Rob Hann, local government solicitor and author, explores concerns over proposals for new council powers to impose fines and penalties on motorists for some moving vehicle offences.
As anyone who has recently had to pay visits by car to unfamiliar cities and towns (perhaps in search of university places for teenage children) will know, it can be an ordeal to navigate the traffic, road signage and ring-road systems that surround many of our city centres. It might appear that life for many motorists is about to get even more stressful and potentially expensive!
A recent headline in The Times on 19 August 2020 warns:
“New powers let councils milk drivers for millions!”
This headline relates to the Department of Transport’s proposals announced in July, to expand the powers of councils in England to be able to fine motorists for moving traffic offences such as stopping in yellow boxes, making unauthorised U-turns and disobeying ‘no-entry’ signs. Concerns as to how councils may react to securing new powers to fine motorists for committing these types of driving offence on their respective patches have been raised by the RAC (not surprisingly). The RAC have undertaken an analysis of the track record of London and Cardiff who have been piloting these changes before they are rolled out across the country. The RAC analysis is said to show that these two cities collected more than £58m in fines in a 12-month period. The number of motorists fined increased by 34% compared with two years earlier.
The proposed changes are being promoted by the Government as part of a wider policy to promote and encourage greater use of cycling in built-up areas. Biking to work (and for recreation and fitness purposes) has become more widespread and popular during the COVID-19 pandemic lockdown, when the public were dissuaded from using public transport for fear of infection.
A so-called ‘crack-down on driving through or within often congested inner City transport networks should also assist the drive to restrict car use in these areas and (in the process) helps to reduce carbon emissions – a crucial government and local government objective given the impact of co2 on public health and in the light of successful series of court actions against the government taken by environmental activist organisation ‘ClientEarth’ for breach of EU limits for nitrogen dioxide.
However, as the RAC have been quick to point out, there is a fine line to tread where local authorities are on the one hand given greater powers to generate income in times of austerity (in this case through fines for traffic infringements) but on the other hand, face swathing cuts in budgets and reduced income from charging for services, in part also created by the COVID-19 lockdown and associated fall out.
In short, the RAC fear is that a conflict of interest arises where Councils are effectively incentivised to rigorously and mercilessly pursue motorists for each and every minor traffic infringement as a way of generating extra revenue – a ‘cash cow’ in other words.
There is a very serious point here about respect for the rule of law, how laws are enforced, how breaches of the law are penalised and the primary purpose for which the relevant authority is acting in each case. If a perception arises of a local authority is using its monopoly powers to rake in fines from motorists ‘unfairly’ they can be expected to be held to account by the courts perhaps with support from interested parties such as the RAC. But it would be difficult to prove, for example, that a council has been acting beyond its powers e.g. by making road signage and road layouts deliberately unclear or confusing in order to increase the number of penalty charges (which was a specific perception 68% motorists had who were surveyed by the RAC).
One crumb of comfort for beleaguered drivers is that where local authorities have been accused of using their statutory powers to unfairly raise income through charging the courts have taken a pretty strict interpretation as far as the purposes for which such income can be put.
For example, In Regina (Attfield) v Barnet London Borough Council  EWHC 2089 (Admin);  WLR (D) 303 Lang J in the Queen’s Bench Division allowed a claim by the claimant, David Attfield, for judicial review of the decision of the defendant local authority, Barnet London Borough Council, to increase the charges for residents’ parking permits and visitor vouchers in Controlled Parking Zones in the borough. Lang J held that the local authority was not entitled to exercise its powers under section 45 of the Road Traffic Regulation Act 1984 for the purposes of raising surplus revenue to defray other road expenditure and reduce the need to raise income from other sources, such as fines, charges and council tax.
Lang J said that the local authority had a discretion to set charges to reflect its parking policies. It was not restricted to levying a charge only to cover the base cost of running the schemes. However, section 122 of the 1984 Act was not intended to authorise a local authority to raise a levy on parking permit holders, pursuant to section 45(2)(b), to fund any project which met the objects set out in section 122. Such an intention was not expressly stated nor could it be implied. The 1984 Act was not a revenue raising or taxing statute. It did not authorise the authority to use its powers to charge local residents for parking in order to raise surplus revenue to defray other road transport expenditure and reduce the need to raise income from other sources, such as fines, charges and council tax. That purpose was not authorised under the 1984 Act and authority’s decision to increase charges for parking permits and visitor vouchers was unlawful.
Consequently, if and when the Government does introduce new powers allowing councils to impose fines and penalty notices on motorists for contravening some traffic regulations, what these new statutory powers say about the use of income raised through fines or penalty notices will be critical.
Whilst it makes sense to give councils new powers to try to achieve diverse policy objectives such as improving road safety for all road users, safeguards must be put in place to avoid and prevent the (perhaps understandable) temptations for councils to over-exploit a revenue generating function for what could be interpreted as improper or unlawful purposes.
Perhaps one solution is to break the direct link between fines and penalties collected and the specific authority’s ability to utilise any extra income generated? If the fines/penalties once collected were paid over to (say) an independent third party trustee organisation, acting on behalf of all councils and then re-allocated on some form of hypothecated basis to local government for road improvement, road safety and/or carbon reduction purposes, this might go some way to addressing the concerns and suspicions raised by the RAC and might help to defray the sort of anxieties and headlines that have recently appeared in the National Press when these proposed changes were announced.
Rob Hann is Head of Local Government at Solicitors Sharpe Pritchard and author of the Guide to Local Authority Companies and Partnerships 2020. He can be contacted through the new local government lawyer sponsored platform Sharpe Edge here.
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