Wednesday, 6 November 2013

Parking Wars: A victory! But who has won?

By Adam Snow, PhD student in Criminology

Another day another battle in the ‘war’ on, with, or by, motorists and this time common sense is the battleground.  The Commons Transport Select Committee (CTSC) has reported on the enforcement of parking restrictions by local authorities.  The report came about after the committee requested members of the public to suggest topics for the CTSC to look into, and of course parking enforcement (parking tickets) was a suggested topic.
One is tempted to wait for yet another round of indignation and outrage at certain local practices, presented as if they typify a national practice, before commenting further on the inevitable minor effect that this report will probably have.  To be fair there is much to like in this report, including a freeze on penalty notices so that they don’t overtake more serious offences in the amount of punishment imposed.  The report also proposes that statutory guidance should state that a 5 minute grace period on parking tickets should be allowed, again a reasonably fair and undoubtedly popular suggestion.

The report also suggests extending the discount period for payment of the penalty, albeit at less than the full discount, so that people are not discouraged from appealing a notice.  This is also a reasonable suggestion.  At present after a 14 day grace period the penalty notice typically increases by 50%. Under the recommendations this increase will be by 25% after 14 days and further 25% 7 days after a traffic penalty tribunal appeal.  Presumably this means all PCN’s will be subject to a 25% discount until the procedural time limits for appeal to the Traffic Penalty Tribunal (TPT) have exhausted, or if an appeal is made, until 7 days after the ruling of the TPT.  Thus it is a small incentive to appeal parking tickets.  The decision will no longer be should I pay £35 or risk £75 by appealing to the TPT, now it will be £35 or risk £56.25, a slightly more palatable sum. (These amounts are indications as local authorities differ in the charges they impose for PCN’s)

