Lord Bilston
My Lords, these four private Bills were all deposited in Parliament together in November 2007. The reason why it has taken so long to get to where we are today is the high level of opposition that they attracted in the Commons. Together with two similar Bills promoted by Bournemouth and Manchester, well over 24 hours have been spent in debating these Bills on the Floor of the House of Commons. They were opposed by a very small number of Members at every stage, including procedural stages such as carry over, but on each vote—and there have been many votes—there was an overwhelming majority in favour of the Bills.
The Bills are very similar to each other, but not identical. They all deal, in the main, with one general issue—that of street trading. Here I declare my special interest as a former member of the All-Party Parliamentary Group on Markets, and currently vice-chairman, and also as a vice-president of the Local Government Association.
The main area of contention in the other place was pedlars, and it is that subject that is also of concern today. All four Bills deal with this issue, and it is not the first time that a subject has been raised on a private Bill in this House. The provisions can be found in Clause 5 of each Bill.
Street trading is controlled by local authorities outside London under Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982. Councils can designate streets in their area as prohibited streets, licence streets or consent streets, or can leave streets unregulated. In prohibited streets, no street trading is allowed at all, and in licence and consent streets it is allowed only with the authority of a licence or consent granted by the council. There are exceptions to the rule; one of them is for trading as a pedlar under the authority of a pedlar’s certificate. A pedlar so trading can trade anywhere, even in a prohibited street. A number of councils have promoted private legislation to restrict that pedlar’s exemption so that it applies only to pedlars who trade from house to house. They include all the London borough councils, Leicester, Liverpool, Newcastle-upon-Tyne, Medway and Maidstone. The Bournemouth and Manchester Acts finally reached the statute book earlier this year. Similar legislation applies in Northern Ireland.
There are a number of reasons for the promotion of the pedlars clause. One key reason is the difficulty in enforcing the street trading legislation. A pedlar should travel as he trades, but case law has established that pedlars should be able to stay stationary for short periods of time before moving on. One case suggested that 15 minutes should be allowed. That requires constant monitoring of pedlars by council enforcement officers. There is nothing to prevent the pedlar moving on to a different location in the same street. Case law has also decided that pedlars should be able to use a barrow or stall. The councils argue that this has resulted in the abuse of pedlars’ certificates in their areas, with pedlars effectively acting as street traders. With the councils unable to control where pedlars trade, this can result in trading in inappropriate locations; for example, in areas where the highway is already congested, or in town and city centre areas where the council has invested considerable resources to provide a more attractive environment. In some cases, this has been achieved in part by making a street a prohibited street but, as I have mentioned, that does not enable councils to prevent pedlars trading on those streets.
Another issue is that councils do not issue pedlars’ certificates. Certificates are issued by the local police force where the pedlar actually lives, which is unlikely to be where he trades. The fact that pedlars are, by their nature, here today and gone tomorrow means that the councils are much less likely to be able to deal with complaints about the quality of goods sold than where they are sold by a trader licensed by them and whose name and address they know.
One of the main issues arising during the course of the promotion of these Bills is what to do with those who are known by some as “genuine pedlars”. Broadly speaking, those are pedlars who are said to obey the rules by moving frequently and who either do not use a barrow or stall or, indeed, might use a small one. On this subject, in order to try to meet the concerns of Mr Chope, the honourable Member for Christchurch in another place, two of the four councils, Leeds and Reading, put forward amendments to their Bills in committee. As a result, their Bills are now different from the other two in that they would allow pedlars to trade so long as they carried all of their goods on their person—in other words, no trolleys or stalls. Unfortunately, while that might have satisfied the honourable Member for Christchurch, it has not satisfied the pedlars, and petitions have been deposited against both the Leeds and Reading Bills, so they will have to be referred to a Select Committee.
Nottingham and Canterbury have not made the same concessions as Leeds and Reading, and that is because they have different problems. Both cities have narrow and congested streets where problems would be, and are, caused by any type of trading activity. Canterbury is a particular case in point. Around the cathedral, the streets retain their medieval narrowness and are very congested indeed, particularly during the summer tourist season. The city council believes that a concession of the type given by Leeds and Reading would amount to a failure to achieve the Bill’s purpose in Canterbury’s particular circumstances.
That brings me in turn to another point which I am sure will be raised today: the desirability of different councils coming forward separately to create a patchwork of legislation across the country. The four councils could not agree more. They think that there should be a change and that it should be on a national basis, but the problems they face are here and now. I am told that when Westminster City Council, which was the first to promote this type of legislation, deposited its Bill in 1996, the Home Office objected on the grounds of prematurity, saying that a review of the pedlars legislation was imminent. Fourteen years on, the previous Government undertook a consultation exercise on the law—it closed in February—but there are no guarantees that legislation will come forward in the near future.
There has been some concern about the number of councils lining up to promote similar legislation. No similar Bills have been deposited since these in 2007, and as far as the councils and their parliamentary agents are aware, there is no queue of authorities waiting. This indicates, as the Minister said when he spoke at Third Reading on the Manchester and Bournemouth Bills, that there are probably only a limited number of councils that have experienced the problems that these Bills seek to address and which are prepared to go to the time, trouble and expense of promoting their own legislation.
