Disabled Persons’ Parking Badges (Scotland) Bill: Stage 2
I thank the committee for its consideration of the bill at stage 1 and I thank members who took part in the stage 1 debate, after which the Parliament agreed to the general principles of the bill. I also thank the minister for supporting the bill and for answering many of the questions that were asked during the debate on 20 May.
This is a small bill. It looks at enforcement of the blue badge scheme with a view to tackling misuse. I think that the approach that it takes is proportionate and appropriate, so I hope that members will accept the bill as it is.
Thank you.
Sections 1 and 2 agreed to.
Section 3—Power to confiscate badge
Amendment 1, in the name of John Wilson, is in a group on its own.
We will hear first from Mr Stevenson, as the designated member in charge of the bill. I will take Mr Robertson after that.
Amendment 2, in the name of John Wilson, is grouped with amendments 3 and 4.
Thank you. Maybe in your summing up, Mr Wilson, you could tell us what other organisations backed Inclusion Scotland, as you said that Inclusion Scotland and other organisations had expressed concerns.
I do not support the amendments. In my view, there has to be adequate redress for those who use cancelled badges or who use badges that should have been returned under the regulations. That is part of the teeth of the bill. That does not mean to say, of course, that the circumstances of each case will not be considered closely.
Dennis Robertson has taken steps to ensure that the guidance highlights that care needs to be taken by enforcement officers in identifying the circumstances under which badges are used. That includes the use of cancelled badges or those which should have been returned. As with the previous amendment, removing powers to take action against those who deliberately misuse the badges will not, in my view, reduce or encourage the reduction of deliberate misuse.
Amendment 2 provides that a person would only be guilty of an offence under section 21(4BZA) of the Chronically Sick and Disabled Persons Act 1970 if that person had cause to know that they were using a cancelled badge or a badge that should have been returned to the issuing authority under the regulations. That would mean that an element of knowledge would need to be proved by the prosecutor.
I oppose the amendment as it introduces an unnecessary complication and would make it very difficult to obtain convictions against those abusing the scheme. This is an area where it would be exceedingly difficult to frame an offence so as to leave reasonable prospect of convicting those who should be convicted while ruling out completely the possibility of action against an innocent party who uses a cancelled badge inadvertently.
As the law stands, each case has to be treated on its own merits. Not all cases will be considered appropriate for report to the procurator fiscal. When cases are reported by the police or a local authority, the procurator fiscal will decide what action to take and whether prosecuting someone would be in the public interest.
We would not expect action to be taken if a person who had reported their badge lost found it and inadvertently used it instead of their replacement badge. The same situation would apply to a carer who transported a badge holder and was unlikely to be aware that the badge holder was using a cancelled badge.
12:45
Those examples are identified in the guidance to support the bill that the multi-agency working group, which I understand includes Inclusion Scotland, is developing. That guidance also highlights the need for a pragmatic approach.
Amendment 3 would remove section 4(2), which amends section 117 of the Road Traffic Regulation Act 1984 to make it an offence to display on a parked vehicle a badge that has been cancelled or which should have been returned to the issuing authority under regulations. I oppose the amendment for exactly the same reasons as I opposed amendment 2.
Amendment 4 would remove section 4, which would mean that neither section 21 of the 1970 act nor section 117 of the 1984 act would provide for it to be an offence to use a badge that has been cancelled or which should have been returned under regulations. Section 2 of the bill gives local authorities the statutory power to cancel badges that are reported as lost or stolen or which should have been returned under regulations. If such a badge is subsequently found to be in use—particularly by a person to whom the badge was not issued—it is logical that that misuse should constitute an offence.
I ask John Wilson to seek the committee’s agreement to withdraw amendment 2 and I ask him not to move amendments 3 and 4.
I have little to add. If a badge is lost and then found but another badge has been issued, that could involve a mix-up, which will be taken into account. Everything will be proportionate; I believe that the guidance will illustrate that.
We need to ensure that any badge that is reported as lost does not find its way out into the wider public for use. If an officer finds such a badge in use, it should be confiscated and the person involved should be prosecuted.
I will respond to the convener’s question. As he knows, Inclusion Scotland is a national network of disabled people’s organisations and individual disabled people. I do not have to hand the names of the organisations to answer the convener’s question.
