Motion on Amendment 1
My Lords, the two Bills that are before us today—the Manchester City Council Bill, followed by the Bournemouth Borough Council Bill—were deposited before Parliament as long ago as November 2006. While I will speak to the first Bill, I put on record that I do not intend to do the same on the second Bill, which I am dealing with on behalf of the noble Lord, Lord Eden, who sends his apologies that he is unable to be in the House this afternoon.
Since these Bills were deposited, they have taken up an enormous amount of parliamentary time and have been scrutinised in great detail by Select Committees in both Houses. There was a good debate in your Lordships’ House on Third Reading back in November 2007. Since then, there have been five separate occasions when the Bills have together exercised Members in the Chamber of the Commons. Commanding majorities in favour of the Bills were obtained on the numerous Divisions that were required in the other place. In both Houses, individual pedlars presented detailed evidence in support of their petitions. Both Houses have listened to the petitioners. The House of Lords Select Committee, chaired by my noble friend Lord Harrison, in allowing the Bill to pass, requested and obtained undertakings from the councils that their officers would be properly trained to enforce the Bills. The Commons Select Committee went a stage further and made a significant amendment. That is Amendment 1 in the Marshalled List, which is the only amendment in this first group of amendments.
Before turning to the amendments, I give a brief reminder of the purposes of these two Bills. They both deal exclusively with street trading and they are both well precedented. The most contentious elements of the Bills have been the alteration of the pedlars’ exemption, which I shall come to shortly. The Bills also extend the street-trading regime to the provision of services, which, I am informed, includes henna tattooing in Bournemouth and teeth whitening in Manchester. The Bills would also enhance the enforcement powers of council officers and the police by allowing them to seize articles in cases where they believe that unlicensed street trading is being carried out, and they would allow the court to forfeit those items.
Amendment 1 is the only amendment that was made in the other place by the Select Committee, after it had heard detailed representations from the promoters and the petitioners. Amendment 1 rewrites the key provision of the Bills—namely, Clause 5. As introduced, the Bills followed a fairly long line of precedents promoted by other local authorities. The provision would have placed a restriction on the exemptions that pedlars enjoy from the street-trading licence regime under the Local Government (Miscellaneous Provisions) Act 1982. The exemption allows pedlars to trade under the authority of a pedlar’s certificate, even in streets where the council has prohibited street trading. The Bill, as originally introduced and as passed from this House, would have restricted the pedlar’s exemption so that it applied only where the pedlar was trading from house to house. In other words, unless he was trading from house to house, he would need to obtain a street trading licence in controlled streets and would be prohibited from trading in prohibited streets.
In addition to allowing house-to-house trading, the amendment allows pedlars to trade in licensed and prohibited streets so long as they comply with a number of detailed restrictions. To some extent, that seems to put in statutory form the common-law rules that generally require a pedlar to travel as he trades. The councils accept that, with the amendments, there is now clear guidance for pedlars in Manchester and Bournemouth about many of the issues with which the councils were concerned, particularly those about pedlars who did not move on at all and would stay in the same street or use large barrows to display their goods.
Noble Lords may wish to know the councils’ views about the recent government consultation on pedlars and street traders in the context of this discussion. The councils welcome the fact that the Government have taken the matter up at a national level and wait to hear what proposals emerge. Of course, there is no certainty about what will emerge and, more importantly, when. If the Government take the view that the Bournemouth and Manchester Acts need amending as a result of their proposals, of course that can be achieved through government legislation.
My Lords, I am grateful to the noble Lord, Lord Bradley, for the explanation of the amendments. We have had a stream of such Bills coming through the House over the years. I very much hope that these will be the last of them. As he said, consultation is taking place at central government level out of which will come—I hope, because it is not a politically contentious matter—an agreed programme to be enacted when whatever Government we have have the time. It has long been inappropriate that we should deal with such local Bills on what is essentially a national issue. Now that consultation is in place, it seems entirely inappropriate that we should deal with any further Bills on the subject. We should wait for the national consultation to finish and proceed down that route. I hope that promoters of similar Bills that are on the stocks will not proceed with them in the new Parliament, or that if they do they will be given extremely short shrift. We have much better things to do with our time than to go through this tortuous private procedure in respect of stuff that is being dealt with at a national level.
That is not least the case because the human rights implications of such Bills are not properly dealt with in private Bill procedure. They are not dealt with by the Joint Committee and our own committee—the Opposed Bill Committee—refused to look at the subject. Particularly when we are clearly dealing with the human rights of pedlars and others in the Bill, it seems inappropriate that there be no proper consideration of the matter.
