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Item 2 is on the Parking (Code of Practice) Bill, which is UK Parliament legislation. It relates to the committee’s consideration of a legislative consent memorandum that was lodged by Fergus Ewing, the Cabinet Secretary for Rural Economy and Connectivity. The LCM relates to the Parking (Code of Practice) Bill, which is currently being considered in the House of Commons. As the lead committee, we are required to reflect on the memorandum and consider whether we are content with its terms. We will then report our findings to Parliament.
I welcome back, from the Scottish Government, Humza Yousaf, the Minister for Transport and the Islands; George Henry, the head of road policy; Anne Cairns, a solicitor; and Sharon Wood, the senior road policy officer.
Minister, would you like to make a brief opening statement?
Yes, thank you, convener—I got the emphasis on “brief”.
I am grateful for today’s opportunity to address the committee on the motion that was lodged by the cabinet secretary. As the committee knows, the UK Parking (Code of Practice) Bill was introduced in the House of Commons on 19 July and will shortly begin its Westminster committee stages. The bill aims to regulate the practices of the private parking industry via the single code of conduct. It will replace the system of self-regulation that operates in the private parking industry with more effective regulation that balances fairness to the motoring public with the rights of landowners to manage their land.
Some of the provisions in the bill are reserved. However, the majority fall within the legislative competence of this Parliament; therefore, an LCM is required. It is perhaps worth concentrating specifically on the areas covered by the motion. I will happily address any other queries during questioning.
The LCM covers two areas: the development of the parking code of practice and the delegation of functions. We think that the development of the code of practice is of most significance to the general public. It will improve the operation and management of private parking facilities by regulating how operators enforce parking matters. The code is expected to set out good practice and guidance on the handling of appeals against parking charges imposed by, or on behalf of, private parking operators.
Currently, private parking operators can charge for parking only if they are members of an accredited trade association such as the British Parking Association or the Independent Parking Community. To maintain access to keeper data, operators must adhere to the trade associations’ codes of practice. Such codes of practice are developed within the industry; however, audits undertaken between the trade associations and the Driver and Vehicle Licensing Association have identified inconsistent and perhaps questionable activities by some operators.
On the delegation of functions, the UK and Scottish Governments do not have a say in the development or maintenance of the codes of practice that are currently used. Sir Greg Knight’s bill addresses that issue directly and includes measures to allow the secretary of state to enter into an agreement with another public authority to perform any of the functions, including altering the code.
Extending that provision to Scotland will enable Scottish ministers, in agreement with the secretary of state, to alter the code in the future if there are specific issues affecting Scotland that the code has not already addressed—although, as I indicated, consistency of approach throughout Scotland, England and Wales is the fundamental aim of this work.
I will conclude on issues that are outwith the bill. As you know, Murdo Fraser’s recent proposal is similar to Sir Greg Knight’s proposal, although there are differences. The first of those differences relates to keeper liability, which currently does not apply to private parking in Scotland. The second is on the issue of having a single independent appeals body. To save time, it is fair to say that I am open minded about looking at those proposals, and I am considering how to take them forward with Murdo Fraser. My officials George Henry and Sharon Wood have been involved in discussions with Murdo Fraser, and we hope to take them forward as constructively as we can.
Thank you, minister, for your opening statement and for prompting me to welcome Murdo Fraser to the committee, which I should have done at the outset of the item—I apologise for not having done so. There are several questions about the LCM.
I hope that you do not consider my questions about this topic to be out of touch, minister. What are the differences between Scotland and England in respect of private companies requesting information from the DVLA? Should people expect a Government agency to keep their information private and not sell it on to private companies?
There are differences in the law between Scotland and England and Wales, which the LCM seeks to resolve. Although the law on private parking charges is similar in practical terms, Sir Greg Knight’s bill and the LCM aim to provide consistency for the benefit of motorists and parking operators. The main differences concern the keeper’s liability for charges. That liability exists in England and Wales, whereas in Scotland, in order to recover charges, it is necessary to establish who entered the contract with the parking operator. In practice, that means who parked or drove the vehicle. Keeper liability is an issue.
I am also aware of the current context of data protection and data security being enhanced. In that regard, Mike Rumbles is absolutely in touch with the public mood—as he often is. It is important for us to consider that context in discussions on keeper liability. There are serious questions about how individuals can be protected while landowners, trade associations and others have the right to find out who, in some cases, broke their contract and is therefore liable for penalties. There is a fine balance to be struck, which is why I am happy to take forward any issues around keeper liability as constructively as possible.
