City of London (Various Powers) Bill [Lords]
Mark Field (Cities of London and Westminster) (Con)
I beg to move, That the Bill be now read a Second time.
The Bill would make some relatively minor changes to street trading controls in the City of London and to the law on the walkways within the square mile. The only place where street trading can take place in the City is on Middlesex street, as part of the famous Petticoat lane market. The limitation on street trading can be traced back over a century and is reflected in the City’s current local legislation, which confines such activities to the street market on Middlesex street.
The reason for the City’s particular code lies in its demography—it is primarily a business area, not a residential one—and the unique demands that that imposes. As hon. Members will be well aware, the City was not always almost entirely a place of offices and of the commercial sphere. Until the rise of the railways, it was a significant residential area. It was home to more than 130,000 residents in 1801, but there was a precipitous drop as the railways emerged in the 1830s and 1840s, and the impact of the second world war, in particular, ensured that much of the residential population is now in the Barbican area.
However, London’s attractiveness as a tourist destination and the greater accessibility of the St Paul’s area via the Millennium bridge from Tate Modern at Bankside brings large numbers of tourists on a daily and hourly basis from south of the river. That has meant an increased demand for retail development around New Change and some retail development in the Broadgate area, and I suspect that before the world is too much older there may yet be further retail development in the area around Aldgate. It is development in the area around St Paul’s cathedral, in particular, and the New Change area adjacent to it, that has prompted a review of the existing code. The aim has been to try to meet the needs that the changes are generating while at the same time preserving the essentially business environment that the City needs in order to prosper.
In consequence, the City of London corporation now wants to utilise the Bill to liberalise the regime in two specific respects. First, the Bill is designed to enable temporary street trading licences to be issued to enable the use of public thoroughfares, such as Cheapside, for street markets and similar events. The new retail development at New Change, beside St Paul’s, aims to attract shoppers not just during the week, but at weekends. It provides a particular prompt because such liberalisation would enable promotional activities to be held. Of course, the timing of such events would have to be carefully managed because, as is well known, the City is relatively empty on most weekends.
Secondly, the Bill would allow ice cream and related products to be sold outside food premises. That, too, is prompted by increased tourist demand, particularly in the vicinity of St Paul’s. It is difficult to imagine the consumption of ice cream as an attraction at the moment, given the cold winter we are having, but I hope that it will be only a matter of weeks or, being pessimistic, months until that will prove extremely welcome.
These new regulatory changes are balanced by provisions for more effective enforcement of the street trading controls, including an increase in the maximum fine to the level that applies elsewhere in London and extension into the City of the powers available in other London boroughs to seize goods and property used in connection with unlawful street trading. I am well aware that that power of seizure may not be liked by all colleagues, even by some of my hon. Friends, including my hon. Friend the Member for Christchurch (Mr Chope). However, it reflects the powers that are available in the rest of London, although I should point out that it does not go as far as the powers that are available in the City of Westminster or even in the London borough of Wandsworth. I am sure that my hon. Friend is well aware of those powers. Street trading in the City is very limited in scope, but where it does exist effective provisions are needed to control it.
Mr Christopher Chope (Christchurch) (Con)
My hon. Friend will be aware that other Bills recently debated in this House, including the Nottingham City Council Bill, the Canterbury City Council Bill, the Reading Borough Council Bill and the Leeds City Council Bill, all contained similar provisions to those contained in this Bill, but they were cut out when those Bills were considered in the other place, and those amendments were accepted by this House. Why is the City of London holding out against this?
Mark Field
As I said, there is a case to be made that the City of London is a different sort of local authority in a different sort of area given the preponderance of office space rather than residential space and its character as a business quarter. The corporation has tried to ensure that we encourage tourism. It is obviously in everyone’s interests to have a large amount of tourism throughout the UK, and attractions such as St Paul’s cathedral will remain of global importance. However, there is also a recognition that the square mile—the area of the City of London—is rather unusual in this regard. Therefore, the very limited changes proposed in the Bill should apply to the City despite the great efforts that my hon. Friend has made to ensure that such changes are not made in places as far flung as Reading, Canterbury and Nottingham.
These powers are intended not least to deal with the problem of ice cream vans trading illegally in the City—a rather small category of pedlarship, as my hon. Friend will recognise. These illegal traders have given rise to numerous complaints from the public, from schools, from businesses, and indeed from the chapter of St Paul’s cathedral. The City has brought cases against some traders, but the maximum fines that can be imposed have not, on their own, been adequate to deter this activity. That is why we are moving beyond the idea of a maximum fine to try to create a new power of seizure so that we can properly enforce the rules that are already in place.
Mark Field
I shall endeavour to do so when we get into Committee, where we will have the full details.
The reason why prosecution is such an ineffective means of dealing with these things is that the fines are so derisory. The fine is currently set at level 2—only £500—and we are trying to raise it to the new maximum level of £1,000. However, even at that level it is so nugatory that the power of seizure would be more effective. As my hon. Friend is aware, the sheer cost of starting a legal action is outweighed manifold by the moneys that can be brought in through fines.
The European Union services directive has been raised in connection with the Canterbury City Council Bill and other recent local Bills. I thought that it might be helpful if I went into that in a little more detail than I had intended at this stage, having been prompted to do so by a brief discussion with my hon. Friend earlier. As Members are well aware, the EU services directive came into force on 28 December 2009. In respect of the City of London, the Department for Business, Innovation and Skills accepted in correspondence some two years ago that the general prohibition on street trading can stay. It stated:
“We think that, by virtue of recital 9 to the Directive, there is a reasonable argument that a complete prohibition on street trading, as is the current situation in the City, except in respect of Middlesex Street is not caught by the directive at all (and so does not need to be analysed against the requirements of the Directive).”
Baroness Wilcox raised three issues on Second Reading in the Lords. One of them is pertinent to this debate and I will put it on the record, because I know that my hon. Friend would want to address it and it would make sense for me to do so now rather than in response to further interventions. The issue is whether a provision restricting ice cream street sales to a business occupier might indirectly be discriminatory against temporary service providers who have no established premises in the UK. I accept that this remains a live issue to an extent.
BIS set out some of the concerns in correspondence in July 2011 and suggested that most business occupiers in the City would be UK nationals or companies, and that the provision could therefore be seen to be indirectly discriminatory. The Department also recognised that for temporary service providers—in other words, someone who is not established here—the requirement is not likely to meet the directive’s necessity and proportionality principles. Indeed, the Department suggested that we take independent legal advice on the issue and, following a meeting with BIS in September 2011, the City corporation sought the opinion of leading counsel, which was sent to BIS in the past few weeks. On 14 February, BIS indicated that it “may disagree” with the opinion and confirmed as much on 19 February, but without giving any reasons beyond stating that the opinion had not changed its view that clause 9 is likely to be considered indirectly discriminatory in the context of service provision.
I hope the House will forgive me if I go into some detail, not just on leading counsel’s case, but more importantly on why we feel that this issue could and should properly be dealt with in Committee rather than by delaying this Second Reading. Leading counsel’s advice was, in summary, that the intended beneficiaries of the Bill are sellers or suppliers of food who are being allowed to trade a little way outside the premises that they occupy, that the commercial activity taking place in the street is a spill-over from that which is carried out in the associated premises, and that it is, therefore, clearly distinguishable from the right to sell ice cream as a street trader. As a result, such activity is subject to provisions on the freedom of establishment in the EU services directive. The counsel further advised that that is compatible with the provision in the services directive, as there is no restriction on who may open a food business in the City.
Likewise, the Bill does not make it any harder to open such establishments. In fact, many of the food businesses in the City of London are operated by nationals of other member states. Indeed, anyone who has tried to buy a coffee or a sandwich in a shop in the City will know that it is almost impossible to find anyone who is not a national of another state working in such an establishment.
For the specific purposes of this Second Reading, we strongly believe—I hope that this will satisfy my hon. Friend—that this does not affect any of the Bill’s provisions, particularly the provision of temporary street trading licences, about which I will say more in a moment. Therefore, the corporation will seek the views of businesses and discuss the issue with them. As has been said, similar elements were struck out of Bills relating to Canterbury, Reading and Nottingham, but we feel that there is a special case for the City of London and, given counsel’s opinion, we hope that we will prevail in Committee. This matter has been properly considered and should be fully examined in Committee. It should not delay the relatively smooth progress of the Bill through Second Reading.
Mark Field
I very much share my hon. Friend’s concern about the lack of clarity and about the fact that, given that this has been in play for three years, the implications were not addressed in advance. Too much legislation from Europe seems to get through on the nod and the problems of compatibility only become apparent at a later stage. As I have said, a question remains, but we have received strong advice from leading counsel and hope that we will prevail on this matter when we examine it in Committee.