The original attempt—it has now been amended—by Bournemouth and Manchester to tie up pedlary was inappropriate when it was made, and is certainly inappropriate now. At this stage of the economy, we ought to encourage people to take up their own enterprises—to get involved in business and do something to help themselves out of the situation in which they find themselves. Being allowed to trade house-to-house and on the streets is a way in which some big businesses have been founded, as I am sure that the noble Lord is aware. We should not close that option out for people, merely for the sake of tidiness.
I am grateful to the other place for having made this major amendment. It improves the position considerably, but there are a few detailed matters on which I would be grateful for the detailed guidance of the noble Lord, Lord Bradley. Does “location” mean a static location—in other words, that I am standing five feet outside No. 15 Portobello Road, for example—or does it have a wider sense? Are we dealing with a point? What is the technical interpretation of the word?
What is the exact definition of a “bona fide customer”? If someone is inquiring about a pedlar’s wares, is he a bona fide customer or does he have to do something more to establish himself as one? Is anyone a bona fide customer who is in some way not a false customer—some aide of the pedlar who rushes up and starts inquiring about the goods whenever the local authority’s officials pounce?
What is the definition of “trading”? When these local authority officials are trained, what will they be told that trading consists of? A pedlar, as I am sure the noble Lord is aware, will spend a lot of time displaying and talking about the wares that they are selling. Is that trading, or does that require some active exchange of goods and money? I should be very grateful for the noble Lord’s help on those points.
I am grateful for the contribution from the noble Lord and I share his views regarding the desirability of national legislation on these matters. As he and I have rightly pointed out, a huge amount of parliamentary time has been taken up with a whole series of private Bills of an identical nature which have tried to achieve the same objective for different councils around the country.
On a number of occasions the noble Lord has raised these technical and detailed matters, and they have been very carefully scrutinised by the Select Committees on issues of trading, location and suchlike. Guidance has been emanating from local councils to ensure that these definitions can be properly pursued in due course. I am sure that he will have looked carefully at those deliberations and that as these Bills come into force, we will be able to look carefully at the issues he raised and ensure that they are properly progressed by those local authorities.
Motion on Amendments 2 to 10
My Lords, I move on to the second and final group of amendments, Amendments 2 to 15. All were made at consideration stage in the other place and were tabled by the honourable Member for Christchurch, Christopher Chope. Mr Chope has been a gritty champion of the petitioning pedlars’ cause over the past few years. The promoters, in wishing to draw the remaining stages of the consideration of the Bills to a close, decided to agree to a number of Mr Chope’s amendments, with which we are now dealing.
In short, these largely technical amendments have four main purposes. First, Amendments 2 to 8 alter the test that a council officer or constable must satisfy before taking action under Clause 6 to seize items connected with unlawful street trading. In general terms, before the amendments were made, the test was that there had to be reasonable grounds to “suspect” that an offence had been committed. With these amendments, the test is that there should be reasonable grounds to “believe” that an offence had been committed.
Secondly, on Amendment 9 to Clause 7, if the council seizes an item under Clause 6, it has to be returned at the end of the relevant court proceedings unless certain circumstances apply under Clause 7. One of those is that any award of costs made in favour of the council has to be paid within 28 days. Amendment 9 removes a clarification which stated that those costs must include removal, storage and disposal costs.
Thirdly, on Amendment 10, Clause 9 sets out circumstances in which compensation is payable for unlawful seizure of items under the Bill. One of the circumstances, unsurprisingly, is that the defendant in the proceedings has been acquitted. As the Bill stood, this was qualified, in that the defendant would have to wait for any compensation until the time allowed for appealing against an acquittal had expired. That qualification is removed by the amendment.
Finally, Amendments 10 to 15 have the unfortunate effect of removing Clauses 10 to 14, but again, that is a sacrifice that the promoters were, in the end, content to make. Those clauses would have enabled the councils and the police to deal with street trading offences by way of fixed penalty notices.
At this point, I should mention the consequential amendments in my name. As a result of the late concession to Mr Chope on the deletion of Clauses 10 to 14, there was no opportunity to make the amendments necessary elsewhere in the Bill where the fixed penalty notice clauses are mentioned. Therefore, my Amendments 11A to 11F would achieve that tidying-up exercise. I beg to move.
Motion on Amendment 11
11: Leave out clause 10
11A: Page 4, leave out lines 26 to 28
11B: Page 4, leave out line 39
11C: Page 4, line 40, leave out “(b)” and insert “(a)”
11D: Page 4, line 42, leave out “(c)” and insert “(b)”
11E: Page 6, line 6, after “seizure” insert “and”
11F: Page 6, line 8, leave out from “seizure” to end of line 10
Motion on Amendments 12 to 15