In response to what the minister and Mr Stevenson said about the amendments, I am minded to accept Mr Stevenson’s comments that not every case will be the subject of a prosecution, that the system will provide discretion on whether to report cases to the procurator fiscal and that the public interest test will apply, which will ensure that there are no unnecessary prosecutions of individuals who have inadvertently fallen foul of the legislation. I ask to withdraw amendment 2.
Amendment 2, by agreement, withdrawn.
Amendments 3 and 4 not moved.
Section 4 agreed to.
Section 5—Enforcement officers
Amendment 5, in the name of John Wilson, is grouped with amendment 6.
Concern remains about the use of non-uniformed enforcement officers for inspection and confiscation of badges. There is no objection to non-uniformed officers undertaking surveillance and checking that badges are displayed on parked vehicles, but for reasons that I have set out we think that only uniformed officers should have the powers to require that a badge be produced, and to confiscate a badge.
The key point is that enforcement officers must be unambiguously identifiable in order to prevent fraud and abuse of vulnerable people. Amendment 6 would remove the provision that will allow deployment of non-uniformed enforcement officers, but would not prevent local authorities from continuing to employ non-uniformed officers to carry out investigatory activity including surveillance and checking the validity of displayed badges against the national database. Amendment 5 is consequential on agreement to amendment 6.
I move amendment 5.
It does not matter whether officers are non-uniformed; as long as they have the right identification, it should be okay. It will waste officers’ time if a non-uniformed officer who sees a badge has to call for a uniformed officer. By the time that officer arrives, the person will have moved away.
I do not see a particular problem with using non-uniformed officers. It was mooted that disabled people, in particular, will be upset if someone who is not in uniform enforces the scheme, but surely they will not be upset if the enforcement officer shows valid ID. We should give non-uniformed officers the power to confiscate badges. Misuse must be seen as a criminal offence.
Amendment 6 would delete the provision that will enable local authorities to appoint a new class of officer, who might or might not operate in uniform, to enforce the blue badge scheme. Amendment 5 is consequential on amendment 6, because if the new class of enforcement officer cannot be used by a local authority there will be no need for the provision in section 5(3) whereby it will not be an offence to refuse to allow a badge to be examined if
“the officer does not produce appropriate evidence of the officer’s authority to exercise the power”.
I oppose amendments 5 and 6, because they would restrict local authorities’ power to take a proactive approach to blue badge misuse. Cases of systematic fraud and misuse cannot always be dealt with at the time by parking attendants, who have wider duties to carry out. Such cases might need longer-term surveillance and investigation.
In addition, when members of the public report cases of suspected fraud or persistent misuse of a blue badge to their local authority, they quite rightly expect that their concerns will be taken seriously and fully investigated.
Local authorities that choose to employ enforcement officers will be able to take a more proactive approach to blue badge misuse. As the minister said, parking attendants, who have wider responsibilities, will not always be able to follow up cases with the longer-term surveillance that might be required to establish a pattern of misuse over time, and to gather supporting evidence.
Of course, all areas of the country might not experience the same level of blue badge abuse, particularly where parking is free.
Misuse and, more seriously, abuse of blue badges could lead to the more than a quarter of a million people who have a genuine need being deprived of access to their parking places, so it should be understood that gathering information and evidence will be a necessary part of tackling the issue. Having the option to deploy plain-clothes staff to undertake enforcement duties is necessary, as it is with plain-clothes police, to support surveillance activities and to protect staff in what may be challenging circumstances. Where local authorities face particular challenges, that option could increase effectiveness and improve outcomes for badge holders.
Like all enforcement staff, those who carry out their duties in plain clothes have a requirement to carry appropriate identification and authorisation—particularly when they approach members of the public. In that respect, they are like any other public official. There is no more potential for fraudulent impersonation of such staff than is the case for other authority holders. I therefore request that John Wilson seek the committee’s approval to withdraw amendment 5, and ask him not to move amendment 6.
I invite John Wilson to wind up and to indicate whether he intends to press or withdraw amendment 5.
As Stewart Stevenson has already said, Inclusion Scotland is a member of the blue badge enforcement working group. I welcome the progress that the group is making on developing a code of practice and guidance that take account of many of the concerns that have been raised. The guidance will cover, for example, circumstances in which a badge can be confiscated, the procedure for returning a confiscated badge, and identification of enforcement officers. It would be helpful if the bill were amended to give statutory backing to that guidance, so amendment 7 seeks to give powers to Scottish ministers to issue guidance and would require authorities to “have regard to” that guidance.
