(1) The following subsection shall be substituted for subsection (1) of section 21 (Annual licences) of the Act of 1947—
(1) A person requiring an annual licence or the renewal of an annual licence shall make application in writing to the borough council and shall in such application state—
and may specify the name and address of a relative of his who is associated with or dependent upon the business of street trading in respect of which the application is made and to whom he desires the licence to be granted in the event of his death
(3) After subsection (2) of the said section 21 there shall be inserted the following:
(2A) (a) When the holder of an annual licence who has specified the name and address of a relative to whom he desires the licence to be granted dies the borough council shall not (except as provided in paragraph (b) of this subsection) grant an annual licence in respect of the position or place in a street at which the deceased licencee was entitled to sell or expose or offer for sale articles or things under the authority of his licence until the expiration of ten days from the date of the death of the licencee.
(b) If during the said period of ten days the person specified by the deceased licencee. when making application for the licence, as the relative to whom he desired the licence to be granted in the event of his death makes application for the grant of an annual licence in respect of the position or place available in the street the borough council shall, save as provided by the next following subsection or by subsection (5) of section 24 (For preventing interference with traffic) of this Act. grant an annual licence to that person".
(4) After subsection (7) of the said section 21 there shall be inserted the following:
(8) For the purposes of this section a person shall be treated as being related to another if the latter is the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter. brother, sister, half-brother or half-sister of the former and shall be deemed to be so related notwithstanding that he is so related only through an illegitimacy or in consequence of an adoption".—[Mr. Chataway.)
I beg to move, That the Clause be read a Second time.
This Clause is intended to deal with a serious injustice to street traders which is caused by the L.C.C. (General Powers) Act, 1947. The Bill as originally introduced to the House by the London County Council also sought to deal with this injustice. The inequity a rose, as many hon. Members will be aware, from a decision in 1960 in the case of Stepney Borough Council v. Schneider. The effect of that case was to deny to metropolitan borough councils any effective say in distributing licences to street traders.
Subsequent to the Stepney Borough Council v. Schneider case, a borough council is virtually required to give a street trading licence to the first person who applies for it. Previously, borough councils had thought that they had a good deal of discretion in granting these licences, but the present position is first come first served. This leads to a number of anomalies, but the most serious is in the case of a street trader's near relative, who may have been carrying an the business with him.
To my knowledge, there have been four cases recently when a street trader has died and when his close relative, who has been involved in the business with him, has not got to the town hall first and has consequently been deprived of his livelihood. This is the injustice which the Clause seeks to remedy. Not only has there been the instance of Schneider in Stepney, but in a case in Fulham a close relative found himself out of a job and deprived of his livelihood simply because somebody else applied to the town hall first. There is another case, that of Mr. Rose n from Rupert Street, Westminster, and in my own constituency a case involving a Mr. Porritt.
Nine out of ten street trading businesses, I am assured, are carried on by families. They are not one-man businesses but the licences can be held by only one person, although the business may be a source of livelihood to a man and his wife and perhaps his son and his family. It is my contention that the law should take account of that and should give some safeguard to relatives.
Clause 25 of the original Bill would have given borough councils power to decide which applicant should be granted the licence, and that would have got around the difficulty. The Federation of Street Traders' Unions agreed to that Clause and in return was given an undertaking by the Metropolitan Boroughs Standing Joint Committee that borough councils would be recommended by that Committee to produce a form upon which a street trader could place the name of a relative whom he wished to succeed him in the event of his death. The undertaking went on to say that borough councils would be recommended to give the most serious consideration to that relative in the event of the death of the licence holder.
In a debate initiated in February by the hon. Member for Stepney (Mr. W. Edwards), the principle of attempting to help the relatives of deceased street traders met with general approval, but after Second Reading of the Bill the Home Secretary reported on the original Clause 25 in these terms:
The Secretary of State sees objection in principle to conferring on local authorities with no right of appeal wide powers of discretion to grant or refuse a licence on which a trader's Livelihood may depend and he recommends that this Clause should not be allowed in its present form.
