Hansard

This group is a package of amendments that seek to introduce the concept of keeper liability in relation to charges for parking on private land. I appreciate that it is quite a legally complex area and that the committee has not previously taken evidence on the matter. Accordingly, if members will bear with me, I will set out some of the background to the issue and put the amendments in context. I have a long-term interest in trying to improve the regulation of private car parks in Scotland. It is driven by my constituency mailbag, in that I have been contacted by hundreds of constituents who have been hit with what they believe are unfair penalty charges from unscrupulous private car park companies. Many of those charges originated at a particular car park in the centre of Perth, but since I have raised the issue, I have been contacted by people from right across Scotland who have faced similar difficulties. I have had experience, as I am sure have other members, of people coming to me about penalty notices not being fairly issued. They have been issued because people have simply overstayed their parking by five minutes or less; because someone has correctly paid for their parking but inadvertently entered the wrong digit into a parking pay machine; or because the system for paying has been unduly complex and confusing. In some cases, the penalty charges have been extortionate, with a basic charge of £60 or £80 rising to £160. Often, those charges are then passed on to debt collectors and individuals are bombarded with threatening letters that indicate that court proceedings will be taken if they do not pay up. For many people, particularly the vulnerable or elderly, the whole situation can be very distressing and they end up paying those charges, even though they might not be properly due. My research has led me to understand that there is no specific legislation in Scotland dealing with the regulation of parking on private land and that it is covered at present by the general law of contract. That is a situation where Scotland has fallen behind other parts of the United Kingdom. The Protection of Freedoms Act 2012, which governs the situation in England, introduced an independent appeals system known as parking on private land appeals, or POPLA. It means that those who are hit with a penalty charge have recourse to an independent appeals system. That has never applied in Scotland and we have a situation here whereby a penalty notice can be challenged only by going to the company that issued it in the first place, which is clearly a very unsatisfactory situation. In addition to introducing an independent appeals system, the Protection of Freedoms Act 2012 introduced keeper liability as part of a balanced package of reform. My interest in the subject led me to introduce in December 2017 a member’s bill proposal for regulation of privately operated car parking in Scotland. I proposed that the bill would cover five issues that I believed were necessary for reform: first, legislating for a maximum charge that could be recovered as a penalty for breaching the rules of parking on private land; secondly, introducing regulation for uniform signage to avoid the present confusing situation; thirdly, regulation for the appearance of penalty charge notices to make it clear that they are civil payments and to differentiate them from local authority-issued parking tickets; fourthly, the introduction of an independent appeals system in Scotland so that we mirror the situation in England and Wales; and, fifthly, the introduction of keeper liability in Scotland. I ran a consultation on the proposed bill and received 136 responses, including from industry groups, consumer rights organisations and the general public. There was overwhelming support in principle for better regulation, with 93 per cent of those responding supporting it and only 4 per cent opposing it. I subsequently had very positive engagement around those issues with the former transport minister, Humza Yousaf, and the current cabinet secretary, Michael Matheson. The Scottish Government has always accepted the need for reform in the area concerned. While I was carrying on that work, Sir Greg Knight, who is a Westminster MP, introduced a private member’s bill—the Parking (Code of Practice) Bill—that had cross-party and Government support and is now an act. Sir Greg’s act introduces for the first time a statutory code of practice for car park operators, which will be rigorously policed. The act ties compliance with the code to access to Driver and Vehicle Licensing Agency records. At present, a car parking company can pursue car owners only if it can identify them. To do that, it must have access to the DVLA database. In the past, the DVLA was happy essentially to sell that information to anyone with a genuine interest but, in the future, only companies that comply with a statutory code of practice will be able to access the records. Without that access, a company’s penalty notices will in effect be unenforceable. Last year, this Parliament agreed to a legislative consent motion to ensure that the act applies in Scotland as well as south of the border. That deals with the first four points that I consulted on, as it will bring in an independent appeals system and address the other issues. That leaves only keeper liability outstanding, which needs to be legislated for separately. I discussed the matter with the