We feel that this is a useful, minor liberalising measure that will be welcomed by those who work in the City and the countless hundreds of thousands of people who visit the City daily. The tourists come in their millions every year. I make the pledge to my hon. Friend the Member for Christchurch that I will be happy to table an amendment in Committee, in conjunction with the City corporation, if it appears that the advice that we have had from legal counsel is contrary to the EU services directive. However, I hope that we can proceed with the Bill even though there is a small element of doubt in relation to the directive.
Mr Chope
To clarify, is my hon. Friend saying that the discussions on this matter will take place before the Bill is considered in Committee so that there is time for it to be amended to reflect the outcome of those discussions or is he saying that any amendments will be made subsequent to Committee stage?
Mark Field
The Committee stage is clearly not imminent, so there will hopefully be time for fully fledged discussions in which the corporation can make its case robustly, given the opinion that we have received from counsel. That will provide the opportunity for amendments, but one would hope that they will not be needed and that the case can be smoothed over in advance of Committee stage. I will willingly do that on behalf of the corporation to try to get the Bill through the Committee stage, whenever such further proceedings can be arranged.
I believe that the corporation is right in its view that the street trading provisions in the Bill are consistent with the directive. The Government, in the shape of Department for Business, Innovation and Skills officials, have indicated that they are content on two of the three main points that have been raised, although they have recently expressed concerns about the third point, which we have already discussed. Clearly, it would not be in anyone’s interest, least of all the City corporation as promoter of the Bill, to do anything that could reasonably be regarded as contrary to EU law. We therefore need to get clarification on this matter.
I will go through the Bill in a little more detail. The substantive provisions begin with clauses 3 to 5, which make provision for temporary street trading licences. Those licences will last for up to 21 days and may be granted for any area in the City other than Middlesex street. The organisers of an event would be able to apply for a licence on behalf of any number of street traders.
Clause 6 will bring the maximum fine for illegal street trading in the City into line with the rest of London. Currently, the maximum fine in the City is a level 2 fine of £500, whereas for the rest of London it is a level 3 fine of £1,000. That is a straightforward measure to harmonise the situation.
Clause 7 provides for the seizure and forfeiture of vehicles and goods used for the purpose of unlawful street trading. As I have said, this is in substance the same set of powers that exists in the rest of Greater London under the London Local Authorities Act 2007, which introduced a new enforcement regime into the street trading code laid down by the London Local Authorities Act 1990. Seized property may be forfeited to the court or sold to meet an award of costs on the conviction of a person for the offence. Otherwise, it must generally be returned to the person from whom it was seized. Provision is made in the Bill for the disposal of property that cannot be returned and for compensation for any unlawful seizure. Special provision is made for the return or disposal of motor vehicles or perishable items. Clause 7 also enables a fixed penalty notice to be given for illegal street trading, as can happen in the rest of Greater London and areas outside the capital.
Clause 8 will end the need to enact a byelaw to vary the charges that apply to street traders. That procedure is so cumbersome that the charge for street traders in the City has remained unchanged for the past 24 years. It seems to me that only MPs’ salaries have remained unchanged for the same length of time. Perhaps I am exaggerating slightly. However, the charge has remained unchanged at £15, which contrasts with the charge for street trading imposed in, for example, the neighbouring Tower Hamlets, which is £32. I should say that Middlesex street is bisected by the boundary—it runs from north-west to south-east, and the southern side is in the City of London and the northern side in Tower Hamlets. It would make sense to harmonise the charges.
Mark Field
I have been regularly to Petticoat lane, mainly before my time as a Member of Parliament, and it did not strike me that there was an immense difference at that time, although that was some time ago. Notwithstanding the different charges, there did not seem to be a particular disincentive to have a stall in Tower Hamlets rather than in the City of London. I should perhaps stress to my hon. Friend that the charge is designed only to reflect relevant costs, but having been set at £15 since 1989, putting it up to £32 does not seem a huge imposition on those who would trade on the City side of Middlesex street.
Clause 9 will enable food premises to sell ice creams from stalls or dispensers on the public highway outside the premises. If approved, a stall may be set up within 15 metres of the business premises. That distance was chosen as a reasonable outer limit given the nature of the public areas in which the sale of ice cream might take place. If a location closer to the premises were deemed more appropriate by the House, I believe that could be set out by the corporation.
Finally, clause 10 will make two small changes to the law on City walkways. I should say that walkways are neither footpaths nor highways in the conventional sense but private access ways over which the public are given a right to pass on foot. The concept was initiated by the City in a private Bill enacted as long ago as 1967. Walkways are found, for example, in the Barbican. In the immediate aftermath of the second world war, as part of the rebuilding following the bombing, there was the dream of creating the Barbican, and indeed the dream of creating a business district within the City of London with relatively few residents. Pedways were envisaged at first-floor level, not just in the Barbican but beyond. The clause will enable the corporation to impose a charge to recoup administrative costs incurred whenever a landowner requests a new declaration or a variation of a walkway. The second element of clause 10 will enable a fixed penalty notice to be issued when there is unlawful parking on a City walkway, as already occurs when there is unlawful parking on a footpath.
The Bill is a modest measure aimed at relaxing the existing street trading code in the City of London to provide important flexibility. It will enhance the attractiveness and vitality of the City both for its residents—for the first time in more than two centuries we saw an increase in the residential population of the City of London in the most recent census—and for those who work in and visit the City. As I have said, the emergence of New Change as a new shopping centre means that the City will become a more attractive place over weekends, and more and more shops there are open on Saturdays and Sundays. I therefore ask the House to give the Bill a Second Reading.
The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Jo Swinson)
I rise to speak only briefly, because as hon. Members will know, traditionally the Government neither support nor oppose private Bills unless for some reason they contain provisions that are contrary to public policy. In such cases, it is the Government’s role to bring such matters to the attention of the House, which is why I wish to set out the Government’s concern about the Bill’s compatibility with the requirements of the European services directive, to which the hon. Member for Cities of London and Westminster (Mark Field) referred. That concern was raised on Second Reading in the other place in April 2011 by the then Under-Secretary of State for Business, Innovation and Skills, Baroness Wilcox.
Despite some developments on the issue, the promoters of the Bill have not yet been able to satisfy us that all the concerns that we raised have been satisfactorily addressed. The good news, however, is that whereas back in 2011 we had several concerns about the Bill’s compatibility with the directive, now we have only one. The remaining concern relates to clause 9, which seeks to allow only those with business premises to sell ice cream from a receptacle outside those premises. The Government’s view has been that the clause does not comply with the services directive, because it may indirectly discriminate against non-UK nationals. Our concern, therefore, remains the same as in 2011.
However, I appreciate that the promoters of the Bill have sought external legal opinion to support their contention that clause 9 is compliant. As had been said, it has recently been given to the Department. The Government are looking at it and we hope it will be possible to reach agreement before the Committee stage. If there cannot be agreement, then in that scenario we would be compelled to submit a report to the House setting out the legal reasons why we believe that clause 9 does not comply with the services directive. I think it is helpful for the House to be aware that discussions on legal clarity are ongoing.
Mr Chope
I am grateful to the Minister for giving way. Can she explain what would happen in that scenario? If the Government cannot agree with the promoters they will issue a report, but where would that leave us as legislators? Would that happen before the Committee stage so that the Committee is able to respond to the Government’s view, or would it be left until later? The Bill might not come back for a Report stage.
Jo Swinson
My hon. Friend raises an important point. It is a formal process. If the Government think there is a legal problem—that the Bill is not compatible with provisions that we are signed up to—we will report against it. We hope to be able to reach agreement before Committee, but we will keep the House informed at every stage. That will enable the House to assess these issues in the light of the Government’s advice and assessment of the legal situation. This is ongoing. The new legal opinion has been produced and must be considered properly. However, I wanted to ensure that the issue was flagged to the House so that if the Government must issue such a report, it will not be a surprise. It might well yet be that that does not come to pass. They are the only comments the Government wish to make on the Bill, and I am sure that the rest of the Second Reading debate will now continue.
Ian Murray (Edinburgh South) (Lab)
The view of the local Member should be paramount on how this legislation will work. The hon. Member for Cities of London and Westminster (Mark Field) said that this is a modest measure that will enhance the life of the City of London. That is an important thing for the local Member to say, and I hope cognisance is taken of it.