There are also proposals that appear fair, but on second reading one does wonder how such a proposal could work, and why it is necessary.  For instance the committee recommends that there should be a statutory duty to ‘take all reasonable steps to refund money received from invalid PCN’s [parking tickets].’  At first sight it appears quite a laudable duty, authorities should not be obtaining money where they have no right to do so.  However there are problems with this proposal; there will certainly be objections from local authorities on the cost of running such a system.  It remains to be seen just how much investigation will be required to track down illegally charged motorists, for instance what happens if the DVLA record does not match the person who paid the penalty?  Admittedly these are essentially pragmatic reasons that will probably give way to interests of justice when parliament is considering drafting such a statutory duty.  A more fundamental potential problem (depending on the drafting of the statutory instrument) with this proposal is that it undermines the idea of legal certainty.   A prudent motorist might be tempted to the pay the penalty with reservations and then spend the next few months (or possibly years) looking for a legal loophole to get their money back.  How many determinations does a local authority have to make on the legality of a notice? Obviously when implementing the restriction, but are they required to investigate every allegation of illegal signage every time it is raised? At what point do repeated claims become vexatious? 
However, these are all minor qualms that can possibly be overcome in the drafting and consultation process.  Where the report fails in my view is that it is inconsistent in its analysis of ‘the problem’ and more fundamentally misunderstands the problems experienced by those who are caught up in the process, those who have received penalty notices.  This problem of analysis is perhaps summed up by the committee’s attitude to ‘consistency’.  It is tempting at this point to paraphrase Mark Bovens (2006) in that these words can “become hurrah-word[s], like ‘learning’, ‘responsibility’, or ‘solidarity’, to which no one can object. [...] those evocative political words that can be used to patch up a rambling argument.” (2006: 4)  No one can seriously object to consistency and transparency can they? Au contraire!
If we take ‘consistency’ first, then the committee must fail on its own account.   It wants to “ensure that cameras are not used as a matter of routine,” (p.23) to which the obvious response is that actually cameras provide the most consistent enforcement.   They are not subject to normal social biases, are non judgmental, operate continuously and provide consistent enforcement of recognised transgressions.  We may not like speed or bus lane cameras but they are certainly consistent.   
Furthermore the report asks for ‘greater clarity ... on the rules for loading and unloading’ as well as ‘pavement parking’.    Again one can see how consistency here would help to bring ‘clarity’ to motorists; however a healthy dose of scepticism is necessary here.  In my research it seems that, to paraphrase Uncle Ben Parker (Spiderman for those not in the know) “with great clarity / consistency comes great inflexibility’.  Officers that have the remit to enforce clearly defined offences, certainly from my own research into fixed penalty enforcement, will be unbiased and, dare I say inflexible, in the enforcement of such laws.  Quite rightly they would argue that it is not their job to determine the law, once it is passed it is their job to enforce it.  So one needs to be careful when throwing around a word like clarity and consistency because, as I have found in my own research, such clarity and consistency is rarely experienced as fair.
Are we then to ignore consistency? Well certainly not, consistency should be the aim of any rational system of laws.  However, how one defines consistency is the issue.  In spending time interviewing and conducting focus groups of recipients of penalty notices, a majority of which have received a parking ticket at some time, it became clear to me that there is a fundamental difference in the understanding of consistency between those who enforce the law and those who are on the receiving end of it.
Those who enforce the law view, or frame, consistency in terms of the application of law.  Much like the Transport Select Committee they would welcome a consistent approach to law enforcement, since consistency for those officers is a synonym for fairness.  As one police officer said to me ‘if you are 100% sure in every case you can’t be criticised.’  Whereas those on the receiving end of the interaction, the penalty notice recipients, frame consistency solely in terms of punishment, that the punishment is equal for all, that the fines are the same regardless of ability to pay. 
What they don’t accept or rate is consistency in the application of law.  Recipients want, as Helen Wells has said in relation to speed camera enforcement, ‘all kinds of biases and discrimination put back into the system.’ (2012: 178). Consistency for the recipient is about being consistent with the purposes and principals of the law, rather than consistent with the letter of the law.  Consistency here is about meaning and purpose.   I have lost count of the number of times I have been told the story about the car only being about 5cm’s over the double yellow line.  What these stories highlight is that the consistent application of the words of the law doesn’t pay enough attention to the purposes of the law.  So parking 20cm’s over a double yellow line (the length of the exhaust and bumper), on a Sunday, during bank holiday weekend, on a normal residential street, whilst the driver took care of their disabled neighbour (an actual case from the Traffic Penalty Tribunal) should not be about whether the car was on the line, but really about whether the purpose for having that line had been breached.  In relation to this very case one Traffic Penalty Tribunal Adjudicator expressed a wish ‘that common sense would break out.’ Of course ‘common sense’ much like ‘consistency’ is a contested concept.
So consistency is important and how it is applied or operationalised is contested.  If one takes the example of ‘displaying’ in either ‘pay or display’ car parks, or with regards to blue badges for disabled drivers, again one sees this contextual argument over ‘consistency.’  A consistent application of the law focuses on ‘display’ just as much as it does on ‘pay’, which is what local authorities are increasingly doing as the Traffic Penalty Tribunal found in their 2010 annual report.  Councils are increasingly focussing on ‘display’ as much as ‘pay’ in car parks, so it is no longer appropriate to simply buy a ticket, one also needs to display it in accordance with the regulations, and failing to do so is just as culpable in the eyes of some local authorities.  Similarly with blue badge holders I am aware of a number of cases where local authorities have refused to cancel tickets issued because the recipient did not ‘display’ the badge in accordance with regulations.   One certainly has to question the harm here. The person was entitled to park where they were, and furnished the badge to prove this, the only harm really is one of administrative inconvenience to the authority, and certainly in criminological terms this is hardly a convincing rationale for punishment.
So what we see in both these cases are different interpretations of ‘consistency’; enforcement officials are consistently applying the law as written, whereas recipients are actually asking for consistency in applying the principles behind the law or regulation.  Until such time as that context is identified in policy analysis then any requests for consistency merely replicates the system that is currently in operation.
Furthermore the report also highlights ‘transparency’ as an issue and the committee wants to make parking provision and enforcement ‘transparent’.  How that is envisaged by the committee is by requiring
that annual reports be made mandatory so that information on parking is in the public domain for all local authorities. Such reports do not need to be lengthy glossy documents but should provide a clear overview of enforcement activity and parking finances. (CTSC, 2013: 32)
The question to ask here is that posed by Etzioni ‘Is transparency the best disinfectant?’ (2010). Will transparency improve the perceptions of the public that the system is unfair and designed to raise revenue?  I have to say based my own study of a local authority in the Midlands the answer is almost certainly ‘no’.  This authority produces a clear plain English report annually into all aspects of parking enforcement and provision that they carry out.  It lists what income is raised, where it is spent, how that income is made up between legitimate parking (pay and display, resident permits etc.) and illegitimate parking (penalty charge notices), how the appeals system works and how successful appellants are at the informal and formal stages of appeal.  Furthermore the report itself was spontaneously recommended as an excellent example of transparency in an interview I conducted with a senior officer at the Traffic Penalty Appeal Tribunal Service.  The authority clearly operates a clear, concise system of transparent reporting, and yet (you knew it was coming) the perceptions of the local public, as demonstrated in newspaper articles and other comments about parking enforcement in this borough, suggests it has no effect on people’s perceptions of either the fairness of the system nor counters the idea that parking is about revenue generation.  Furthermore in interviews with recipients of parking charge notices from this authority they make similar claims as those in boroughs where there isn’t this transparency.  Again despite transparency,  revenue raising perceptions are still common.
These two issues; ‘consistency’ and ‘transparency’ are fundamentally misunderstood, or not appropriately examined, in the committees report.  It fails to highlight the competing claims on ‘consistency’ and assumes that ‘transparency’ is ‘the best disinfectant’ (Etzioni, 2010). It fails to identify clearly what the problems actually are for those motorists caught in the system.  This is not to suggest that policy should be made solely with regard to what those who transgress believe.  However if, as the reports suggests, we want to challenge the perceptions of parking enforcement as being unfair then we really need to understand where that unfairness comes from, and what it is about the unfairness that needs remedying.  Until we do phrases such as ‘consistency’, ‘transparency’ and ‘fairness’ mean little more than acceptable “buzz” words.

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