I move amendment 7.
Our next item of business is stage 2 consideration of the Disabled Persons’ Parking Badges (Scotland) Bill. I welcome Dennis Robertson, the member in charge of the bill; Stewart Stevenson, who has been designated as member in charge of the bill for the purposes of stage 2; and Keith Brown, Minister for Transport and Veterans, who has portfolio responsibility for the bill’s subject matter.
Everyone should have with them a copy of the bill as introduced, the marshalled list of amendments and the groupings of amendments. I remind members of our stage 1 report on the bill as it relates to the subject matter of the amendments that are before us.
There will be one debate on each group of amendments. I will call the member who lodged the first amendment in each group to speak to and move their amendment and to speak to the other amendments in the group. Members who have not lodged amendments in the group and who want to speak should indicate that to me. If Mr Robertson wants to contribute to the debate on a group of amendments, he should indicate that to me. If they have not already spoken on the group, I will invite the minister and then Mr Stevenson, as the designated member in charge, to contribute to the debate.
I will conclude the debate on each group by inviting the member who moved the first amendment in the group to wind up. I will then ask whether the member wants to press their amendment to a vote or withdraw it. If they want to press the amendment, I will put the question. If a member wants to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee must immediately move to a vote on the amendment.
If a member does not want to move their amendment when I call it, they should say, “Not moved.” Please remember that any other member of the Scottish Parliament may move such an amendment. If no one moves the amendment, I will immediately call the next amendment on the marshalled list.
Only MSPs are allowed to participate in debates on amendments, and only committee members are allowed to vote at stage 2. Voting is by show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote. I will put a question on each section at the appropriate point.
Before I move on to the amendments, does any member of the panel want to make general remarks?
I make clear to the committee that the amendments that I have lodged were suggested by Inclusion Scotland, from which the committee took evidence during stage 1. Inclusion Scotland thought it necessary that amendments be lodged to highlight some of its concerns.
There is no issue with or objection to the confiscation of blue badges that have been cancelled or made invalid. However, there is concern that the confiscation of a valid badge might have serious consequences for a disabled person, with an impact on their right to live independently.
We would like section 3 to be amended to restrict the power to confiscate badges and cancel invalid or fraudulent badges. The confiscation of a valid badge in effect imposes a penalty without there being a right of appeal. The appropriate penalty is a fixed-penalty notice for the parking offence, which can be appealed, or, in the case of systematic or repeated abuse, prosecution through the courts.
The purpose of amendment 1 is therefore to limit the power to confiscate so that it applies only to blue badges that are not valid, for example because they have been cancelled, should have been returned to the issuing authority, have been tampered with or are fake. It should be possible for enforcement officers quickly to establish whether a badge is invalid, by checking the serial number against the national database. If a valid badge has been misused, it should not be assumed that the misuse will continue or that the badge will not be returned to the badge holder by the person who allegedly misused it.
Guidance can be established for a process for informing the badge holder of the alleged misuse, requiring the badge holder to confirm that the badge has been returned to them and warning that its future misuse may lead to the badge being withdrawn.
I move amendment 1.
The Minister for Transport and Veterans (Keith Brown)
Third-party misuse of blue badges is a problem on which I have received correspondence from constituents and from the wider public during the course of scrutiny of the bill. The provisions in the bill as currently constituted would allow confiscation of a badge from third parties who have no entitlement to use that badge. That is an important point, as it sends out the message that blue badge misuse is socially unacceptable.
The provision to confiscate badges that are being misused is intended to discourage and prevent abuse of the system. Removing that provision would, in my view, weaken the enforcement of the blue badge scheme. To be clear, the end result of confiscating badges from third parties is that valuable parking spaces will be freed up for use by blue badge holders, who need those spaces the most. For those reasons, I support the provisions in Dennis Robertson’s bill.
Amendment 1 seeks to remove the power of a constable or enforcement officer in Scotland to confiscate a badge that has been issued under section 21 of the Chronically Sick and Disabled Persons Act 1970 but which is not being displayed on the vehicle as prescribed by the regulations of the scheme.
I am concerned that the amendment would weaken the powers of local authorities to confiscate badges. It would mean that confiscation would be limited to badges that have been cancelled, for example because they had been reported lost or stolen or because they should have been returned to the local authority under the requirements of the regulations, for instance if the badge holder was deceased.