I have been skimming through the Bill, Mr Deputy Speaker. You will not be surprised to hear I was told that I was speaking on it shortly before the hon. Gentleman got to his feet to promote it. I am fascinated by clause 9. I think of the streets of my own city of Edinburgh, which is vibrant with street traders selling things. The clause is peculiar, given that it is limited to ice cream, but the clarity the Minister has provided on trying to resolve the issue relating to the directive is welcome. If the Bill is allowed to go to Committee and the Department for Business, Innovation and Skills can find a way to resolve it, I hope the Bill will be enacted.
A street trader licence at £15 sounds like a bargain to me. Indeed, I am sure street traders up and down the country will be wondering why it is so cheap in the City of London and not on their own patches. The Bill is limited in scope. If it means that we can all wander down the streets of the City of London and buy an ice cream from an approved receptacle or place of sale, then we are willing to support it. We do not have any objections.
Mr Christopher Chope (Christchurch) (Con)
It is worth reminding ourselves that if a blocking motion had not been tabled, we would not be having a Second Reading debate—it would have gone through on the nod. What we have heard so far, with the helpful explanation given by the Under-Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for East Dunbartonshire (Jo Swinson), shows the importance of ensuring that we have a Second Reading debate on a Bill of this import. It may not affect the whole country, but it involves important principles. As we have heard, it may have an impact on national law in relation to the European Union services directive, as incorporated into United Kingdom law.
I am disappointed that the hon. Member for Edinburgh South (Ian Murray) admits to having only just got to grips with the issue. There has been a lot of notice of the Bill and, as the Minister said, it was discussed in another place as recently as April 2011, so I am surprised that he did not brief himself sooner. Had he done so, he might have been in a position to help the debate, particularly on the draconian powers of seizure and forfeiture in relation to ice cream vans and receptacles used in street trading.
It is worth considering the Bill in the context of the street trading and pedlary regime. The consultation on that regime, which the Government have said is ongoing, has been extended into the middle of next month and is designed to bring to Parliament’s attention issues arising from the EU services directive. When that directive was implemented, people thought it would have no impact on street trading, but it is now having such an impact that the Government are saying that the only way to ensure compliance is to abolish the pedlars legislation completely.
The City of London regime exempts the City from some provisions of the pedlar legislation, but the Government’s agenda seems to be to do away with pedlary altogether and, given the issue of equal access to street trading, effectively to deny people the privilege of trading freely in this country on the basis of a certificate from a police authority stating that they are of good character. As was clear from the Minister’s comments, the implication might be that it indirectly discriminates against non-EU nationals, but since when have we said that there should not be some privileges associated with being a British citizen?
That principle should be strongly upheld in the City of London. I pay tribute to the work done there. It is the heart of the British economy and over generations has exercised a form of local self-government that is an exemplar for other local authorities up and down the land. I was much involved in trying to ensure that powers to take over the City of London and make it just like any other borough were not carried.
That brings me to my point. That there are provisions relating to street trading in other London boroughs, such as Wandsworth, to which my hon. Friend the Member for Cities of London and Westminster (Mark Field) referred, might itself be a good reason why the City should retain its distinctive position—perhaps slightly aloof from other London boroughs. I do not know how he would describe it, but it is certainly different—and proud to be different—and just because some boroughs seem to have been heavy-handed in how they deal with enforcement and forfeiture, that is no reason why the same should apply in the City of London. I hope that my hon. Friend will accept that there is a reason for not being uniform or homogenised.
Mark Field
I naturally agree that the City of London is special, and perhaps aloof, in comparison to all the other London boroughs, except of course for the City of Westminster, which I also represent in the House. I would not want to upset my other city. My hon. Friend is absolutely right to say that we already accept that, so far as pedlary is concerned, a different set of rules has applied in the City of London for more than a century. The question is: why did the City of London suddenly want to impose a maximum fine of £1,000, rather than £500, simply to harmonise with other local authorities? My fear is that even £1,000 would be insufficient as a disincentive without commensurate powers of seizure for those who persistently offend against these byelaws.
Mr Chope
I am grateful to my hon. Friend for that intervention. On the question of the level of fines, I would be more impressed—although I do not blame him for the situation—if there were some hard evidence of the number of cases that had been brought to court, the number of cautions that had been given or the number of offences that had not been prosecuted for one reason or another. During our discussions on the various pedlary and street trading Bills, certain assertions have been made by the Bills’ promoters—I do not want to taint the Corporation of London with the problems of the others—and it would be helpful if my hon. Friend provided some evidence.
Mark Field
The sheer cost of bringing legal proceedings is exorbitant. The fact that £1,000 would be the maximum amount that a persistent offender could be fined is therefore a strong disincentive. My hon. Friend will be aware that a hamburger van or ice cream van in central London can make a huge amount of money in a very short time, given the through-flow of people on the streets. It is a matter of concern—certainly in principle, although there is not necessarily any evidence—about the numbers of people who have gone through the whole legal process, given the fact that the New Change shopping parade has now been updated. It has been up and running only for the past 18 months, but its emergence will make the City of London a more attractive proposition for a significant number of tourists at weekends. I am afraid that the area could therefore attract more illegal ice cream sellers, and it is as a result of those concerns that we feel the need to move ahead. As I have said, the City of London is no longer lacking at weekends—
Mr Deputy Speaker (Mr Nigel Evans)
Order. This intervention is bordering on being longer than the hon. Gentleman’s speech on the moving of the motion.
Mark Field
I think I would probably have to speak for another 21 minutes before that was the case, Mr Deputy Speaker.
Mr Chope
Indeed, Mr Deputy Speaker, I was tempted to ask to intervene on my hon. Friend. I am grateful to him for expanding on that important point, and I am grateful to you for your indulgence in enabling the point to be made. I accept that the City of London is in a separate position from that of other local authorities.
I want to move away from the generalities and turn to the specifics of the Bill. The power in clause 3 relating to temporary street trading is effectively a liberating provision when compared with the current regime. It will enable street trading to be carried out over a limited period and, as the explanatory memorandum makes clear, it represents a relaxation of the restrictive code. I am not going to argue against that, because to do so would be to argue against the principles that I have fought hard for in many similar Bills in the House. I would not quibble with the detailed contents of the measures on temporary street trading.
Philip Davies (Shipley) (Con)
I share my hon. Friend’s view, but when it comes to scrutiny of the Bill, is he happy that the arrangements have been sufficiently relaxed?
Mr Chope
I think my hon. Friend knows the answer to that: I would like to see a much more relaxed arrangement. Any relaxation, however, is probably better than none. It is important for people to be able to enter the marketplace as business men without the need for much capital. I view that as fundamental in an entrepreneurial society. The City of London obviously epitomises the entrepreneurial society, which is why it is good for the City of London to encourage street traders and people starting out in their business life and career to be able to show what they are worth, perhaps initially by getting a street trading licence, perhaps operating like interns on a temporary basis and seeing how it goes. I believe that clause 3 is—I hope I do not have to eat these words later—a clause for good, so I support it.
The issue of temporary licences is not one that greatly concerns me, but I am concerned about whether the case for increased penalties has been made. It is easy to say that it is expensive to prosecute. We know that companies will say, “We do not prosecute people who are shoplifters because it is not worth the candle. It will cost us too much to prosecute and when we get people before the courts, the fines will be so derisory that we will not achieve much purpose and we will have been put to a lot of needless expense.” That argument is often put forward on behalf of public authorities, which are funded by local or national taxpayer resources.
Having said all that, this country is one that believes in the rule of law, and I would have thought that an important principle of the rule of law is that if an enforcement authority feels that breaches of specific local byelaws or local legislation are to the detriment of the people living in the area, it should be quite happy to prosecute, recognising that a cost is associated with that. Ultimately, the taxpayer pays a lot of money for prosecuting people and even more money if those people are convicted and sentenced to prison, but we do not say that it is not a good thing to do that, as it is an important matter of principle. I am not impressed, in respect of clause 6, with the idea that prosecuting authorities should not bring prosecutions just because they think it is not financially expedient to do so on the grounds that insufficient money will come back to them. Apart from anything else, the penalties that will be increased will be court penalties; as I understand it, they will not be to the benefit of City of London local council tax payers. The penalties would go to helping to meet the costs of the national Exchequer, as they are pooled for very understandable reasons. In the absence of hard evidence, I am not convinced of the case for increasing the penalties as set out in clause 6.