The Federation of Street Traders' Union had not appreciated that the right of appeal to the magistrates was being withdrawn under the provisions of Clause 25. I do not subscribe to any allegation that they were deliberately misled by the promoters of the Bill, but the fact remains that the street traders did not appreciate that the right of appeal to a magistrate, which they regarded as important, was being withdrawn. As the Home Secretary reported in those terms, the Federation withdrew
its support for Clause 25. The promoters of the Bill, the London County Council, then withdrew the Clause altogether and did not put forward any alternative. That is the reason for this Clause.
In a limited way, the Clause attempts to meet the anomaly about which all are concerned. Its effect would be that the street trader in applying for a licence or a renewal of his licence would be enabled to place on the application form the name of a relative whom he wished to succeed him in the event of his death. When a licence holder died, the borough council would be required to hold open his site for ten days. For ten days the borough council would not be allowed to grant his licence to anybody else and during that time the relative would be able to apply for the licence.
This fairly closely follows the advice given in the Secretary of State's Report, in which he says:
The Secretary of State understands there have been cases of hardship arising from the requirement that a licence must be issued to the first applicant. He understands that the widow of a licensed street trader was unable to obtain a licence to trade in the pitch previously allocated to her husband because another application for the licence was received by the council before hers. The Secretary of State suggests that the proper way of dealing with cases of this kind would be to amend Part IV of the Act of 1947 by the addition of a provision enabling the borough council on the death of a licensee to grant a licence to his widow or next of kin if application was made within a reasonable time of his death.
It is this that we have attempted to do, and the form of the new Clause follows fairly closely the agreement reached with the Metropolitan Boroughs Standing Joint Committee prior to the introduction of the Bill.
As I understand it, there are two main objections to the Clause. First, the promoters argue that the Standing Joint Committee has not had time to consider the Clause and that it should therefore be deferred to another year. The street traders do not feel that they would be wise to wait for another year. I feel that this is the right opportunity to carry through this rather minor reform. The Clause does no more than meet the point of the original proposal. It also seems difficult to understand why the borough councils have not had time to consider it, because it was submitted to the Parliamentary Agents of the promoters on 21st April.
Furthermore, up till a few days ago there has been no satisfactory assurance from the promoters or from the Standing Joint Committee that a serious attempt would be made to introduce reforms. The best that the street traders could get was a statement from the Parliamentary Agents of the L.C.C. to this effect:
Consideration, if desired, can be given to the Clause in connection with possible future legislation.
It is true that during the last ten days a more forthcoming assurance has been received from the London County Council, but this does not get the street traders very much further. If a new Clause is to be introduced into the L.C.C. (General Powers) Bill next year, it must be agreed by July. This is the time table followed by the L.C.C. Moreover, there is inevitably a feeling, at a time when London's local government is being reorganised, that in a year or two's time there may be much more important matters to deal with.
All in all, therefore, I feel that this minor Amendment should be accepted. I hope that I carry the House with me in this.
The second objection is that the introduction of this new Clause on Report introduces an undesirable principle. I do not know whether that was the point that the hon. Member for Stoke-on-Trent, Central (Dr. Stross) had in mind. It is argued that it would be wrong for the promoters to be forced to accept a Clause that they do not want. It is argued that in Committee it is the invariable practice that if a Clause is amended in such a way that the promoters are no longer satisfied with it they are able to withdraw it. It is argued that that is impossible on Report. It is also contended that the introduction of a new Clause on Report means that the promoters and other interests affected by the Bill have no opportunity of petitioning.
I do not claim to be an authority on these procedural matters, nor can I claim to look back over many years of Private Members' Bills, but I believe that those who object to the new Clause on this ground will cite the Bolton Corporation Bill of 1949 as an occasion when an attempt rather akin to this was thrown out by the House because it was felt undesirable that the promoters should have forced upon them on Report a Clause with which they were not satisfied. I suggest that that precedent deals with a very different case.
Without going into details, in its Bill of 1949 the Bolton Corporation sought authority to erect an hotel. Subsequently, brewers told the corporation that they wished to erect an hotel. The corporation was entirely happy with the suggestion and told the brewers that it would withdraw the Clause. In those circumstances the brewers did not petition against the Bill. It was against that background that, on Report, a Member nevertheless sought to recommit the Bill to the Committee with an Instruction that the original Clause be inserted.
