As we all know the clamping ban is now law- if not yet in force. As I have said several times in Bailiff Studies Bulletin there are two unexpected risks in the new Act: one is that the ban fails and that 'cowboy' parking enforcement continues unabated; the other is that civil debt enforcement is criminalised.
I am currently researching two books on 19th century enforcement. In the course of this I have turned up further materials confirming what I have argued in detail and at length in several previous publications- that impounding on a debtor's premises is not lawful unless statute permits it.
In one chapter of one of the new books I examine the evolution of close possession. In my search for materials I came up with several Parliamentary reports and documents in which government and MPs confirm what I already knew- that walking possession (for example) is not lawful unless Parliament acts to make it lawful. This is no revelation- look for example at chapter 8 of A lawful trespass- but these new sources underline the point yet again. The same reasoning must of course extend to close possession or clamping. Without clear authority in statute, these remedies cannot be used.
I've said it many times before- and apparently will keep repeating myself- these processes may be convenient and effective, but they are not strictly permissible. No-one hears because no-one wants to hear. BUT perhaps a few criminal prosecutions would make someone listen. Clamping becomes an offence without lawful authority- bailiffs will find that they cannot point to lawful authority because (except in just a couple of cases) they have never been given that authority by Parliament.
This is Parliament's fault- not the bailiffs'- and the complacency of Theresa May and Jonathan Djanogli on this issue has been quite staggering. My lone voice on this issue was too small to be heard, it seems, but you might have hoped that, given full citations of all the cases and other sources, someone in government might have been able to come up with a better counter argument (if we may dignify it with such a name!) than "Ministry of Justice thinks that the right to distrain includes the right to clamp." Does it? Well, as we say in South Yorkshire- "Tha kno's nowt" and hopefully events will confirm this.