Scottish Government and we agreed that the Transport (Scotland) Bill would be an appropriate legislative vehicle for bringing in the reforms. Having set out the background, I turn to the amendments. Keeper liability will make the registered keeper of a vehicle liable in the first instance for paying reasonable penalty charges for parking on private land. At present, under the general law of contract, a vehicle’s driver is deemed to be liable for any charges that arise when parking on private land, because the car’s driver enters into a contract with the landowner or car park operator. That leads to an obvious difficulty with enforcement, as the landowner or car park operator has to prove who the vehicle’s driver was, which in practice can be extremely difficult. Keeper liability allows penalty charges to be pursued against the registered keeper in the first instance. Alternatively, to avoid liability, the registered keeper can identify who the driver was, and the driver can then be pursued. Keeper liability already exists as a concept in Scots law for those who park on public land. Anyone who parks on a public street and receives a parking ticket will find that it is addressed to the registered keeper. The concept also exists in relation to the likes of speeding offences—someone who is caught by a fixed speed camera receives a notice that is addressed to the registered keeper; if they were not the vehicle’s driver at the time, they can pass responsibility on to that person. That issue has been at the heart of high-profile court cases in recent times. Why should we support keeper liability in today’s context? It is important to view it in the context of the wider reforms that I described. As part of a package of law reforms, it is intended to bring in a fair balance between the car driver’s rights and the legitimate rights of a landowner or car park company to recover costs for breach of contract. I understand from the Scottish Government—I have no doubt that the cabinet secretary will confirm this in due course—that the introduction of keeper liability is intended to be tied to the date of introduction of the new statutory code of practice, which deals with the other concerns that I identified. I would certainly not support keeper liability as a standalone measure; it needs to be seen in the wider context. In the consultation that I ran as part of my member’s bill proposal, 35 per cent of respondents were in favour of keeper liability, 33 per cent were opposed, 15 per cent were neutral and 16 per cent were unsure. The high percentage of neutral or unsure respondents reflects the fact that the concept is quite difficult to understand. Nevertheless, a small majority were more in favour than against. Only about 25 per cent of penalty charges for parking on private land in Scotland are being paid. There is a high level of uncertainty about where the law stands, and there is an urban myth, which is untrue, that such charges are not enforceable in law. Such uncertainty is not good for anyone. Bodies such as Citizens Advice Scotland have done excellent campaigning work on the subject, and everyone agrees that we need greater certainty. The issue does not concern only commercial car parks. Many businesses and private individuals have a legitimate interest in protecting their car parking spaces. For example, at present, owners of flats in city centre developments with allocated parking spaces find it impossible in a practical sense to enforce their rights over their parking spaces without keeper liability. Their parking spaces are filled up by random members of the public coming in to get free parking rather than paying for it. That means that the people who have paid for parking spaces cannot actually use them. The same might apply to a shop with allocated customer parking or a business that has parking attached for its staff. Keeper liability ensures that these rights, which already exist in law, are much more easily enforced. 09:15 I thank the Scottish Government for all its support in drafting the amendments and for its co-operation. Amendments 268A and 319, in the name of Pauline McNeill, seek to amend my amendments. As far as I can determine, they seek to ensure that any enforcement of notices can be done only by a public body. I cannot see how such an arrangement would work in practice. The enforcement of notices for parking on private land is a civil matter between the landowner or their agent on the one hand, and the driver or keeper of the vehicle on the other. There is no locus for any public body to become involved, and no public body has an interest in the enforcement of the notices. Moreover, I cannot see what public body or bodies would get involved in trying to resolve these matters. The Scottish Government has no interest in spending taxpayers’ money on getting involved in resolving disputes between commercial companies and private individuals, nor have local authorities any interest in getting involved. There are simply no public bodies or agencies that have the capacity to take on such work. I fear that Pauline McNeill’s amendments, although they may be well intentioned, are essentially wrecking amendments that drive a coach and horses through the carefully balanced package of reform that I have been trying to take forward with the help of the Scottish Government. I therefore urge Pauline McNeill to withdraw her amendments. I am happy to move amendment 260.