In those circumstances, it was not surprising that the then Chairman of Ways and Means—Major Milner—had this to say:
I should inform the House that there would not appear to be any precedent for Amendments proposed by an hon. Member of this House which would force powers upon art unwilling promoter in breach of an understanding given in good faith."—[OFFICIAL REPORT. 4th May, 1949; Vol. 464, c. 1105.]
I suggest that there is no analogy between that case and this one. If there were such an analogy the Chairman of Ways and Means would presumably have seen fit to give advice to the House.
Does not the hon. Member agree that if the promoters wish to withdraw the Bill altogether this House ought not to have the power to prevent them? Surely, too, if they wish to withdraw a Clause the House should not prevent them. Is not the same principle involved here? The hon. Member is forcing upon the promoters a Clause the like of which they have already abandoned.
In my view, it is the duty of the House of Commons to legislate as it sees fit. As I understand it, there are a number of precedents for forcing a promoter to accept a Clause that he would rather withdraw. I have not been able to carry out any extensive research into these instances, as I did not appreciate that this would be a major matter of consideration in the Bill, but I am aware of the London Midland and Scottish Act of 1935, where the promoters, who sought to rebuild Coventry station, were required to keep their Clause in the Bill although such conditions were imposed upon them that they would have preferred to withdraw it. It is certainly the case that a promoter can withdraw an entire Bill if he is dissatisfied with it. It is argued by some that a promoter should also have the right to withdraw a whole section if he is dissatisfied with its final shape, but I believe no one will contend that the promoter has the right to withdraw one Clause although there may be other Clauses dealing with the same subject. In this case Clause 25 is not the only Clause dealing with street traders. Clause 32 also deals with them and no application has been made by London County Council to withdraw Clause 32.
If I understand the hon. Member's argument, he is proposing to introduce into this London County Council General Powers Bill an obligation on twenty-eight Metropolitan boroughs, and possibly the City Corporation, to do something which they do not want to do. Is the hon. Member suggesting that that should be within the province of this House?
I certainly think that is within the province of this House. If this House requires Metropolitan borough councils, county councils, or any other councils to do anything, evidently the House has the power so to require. In this instance I am not pretending that my Clause would require borough councils to do something they did not wish to do. I believe that a number of them have not taken up sides on this issue. Very few have declared themselves on it.
I would not accept the suggestion that this is making a new imposition of any importance on the borough councils. That is not the case. At the moment borough councils are required to give a licence to the first corner subject to a number of very minor exceptions. This proposed Clause would limit them no further. The relative who may apply within ten days could be refused a licence on exactly the same terms as a licence can be refused at the moment to any applicant.
Will the hon. Member explain why the position should he different in London from that in the rest of the country? If street traders have a grievance, is it not desirable that the general law of the land should be changed so that there should be uniformity throughout the country? Is not that more a matter for public Bill legislation than for private Bill legislation?
I am in no position to speak about street traders throughout the country, but I understand that the granting of licences to street traders is governed by private legislation I believe that London street traders are more strictly regulated, because of the London County Council General Powers Act, 1947, than street traders in a number of other parts of the country. It is quite wrong to argue that the L.C.C. or the borough councils have not had the opportunity to petition. Any party which objected to the ideas incorporated in this Clause could have petitioned after the Home Secretary's report upon which the Clause is modelled.
I therefore hope that the House will see fit to support this new Clause. If it does not there may be a number of years before any action is taken. In London a large number of street traders suddenly find themselves threatened by the law as it stands. Wives of street traders who have worked with their husbands for many years and regarded the business as a joint property face the possibility that if their husbands were to die tomorrow complete outsiders might be first at the town hail. Then they would lose their livelihood. That is the issue.
