I thank the Seanad for giving me the opportunity to introduce the Vehicle Clamping Bill 2014. The Bill addresses the commitment in the programme for Government to legislate to regulate clamping. The impetus for this commitment stems principally from public concerns in regard to the activity of some clamping operators and the extent to which clamping may be carried out in a less than fair manner, with no obvious consistent or transparent recourse to appeal against perceived abuses. The areas of greatest public concern relate to the level and variation in clamp release charges currently applied, the lack of a clearly identifiable and accessible clamping appeals process and the oftentimes absence of appropriate information signage for motorists.
Currently, section 101B of the Road Traffic Act 1961, as amended, provides for the clamping and-or relocation of vehicles illegally parked on a public road by either a member of An Garda Síochána, a person appointed in writing by a local authority or a traffic warden. However, there is currently no regulation of clamping activities carried out on private land. The practice of clamping or relocating vehicles on private property does not come within the scope or the spirit of road traffic legislation. Such legislation tends to relate only to activities on public roads.
The legal issues surrounding the situation whereby a clamp is placed on a vehicle in circumstances other than those provided for in existing legislation relating to the public road and certain State agencies, primarily relates to the manner of the contract between the owner of the land or car park and the car driver or owner. However, in such latter circumstances, no account is taken of the need to regulate clamping activities in the broader public interest, nor do such circumstances carry with them the same transparent safeguards for members of the public as apply to clamping activities currently carried out under statute.
It is, therefore, appropriate that clarity be given by the Oireachtas to this situation in order to protect the rights of both citizens and property owners alike in regard to an activity which has become an increasing feature of urban life in Ireland. It is in this context that my predecessor as Minister, Deputy Leo Varadkar, presented a discussion document to the then Oireachtas Joint Committee on the Environment, Transport, Culture and the Gaeltacht in December 2011, in which he outlined the principal issues to be addressed, together with proposals on the shape of appropriate legislation, and invited the committee's views. The committee responded in a comprehensive report which contained a number of recommendations, the majority of which have been taken into account in this Bill.
The discussion document presented to the committee outlined a number of options by which the issues of public concern in regard to clamping might best be addressed. These options included: banning clamping; whether proposed legislation should be confined to clamping activities on private property only or to both private and public property; or allowing clamping operators to self-regulate. The document also outlined how proposed regulation of clamping activities might be applied. For example, in introducing legislation, should the primary focus be on those individuals or companies undertaking the clamping activity or, alternatively, should the circumstances and requirements for the application of a clamp to a vehicle be regulated instead? The issue of whether or not the related activity of towing should be regulated was also considered. The broader issues of who might regulate, how regulation might be funded, what requirements should be adhered to before clamping a vehicle, the setting of maximum clamp release charges, the provision of an independent appeals process and other relevant matters were also outlined for the committee's consideration.
The joint Oireachtas committee invited a number of representative stakeholders to make presentations to it or to submit written submissions for its consideration. The range of stakeholders attending those hearings or making submissions to the committee included; local authorities; representative bodies from that sector; AA Ireland; representatives of the clamping industry; business organisations such as Chambers Ireland and Retail Excellence Ireland; the Irish Patients Association; Dublin City Council's independent parking appeals officer; the Irish Property and Facility Management Association; officials from my Department; and other interested parties.
These hearings and submissions raised some important and interesting matters and after due consideration the committee formed the view, as part of the options for reform, that any legislative proposals in regard to clamping should ensure harmonisation regarding the processes and procedures involved, regardless of where clamping takes place, be it on public roads or private property. Most of the core suggestions arising from the main areas of concern identified by the committee have been provided for in one form or another within the Bill. One of the long-standing issues raised by Members of the Seanad and the Dáil is the role of committees in the drafting of legislation and how Members' and stakeholders' expertise and input can best be harnessed. This legislation provides an example of how many Members contributed to the drafting of the Bill. They provided input on the heads of the Bill and a broad variety of people involved in the industry had an opportunity to make their views known. This process had a substantive impact on the nature of the Bill and its drafting and I thank all those who took the time to participate in that process.
Particular core matters dealt with in the Bill are the designation of the National Transport Authority as regulator of clamping activities; the setting of maximum permissible clamp release charges on private lands; the establishment of a two-tier appeals process; an obligation to provide clear and prominent signage in areas where clamping is operated; the establishment of codes of practice to provide practical guidance regarding compliance with regulatory requirements; regulating the means of identification to be carried, displayed and presented by clamping operatives; and the setting of appropriate penalties for breaching provisions of the Bill or regulations made under it.