I have a much greater problem with clause 7. As I said in an intervention, the provisions on enforcement of seizure, the return of seized items, compensation, forfeiture of seized items, seizure of perishable articles, motor vehicles and disposal orders have been considered on a number of occasions by Members, most recently in respect of four private Bills promoted by the city of Leeds, the city of Nottingham, the city of Canterbury and Reading borough council. Those provisions were removed from all four Bills. My hon. Friend may say, “Ah, but this Bill relates to London, and the same provisions have been passed in the case of other London local authorities.” That is true, but they were passed against the wishes of my hon. Friend the Member for Shipley (Philip Davies), who I am pleased to see is present, and against my wishes, as well as, I believe, those of many other people.
Mark Field
My point was not simply that London is the capital city, but that the Bill deals specifically with the City of London. Given the importance of the business fraternity and given how few residents there are in the City, I believe that there is a case for reinforcing what my hon. Friend said earlier—that the City of London is and should be treated as a special case in this regard—particularly as the street trading provisions are so much more limited than they are in the other towns to which he has referred.
Mr Chope
I take the point. However, the other side of the coin is that the City of London seems to have managed perfectly well up to now and no big issue has arisen, but there suddenly seems to be a need to introduce draconian seizure provisions.
Line 25 of clause 7 starts off on the wrong basis. It begins:
“Subject to subsection (2) and section 16E (seizure of perishable articles or things), if an authorised officer or a constable has reasonable grounds for suspecting”.
The tradition has always been that what is necessary is a reasonable ground for belief. It is hard to disprove a reasonable ground for suspicion, because suspicion is subjective anyway, so having to establish a reasonable ground for suspicion really means not having to establish anything whatsoever, in terms of a person having a guilty mind. All that is necessary is to establish a reasonable ground for suspecting.
I know that my hon. Friend is very fair-minded, and I hope that he will consider tabling an amendment in Committee. Amendments that we have tabled to a number of similar Bills—it appears almost as if all Bills such as this are drafted by the same people, and that may well be so; the same solicitors or agents often act on behalf of different local authorities—have been accepted on the basis that “reasonable grounds for belief” is a much fairer way of dealing with the issue that the promoters and my hon. Friend wish to address. Whatever else may be the case, I am sure that the City of London would not want to be accused of being other than fair-minded in relation to, in particular, the rule of law.
Mark Field
The City of London could never be anything other than entirely fair-minded. My hon. Friend will, of course, be well aware that section 38 of the London Local Authorities Act 1990 refers to reasonable grounds for suspicion. It should also be said that both Westminster city council and the London borough of Camden were given powers to seize equipment which an officer or constable had reasonable cause to believe was intended to be used to commit an offence, which is an even stronger basis. I accept, and I hope my hon. Friend will accept, that the position is not altogether clear-cut, although he makes a valid point about the distinction between belief and suspicion.
Mr Chope
I thank my hon. Friend for those comments. Meanwhile, in their consultation paper, the Government have proposed national legislation or regulation changes that local authorities can apply to opt in to. Effectively, they plan to impose, from the centre, a uniform regime covering issues such as this—issues of reasonable grounds for belief or suspicion, for instance—along with standard tests that would apply to the whole street trading regime and to the enforcement of infringements of it. I know that it is easy to argue the prematurity case in relation to Bills such as this, but I should be grateful if my hon. Friend could respond to that point.
Mark Field
In fairness, there is a lot to be said for having a national law and for trying to standardise and harmonise things, but in my view it would still be essential to have provisions that take account of individual cities’ own unique circumstances. We have to start from where we are, however, and the Government are phenomenally busy with a huge amount of legislation on a wide range of matters—some of which I think my hon. Friend has some support for—and the reality is that we are not going to get such uniformity or harmonisation any time soon, so we need to make progress through private Bills such as this one.
Mr Chope
My hon. Friend’s comments serve to remind me that last night I was in the City of London Guildhall library where our party colleague the Minister of State, Department for Business, Innovation and Skills, my right hon. Friend the Member for Sevenoaks (Michael Fallon) made a speech entitled “Deregulating for growth,” which is a principle I am sure my hon. Friend and I both support. Too much legislation adds new regulation, however, which is counter-productive to the policy of promoting growth in our economy, and anything the City of London does in adding further regulation will come under more scrutiny than if that is done by a little borough council somewhere else in the country, as the ethos of the City of London is based on having the minimum amount of regulation necessary to ensure we get economic growth and successful financial and professional services industries in the City. It is against that background that I raise my concerns about clause 7.
Philip Davies
As my hon. Friend knows, I agree with his views about giving local authorities of any description the power of seizure, especially on such flimsy evidence as provided for in this clause. Is he reassured in any way by proposed new subsection 16A(2), which says an article can be seized only
“if it may be required to be used in evidence in any proceedings in respect of the offence in question”,
or is that merely a mask covering something that is still unacceptable?
Mr Chope
On the face of it, that does not seem too bad, but if we look at other provisions in clause 7, we see that there are difficulties. Proposed new subsection 16A(1)(c) states that an authorised officer may seize
“any receptacle or equipment being used by”
the person in question. My hon. Friend will know from having read the Bill that a receptacle could be a motor car or van from which ice-creams are being sold. These receptacles or pieces of equipment are therefore potentially quite valuable, and the fact of having them seized could cause the person concerned a significant problem, particularly if they are seized on dubious grounds.
Philip Davies
It is stated that such an item can be seized only
“if it may be required to be used in evidence.”
Does my hon. Friend agree that that does not really provide any safeguards at all, because anything could be seized on the basis that it may be required, as that does not mean that it is required?
Mr Chope
My hon. Friend is on to a good point. It is stated later in the Bill that such an item could be retained for up to six months on the basis that it may be required in connection with a prosecution. However, a prosecution may then never take place and the person will have been deprived of their goods for six months. That may have achieved the enforcement authority’s objective, but it generates a grave injustice for the victim of that seizure. That is why there needs to be a proper balance struck between the rights and responsibilities in the Bill’s enforcement provisions. We should be most reluctant to give powers of seizure not only to constables, but to authorised officers, who could be
“any officer or employee of the Corporation”
or
“any person by whom…any enforcement functions under this Part fall to be discharged”
or
“any employee of any such person”.
That is getting quite remote from the person in charge, and the more remote we go, the more scope there is for abuse.
If the only redress is something that may come six months later, there may be no redress at all. For example, if the ice cream van—the “receptacle”—is seized in March, it might only be returned in September, by which time the main ice cream selling season will have passed and so the person’s livelihood will have been taken away from them for the duration of the season. That illustrates the potential gravity of what is being proposed.
My hon. Friend the Member for Shipley (Philip Davies) might say that new section 16B deals with the return of seized articles, with subsection (3) stating:
“Subject to subsection (8), following the conclusion of the proceedings the article or thing shall be returned to the person from whom it was seized”.
Again, however, the devil is in the detail, as we see in the provisions dealing with the return of an ice cream van. New section 16B(5) provides that
“where a receptacle seized…is a motor vehicle used for ice cream trading, the Corporation or the Commissioner of Police…shall, within 3 days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit the person to remove it.”
In other words, the person would be able to take it back. However, the Bill goes on to state that they would not be able to do so
“where the circumstances mentioned in subsection (7) apply”.
One of those circumstances is perfectly reasonable— the person has been convicted of an offence under the legislation already. I am not going to quibble about that, but I do quibble with new section 16B(6)(b), which states that one of these circumstances is where
“the owner or registered keeper of the vehicle is being prosecuted for a previous alleged offence”.
In other words, someone gets arrested and prosecuted, and the proceedings have not been determined—so the presumption of innocence surely continues to apply—yet the mere fact that they are being prosecuted puts them in a more prejudicial position than if there were no prosecution. It is reasonable to look at some of the issues that we might want to raise in Committee, and that provision removing a person’s ability to recover their ice cream van within three days of it being removed if they are being prosecuted for another offence is draconian, over the top and unnecessary.
Philip Davies
I very much agree with my hon. Friend, but will he turn his eye to clause 16B(6)(c) as well? Not only is the position as he suggests, but another circumstance is where
“the vehicle has been used in the commission of such an offence or previous alleged offence.”
Is he aware of exactly who determines whether it has been used in such an offence or how an allegation of an offence would apply? That provision seems rather loose too.
Mr Chope
My hon. Friend is on to a good point. The Bill does not say that the vehicle must have been used by the same person in the commission of such an offence. It could have been acquired in all innocence from a previous ice cream vendor in market overt, in an auction or by a private treaty sale. The vehicle’s new owner would not know that it had been used in the commissioning of an offence in the past, so he would be penalised because, unknown to him, the vehicle had been used in such a way. Surely that would be unreasonable. If the EU services directive wants to create level playing fields, I urge my hon. Friend the Minister to consider whether there should be a level playing field, which we do not have at the moment, between those who have purchased ice cream vans but find out later that they have been used in connection with an offence in the City of London and those who purchase ice cream vans that have not been used for such offences. There should be a level playing field between those two categories of person.