I have listened with great interest to the hon. Member for Lewisham, North (Mr. Chataway), who put his case well and very moderately. The hon. Gentleman said that a question of principle is involved, which is that local authorities do not wish to see this new Clause imposed on them. Their declaration, I understand, is that in view of the past history of private legislation this would create a precedent. I do not wish to weary the House, but the Association of Municipal Corporations has made it very clear to some of us who are interested in that organisation that it would create an undesirable precedent because we are dealing not with public, but with private, legislation. All the precedents of the past have been against the imposition of a new Clause against the wishes of the promoters.
A predecessor of yours, Mr. Speaker, made observations on this matter in 1902, when he ruled that a Motion to recommit a Bill—the London United Electric Railway Bill—would be out of order on the ground that a Private Bill was the property of the promoters and that the House could not compel them to proceed with it against their wish. The reference is Erskine May, on page 993.
In a question, which the hon. Member answered most courteously, I put to him that what he is doing by attempting to force this new Clause on to the promoters does not differ in principle from forcing promoters to accept a Bill they wish to let go altogether and be rid of. When the hon. Member was replying to me I think that he said that the House has frequently forced conditions in a particular Clause and added to a Clause when it has been dealt with in Committee. Although the promoters did not want those conditions they were compelled to accept them. That is perfectly true, but if the promoters declare that they would do without the Clause entirely, as I read it, they would not have to accept the conditions when an attempt was made to impose them.
I have had time now to glance at a note about the London, Midland and Scottish Railway Act, 1935. It was then the case that the railway company attempted to withdraw a Clause. The Committee decided that the Clause should be retained. That Clause became Section 4 of the London, Midland and Scottish Railway Act, 1935.
There may be some point in that. The case I quoted from 1902 was quite clear and Mr. Speaker of that time ruled very definitely on the matter. I assure the hon. Member that London County Council is now raising objections against having to adopt this Clause on the whole question of principle and not on any detail.
Unfortunately, my lips are rather sealed, because I happen to have acted in this matter and advised the people who are producing this new Clause. Having declared that fact, I want my hon. Friend to realise that, if I may say so with respect, he is talking entirely wrongly. I, too, am associated with the Association of Municipal Corporations. What principle is involved if there is an injustice which ought to be put right? Is there a principle that we must not use a procedure which is open to the House to put it right? That is the question.
I am discussing the whole of the principle. Now my hon. Friend the Member for Leicester, North-West (Sir B. Janner) says that the principle involved here is a matter of justice or injustice and that he has advised one of the parties in the matter. The Law Committee of the Association of Municipal Corporations has also looked at this matter very carefully. I am not a lawyer and my experience in medicine does not entitle me to quarrel with either my hon. Friend or with the Law Committee of that Association. Nor am I able to say which of them can give an opinion with the greater weight.
I have known my hon. Friend longer than I have known the Association and its Law Committee and, therefore, naturally, I am affectionately involved with my hon. Friend. Outside this Chamber I have no doubt that I shall have something else to say to him on this matter. I have pointed out, however, that the Association is rather nervous about the effect of this proposal on private Measures in future. The Association may be wrong in its fears, but it is my duty to express them as I have been asked to do.
I believe that it would, but it may well be that the Joint Under-Secretary of State for the Home Department will have taken advice on this matter and will give us his views. The highest advice on a matter of this kind, I should have thought, was Mr. Speaker's, if he would wish to advise us on the best way in which the House should be guided. But I have given the point of view which I have been asked to express. I have tried to do so as best I could and I shall listen with great interest to what is said further on the point.
This is an important debate and the two parts of the argument have been very ably put forward by the hon. Member for Lewisham, North (Mr. Chataway). The first of the arguments is on the merits of the proposed Clause. There is great weight in the intervention of my hon. Friend the Member for Leicester, North-West (Sir B. Janner) that if an injustice is being perpetrated as a result of legislation the House has it within its power to right that injustice. In that event, I should have thought that the House would want to take any steps it possibly could to right the position.
One of the most interesting things is that there has been little argument about the merits of the proposed Clause. Most people believe that factors a rose which were unexpected and people now wish that there were slightly different methods of dealing with this problem.
If I may be allowed to intervene, in order to have it on the record I should like to quote one sentence from the paper I have in my hand. It reads:
This new Clause is not acceptable by the Metropolitan Boroughs Standing Joint Committee as they are not prepared to deal with the problems which confront them in the manner provided in it.
