Government proposals to license private wheel clampers may drive out the cowboys, but it doeslittle to clarify the obscure law on this subject.
The Court of Appeal's decision in Arthur v Anchor (1996) appeared to establish the right of landowners to clamp trespassing motor vehicles as long as there were adequate warning signs, reasonable release fees and a system for ensuring prompt release of a clamped car.
The court applied the ancient principle of volenti non fit injuria - a clamped motorist had no cause for complaint if he deliberately trespassed on private land knowing he risked being clamped.
But last year the Court of Appeal ordered a council to refund a clamping fee to a trespassing motorist who had not seen relevant warning signs. The facts of Vine v Waltham Forest LBC (2000) were that Ms Vine had left her car on private property for a few minutes because she felt unwell.
The court upheld her argument that because she had not seen the notice she could not have consented to the risk of her car being clamped. But, in practice, how is a clamping contractor to know whether a motorist has seen prominent warning signs? And it makes the perfect excuse for anyone wishing to avoid paying a clamping fee.
The Human Rights Act 1998 provides more uncertainty. Could being clamped infringe the right to a fair trial, respect for private and family life or peaceful enjoyment of possessions? The government's Private Security Industry Bill will give clamping some legitimacy.
The aim of the Bill is to regulate the private security industry as a whole, which includes wheel clampers.
The Bill sets up a new authority to regulate the industry. For the first time, all private security personnel will have to be licensed by the authority or face prosecution and up to five years' imprisonment.
Licensing criteria may require clampers to demonstrate they are 'fit and proper' and trained in their job.
The authority will be under a duty to establish and maintain a public register of licensed security personnel and set up a second register of 'approved security providers'.
Inclusion on the second register is voluntary and is in effect a kite-marking exercise. But the secretary of state may direct that only approved contractors be used for particular types of security.
Another problem is inconsistency between the law as it is applied in England and in Scotland. In Black v Carmichael (1992) the Scottish High Court of Justiciary stated in no uncertain terms that wheel clamping without express statutory authority was theft and that any payment demanded for release amounted to extortion.
Being among the UK's biggest landowners, it is important councils know exactly where they stand on private wheel clamping and how they can use it. The government's proposals do not achieve this.