The Bill does not provide for the registration and licensing of clamping operators and the associated vetting of staff employed by clamping operators. Although the provision of such measures was outlined in the general scheme of Bill, after detailed consideration of the issues involved, including extensive consultation with the Office of the Attorney General, these provisions are not included in the Bill I am presenting. A compulsory licensing and registration regime for clamping operators, complete with the associated requirements and stipulations attaching to such a regime, would not, in terms of cost and practical effectiveness, represent the most effective manner of addressing the issues of public concern which this Bill seeks to address.
In the final analysis, the introduction of a statutory licensing regime was deemed to be excessive and too costly to implement for the taxpayer and clamping operators alike. Owing to the relatively small number of sizeable parking enforcement or clamping operators in existence, the public would have been hit on the double for the establishment of such a regime. It would have ended up subsidising what may have been an economically unsustainable licensing regime, while at the same time having to pay increased clamp release charges imposed by clamping operators who chose as part of their business model to increase such charges to offset licensing fees imposed by the State. Also, such a regime, by its very nature, would undoubtedly have focused exclusively on clamping operators. This would have presented difficulties in making provision for those individuals who, of their own accord and without contracting the services of a clamping operator, choose to clamp vehicles on their own private property.
Taking cognisance of all these very real and pertinent considerations, we decided that the issues arising would be more appropriately addressed through the statutory regulation of clamping activities, irrespective of the location in which they were carried out.
I stress to Senators that this is a core decision which permeates the Bill, influenced its drafting and will inform its implementation. I refer to the point of focusing on the actual activity of clamping and how it is done, regardless of whether it takes place on public or private land. In choosing to regulate the activity of clamping rather than licensing the person or company carrying out the activity, the provisions of the Bill will cater for all scenarios in which a vehicle is clamped whether by a local authority, individual or contracting party such as a clamping operator on public or private land. As a consequence of putting the regulatory focus of the Bill on the activity of clamping, we will have far greater breadth of coverage in terms of who does the clamping and the location in which it is carried out.
The Bill recognises the fundamental importance of regulating these activities in order that issues of public concern can be addressed. It provides for the statutory regulation of clamping activities, irrespective of location. Corresponding sanctions for the breach of the regulations are also being provided for. The Bill also contains enforcement powers including powers to prosecute in relation to non-compliance with the provisions of the Bill or a regulation made under it. In policy terms, it is not the aim of the Bill to determine in what places clamping should or should not take place, nor does it set out to decide parking policy, which is an objective of either local authorities or those who own, control or regulate the private property which is included within the coverage of the Bill. Bodies responsible for areas of parking - be they local authorities in respect of public roads, State agencies in respect of parking areas or owners of private land - will continue to determine parking policy and appropriate parking controls. The Bill provides that if clamping is used as a means of clamping control, the legislation must be complied with.
It is entirely reasonable for landowners to be able to deal in a fair and cost-effective manner with nuisance parking. For example, the parking of cars all day at a shopping centre is to the obvious disadvantage of other customers. At an apartment complex, residents may be inconvenienced. While the owners or managers involved should have the right to take reasonable action, the manner in which the clamping activities are carried out must be regulated. There is a clear need to establish broad rules governing these activities and it is the manner in which these rules can be formulated which has required detailed consideration.
It is also self-evident that local authorities have a responsibility to ensure effective traffic management in towns and cities as well as in relation to the corresponding utilisation of finite parking resources on the public road. However, while the use of clamping as a parking enforcement mechanism is highly effective, the rights of landowners and the responsibilities of the State must not be exercised to the detriment of the individual motorist. These competing rights and responsibilities must at all times be exercised in the interests of both citizens' rights and the good of society as a whole. It is a balancing act that much legislation has to walk. It is particularly important in respect of the Bill given the focus on the activity and the objective that it be regulated regardless of where it takes place. Bearing these issues in mind, I propose in the Bill to regulate clamping wherever it takes place.
Irrespective of where clamping is carried out, the Bill will provide for its regulation in a non-discriminatory and proportionate manner across the public and private sectors. In essence, the Bill aims to provide a balanced regulatory framework within which legitimate clamping operators may operate but which also protects motorists from any disreputable practice.
As well as regulating clamping activities, the role and responsibilities of those persons or bodies that engage clamping operators are addressed. Under the Bill, landowners or persons responsible for places in which clamping is operated will be obliged to provide appropriate signage in accordance with regulatory requirements, as well as providing for a statutory first stage appeals process.