Therefore, there is another point.
Again, with respect, that is not an argument about the treatment of the people who are involved in this Clause. The fact that the London County Council may find it inconvenient or may wish that the problem were dealt with in some other way is one thing, but there is, first, the basic point whether the present procedure is satisfactory or not. I should have thought that there was a wide measure of agreement, as a result of the recent legal actions, that it is inadequate and unsatisfactory at present.
The first point is the position of the people involved, the street traders themselves. I will answer that briefly, because, clearly, it is not a big issue in this debate. To these people the site of the place where one places the barrow is of more value than the barrow itself. It is a good will, built up over a long period of time, and if a man cannot leave to his next-of-kin the ability to trade on that site, all he can leave is a barrow which is worth very little. Enormous hardship is imposed on these people when parents die and they are left with nothing because somebody else gets in first and the local authority is bound to give that person the site.
I should like to know the authority upon which my hon. Friend bases the statement that a local authority granting licences to trade in the street markets has to apply the "first come, first served" principle and ignore any claims of relatives to take up the stall which the deceased trader had occupied. My experience is that consideration is always given to the relatives of those who have been trading. I should like my hon. Friend to give the authority whereby local authorities have to ignore that consideration.
It seems to me that all sorts of statements are being made which are strictly not in accord with what local authorities do. The number of stalls selling each commodity is laid down and even if a man has been for years on the list of applicants it does not follow that when there is a vacancy he is considered. The schedule of stalls selling the commodity which he wishes to sell might be full. There is a discretionary power to the local authority to take the name at the top of the list of those wishing to sell the commodity which the previous occupant of the stall sold.
I do not want to pursue this matter too far. This is a question of fact and presumably we shall have an intervention from the representative of the Home Office in due course and with customary skill he will be able to make the matter crystal clear to us. I am not a lawyer. I am not boasting, but that is my only claim to having led a decent life.
I understand that the whole of this controversy arises out of a specific case in which there was personal hardship to certain people. The intention of the promoters of the new Clause is to prevent that situation arising in future. As far as I know, there is no argument at all that what happened in the Schneider case was regretted and unforeseen, and most people would like to have at some stage a change in the law to provide that it cannot happen again. A curious feature of the matter is this. I should have expected petitions to be presented on these lines at an earlier stage, but this has not been done.
I do not want to labour the point, because there is not very much between everyone involved in this issue at this stage. In my view, it is right that security should be given to the dependants and near relatives of a street trader in the continuation of the family business. This is what we seek to establish. If it is argued that this is not the way to do it or that it cannot be done in this way, let us hear the argument. No such argument has, to my knowledge, yet been satisfactorily or clearly advanced.
The second question, which is the one which has aroused most of the feeling, is whether or not this House has a right to impose upon the promoters of a private Bill a Clause which they themselves do not like and may violently oppose. My hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross) has said that what is proposed here would involve a new principle or new precedent. In the first place, I think that Parliament ought not to be very worried about introducing new precedents. We can do with quite a number of them. My hon. Friend said that he found this an undesirable precedent. I understand that there is already a precedent for this procedure. It occurred in 1935. As a result of a petition by the Coventry Corporation, the promoters of a Bill then were left with a Clause which they did not want, but which subsequently became Section 4 of the London, Midland and Scottish Railway Act, 1935.
We cannot have it both ways. We cannot start by saying we should not introduce a new precedent and then, when a previous precedent is produced, say, "Yes, but we do not want to continue precedents which we find inconvenient". One can have it one way or the other but, in all decency, one cannot have it both ways at the same time. If there is a precedent in 1935 for the procedure suggested here, then the argument based on precedent goes. This is not, in fact, creating a new precedent.
Is it desirable that Parliament should do what is proposed here? Clearly, everyone, whatever his interest, wants his rights to be protected as much as possible but, subject to constitutional convention—and if the precedent is already established there is no constitutional convention to break—the supremacy of Parliament in doing what it will must be defended. One cannot accept that, because the London County Council objects to Parliament doing something which the London County Council find unpleasant or inconvenient, Parliament, if convinced that a change is desirable, has no right to make it. Any hon. Member may object, but whether other people like it or not is neither here nor there. For about 900 years Parliament has had the final say in these matters, and I hope that it will go on in that way for the next 900 years. It has worked very well so far. Perhaps that is not a very radical reason for supporting an argument, but I hope that it carries some weight.