Philip Davies
I absolutely agree with my hon. Friend, who is very good at picking up on these anomalies in Bills. Will he talk a little about how that measure applies to an alleged offence, as it applies even to an offence that has not necessarily taken place and that has merely been alleged?
Mr Chope
Exactly. When people are given free rein to bring legislation before this House and to create new offences, the temptation always seems to be to draft the offences in the widest possible terms. It is incumbent on us to put pressure on the promoter of the Bill and to ask whether the proposals are reasonable or whether they go over the top. This is a good example of the drafting being far wider than it needs to be.
Mark Field
My hon. Friend is well aware of how the provision is designed to operate. The vagaries of the British weather mean that the period of time in which anyone would want to sell ice cream is often limited, but if someone committed an offence over a period of two or three months of hot summer weather and had their ice cream van seized, it would mean that they could not get it back every three days and continue with impunity to commit another offence before the constable impounded it again. The intention is simply to ensure that someone who has committed an offence should not be entitled to continue to do so simply because the wheels of the legal process take a long time to work. That is what the measure is designed to do and it is quite common in a range of areas, not just with ice cream vendors in the City of London.
Mr Chope
I am sure that repeated offences or patterns of behaviour are widespread, as my hon. Friend says, but they are often dealt with by a civil injunction in the county court or even the High Court. There is no need to bring into the scope of the offence many innocents at large just because it is sometimes cumbersome to get an injunction. An injunction is a perfectly legitimate way of restraining such behaviour.
Mark Field
How would my hon. Friend feel as a council tax payer if the local authority in his area was taking out injunctions for such offences at vast cost rather than dealing with them? He and I are both constituency MPs and we deal daily with constituents who are concerned for a variety of reasons about the lack of enforcement action taken by our local authorities. This seems to me to be a sensible enforcement provision, whereas taking out an expensive and time-consuming injunction would clearly not be a sensible way forward.
Mr Chope
My hon. Friend will not be surprised to hear that I am not sure that I agree with him. One of the benefits of the injunction is that a breach can result in someone being brought before the courts for contempt of court and, ultimately, in their losing their liberty. That goes even further than this provision.
All we are talking about here is the liberty of ice cream vans. With injunctions, the person themselves can lose their physical liberty because they are in contempt of court. My hon. Friend should not belittle the traditional use of injunctions as a proper and effective remedy against persistent aberrant behaviour, which none of us support. In none of my arguments on any of these Bills have I wanted to excuse or encourage unlawful behaviour. All I have wanted to do is ensure that the responses are proportionate and that people who are innocent are not caught up in the panoply of the criminal law without knowing about it. In this particular case, someone could lose their ice cream van when they did not know that it had been used before.
Mark Field
I must confess that I hoped my hon. Friend would be delighted to see that there are 10 subsections dealing with the return of the seized articles and only three dealing with the seizure itself.
Mr Chope
That is almost a commentary on regulation. We regulate, and to deregulate we have to create provisions that are a lot more complicated than the original regulation. Reverting to the brilliant lecture that I attended last night, one of the representatives from a large City firm said that we must be alert to the danger of “comfort in complexity”. That is a good thing to bear in mind. My hon. Friend says that we introduce powers to seize and then we have to set out at even greater length the exemptions to the seizure regime. How complicated is that? It is unnecessarily complicated, regulatory and burdensome on people who might want to start a new enterprise that could result in their becoming multimillionaires and working for people in the City, whom Opposition Members so despise but we realise are important to the British economy. That is by the by.
Jim Fitzpatrick (Poplar and Limehouse) (Lab)
I did not quite catch what the hon. Gentleman said. I apologise that I was not here from the start of the debate, but I was watching from my office. Did he say that Opposition Members despise the City of London?
Mr Chope
I am not going to accuse the hon. Gentleman of despising the City of London. If he wants to put on record his support for the City, I am sure that he will have an opportunity to do so in the debate. But I am sure he recognises that quite a lot of Opposition Members make statements that give the impression that they are hostile to the City.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. I am sure that the ice cream van is waiting for you to deliver a fresh flake rather than take us somewhere we do not want to be. It is not like Mr Chope to wander away and be tempted in other directions. Let us get back to where we should be.
Mr Chope
Mr Deputy Speaker, you are quite right to have a go at the victim, which is me. I was led astray by that intervention, and I accept full responsibility.
If a product is perishable, the consequences of having it seized may be that it loses all its value. That is important. I am not sure that the provisions relating to perishable items in clause 16E are sufficient. The clause says:
“No article or thing which is of a perishable nature … shall be seized under the provisions of section 16A … unless the Corporation gives a notice in writing under subsection (2) to the person from whom the article or thing is seized.”
I would have thought it best to say that nothing perishable should be seized. Ice-cream could be removed and, if necessary, the van seized. The seizure of perishable articles is quite an oppressive power.
Proposed new section 16E(2) states:
“Where a perishable article or thing is seized…the person from whom it is seized shall be given a notice in writing…giving the address from which the article or thing may be collected; and…stating that if that person is not the owner of the article or thing, then that person should give the owner the information referred to in paragraphs (a) and (b).”
On the face of it, one would think that that would ensure that perishable articles were not seized, but when one looks at the small print one sees that they will be seized, and that is unfair and unjust. Indeed, such provisions have been removed from similar Bills because Members on the Government Benches—I cannot speak for Opposition Members—thought that they were disproportionately heavy in their application to ordinary people.
I have some grave concerns about the powers of seizure, especially when dealing with items of greater value than the maximum penalties under the Bill. A specific provision provides that it is open to the authorities to seize equipment, including motor vehicles, of a value higher than the maximum fine that could be imposed under any circumstances. That, in effect, deprives people of their assets, perhaps temporarily, in a disproportionately heavy manner.
Philip Davies
I wondered whether my hon. Friend was going to mention the provision on compensation for seizure. Proposed new section 16D(4) states:
“The court may only make an order for compensation under subsection (3) if satisfied that seizure was not lawful under section 16A.”
That comes back to reasonable grounds for suspicion, which appears to me to be framed so as to ensure that compensation never has to be paid, even when seizure has happened wrongly.
Mr Chope
As so often, my hon. Friend is right. By looking at all the language in the Bill, one is able to see the consequences. The exemptions are so hedged around that it will be difficult for anyone to comply with them, especially if the ultimate test is whether someone has a reasonable suspicion. That particular fault-line runs throughout these clauses. I have many concerns about the powers, especially as they relate to motor vehicles and perishable goods, but I do not need to go into the detail of disposal orders at the moment.
Clause 8 deals with charges for licensed street traders. I have always tried to be fair and give credit where it is due, and I think that my hon. Friend the Member for Cities of London and Westminster makes a strong case on this issue. If one side of the street is controlled by one local authority and the other side by another local authority, there is an argument for saying that the prices charged for street-trading licences should be the same. My hon. Friend may remember the days when the Foreign Secretary lived on one side of a street in Lambeth and the other side of the street was in Wandsworth, and there was an enormous disparity in council tax—the figure in Lambeth being very much higher than that in Wandsworth. That shows the sensitivity when one part of the street is in one borough and another part of the street in another local authority area, resulting in differential pricing.
Philip Davies
I intervene to remind my hon. Friend that the Ministers have changed places and he can now commend the current incumbent of the Front Bench for his excellent speech last night.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. Mr Chope has rightly pointed out that he has already congratulated the Minister on that speech, and I am sure that he was coming to the end of where he needs to be—on the Bill, rather than on the ability of someone speaking last night in the library.
Mr Chope
I will not do so, Mr Deputy Speaker. I do not want to cross you on this or any other matter.
I am delighted that the Minister of State, Department for Business, Innovation and Skills, my right hon. Friend the Member for Sevenoaks (Michael Fallon), is on the Front Bench to listen to the next part of the debate, as this is the issue that concerns his own Department—clause 9 on trading outside business premises. For reasons that I can understand, the City of London says that in order to bring a little more vibrancy to life in the City of London, particularly at weekends and particularly for tourists, why not allow people to sell ice creams off the street, rather than just from fixed locations in shops and cafes? It says that people should be able to sell ice creams from a receptacle, which could include an ice cream van, located within 15 metres of business premises.
Listening to the speech from my hon. Friend the Member for Cities of London and Westminster, I was not sure whether the definition of business premises included St Paul’s cathedral chapter or not, and whether St Paul’s cathedral itself would be covered.