Having dwelt on pedlars, I turn to the other provisions in the Bill. All the Bills contain new enforcement powers relating to unlicensed street trading. Following precedent in London, council enforcement officers and police constables would be able to seize items in suspected unlicensed street trading for use as evidence or for forfeiture by the courts on conviction. This would not apply just to the pedlars but to any person who trades unlawfully. There is provision for compensation to be paid in the case of unlawful seizure.
All four Bills would also enable the councils and police constables to serve fixed-penalty notices for street-trading offences, and they would provide an offence of giving a false name and address. In the cases of Reading and Canterbury, powers are also given to police community support officers to serve fixed-penalty notices. All four Bills would extend the scope of the street-trading regime to the provision of services on the street. The type of activity that is intended to be covered includes hair braiding, henna tattooing and the like.
In the cases of Nottingham and Reading, the definition of “street trading” is also extended to the buying of tickets for gain or reward. This is intended to deal with the commercial ticket tout, which is a particular problem for Reading. When the annual Reading festival is on, selling tickets on the street as opposed to buying is already caught by the street trading legislation, and it is important to note that it is already a separate offence to tout for football tickets.
The only other way in which the Bills differ from each other is that Reading and Canterbury both include a clause that would regulate touting in their area. This is not the same as ticket touting, as some Members in the other place mistakenly thought, but is intended to cover touting for business in the streets, which can be a nuisance. I should also mention that the honourable Member for Canterbury South, Julian Brazier, gave the honourable Member for Christchurch an assurance at Third Reading that Canterbury would seek leave at the appropriate stage in this House for its tout clause to be omitted from the Bill, and that this will be done in Committee.
In conclusion, these promoters have identified, and are seeking to deal with, real issues in the Bills. Private Bills do not come before your Lordships that often, and it is a measure of how significant a step it is for any promoter to take, particularly a local authority, in these times of financial constraints. All four Bills will no doubt be subject to rigorous detailed scrutiny in Committee, and I urge your Lordships’ House to support them on Second Reading. I beg to move.
Lord Lucas
My Lords, I am very grateful to the noble Lord, Lord Bilston, for explaining the Bills so clearly. The House now knows exactly what they are about. I have two problems with them: first, as he said, this is the back end of a series of Bills on the same subject. I do not think that the Private Bill process was ever designed to be a substitute for public legislation in this way. The local authorities concerned, as well as Parliament, are spending a great deal of time and money to do something which should be done by the Government. As the noble Lord said, the Government completed a consultation in February this year. They are now in a position to say that there is no need for legislation such as this and that we should see an end to these Bills or that there is a need, in which case we should have it and there would be no need for these Bills. One way or another, it is time for the Government to come off the fence and take a decision.
The second reason why I have problems with the Bills is that, as the noble Lord said, they restrict the right of people to make a living by selling out in the open. That is a problem at all times, but especially now, in these difficult economic times. We have to encourage people to get out there and make a living, to start trying to build a business, and selling is one of the crucial ways of doing that. We do not want a system that puts barriers in the way of people starting out. If you want to start trading from a shop, you will need many tens of thousands of pounds. If you want to start trading from a barrow in the street, you may have to queue up for years to get a limited permit from the council, or you may have to pay a rent and a premium to get one. For a young person who has an idea, who thinks that they can sell something better than other people and who has a product that they want to get out into the market, the only way that they can start is to get a pedlar’s licence and get out there and sell. It is a wonderful and ancient freedom that is of great utility to us.
I will admit to being an “Apprentice” addict. Any of your Lordships who share that addiction will see how dear this issue is to the noble Lord, Lord Sugar. He is always sending his apprentices out to sell sausages door to door in Notting Hill; whether he gets a pedlar’s licence for that, I do not know, but he should. It is absolutely fundamental to that side of business.
As the noble Lord, Lord Bilston, says, you quite rapidly find problems regarding location. The best place to sell is where the money is. Places with money tend to like being tidy and well organised. Westminster is the worst of these. When do you come across someone selling in the street in Westminster? How many street markets have been founded in Westminster in recent years? None. Westminster does its best to sweep the streets clean of this kind of thing. I do not accuse Canterbury or any of the other councils involved in these Bills of doing that; none the less, they are regulating from the point of view of the rich and the well-off to exclude those who are trying to make a start on the ladder.
To me, this is a national issue. It is a difficult balancing act; one does not want, as in the case of Canterbury, 20 or 30 pashmina trolleys up and down the high street. However, you do want to encourage people to get out there and start a business. There has to be a level playing field. Councils which look after rich, well-to-do areas have a duty to the rest of the country to provide opportunities for young entrepreneurs, and we have a duty to limit the disadvantage that that causes to their residents. This is a difficult balancing act and I hope that the Government will turn their mind to it so that in the next year or so there will be a clause to deal with this matter and allow us to settle it. It seems to me a fundamental part of the concept of the big society that each of us should be prepared to suffer inconvenience to give advantage to other people. This is merely an illustration of that.