I submit that what is suggested here does not introduce a new precedent, because there is already ample precedent for the promoters of a Private Bill being forced to accept something which they dislike. Secondly, even if the promoters of a Private Bill themselves wish to withdraw a Clause, having come to the conclusion that it no longer suits their interests and they no longer wish to be associated with it, they can withdraw it even then only by permission of the Committee. They have no right to carve up a Bill. They can withdraw the Bill in toto if they wish, but, while the Bill is in Committee, they can withdraw parts of it only with the permission of the Committee. There is, I suggest, ample precedent for the promoters of a private Bill being forced to accept provisions which they find undesirable.
Does my hon. Friend recall the Wallasey Corporation Bill in 1947? In that case, the promoters were given leave to withdraw a Clause in an omnibus Bill after the Clause had been amended by the Committee, in spite of the fact that the withdrawal was opposed by the petitioners against the Bill and the withdrawal was, apparently, against the inclination of the Committee which, nevertheless, felt unable to refuse?
What my hon. Friend says supports my point. The petitioners can put forward their case and can object to the withdrawal of a Clause, and, if the Committee withholds its permission for the withdrawal of any Clause, the Committee carries the day. Parliament makes the decision. A private Bill or any other Bill is the property of Parliament while it is before Parliament, not the property of the promoters. Anything else would be a novel and very dangerous constitutional doctrine.
The arguments I put are these. First, I suggest that the merits of the case are generally accepted. If there is injus- tice, as I understand is generally accepted——
Presumably, by those who have known about the proposed Clause for some time, have known about the Home Office recommendation, and have made no objection. One is entitled to assume that people who disagree violently with something while a Bill is in progress through the House will state their objections before Amendments are discussed on Report.
If, in fact, there is injustice—it is certainly very arguable that there is, even if it is not yet accepted by everyone—and if it is within our power to remedy the injustice, we should do so. I submit that what is proposed here creates no new precedent. The precedent in 1935 disposes of the argument about precedent in this case.
Thirdly, if it is argued that the rights of Parliament are circumscribed in relation to a Bill before it, as this Bill is, because there are people outside Parliament who have a prior interest in the Bill, then I strongly submit that that is a highly dangerous doctrine that it would be most dangerous to entertain.
For once, I find myself in agreement with the hon. Member for Greenwich (Mr. Marsh). The matter is really quite simple. It arises out of the very unfortunate legal decision in Stepney Borough Council v. Schnieder. All we seek to do by the new Clause is to rectify what I had assumed most people regarded as a very great wrong done to, admittedly, a minority of people. A street trader's business is very often run by the family, by the father, the son and the mother, with sometimes a close relative also taking part. It might be difficult to employ other people to run these businesses. They are extremely individual concerns more suitably run by families.
The proposed new Clause seeks to put right an obvious injustice. While I agree that it affects a minority of people and that certain interests in the councils do not want to see it adopted, that is no reason why we in Parliament should give up our right to be paramount on this issue. After all, Parliament is paramount and if we think that this is going to cause inconvenience, difficulty and hardship to certain local authorities I do not see that that is any reason why we should not agree to accept the Clause and bring justice to a small section of the community who, by virtue of an unfortunate legal decision—and that is all it was—should suffer this injustice.
I speak tonight on behalf of the L.C.C., which is promoting the Bill, and it does so partly in respect of the council's needs and partly in respect of the needs of others.
The original Clause in the Bill was promoted to suit not only the needs of the metropolitan borough councils but also those of the street traders. It was proceeded with entirely on the understanding that there was complete agreement between all the parties concerned. Had there not been that agreement the original Clause would not have been in the Bill and the House would probably not have considered it proper to have inserted one along the same lines. The precedents would appear to bear that out.