I will now give a broad outline of the main provisions of the Bill which is in six Parts. Part 1 deals with technical matters such as the Short Title and commencement, definitions of frequently used terms, the laying of regulations and orders and matters relating to regulations made by the NTA. It also allows for further places where clamping is carried out under statute to be brought within the ambit of the Bill. This latter provision is noteworthy in that it acknowledges the legal delineation, under which clamping has been carried out in Ireland for a number of years. In regulating clamping activities in a non-discriminatory manner across both the public and private spectrum, for legal reasons, the Bill distinguishes between those places where clamping takes place under an existing enactment, referred to in the Bill as ''statutory clamping places", and all other places which are referred to as "non-statutory clamping places". Examples of "statutory clamping places" include the public road and parking areas operated by State bodies such as CIE, the Railway Procurement Agency and harbour companies. "Non-statutory clamping places", in the main, refers to private land or car parks in places such as shopping centres, sports venues and so on. This distinction also recognises the legal difference between instances of unlawful parking on the public road and certain State lands as opposed to wrongful parking which may occur on private property where certain parking terms and conditions may not have been complied with.
Part 2 provides for many of the recommendations suggested by the joint Oireachtas committee relating to the regulation of clamping activities which, in respect of private property, is currently unregulated. I am confident that the specific activities regulated for in this Part of the Bill address the regulatory lacuna heretofore in respect of clamping activities on private land. Wherever clamping activities are carried out - on the public road, land belonging to or operated by a statutory body or private property - such activities must be carried out in accordance with the provisions of the Bill. Specifically, this Part confers on the NTA the two central functions of regulating clamping activities and providing for a complaints and appeals procedure.
When it comes to clamping, the source of greatest annoyance and disquiet for the motoring public is the variation in and inconsistent clamp release charges being applied in privately owned car parks. Under section 14 of the Bill, the NTA will be conferred with regulatory powers to set the maximum clamp release and vehicle relocation charge. Under this section, the NTA will be able to prescribe the maximum clamp release and vehicle relocation charge that may be charged in non-statutory clamping places such as private car parks and car parks associated with shopping centres, retail parks, sports stadia and so forth. Where no maximum charges stand prescribed by the NTA, the Bill provides that the clamp release charge will be €100 and the vehicle relocation charge, €50. A person who imposes or attempts to impose clamp release or vehicle relocation charges greater than the set maximum charges will commit an offence and be liable on summary conviction to a class B fine, a fine of up to €4,000. In statutory clamping places such as at State airports and railway stations the bodies responsible will be obliged to have regard to the recommendations made by the NTA in respect of such charges. The Minister, after consultation with both the Minister for Justice and Equality and the NTA, may prescribe clamp release charges on the public road.
Another issue of public contention is the reported absence of appropriate and prominently displayed advisory signage warning motorists of clamping activities and the parking terms and conditions in areas in which clamping is in operation.
Under section 10, persons responsible for enforcing the law or rules applicable to parking in a place where clamping is operated, referred to in the Bill as "parking controllers", will be obliged to provide prominent regulatory advisory signage, which clearly indicates that clamping activities are in operation and detailing the clamp release and vehicle relocation charges applying. A parking controller who fails to provide such signage commits an offence and is liable on summary conviction to a class C fine, namely, a fine of up to €2,500. Other than on the public road, where the Minister will retain responsibility for regulatory signage under section 95 of the Road Traffic Act 1961, the NTA may make regulations with respect to clamping signage, including their location, information content, dimensions and design and symbols to be displayed, as well as the number of signs to be provided in a particular place.
The Bill also makes provision to enable the NTA to regulate the physical processes involved in clamping. The principal day-to-day clamping processes that may be regulated include: the time period that shall elapse before a vehicle may be clamped; the clamp release time after payment of the appropriate charge; the means of identification of clamping operators; the form of clamping notice to be affixed to a clamped vehicle; the methods of payment of the clamp release charge; and the records to be kept in respect of such activities. In this regard, the NTA may establish codes of practice under this Part for the purposes of providing practical guidance on clamping matters. It is envisaged that standards relating to general behaviour, performance of duties and the conduct of clamping operators in respect of the carrying out of clamping activities and their interface with the public will be at the centre of such codes of practice. Standards may be established regarding the supervision by parking controllers of contracted clamping operators in respect of clamping activities operated on their behalf. The guiding principle in the establishment of codes of practice will be to assist parking controllers in both the public and private sectors, as well as clamping operators, in properly managing the day-to-day best practice operation of clamping activities in the public interest.
