The government is very pleased with its blow for motorists' freedom against cowboy clampers, but I anticipate that the Act will fail. I say this because the government has failed to listen to advice from experts and has produced only a partial measure.
It will be an offence to clamp "without lawful authority." The Act specifically states that it will no longer be possible for clampers to say "you saw the signs warniong you it was private land and parked anyway, taking the risk of being clamped." However the Act overlooks a key fact: land owners in England and Wales have a fundamental common law right to use self help means against those trespassing on their land. In other words, they can tow away and impound a car that should not be there. This right seems to provide the perfect 'lawful authority' for private parking enforcement to continue- albeit now involving removal rather than immobilisation.
Which is worse for a driver? A car clamped- with a fee to pay- or a car removed- with far higher fees to pay? Police time will be wasted with calls from people thinking their vehicles have been stolen. Motorists will have to pay much more to get back on the road again than they did beforeand the essential problem the government sought to resolve will remain.
I guess that those firms who block in drivers and use other intimidatory tactics that often create the parking contravention in the first place may disappear. Perhaps this is the aim; the freedoms of land owners will still be protected as they will not be deprived of a remedy and the rogue operators might be driven out.
Perhaps this was the Home Office plan. I am not convinced. I wrote several times to Theresa May and Lynne Featherstone and- when they did bother to reply- their responses were brief and complacent. The key legal issues that had been raised with them were never addressed in detail. There was a complete failure to engage in debate or even to provide a reasoned explanation for the policy adopted. They had ben reassured by civil servants and department lawyers that it would all be OK, and this was as much as they were preapred to say.
So far, so unsatisfactory. But there is worse. My research strongly indicates that most private bailiffs enforcing debts do not have any 'lawful authority' to clamp. There is neither case law nor statute allowing them specifically to immoblise- indeed, the law seems to say quite the opposite.
This means that any bailiff clamping a car will, in future, be committing an offence under the 2012 Act. ooops. What did HM Government have to say about this? basically, nothing. "We believe that bailiffs levying distraint can clamp." And your reasons are......? Again, no debate, no discussion, no reasons, no cases, no law at all. Just bland assurances without any substantiation whatsoever. The result could be that the unplanned results of the Act are an even bigger disaster than the planned results.
So, the worst case scenario for the Protection of freedoms Act is this:
- a lot of clamping firms will close and their staff will be made redundant, creating more unemployed during a recession;
- some firms will carry on but as tow companies instead of clampers. This will be perfectly lawful and the new Act will not be able to stop it;
- bailiffs collecting debts will suddenly all be criminalised;
- police officers will spend time looking for stolen cars which haven't been stolen and being called out to arrest private bailiffs who will now find that a standard part of their procedure has become a crime.