin City Council and the Irish Parking Association described a twofold process whereby the first recourse is to the clamping company which employ the clampers. There is then an independent process in that if one fails at the first hurdle, one goes to the independent appeals mechanism. On the basis of what we have heard, that seems to work. It is something that I think we would replicate in this, that is, that there would be an initial appeal to the company, whether the local authority or the private landowner. However, an independent regulation process should be set up by the regulator. That is the way we would see that working.

On the issue of the local authorities setting out the criteria under which clamping would operate, at the moment, they effectively do that. Local authorities decide on parking policy for public roads. As was mentioned, the difficulty for us is private land. I would see an independent regulator as being the appropriate body or person to set the basis for that. If we are to include an all-inclusive licensing system which deals with public roads and private land, one body should decide the criteria which should be in place to deal with that.

Senator Cáit Keane

I will take up where Mr. Treacy left off. Let us take Dublin City Council because it is the only one that has a local system which is implemented by the local authority in conjunction with Dublin street parking. Regulation is one thing but licensing is another. Regulation should be national but licensing should be local. Licensing can be at local level if there is regulation nationally which states people must be trained, have identification and be vetted by the Garda. There must be national regulation for everybody, whether public or private.

Local councillors know their areas well. I was a councillor on South Dublin County Council for 20 years and we had different fees for different areas. A national body will not know the finer details pertaining to every little nook and cranny. One might close down a business by having one-size-fits-all licensing. There must be power at local level to set fees because setting fees for different areas cannot be done on a blanket basis.

Licensing and fees are different from overall regulation. Regulation should cover how one carries out one's business. The three local authority bodies - LAMA, AMAI and ACCC - appeared before the committee and they know their areas. A single regulator is fine but not to deal with every issue. Most of the bodies agreed that self-regulation was a no-no and should not be done. It is the first time regulation will be brought in for private property. People have rights in regard to private property.

It comes down to fees in an area. The area behind a public house is private. One could have exorbitant fees in one area and lower fees in another. The fees for private areas could come down under licensing at local level. We spoke about the fees and what it costs. The money raised should not be used as revenue, although it is not. It cost Dublin City Council €9 million but it only takes in €4.5 million. Clamping companies make money; they are not in the business for the joy of it. It cannot be looked at as a revenue generating facility.

It is the first time we have had consultation before a Bill-----

Chairman

We must conclude by 5 p.m. We have covered that ground already. If the Senator has specific issues to raise-----

Senator Cáit Keane

I have raised them.

Chairman

Before Mr. Treacy comes back in, I have some questions. In regard to the architecture of what we must do and the legislative application of the architecture, our job is to know how much of that we bridge. How much of our job is the architecture and how much of it is the legislative application of the architecture?

In regard to the appeals process being two-stage, which is the current position, does Mr. Treacy see the appeals office and the regulator's office as one because a cost implication arises? As we have seen from the taxi industry, regulation can create many other dynamics which were not intended. Does Mr. Treacy see the regulator's office, the appeals office and some oversight of the licensing as one because that would give us direction in terms of where we need to go with this?

What is Mr. Treacy looking for in terms of primary legislation? Does he have ideas as to what he sees in secondary legislation, such as issues which could be dealt with by statutory instruments that do not need to be included in a Bill? Obviously, we need to be very mindful of the cost of regulation so that we are not imposing an added burden on motorists, local authorities or clamping companies which will be passed on to violators and so on.

Mr. Maurice Treacy

In addressing the Chairman's questions, I can address Senator Keane's as well. The type of legislation at which we are looking would be that the primary legislation would not be over-prescriptive. It would set out that there would be a regulator and that the regulator would have a licensing regime and would set fees. The level of fees may be set out in secondary legislation and would get over the issue Senator Keane mentioned about different fees in different areas. Parking policy being set by the public authority for public roads or private landowners for their own areas is not something we would propose to go near. It is a very complex area, that is, to start to talk about private property rights and on. We propose legislation which will deal with clamping. If a local authority or a private landowner proposes to use clamping as a means of parking control, that clamper would have to be licensed.

We are in unchartered territory with this. What we would see coming from the committee is not a draft Bill but proposals which it feels should be included somewhere, whether in primary or secondary legislation. In discussion with the Attorney General's office and the Office of the Parliamentary Counsel, we would get the best fit for all of that, that is, whether primary or secondary legislation is the best fit for it.

The specifics and logistics of how the scheme would work are probably best kept for secondary legislation. Deputy Ellis mentioned identification and the type of identification, whether it is uniform or otherwise. That is more appropriate for secondary legislation whereas primary legislation will deal with the overall framework of the type of scheme we would propose.

Chairman

I thank Mr. Treacy and Mr. Baker for assisting us in our deliberations. It has been a very informative discussion. We look forward to taking on board the task. We are not too sure yet what we will say to them but we will bring something forward. The committee has received much information over the past number of weeks. I thank committee members for addressing this in such detail.

The joint committee adjourned at 4.50 p.m. until 2.20 p.m. on Tuesday, 28 February 2012.