Significantly, amendment 1 would remove the power for constables or local authorities to confiscate a valid badge from a third party who had no right to use that badge. The third party might be a friend or relative of a badge holder, who is using the badge for their own benefit to gain free parking. It might also be an individual who has stolen the blue badge.
To remove the power to confiscate in those circumstances would mean that that abuse by the third party could continue unhindered. That disadvantages not only the person to whom the badge was issued but the many other disabled people—there are 263,045 blue badge holders as of 31 March 2012—who would be deprived of parking in disabled bays and of the independence that that provides.
Concerns have been raised during the passage of the bill that confiscation would deprive badge holders of their freedom. I wish to reassure members that blue badges will be confiscated only when there is justification to do so. It has been made clear that, when a valid badge is confiscated from a third party, it will be returned to the badge holder. It will be accompanied by a letter reminding the badge holder of their rights and responsibilities under the blue badge scheme. That protects badge holders, whether it is from inadvertent or unscrupulous misuse.
Regulations will require local authorities to return the badge as soon as is practical, and in any event no later than 14 days after confiscation. Local authorities have told us that they have no reason to hold on to badges and, as happens currently, every effort will be made to return the badge to the holder quickly.
The power to confiscate is intended to protect badge holders, to raise awareness of the value of the blue badge and to reduce the propensity for future misuse. We need to get to the stage where blue badge misuse is seen by everybody as socially unacceptable.
I therefore invite John Wilson to seek the committee’s agreement to withdraw amendment 1.
I concur with Cameron Buchanan’s statement. A valid badge holder has nothing to fear at any time when producing that badge, whether the official is in uniform or not.
I welcome the assurances that I have received from the minister and from Stewart Stevenson, particularly in relation to the ID that would be issued to any officer who was appointed by the council to carry out enforcement on its behalf. Although I do not intend to press amendment 5, I hope that the minister and the member in charge of the bill will consider holding discussions with local authorities to ensure that a standardised ID card is issued, so that disabled blue badge holders who use parking spaces in different local authorities are familiar with the style of identification that will be used, which would avoid confusion when they travel from one local authority area to another.
Amendment 5, by agreement, withdrawn.
Amendment 6 not moved.
Section 5 agreed to.
Section 6 agreed to.
After section 6
Amendment 7 seeks to provide statutory underpinning for any guidance that is issued in respect of the provisions of the bill. I entirely agree with the views of Keith Brown, the Minister for Transport and Veterans, on that issue. Guidance is under development, and the important thing is that the areas where there is a need to comply with specific regulations will be prescribed in the regulations that will support the bill.
Subsection (2) of amendment 7 states:
“Local authorities must have regard to any guidance issued”.
John Wilson said, helpfully, that authorities are required to “have regard to” any guidance. The phrasing carries with it the danger of converting a power that any local authority “may” use into one that it “must” use. For that reason, and for all the other reasons that have been expressed, I ask John Wilson to seek the committee’s permission to withdraw the amendment.
I take cognisance of the comments that have been made by the minister, and by Stewart Stevenson and Dennis Robertson, about the on-going work that is being carried out by the blue badge enforcement working group and by the other working group to ensure that workable guidance can be developed with the consent of the individuals involved and of the organisations that rely on the blue badge scheme for their members. I therefore seek leave to withdraw amendment 7.
Amendment 7, by agreement, withdrawn.
Sections 7 and 8 agreed to.
Long title agreed to.
The point has been well verbalised by Stewart Stevenson. We are trying to get the badges that are being misused off the streets. That misuse disadvantages people who are blue badge holders.
Someone who has a badge in a case of third-party misuse is denying someone else a parking space. In relation to amendment 1, the serious consequences for the disabled person involve the misuse of the badge by others. It is not about the confiscation. The confiscation will be done only when there are justifiable reasons for removing the badge. It is the justifiable reasons that we need to focus on. Badges will not be removed if it is felt that there is some degree of ambiguity. However, a badge will be removed and confiscated if the officer removing the badge is absolutely certain that it is being misused. The badge will be returned to the badge holder with an explanatory letter.
I welcome the statement by Mr Stevenson that a blue badge will be returned to the rightful owner if it is a legitimate blue badge. Based on his assurances, I withdraw amendment 1.
Amendment 1, by agreement, withdrawn.
Section 3 agreed to.
Section 4—Offence of using cancelled badge
Inclusion Scotland and other organisations representing disabled people have expressed concern that a disabled person or a carer may be criminalised if they inadvertently use a blue badge that has been cancelled—for example, if it has been reported lost but is found before a replacement is received.