Mark Field
Ecclesiastical venues are an extremely serious business, but I do not think the intention was that St Paul’s chapter should be included as a business premises. There are a number of genuine business premises within the vicinity and curtilage of St Paul’s cathedral and they would be included.
Mr Chope
I am grateful to my hon. Friend for that. Although I might quibble with the fact that the corporation is retaining for itself the ability to approve the design, location and purpose of the receptacle, I think the principle is a good one. I do not understand why it should be thought that this may indirectly discriminate against non-EU nationals, which is what the Minister who spoke earlier in the debate said she thought it might do. How would it do that?
My hon. Friend the Member for Cities of London and Westminster, with all the resources of the City of London behind him, at the behest of the Department got leading counsel’s opinion on the matter. Leading counsel’s opinion was submitted to the Department in February. By 14 February a holding reply had been issued. By 19 February—my right hon. Friend the Minister is rightly listening to this—the Department had already decided that leading counsel’s opinion, which had taken many months to produce, was wrong. Where does that leave everybody?
Surely the situation should have been anticipated by BIS a long time ago. It was BIS that proposed implementation of the EU services directive. Even now, two years—or is it three years?—after it has been implemented, we cannot even get a definitive ruling on whether the directive applies in such a way as to negate the legitimate aspiration of the City of London to enable people who already have businesses operating in the City of London to extend those businesses for the purpose of selling ice creams when the season is right. We must be absolutely mad if we think that should be outlawed because it might indirectly discriminate against non-EU nationals. I invite the Minister to let his imagination run riot and envisage any other legislature in the European Union stating that it would be wrong to bring in such a provision enabling their own people to engage in enterprise because it might indirectly discriminate against Brits, for example. I cannot believe that such an argument would be given the time of day in any other Parliament in the European Union. I hope that can be resolved.
There is also a procedural issue. As I understand it, there are no petitions against the Bill, so it will go into Committee unopposed. Unless it is amended in Committee, the House will not be able to amend it later, because it will not be considered on Report. We encountered that issue with the Nottingham City Council Bill, the Canterbury City Council Bill and others, which were originally not opposed but then went to the other place, where they were opposed. However, this Bill has already been to the other place.
Therefore, I think that it is important that my right hon. Friend the Minister, when responding to the debate, makes it explicit—it is already pretty explicit—how he and the City of London corporation will negotiate with the Department over the proper interpretation of clause 9 vis-à-vis the services directive. It is no good if the Bill goes through Committee before that is resolved, because there will be no scope under the procedures of this House to make amends later. If the Minister produces the certificate of incompatibility in due course, where will that lead?
Mark Field
It is absolutely clear that the City of London corporation would not wish any legislation that was incompatible with EU law to go through. The dispute between leading counsel and the Department needs to be resolved before we can proceed beyond Second Reading, and that does not prevent the Second Reading debate taking place today. I am confident that we will be able to get this matter resolved in a way that will satisfy not only my hon. Friend the Member for Christchurch (Mr Chope), but the Department and the sponsors of the Bill.
Mr Chope
My hon. Friend refers to the need to deal with Second Reading today. As is perhaps implicit from what I have been saying, there are many parts of the Bill that I think are good, but there are some that I am not so happy about and some issues that I think need to be resolved. I am not minded to oppose the Bill’s Second Reading, because I think that my hon. Friend brings a constructive approach to these debates, which is no more nor less than we would expect of him and, certainly, of the City of London itself. It recognises that some of us believe that these Bills are better discussed than pushed through without proper discussion. In that spirit, I hope that some of the concerns I have expressed during my short contribution to the debate can be reflected upon to see whether any amendments should be proposed in Committee.
I am not often lost for words when it comes to the details of Bills, but I have nothing to say about the provisions on walkways set out in clause 10. I think that any reasonable person would accept the analogy between a walkway and a footpath, so I am certainly not going to quibble about that.
Having put on the record some of my concerns about the Bill, I would like to congratulate my hon. Friend the Member for Cities of London and Westminster on the way in which he introduced it. I hope that in due course he will get some clarity from the Department, and perhaps even an admission that it let people down by not recognising the implications of the EU services directive for street trading and pedlary in this country.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. If the hon. Gentleman is trying to catch my eye, would I be correct in saying that he was not here at the beginning for the opening speeches?
Philip Davies
I was in the House. As I had been on such a long haul in the previous debate, I popped out for a quick drink.
Mr Deputy Speaker
It must have been quite a long drink. As the hon. Gentleman knows, it is not quite the normal thing and I am sure that he would like to apologise before I call him to speak.
Philip Davies
I am very grateful, Mr Deputy Speaker. I do apologise for the discourtesy to you and to my hon. Friend the Member for Cities of London and Westminster (Mark Field). As I said, I popped out for a drink after the previous debate, where I had been on duty for quite some time.
Philip Davies
It was indeed. However, you will be pleased to know, Mr Deputy Speaker, that I watched the monitor while I was drinking said cup of tea, and so I did catch the points that my hon. Friend made. You will be relieved to know that I do not intend to detain the House for long, but I am sure that you did not expect me to.
I want to begin where my hon. Friend the Member for Christchurch (Mr Chope) left off, by congratulating my hon. Friend the Member for Cities of London and Westminster. He is a reasonable man who listens to the points that are made in debate and, where good cases are made, responds in a positive way. We have not always seen that in previous debates on private business, and we should commend him for his approach to these matters. This Bill is certainly not as bad as some of the Bills that we have considered. As my hon. Friend the Member for Christchurch said, some of its clauses are positive changes that we welcome.
It is always right on these occasions that we congratulate my hon. Friend the Member for Christchurch on how he scrutinises such Bills, which it would be perfectly possible to allow to go through on the nod. Yet they do a great disservice to lots of decent people who are trying to earn a crust, and to show some entrepreneurial spirit in doing so, but find themselves on the wrong side of poorly drafted legislation. It is to his credit that we scrutinise these things in some detail so that we can try to avoid those pitfalls.
Like my hon. Friend, I strongly support the purpose of clause 3 on temporary street trading. As he says, this is a relaxation of the law that will enable more people to engage in entrepreneurial enterprise, and for that we should be grateful. However, I am not entirely sure exactly what is intended in all cases when this part of the Bill is brought into play and a licence is granted. It strikes me that the clause is not really intended for the benefit of entrepreneurs, as my hon. Friend seemed to think when he extolled its virtues. He seemed to be saying that it was good because it would be of benefit to entrepreneurs, but I am not entirely sure that that is its purpose, although it may well be its end result.
Let me explain what I think is the real purpose of the clause. Certain people in the City of London may on occasion want to have some swish event, or perhaps not even a swish event but just a celebratory event, on the streets of the City of London. They may realise that in order to make that event as good and as appealing as possible, they would be assisted by the provisions in the clause, without which the event might not be quite so popular. The clause seems to be intended for their benefit rather than the benefit of the people whom my hon. Friend apparently had in mind. However, that is by the by.
Mark Field
It is fair to say that clause 3 is designed to relax the strict rules that have been in place for the past century. I do not think there is any desire to return to the days of Bartholomew Fair or other such terrible things that took place in far-flung parts of the City of London. As my hon. Friend may be aware, the Winter Wonderland in Hyde park has been a tremendous success, and something along those lines, but on a much more limited scale and for a short period of up to three weeks, might be borne in mind for the City of London. It would be sensible to enable provisions for that.
Philip Davies
I agree. To be honest, that was the type of event that I had in mind with regard to the clause, although it states that the corporation may grant a licence
“subject to such conditions as the Corporation may determine.”
I am not entirely sure, but that may involve some harsh conditions that will not be particularly attractive to anybody. We can leave that as a matter for negotiation between any potential trader and the corporation, because it is in the corporation’s interest that some people will want to take it up. I think we can say that clause 3 makes a positive change and I am happy to support it as drafted.
On clause 6, I agree with my hon. Friend the Member for Christchurch on penalties. I, too, was not clear that a case had been made as to why this change should be made. I heard my hon. Friend the Member for Cities of London and Westminster, who promoted the Bill, say—this demonstrates that I was watching the monitor while drinking my tea—that the clause was intended to bring the level of the fine in line with that in other areas. I understand that, but that is not to say that those other authorities are on the right track. That argument seems to take it as read that because other authorities impose fines at a certain level, they must be right. Some may argue that they are not and that the current level is more appropriate.