This Part provides an exemption for ambulances, fire brigade vehicles or any vehicle being used by a member of An Garda Síochána or the Defence Forces in the performance of his or her duties from being clamped or relocated. A vehicle displaying a disabled parking permit will be exempted from being clamped in any place where clamping is specifically legislated for under an enactment.
Part 3 makes provision for the establishment of a complaints procedure to address issues of perceived misconduct by clamping operators in the discharge of their duties, as well as providing for a two-tier appeals process to hear appeals against incidents of clamping or vehicle relocation. The absence of a fair and transparent means of redress for motorists in instances of clamping is an issue that has also raised widespread public concern. I have been clamped and I appealed the clamping. The appeals process varies among clamping operators because it is administered by them. In contrast to appealing a parking fine or parking charge with a local authority for which a clear process is laid down, when one is dealing with a private company and raising an issue about which one feels strongly, it is sometimes not clear how it should be dealt with. The introduction of this provision will benefit not only those making appeals but also those working in the clamping industry because they have a right to ensure they can carry out their job to the best of their ability and that the process is well regulated with appeals against them conducted in an impartial manner. Part 3 seeks to address this issue. Although some clamping operators have in place appeals processes to cater for such instances on private land, there is an inconsistency of approach that needs to be addressed.
Under the Bill’s provisions, a person whose vehicle has been clamped or relocated may appeal, in the first instance, to the parking controller responsible for enforcement of the parking rules within that place. Where the person is not satisfied with a determination made at this stage, he or she may lodge a second stage appeal to an independent clamping appeals officer appointed by the NTA.
The statutory procedures underpinning both of these stages of appeal, as well as the timelines for receipt of a determination on each, are set out in sections 18 to 21, inclusive. The two-tier appeals process harnesses the roles and responsibilities of those persons or bodies that engage clamping operators. Generally, clamping operators are the contracted agents of principals such as retailers, hospitals and apartment management companies. It is only right such principals play their part in ensuring motorists have access to a fair and easily accessible first stage of appeal. A parking controller who fails to put appeal procedures in place will have committed an offence and will be liable, on summary conviction, to a class B fine, namely, a fine not exceeding €4,000.
Also, in line with recommendations made by the Oireachtas transport committee, the Bill gives the NTA the power to establish a procedure to consider complaints from members of the public concerning the discharge by parking controllers of their responsibilities, as well as the conduct and behaviour of clamping operators.
Part 4 provides the NTA with the necessary legislative powers to enforce compliance with the provisions and regulations made under the legislation. In particular, this Part makes provision for the appointment of authorised persons by the NTA and the specifying of their powers of investigation. Where it is considered that a parking controller or clamping operator is not complying with the Bill, clamping regulations or a code of practice, the NTA may direct such individuals to comply in accordance with any direction issued by the authority. Where the NTA, having considered representations made to it by a parking controller or clamping operator, is still of the view that there is non-compliance with a direction given, it may apply to the Circuit Court for an order directing such compliance.
Part 5 provides for the application of equivalent regulatory provisions within the legislation to the public road. This is in line with the commitment to ensure the regulation of clamping activities is harmonised across all areas. In fulfilment of this objective on the public road, section 30 substitutes a new section for section 101B of the Road Traffic Act 1961. This section provides for the clamping and removal of illegally parked vehicles on the public road, as well as for the prescribing of clamp release charges. I will retain my ministerial function in the prescription of such charges, but I will consult both the Minister for Justice and Equality and the NTA before prescribing any such charge. This section also amends the informational requirements of the notice to be affixed to clamped vehicles, particularly in giving details of the two-tier appeals process operated under the Bill.
Part 6 provides for the amendment of various existing statutory provisions relating to the clamping of vehicles on land belonging to or occupied by CIE, the Railway Procurement Agency, State airports and harbours. The intention of these amendments is to bring uniformity to existing statutory provisions.
The Bill enjoyed an input from Members through the Oireachtas committee process. As a result, it has been much improved. An important element of the legislation is the focus it will place on the regulation of clamping activity. It will have as broad an implementation as possible, with a specific focus on parking on public and private lands. The Bill is proportionate, responding to a legitimate public concern on behalf of motorists, while also recognising the needs of other stakeholders.
A Bill such as this is also in the long-term interests of people who are working in the clamping industry because we all know that a regulated industry is one that has the best chance of being more sustainable in the long run.