It is appreciated that section 4 amends United Kingdom legislation to bring Scotland into line with amendments that were made in England and Wales in 2013, but we would like the bill to be amended to delete section 4, as the Law Society of Scotland has indicated that it is not necessary. If the committee is not minded to delete the entire section, we would like section 4 to be amended to prevent people from being criminalised for inadvertently using a badge that is not valid—for example, if a carer uses a badge not knowing that it has been reported lost or stolen.
Amendment 3 deletes subsection (2) of the bill, which amends section 117 of the Road Traffic Regulation Act 1984, as the 1984 act already refers to section 21 of the Chronically Sick and Disabled Persons Act 1970. Subsection (2) appears to add an unnecessary additional reference.
I move amendment 2.
I agree with Cameron Buchanan. Cases of suspected fraud or persistent misuse of a blue badge often require longer-term surveillance and investigation than can be carried out by a parking attendant in the course of their daily duties. Authorities that choose to employ enforcement officers—who may or may not be in uniform—will be able to take a more proactive approach to tackling blue badge misuse through investigations and targeted surveillance, which could result in confiscation of a badge. That is a pragmatic response to blue badge misuse, which I think is Dennis Robertson’s intention. Blue badge holders who comply with the scheme will have absolutely nothing to fear.
It would not be good use of a local authority’s scarce resources if officers were to approach blue badge holders indiscriminately on the street, as has been suggested they might.
When they carry out their duties, enforcement officers need not be in uniform, but they will be required to carry appropriate ID and authorisation, as Cameron Buchanan said.
For those reasons, I support the provision whereby local authorities will have the power to appoint non-uniformed staff to investigate abuse of the blue badge scheme and to inspect and confiscate badges, where that is appropriate.
Amendment 7, in the name of John Wilson, is in a group on its own.
Amendment 7, as we have heard, seeks to ensure that
“The Scottish ministers may issue guidance on implementation”
of the provisions in the bill, and that
“Local authorities must have regard to”
that guidance. In other words, it seeks to provide statutory underpinning for any guidance that is issued. The committee will be aware from previous discussions that two multi-agency working groups are developing good practice guidance on the bill, which will, in turn, be issued to local authorities and the police. However, I do not think that statutory underpinning of the guidance is required, and I want to assure members that, in respect of parts of the bill that will require that specific detailed provisions be complied with, those provisions will be set down in the regulations. For example, the timescales for return of valid badges to badge holders will be in regulations, as will the requirement on an individual to specify grounds for requesting a review of a local authority decision to refuse a badge.
The policy memorandum and the delegated powers memorandum set out the basis on which certain matters were to be covered by regulations. The Delegated Powers and Law Reform Committee has not raised any concerns about the general approach on delegated powers.
Guidance is just that; it should provide good practice advice on administering and enforcing the blue badge scheme, which local authorities can adapt to suit local circumstances. It has been, and will continue to be, the practice of the Scottish Government to update the guidance on operation of the scheme. Any significant changes are to be made through consultation with the working group; it is important that the guidance can be used flexibly by local authorities in order to fit it in with local arrangements. For those reasons, I do not see the need to provide statutory underpinning for any guidance that is issued in relation to the bill, and I ask John Wilson to seek to withdraw amendment 7.
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The minister referred to the two multi-agency working groups. I attend those groups, as does Inclusion Scotland. During the meetings we have worked closely with Inclusion Scotland and other members, and Inclusion Scotland has welcomed the tone of the guidance that is being developed at those meetings. We took on board the comments from the committee at stage 1, and we will ensure that the guidance is appropriate and that it covers the top 10 aspects of the scheme for blue badge holders at any given time.
At stage 1, Cameron Buchanan made reference to the guidance leaflets being very large and far too complex in their layout, so we are working hard with the multi-agency groups to ensure that the guidance is in a format that is appropriate for the badge holder. I believe that the guidance is being developed with the groups, including Inclusion Scotland.
I invite John Wilson to wind up and to indicate whether he wishes to press or withdraw amendment 7.
That concludes stage 2. Parliament has not yet determined the date on which stage 3 will take place, but members can lodge stage 3 amendments at any time, with the legislation team. I thank Dennis Robertson, Stewart Stevenson and the Minister for Transport and Veterans for attending this morning, and I thank members for their participation.