Mark Field
I think that my hon. Friend would recognise that a fixed penalty notice provides a more efficient means of enforcement than going down the seizure route. One would hope that harmonising it to a level 3 fine of £1,000 instead of the current £500 fine would make seizure, which is the subject of other clauses, less likely. The fixed penalty route is a more efficient way of doing things.
Philip Davies
I accept that point, but I am not necessarily persuaded that we should ratchet up the fines. Of course, if there is good evidence to do so I would be happy to listen to it.
My main concern relates to clause 7 and enforcement, and this has been a common theme when we have debated other, similar Bills. The clause would give rather big powers to any authorised officer. Subsection (1)(c) states that such powers will be given to “any employee” of the corporation, but that extends the powers over seizure and other things covered by the clause far too wide. It seems far too draconian.
I am sure that the overwhelming majority of people who work in local authorities up and down the country do their job diligently, well and to the best of their ability, without abusing the authority that has been given to them. That tends to be how things are done up and down the country.
Mark Field
May I provide my hon. Friend with some reassurance? Part of this process is designed to help save the time of hard-pressed police officers, which is an issue that I am sure applies as much to the West Yorkshire constabulary as it does to the City of London. I assure the House that any officer exercising a power of seizure or issuing a fixed penalty notice will receive proper training. The corporation ensures that that applies to all current staff in cases involving, for example, litter offences and highway obstructions. My hon. Friend can be assured that council employees will receive proper training through training sessions in order to be made aware of their powers and the limitations of those powers under the Bill.
Philip Davies
I am grateful to my hon. Friend. That point is extremely helpful and shows that he understands my concern. He will correct me if I am wrong, but I do not think that that point is made clear in the Bill. It may well be the intention and I am certain that it is his intention. However, the people who run the City of London will change over time and the new people may well take a different view about the level of training that is needed. It might be helpful if it was made clear in the Bill what level of training is required before people are given this kind of power.
I worry about giving local authority officers what are, in effect, police powers, especially as liberally as in this provision. My hon. Friend seemed to indicate that the aim of this measure was to relieve pressure on the police. The point that I made earlier stands. Although the overwhelming majority of council officers carry out their work diligently and appropriately, I am sure that we have all come across examples of the pettifogging council officer. Funnily enough, I had to deal with one myself, a traffic officer, in Bradford not long ago. I am sure that such officers are not unique to Bradford. I worry about giving such powers, willy-nilly, to too many people without any of the appropriate safeguards.
Bob Stewart (Beckenham) (Con)
I think it is correct that if enforcement action is to take place, a police officer or someone in authority has to be present.
Philip Davies
I do not think that that is the case. That is one of the things I worry about.
I am delighted by the arrival of my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) in the Chamber, particularly as we are talking about the laws on seizure and about giving council officers the authority to seize people’s goods, because he has shown time and again that he, too, is nervous about such provisions.
My hon. Friend the Member for Christchurch was right to highlight that all the issues flow from proposed new section 16A on seizure, which is contained in clause 7. It states that there must be
“reasonable grounds for suspecting that a person has committed an offence”.
It would be difficult for any officer to fall foul of such a loose definition. This is not a trifling matter. We are talking about somebody seizing somebody else’s goods. That is a big power. I think that a higher test should have to be met before council officers are authorised to go around seizing people’s goods.
As my hon. Friend the Member for Christchurch said, it is not just any article that is being
“offered for sale, displayed or exposed for sale”
that can be seized. Proposed new section 16A(1)(b) states that
“any other article or thing of a similar nature to that being offered or exposed for sale which is in the possession”
of the person may be seized. Even if something is not being offered for sale, the officer is still authorised to take it away from the individual. Paragraph (c) also includes
“any receptacle or equipment being used by that person.”
These are wide-ranging powers of seizure that we are in danger of giving to any employee of the corporation, notwithstanding the reassurance that my hon. Friend the Member for Cities of London and Westminster gave about the level of training that will be given, just on the basis of “reasonable grounds” for suspicion. There is a great danger that, on occasion, that authority and power will be misused by people, perhaps out of frustration or for another reason, if appropriate safeguards are not put in place.
The Bill says—I made this point in a brief intervention earlier, but I want to expand upon it—that something may be seized only
“if it may be required to be used in evidence”.
Reading the Bill for the first time, that sounds like quite a good safeguard, because people will not be able to seize things willy-nilly and they will be able to use them only in evidence. However, it states that it can be seized if it only may be required, which is essentially no safeguard at all. Anything can be seized on the basis that it may need to be used in evidence—who is to decide that?
The officers who seize goods will naturally take a precautionary position, and I would not blame them for that. They will want to seize as much as possible, because they will not want somebody further down the line to ask them, “Why did you leave them with that bit of stuff? That could have been crucial evidence to prosecute them.” I suspect that in the training that my hon. Friend the Member for Cities of London and Westminster mentioned, officers will be told, “Take as much as you can, because it may be crucial. The bit that you leave behind may have been the crucial bit.” I fear that the provision is written to look like a safeguard but is no safeguard whatever.
As my hon. Friend the Member for Christchurch said, the Bill mentions receptacles, and vans, cars or any other type of vehicle could be described as receptacles for the purpose of the Bill. There are serious concerns about the people who can seize products and the definition of when it is appropriate to do so.
Uncharacteristically, my hon. Friend did not really touch on the return of seized articles, but proposed new section 16B(4) sets out what will happen when
“after 28 days any costs awarded by the court to the Corporation have not been paid”.
There are some potentially contradictory points on the matter that do not really flow on from one another. On the one hand, if that point applies, the Bill allows the City of London to dispose of products
“in any way the Corporation thinks fit”.
However, it then states that
“any sum obtained by the Corporation in excess of the costs…shall be returned to the person”.
That is highly unlikely, given that the corporation can dispose of products in any way, shape or form. However, it also states that the corporation has
“a duty to secure the best possible price which can reasonably be obtained for that article or thing.”
I cannot reconcile the corporation being able to dispose of an article in any way it sees fit with the fact that it is being asked to obtain the best possible price for it. Those seem completely contradictory statements. If we are saying that the corporation has to get the best possible price, proposed subsection (4)(a), whereby it can dispose of an article in any way it thinks fit, seems redundant.
The best possible price that can reasonably be obtained for something depends on how the corporation gets rid of it. If it sells it in a similar way to the person who was trading it and from whom it was seized, it can get the full retail price. I am not entirely sure how it will fulfil its duty to secure the best possible price for something. What will it be expected to go through to fulfil that condition? It seems to me that in the real world, it will not make any effort whatever to go out and sell something at the best possible price. It will dispose of it.
Mr David Nuttall (Bury North) (Con)
I am grateful to my hon. Friend for giving way. He is being generous with his time.
Is my hon. Friend not concerned, as I am, that the real tragedy will be that once goods are seized, the trader involved may well lose their livelihood? Is that not the danger?
Philip Davies
Absolutely, particularly if the products are just going to be disposed of.
Philip Davies
That would be a helpful intervention, but I am not entirely sure that the Bill’s sponsor can give that commitment, to be perfectly honest. I certainly do not think we should press him to do so. However, such anomalies in the Bill make it unclear what will happen.
I do not want to dwell on the issue of vehicles, but where people are being prosecuted for a previous alleged offence, or where a vehicle has been used in a previous alleged offence, that is dangerous territory. The clause makes it clear that no offence needs to have been committed for things not to be returned to the owner; it just needs to have been alleged that things were used in a previous offence. That is no basis on which to take things away from people and refuse to return them. That flies in the face of all natural justice and the British way of doing things. I must say in passing that I am not known for being soft on crime, but I draw a distinction between where a crime has been committed and where one has been alleged. The Bill does not adequately draw a distinction between the two.
Philip Davies
My hon. Friend made that point very well during his speech and I do not want to reiterate his point, but he is absolutely right.
Remaining on the subject of the return of seized items, I have some minor worries about this section. Proposed new section 16B(8)(a) refers to circumstances in which:
“if no proceedings have been instituted before the expiry of 28 days beginning with the date of seizure”.
As my hon. Friend the Member for Bury North (Mr Nuttall) made clear, 28 days can be an awfully long time to go without goods if one’s livelihood depends on them. It would be a bit of a kick in the teeth if one were not allowed to have one’s goods when no offence had been committed or was being pursued, and it could have a big impact on one’s livelihood for that month.
Proposed new section 16B(8) goes on to state that an article shall be returned:
“unless it has not proved possible, after diligent enquiry, to identify that person or ascertain the person’s address.”
I am not entirely sure what the definition of a “diligent enquiry” is, or how diligent a “diligent enquiry” needs to be. I fear that some of the provisions will be used to give an excuse for not returning goods to their proper lawful owner. We should be minimising the opportunities for that.
