BAS Parking Services breaching the clamping ban

Private clamping and towing of vehicles was definitively outlawed in England and Wales on 1st October 2012. Before that, it was legal in certain circumstances, but private companies overstepped the lawful limits more often than not – although it was not always clear where the limits were. The law has now been made very clear.

But it seems that in Bristol, BAS Parking Services are vioalting the ban - apparently with the council's consent:

"Enforcement of parking restrictions at this site is carried out by a private contractor which responded to reports of a number of motorists parking at the flats without a permit and, unfortunately, this employee was caught up in this action and was towed away."

They seem to be unaware that this method of enforcement is now a criminal offence.

Section 54 of the Protection of Freedoms Act 2012 states:

54Offence of immobilising etc. vehicles

(1)A person commits an offence who, without lawful authority—

(a)immobilises a motor vehicle by the attachment to the vehicle, or a part of it, of an immobilising device, or

(b)moves, or restricts the movement of, such a vehicle by any means,

intending to prevent or inhibit the removal of the vehicle by a person otherwise entitled to remove it.

(2)The express or implied consent (whether or not legally binding) of a person otherwise entitled to remove the vehicle to the immobilisation, movement or restriction concerned is not lawful authority for the purposes of subsection (1).

Implied consent of the motorist was the old reason that clamping could be lawful in some cases. The act clearly covers towing, as well as clamping, if the towing is intended to prevent the owner driving the vehicle without making a payment. Accepting or demanding any payment would also now be an offence under the Consumer Protection from Unfair Trading Regulations 2008 and could carry a prison sentence of up to two years.

Some comments on that page have claimed that as clamping and towing by councils can still be lawful, BAS are in the clear as their contractor. Clamping and towing by councils can amount to "lawful authority" for the purposes of section 54(1) where they are enforcing statutory parking restrictions: that is, where a traffic order has been made on public land (a road or public car park). Lawful clamping and towing by councils on public land also carries a statutory right of appeal to the council, and from there, to the traffic penalty tribunal.

It seems clear from the council's statement that this does not apply here. The motorist's appeal has clearly not been considered under the statutory system - otherwise, having decided he should be refunded, the council would have to refund him. Here, they have said that they have passed the matter to BAS and will not decide the outcome or pay anything themselves.

This means that BAS have committed a criminal offence while acting as contractors to Bristol City Council. If Bristol City Council have instructed or procured their use of towing after Oct 1st, the council are equally guilty of the offence. There is no blanket exemption for councils who are not exercising lawful authority, and nothing in section 54 to suggest that ignorance of the law would be a defence.

Update 27 Oct: Bristol City Council have not commented further, but their PR Office confirmed they were not aware that towing vehicles without lawful authority has been made a criminal offence. The police have been informed of the incident.

Watchdog clueless on statutory consumer rights

This week's Watchdog had a worrying story about Amazon Kindles breaking down after a short period of time.

What they totally failed to spot, as seems to happen quite often, is that Amazon's claimed policy of imposing a guarantee limited to one year has no basis in the law.

All goods bought from a business are covered by section 14 of the Sale of Goods Act 1979. This means that the goods have to last a reasonable time, considering the price paid and nature of the goods. This is fairly basic consumer rights law.

An expensive item like a Kindle that is not obviously perishable is expected to last longer than one year. It's (almost) excusable for retailers to try it on a bit, but Watchdog should know this kind of thing.

Proposed changes to child benefit - a reasonable idea turned nightmarish

Iain Duncan Smith has proposed limiting benefits payable for children in any family to a maximum of two children. If the parent or parents then went on to have more children, they would not receive additional money for the third or higher child.

In some ways, this is quite a reasonable idea. The additional amounts of benefit paid for families with more children can be fairly generous. Each additional child can currently bring in approximately £70pw in tax credits and child benefit. It also entitles the family to rent a larger house and to a higher income disregard in housing and council tax benefit worth about £50pw for each child.

I have thought for some time that some kind of limit to how many children a person can have while claiming benefits, just as someone who wants to claim help for a mortgage cannot usually take out a new mortgage while on benefit.

The extent of additional money for each child has already been somewhat limited by the new, and highly flawed, benefit cap of £500 a week per household. That system will only affect people with 4-6 children, depending on a number of factors such as the amount of rent they pay. If this new change were implemented, then it would make the cap completely obsolete as nobody with under four children would ever be affected by it. But this is where we get into difficulties with what has now been proposed.

The first problem with the new proposal is that Duncan Smith is once again making it into an issue of those in work against those out of work. From his description of things, you would get the impression that 'those with three or more children' and 'those in work' are two separate groups on a Venn diagram that don't overlap. But this is wrong - people in work can obviously have more than two children.

Despite purporting to make this distinction, there is nothing in IDS's announcement that suggests this change will be limited to those out of work. It seems that everyone will be affected. So it's not just something aimed at the unemployed - we need to be clear on that, or a falsehood is spread.

As I said above, I think it would be reasonable to limit people from having more children while on benefits and immediately claiming more money for them. But it would definitely not be fair to say that if a parent with 4 children loses his or her job, then he or she is unable to claim enough money to live on. It's not as though someone who has lost a job can give up children.