12:15
In Scots law, there is a private contract between an individual and a company, yet that company is able to ignore data protection laws and ask the DVLA for information on the individual citizen that is held by the Government. It strikes me that that is not correct. Do you believe that that is the case? If we approve to the LCM, will we be allowing that to happen in this age of data protection?
I will ask my official George Henry to give a more detailed answer. The LCM does not address keeper liability—we will have to address that issue separately, and we will be happy to do that constructively with Murdo Fraser and others who have an interest in it. Data protection will be a part of that discussion, but the issue is not covered by the LCM.
Only car park operators that are members of an accredited trade association can obtain keeper liability information as part of their process. Under the proposed code of practice, people will need to abide by all the existing data protections laws; therefore, data protection should not be an issue with the proposed code of practice.
I am confused. If I give my details to a Government agency, I expect that Government agency to keep those details confidential. However, I understand that the DVLA charges others for such information. It strikes me that that is not protecting our data.
As things stand in Scotland, when the driver of a vehicle enters a car park, they are entering into a contractual agreement with the landowner, and the terms and conditions should be clearly defined.
It is a private arrangement, is it not? Therefore, why is the Government selling the information that it has about individual citizens?
I will make a couple of points. First, we do not have keeper liability in Scotland. If we decide to have keeper liability, all those data protection considerations should and will be taken into consideration. George Henry is absolutely right. It is only right that, if someone who enters into a contract with an operator that is a member of an accredited trade association breaks or violates that contract, the operator can obtain information on who did that, within the confines of data protection law. How else could they find out who was driving the vehicle?
Nevertheless, the member is absolutely correct in suggesting that there is a balance that the Government must get right. That would be part of the consideration if we chose to have keeper liability, but it is important to make the point that that is not what the LCM is addressing.
Does the UK Government make a profit—and, therefore, will the Scottish Government make a profit—from selling that information on?
I will ask my officials to answer that question. I am not entirely sure whether the UK Government or the DVLA would do so, because that function is not under my control.
The Scottish Government would not make a profit on that. The DVLA is a reserved agency of the UK Government.
Would there be any consequentials from that? It is a serious question. We are talking about giving the UK Parliament consent to pass a law as a result of which the Government will make money from motorists. I am struggling here.
Other members have questions. Do you have another question? You suggested that you might.
I will leave it there.
Maybe the answers that are given to the other questions will help you.
This is a more overarching question. Should we proceed via an LCM or should we have our own legislation? Our briefing says:
“the Bill makes provision on devolved matters, with only a few clauses relating to reserved matters.”
It sounds as though the bill deals largely with devolved areas. We are also told that, at the moment,
“The private parking sector is largely governed by contract law.”
I understand that contract law in Scotland is slightly different from contract law south of the border. Given those points, would it not be better for us to introduce our own legislation in the area? Why should we approve an LCM?
There are a couple of reasons for that. First, having consistency between the approaches that are taken in England and Wales and in Scotland merits agreement to the LCM. There is logic and sense in having consistency in the code of practice.
Secondly, the bill is already making its way through the Westminster Parliament. Given that our own parliamentary timetable is constrained—I know that, having taken a couple of bills through the Parliament—I do not think that we need to duplicate that work.
Where there are issues that Sir Greg Knight’s bill does not address, Murdo Fraser’s bill is helping to fill the gaps. As I say, I am more than happy to work constructively on that. There is sense and logic in having a code of practice that is consistent between England and Wales and Scotland.
Will the bill prevent wheel clamping or exorbitant charges, or would we need Murdo Fraser’s extra amendments to the law to ensure that those things do not happen to unfortunate motorists?
The code will not cover your latter point. I will ask for some technical advice from my officials about wheel clamping, but my understanding, from my reading on the matter, is that we have laws against wheel clamping in Scotland, so it should not exist in practice.
I look to my legal experts to ensure that I am correct on that. They are nodding their heads, so it seems I have got that right.
Yes—it looks as though your officials agree.
Am I right in saying that the police, insurance companies and some read-only car parks have access to the DVLA to get people’s personal data through their car registration numbers? People can tell me over the phone what colour my car is and what type of car it is because I have given them my registration number. Everybody now has access to DVLA information. Am I right?