Although my hon. Friend the Member for Christchurch did not mention this point, it is worth noting that proposed new section 16C(4) states that the court may order forfeiture of goods even if the value exceeds the maximum penalty for the offence that has been committed. We are in the strange situation where we are levying a maximum penalty, but if the goods exceed that maximum penalty they can still be forfeited. I am not sure on what basis that can be either right or fair. If there is a maximum penalty, surely that should be the maximum penalty. The provision flies in the face of natural justice, and it would be interesting to have some clarification on it.
My hon. Friend the Member for Christchurch made the point that proposed new section 16D(1)(b)(ii) states that people might have to wait six months before compensation, which is a lengthy period of time. The court will only be able to make an order for compensation if it is satisfied that the seizure was lawful under proposed new section 16A. I hope my hon. Friend will come back to section 16A and whether we can strengthen
“reasonable grounds for suspecting that a person has committed an offence”.
Otherwise, the corporation would never have to pay compensation, irrespective of how it acted, but that cannot be the intention of my hon. Friend the Member for Cities of London and Westminster. Surely, it should be forced to pay compensation if it has acted in a way that is not becoming. We would all like to see that, I am sure, yet we are in danger of giving it a get-out-of-jail card and letting it get out of paying compensation.
I agree with the points made by my hon. Friend the Member for Christchurch about perishable items. I thought he made them very well, so I will not repeat them—[Interruption.]—despite the encouragement from Opposition Members to extol the virtues of his argument a bit more. Perhaps I will, under their provocation, Mr Deputy Speaker—
Philip Davies
But for now I shall resist the temptation.
Instead of repeating my hon. Friend’s points, I will try to pick out those that he might have missed out. Safe to say, subsection (5) to proposed new subsection 16E provides that
“the Corporation shall have a duty to secure the best possible price”
for these perishable goods. How on earth will it go about obtaining the best possible price for these perishable goods? Will it be setting up its own market stall? I do not think so. I wonder why that provision is in the Bill, given that it obviously is not going to happen.
Subsection (4) provides that the goods will be disposed of, if the person from whom it was seized
“fails to collect it within 48 hours of the seizure”,
but just because something is perishable, it does not mean it will go off in 48 hours. It might have a much longer date. I am not sure, therefore, why we have only got 48 hours for all perishable goods, irrespective of how long they could be used for. It seems that we are just presuming that everything being sold will go off within 48 hours, but that clearly does not apply to all perishable goods. I hope that some thought will be given to whether that provision is appropriate, too draconian or just totally inflexible. As we all know, perishable goods go off at various different times.
On the seizure of motor vehicles—or ice cream vans, as my hon. Friend the Member for Christchurch pointed out—I wonder how this is going to work. As far as I can see—I could be wrong, and I hope that my hon. Friend the Member for Cities of London and Westminster can help me—the Bill does not make it clear who would pay for the seizure, transportation, storage and return of the vehicle concerned. When the police seize or confiscate a vehicle—for example, when people are driving around without any insurance—they bring in a transport company to take it away and lock it up, and people must pay a release charge to get the car back again. Presumably, the corporation would have to go through the same kind of operation. It would not just leave the vehicle where it was, because presumably that is the whole point—it was causing an obstruction or should not have been there, and so the corporation would want to move it.
If the corporation uses the provisions to bring in a garage to tow away and store a vehicle, a cost will be incurred, but it is not clear from the Bill who would be liable for meeting the cost. Would the cost fall on the trader or the corporation? If the cost was incurred by the trader, but it was later shown that no offence had been committed, would the corporation reimburse the trader? As far as I can see—I stand to be corrected—the Bill does not make any of those things clear. It would be particularly helpful, therefore, if we could have some clarity. It is bad enough someone having their vehicle seized, if no offence has been committed, but if they then have to pay to have it returned and cannot claim back the money, it would be a further kick in the teeth. I hope that my hon. Friend will consider those points, on which I am seeking clarification. Clause 9, as my hon. Friend the Member for Christchurch said, seems a sensible provision. It will allow businesses more freedom to trade outside their own premises, and I heartily endorse it.
I hope that my hon. Friend the Member for Cities of London and Westminster will accept the spirit in which the scrutiny of the Bill has been carried out today. It is our intention to improve it, and I do not think there has been any attempt to wreck it or to stop it. We in this House take seriously our job of protecting people’s freedoms, and of protecting people from unnecessary or over-zealous regulation and legislation. The Minister of State, Department for Business, Innovation and Skills, my right hon. Friend the Member for Sevenoaks (Michael Fallon), who is in his place, has a good track record of trying to stop unnecessary regulation, legislation and bureaucracy.
I hope that my hon. Friend the Member for Cities of London and Westminster will accept that my hon. Friend the Member for Christchurch and I are simply trying to prevent any unintended consequences that the legislation might have so that it will achieve what he wants it to achieve and does not do what my hon. Friend and I fear it might well do if it goes through unchecked.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. The hon. Member for Poplar and Limehouse (Jim Fitzpatrick) was not in the Chamber at the beginning of the debate, and I am sure that he will mention that to the House. I am also sure that he will speak only briefly.
Jim Fitzpatrick
I am grateful for that clarification, Mr Deputy Speaker. I said in an intervention that I had been watching the debate from my office, and I apologised to the hon. Member for Cities of London and Westminster (Mark Field) for missing his speech. I congratulate him on bringing the Bill to the House. I will speak briefly, because I am in the Chamber principally to lead for the Opposition on the Humber Bridge Bill, which is next on the Order Paper, and which a number of colleagues are keen to get on to.
I think that the hon. Member for Christchurch (Mr Chope) described the attitude of Opposition Members towards the City of London as “hostile”. There is no doubt that some Opposition Members are hostile to the City, but they are not here tonight and I want to support my hon. Friend the Member for Edinburgh South (Ian Murray) on the Front Bench as he is in favour of the Bill. I do so for several reasons. I acknowledge the contribution that the City makes to the UK economy. I am a constituency MP in the neighbouring borough of Tower Hamlets, and we benefit greatly from the generosity and support of the City. We appreciate the partnership with the Corporation of London. On a personal basis, as a member of the Worshipful Company of Shipwrights, I have had the honour of participating in a ceremony at which I was granted the freedom of the City, although it was pointed out that I do not have the right to drive my sheep across London bridge, were I to have any.
I am a great admirer of the traditions, history and heritage of the Corporation of London. I am pleased to support the Bill, which will now go into Committee. I am also pleased to correct the record in relation to what was said about Opposition Members earlier. I also hope that we will be able to deal with—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. I am not going to be tempted either way any more, and I am sure that the hon. Member for Poplar and Limehouse has now come to the end of his speech. I am going to bring in Mark Field.
Mark Field
I thank all Members who have contributed to the debate, some of whom have made rather longer contributions than others. My hon. Friends the Members for Christchurch (Mr Chope) and for Shipley (Philip Davies) have approached the debate in a relatively good-humoured way, and I hope they will feel that I have dealt with the points that they have raised. Once the Bill goes into Committee, we will be able to take on board a number of the concerns that have been expressed, particularly those relating to the European services directive. That is obviously an ongoing concern. I was pleased to see that both my hon. Friends were on my side on that matter, and on the side of the corporation. We will endeavour to ensure that the provisions are compatible with EU law, along the lines of the judgment that we have received from leading counsel.
I also want to take this opportunity to thank my constituency neighbour, the hon. Member for Poplar and Limehouse (Jim Fitzpatrick). He made a good point about the importance of the City of London Corporation. It is an anomalous organisation, in that the City is the only area that still retains a business vote. Indeed, local elections will be held in the City within the next month. The City takes very seriously its responsibilities beyond the square mile, and takes great pride in the work that it does in the London boroughs of Tower Hamlets, Newham, Hackney and Islington, which make up the City fringe. We all benefit as Londoners from the phenomenal work done in West Ham park, Queen’s park, Epping forest and Hampstead heath, to name a few other of our most important open spaces maintained with great love and affection by the City of London Corporation. [Interruption.] As my hon. Friend the Member for Beckenham (Bob Stewart) rightly points out, this applies to West Wickham common as well, for great historical reasons going back over a century.
I will not detain the House any longer. I very much hope that we can move rapidly beyond Second Reading of this important little bit of legislation. It will not make a huge difference, but some great benefits—not just to the City of London but to many of its residents, businesses and the huge numbers of visitors we see every year—will derive from the Bill when it passes rapidly, I hope, into law.
Question put and agreed to.
Bill accordingly read a Second Time and committed.