And this is the point where fridge horror sets in. Benefits for children include help with higher rent, for the larger family. This proposal means that a parent with 4 children losing his job would almost immediately become both homeless and un-houseable. This completely undermines the idea of safety net. We may see families forced to split up and children being sent to live with other relatives (who will then be able to claim benefits for them - ruining the point of the idea once again.)

This government has no idea what it is doing. It just pushes through seriously flawed ideas without thinking them through, before and again. No-one who looked carefully at the last benefit cap thought it was a good idea, so I am very worried about this new idea.

Is the benefit cap really pushing thousands back into work?

Short answer: no. But a Daily Mail article nevertheless claims this is the case.

IDS claims that the upcoming benefit cap of £500 pw is causing 'thousands' of families to look for work. So that's already a bit of a climb down from them already going back into work, for a start. 1,700 people in this group have found work, which is 3% of the group. And we don't know over what time period that is: in any case it is a pretty low take-up rate.

The cap of £500 which starts in April 2013 will affect very few people. It will only apply to families with a lot of children. Families with a lot of children can indeed receive relatively high rates of benefits: after all, they have a lot of people to split that money between. On the other hand, it is not necessarily unreasonable to limit the number of children people can have and immediately request state support for them all.

But this is where the reasoning for this particular system of cap breaks down. It is wrong to compare it to the amount 'an average couple would earn in work'. This is for two reasons:

1. A family of the same size with the parents in work can also claim a lot in benefits - possibly the same or even more than one out of work. (This is even lampshaded in the Mail article!)
2. The £500 a week in benefits has to support between 5-8 people, whereas an average couple in work earning that only have to support two people. (And if they have children they will get additional money through benefits.)

The cap also creates a new 'couple penalty' - remember, that thing Cameron promised to abolish but hasn't? The cap applies per household. The obvious thing for a large family with two parents affected by the cap to do would be to split into two nearby households - who then only have a total cap of £1000 pw between them, which would be absolutely impossible ever to reach.

If the cap of a mere £500 per week really is causing 'thousands' people to look for work, how could IDS possibly know about it?

The only way would be where they are claiming jobseeker's allowance, the DWP would have a record of their jobsearch activity and requirements. But in that case, those jobsearch requirements would have already applied without the cap. Most families with children need to claim JSA, and to look for work as a basic condition of entitlement. That has been the law since the 1920s.

Look again at the exact words used:

 "Despite all the scaremongering, research now shows that of those housing benefit claimants affected by the cap, a third said they would now be looking for a job."

Note that it doesn't say this is new, or because of the cap. They could have been looking for a job all along - and must have been.

PCC Elections - Bill Etheridge's manifesto

Bill Etheridge, the UKIP candidate for Police and Crime Commissioner, pledges (in addition to the standard things most candidates are saying):-

•  I will demand tougher and more sensible sentencing from Judges. I will send a written request to each Court in the WMP area and request most vehemently that they adhere to the Sentencing Guidelines Council recommendations for that crime. 

This is a worrying statement, which suggests that as I feared in yesterday's post, PCCs may not be happy to keep to the duties that are prescribed or recommended for them by the Home Office. Writing to judges should not be part of his role, for very good reasons, and it is highly unlikley any member of the traditional executive branch of government would dream of violating the separation of powers like this.

If Mr Etheridge did this he would be at risk, in my opinion, of acting contrary to the Constitutional Reform Act 2005, as well as ultra vires the powers granted to him by Parliament. The section 3 of the CRA states:

(1)The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.

 and

(5)The Lord Chancellor and other Ministers of the Crown must not seek to influence particular judicial decisions through any special access to the judiciary.

Subsesction (5) might well include those who are part of the Home Office as well as actual ministers. If a public body or official acts contrary to statute, this does not imply any criminal offence, but does leave the decision liable to being quashed by the courts. Parliament can also hold the executive to account. But because of the directly elected nature of the PCC position, it will exist outside the established executive branch of government and will not be accountable to Parliament in the usual way that ministers are. And it is not clear yet if the courts will be willing to interfere with actions of directly elected office holders. I'm sure Mr Ederidge is not alone in this kind of plan, so this could mean interesting times.

Absurd

This is not a parody image. It is actually taken from the Home Office PCC election website.

Apparently, in this universe, if you don't vote there will be no more police.

If this were not such a ridiculous implication to make, it might amount to a breach of advertising standards rules, but is probably saved by appearing to be a joke.

Why I will not be voting on Nov 15th

On November 15th, we will be asked to vote for the first elected Police and Crime Commissioners. This new post was created with the stated aim of "giving the public a say in cutting crime", and the government describes it as "being at the vanguard of its reforms". The theory is that an elected police chief will make the police better at serving in a way the public want.

This all sounds great, but there are two very serious problems with this idea.

1. There is little that a voter can do to make a meaningful choice as to which candidate to vote for.
2. The concept of electing the police, or voting on which crimes to enforce, is inherently dodgy.