It is not everybody.
Well, it is most people.
I am not sure how you would define that. The point is that they would have to be a member of an accredited trade association—the BPA or the IPC. There are data protection measures in place.
I go back to the point that I made to Mike Rumbles: there are, rightly, questions about data protection and how widely data is shared. Any consideration that we give to extending keeper liability to Scotland would have to take all those matters into consideration.
For what it is worth, I think that the points that Mike Rumbles made earlier relate to things that we will have to consider, as do those that Dick Lyle makes. People are understandably more nervous about giving out their data than they have been in the past. We know about the General Data Protection Regulation and other data protection measures. Those are issues for consideration, but there are already checks and balances in place that I am generally content with, although I would need to look at them in more detail if we intended to extend keeper liability—a policy of which I am supportive.
Cars are the only vehicles for which ownership details are not published—they are for aircraft and ships. Also, I can buy anybody’s birth, death or marriage certificate. Therefore, I do not get this one.
My question is on section 6 of Sir Greg Knight’s bill. I have no great issue with the bill as a whole. In essence, section 6 simply allows the powers that are granted under the bill to be devolved to the Scottish ministers. The bill does not affect executive or legislative competence; it is simply about a code of conduct. However, it allows the secretary of state to cancel that delegation to the Scottish ministers at any time. Is the Government comfortable with that provision, or is that a standard provision of administrative devolution?
I look to our legal expert, Anne Cairns, to answer that question. The conversations with the UK Government on the bill—particularly those that I have had with the Department for Transport—have been very constructive. Nevertheless, Stewart Stevenson is absolutely right to point out that the provisions would enable Scottish ministers, in agreement with the secretary of state, to alter the code if there were specific issues affecting Scotland. We would expect that to be done in the spirit that I have described.
It is appropriate for me to defer to our legal adviser, Anne Cairns, on the legal aspects.
The bill enables the secretary of state to delegate the functions not only to the Scottish ministers but to other public authorities. You are correct in saying that section 6(4) allows the secretary of state to cancel the agreement at any time, but I imagine that there would be consultation with the Scottish Government on the matter before any such step was taken. It seems to me that it would be more appropriate for those functions to be cancelled if they had been delegated to another public authority.
We are involved in the working group, which Sharon Wood attends regularly, and there is currently good conversation and consultation with the UK Government about what the code of practice should look like. That does not future proof the relationship, but I believe that, in the delegation of functions, we would be treated as a constructive partner
The issue is of considerable interest to many of my constituents. I have dealt with many hundreds of cases involving individuals who have been hit with unfair penalty notices, and I know that other members will have had similar cases. It is an issue not just in Scotland but UK wide, which is why it makes sense for us to have a UK-wide code of practice.
I recently concluded a consultation on the proposed member’s bill that covered five elements. The first element was the capping of penalty charges; the second was better regulation of the signage in car parks; the third was the regulation of the appearance of penalty charge notices; the fourth was the creation of an independent appeals system in Scotland; and the fifth concerned keeper liability, to which the minister has referred. In February, I met Sir Greg Knight at Westminster to discuss his bill. From my reading of it, it seems that a code of practice could cover at least three of the elements that I have outlined. I would be interested in hearing the minister’s thoughts on how far a code of practice would go and how broad its scope would be in addressing those concerns.
The approach that Sir Greg Knight has taken would give us a consistent framework across England, Wales and Scotland, which I support. Of the five issues on which Murdo Fraser consulted, the only two that we would have to pursue, in consultation and conversation with Mr Fraser, concern an independent appeals process and keeper liability. Sir Greg Knight’s bill addresses the other issues that Murdo Fraser seeks to address.
I am open minded on, and favourable to, having both an independent appeals process and keeper liability. We can work on those issues. Approving the LCM would be a good step towards getting some of the other issues addressed and moved down the line relatively quickly. As I said, we are already having a constructive conversation on the other two issues, and we should continue in that vein.
Thank you, minister. I should have said that I thank the minister and very much acknowledge the constructive engagement from him and his officials on the matter. I hope that we will meet in the near future to discuss the next steps.
There appear to be no more questions. Are members content to recommend that the Parliament agree to the motion and approve the legislative consent memorandum?
Members indicated agreement.
I thank everyone, including the minister and the witnesses, for their attendance. That concludes today’s committee’s business.
Meeting closed at 12:29.Previous
Transport (Update)