I have put down an instruction to the committee. This is not something that will cause the noble Lord, Lord Bilston, any concern; I merely wish to raise, on the Order Paper, the importance that I attach to these Bills. As he said, obligations were undertaken in the Commons that I hope we will see fulfilled. There is the matter of consistency across the Bills, which I hope will concern the committee. I hope the committee will also turn its mind to whether the particular restrictions are justified. I am sure that the pedlars will argue that strongly when they come before the committee. Above all, I very much hope that the committee will address itself to the inappropriateness of the Government requiring councils to use this route to establish legislation for which they find they have a need.
Lord Tope
My Lords, I, too, am grateful to the noble Lord, Lord Bilston, for introducing these Bills and for explaining them to your Lordships’ House so carefully and thoroughly. I am also grateful to the noble Lord, Lord Lucas, for the points that he made. I think we all agree that we should not be where we are today and that it is time that we looked at this. I say to the noble Lord, Lord Lucas, that I do not think anything in these Bills will greatly inhibit the apprentices of the noble Lord, Lord Sugar, selling sausages in Notting Hill, not least because Notting Hill is already covered by the provisions of the various London Local Authorities Acts, which some years ago covered similar ground to that now introduced by the noble Lord, Lord Bilston.
I declare an interest; I am still a councillor in a London borough. Indeed, among my responsibilities on the council’s executive is the subject of licensing. This covers street trading and even pedlars. For some years we had a town centre manager who talked to me about little other than the Pedlars Act 1871. I learnt the definition of a pedlar many years ago. Should there be anybody in your Lordships’ House who is not sure exactly what a pedlar is, the definition in the 1871 Act, which I think still applies, says:
“The term ‘pedlar’ means any hawker, pedlar, petty chapman, tinker, caster of metals, mender of chairs, or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot and goes from town to town or to other men’s houses, carrying to sell or exposing for sale any goods, wares, or merchandise, or procuring orders for goods, wares, or merchandise immediately to be delivered, or selling or offering for sale his skill in handicraft”.
If ever there was a reason for updating legislation, I think I have just read it to your Lordships. That it has survived so long—albeit with some subsequent case law to bring it into the 20th century, if not the 21st—is quite remarkable.
As I said, the London Local Authorities Act, which was the Bill promoted by Westminster on behalf of all the London boroughs to which the noble Lord, Lord Bilston, referred, has largely removed this problem in London. However, it is clearly still a major problem in several cities, including those covered by the Bills before us today. No local authority at any time, still less in the current climate, would undertake the enormous amount of work and the enormous cost of promoting private legislation unless it felt it had a real and significant problem to deal with. I looked at some of the lengthy debates on the Bill in the other place. Even the honourable Member for Christchurch, Mr Chope, was convinced when he saw photographs of the problems in, I think, Leeds. It was certainly one of these cities. If Mr Chope was convinced, I think we would all be convinced even more readily.
We are here because this is where we are, and the Bills are before us today for reasons very ably explained to us by the noble Lord, Lord Bilston. I hope that your Lordships will give them a Second Reading, but I hope still more that the Minister will tell us that these will be the last such Bills that have to come before the House, that this Government, like previous Governments, have recognised the need for legislation, and that a government Bill will be introduced to enable us properly to debate and consider the very real and important issues to which the noble Lord, Lord Lucas, referred. Indeed, they are important issues. There may not be very many pedlars left—however they are defined—but there are some and it is important that we consider these issues. However, they need to be considered in a proper legislative process in a Bill produced by government that goes through normal and proper parliamentary procedure in one Session, so that we are all clear about it and can legislate properly. The worst way to tackle this is through private Bills that take literally years to process and cost local authorities—or more particularly their taxpayers—hundreds of thousands of pounds, and inevitably leave us with a piecemeal situation across the country.
I am happy to give our support to this Second Reading, but it is in a sense conditional support in that I hope it will not be necessary to give it again.
Lord Graham of Edmonton
My Lords, I support the speech of my good noble friend Lord Bilston. I declare an interest in that many years ago I had a close association with the National Market Traders Federation. I recall traders’ agitation at the behaviour of pedlars at the federation’s annual meetings and at the impact on the business of more than 30,000 traders of having to comply with all sorts of rules and regulations quite properly imposed on them by national and local government. I have nothing against pedlars; there must be some good and some bad—they are typical of a group of people. The phrase has been used more than once in this debate, “We are where we are”: that is, we are on the verge of sending a Bill to Committee where it will be thoroughly discussed and reported on. Therefore, I hope the Government will recognise that this matter should not be dealt with in private legislation but that it is worthy of a government Bill.
My noble friend Lord Bilston referred to the fact that in 1996 Ministers said that this matter would be looked at very closely. However, 15 years later we are where we are. I do not think that anyone who has spoken is against government Bills as opposed to private legislation. However, the relevant authorities were forced to promote these private Bills in the absence of a government Bill. I hope that the powers that be—whoever they are—will recognise that a government Bill is needed. When the debates take place in Committee and recommendations are made, different points of view will be championed. However, by and large, local government recognises its own needs and the needs of others. Giving these Bills a Second Reading would demonstrate that we want action, not words.