But whether or not precedent declares that the House cannot accept the proposed new Clause is somewhat immaterial. The main point surely is whether the House should make the change proposed by the hon. Member for Lewisham, North (Mr. Chataway). In any case, the precedents would appear to be doubtful. The case quoted by the hon. Member for Lewisham, North does not alter the position and the attention of the House should be called to the fact that the Select Committee, after examining the original Clause, decided on its retention.
The proposed new Clause, on the other hand, has had no examination. it was not possible for a petition to be put against it, since the last date for petitions was 30th January. The Secretary of State's Report appeared on 12th March so that it has been impossible for the situation to be examined in detail by the Select Committee. If the proposed new Clause were inserted it would mean that that had been done without any serious consideration having been given to it by the Select Committee and without hon. Members knowing whether it would stand up to thorough investigation.
It has been said that not much attention has been given to the merits of the Clause as originally drafted. I would make it clear that the Metropolitan borough councils, on whose behalf the L.C.C. is operating, and the street traders were in complete agreement about the injustices suffered by the relatives of street traders and were anxious to cure them. At the same time, the Standing Joint Committee of the Metropolitan borough councils felt that the whole situation was unsatisfactory and that if it was to promote a Clause at all the whole problem would have to be cleared up in one go. The Metropolitan borough councils thought, first and foremost, that the position was unsatisfactory if the law insisted on them being nothing more than rubber stamps. They did not want that to happen. They did not want their position regarding the allocation of pitches to be different from that concerning the letting of shops on housing estates. They wanted complete discretion to allocate pitches in the interests of all concerned.
When the matter was debated in February great stress was placed on the amount of so-called fiddling that took place in the sale of pitches. The hon. Member for Lewisham, North strongly objected to that practice and he should realise that his proposed new Clause would not deal with that problem. The borough councils are anxious to deal with it and have given an undertaking that the position of the dependants of deceased traders will be properly considered. The view of the councils on this matter has been explained on numerous occasions and there should not now be any misunderstanding about their attitude.
As I have said, the whole thing was done on a basis of agreement. It was following the earlier debate in the House and the Secretary of State's decision that it was not desirable to give complete discretion to the borough councils that the street traders objected to the original Clause. It would appear that they objected to the fact that a certain limited right of appeal would be foregone. In other words, regarding the allocation of new pitches, there would be no right of appeal to the magistrates. This is something on which the borough councils have strong feelings. They spend many hours carefully selecting the right applicant only to be over-ruled by a magistrate who has before him only two persons—the grantee of the licence and the aggrieved applicant—whereas the borough council probably has a large number of applicants from whom to select one.
It is for these reasons that the borough councils object to the proposed new Clause which would deal only with the hardship of the deceased's dependants and not with the whole situation. It is essential to clear up all the problems including those involved by redevelopment—and this was gone into in great detail by my hon. Friend the Member for Deptford (Sir L. Plummer) on a previous occasion—in one fell swoop. There are other problems, too, such as the provision of better positions for existing street traders so that might have better pitches.
The Metropolitan Boroughs Standing Joint Committee is not sure if a change in the law would ever come about if the proposed new Clause went through. The Committee has offered to give an undertaking that it will immediately pursue arrangements by which a new Clause could, by agreement, go into next year's Bill. The hon. Member for Lewisham, North gave the House to understand that it would not be possible because of the date, July, by which the L.C.C. would have to consider the terms of such a new Clause. To some extent he is right, but it is possible to suspend the Standing Orders of the L.C.C. That is frequently done and would be a satisfactory way of overcoming this difficulty if the terms could be agreed by October. The Metropolitan borough councils are very anxious that the matter should be settled properly. I appeal to the House to accept not the new Clause but the undertaking given by the bodies concerned that they will endeavour to get agreed legislation promoted at the next opportunity.
While I have not overstressed the precedent, some of us feel that it is very unfortunate that a promoter should have legislation to which he is opposed forced upon him.
In this case the Metropolitan borough councils, although they wanted legislation, received representations from the street traders before they embarked on it, and they did this at the instance of the street traders. Surely it is reasonable to apprehend that if anyone who wishes to promote legislation has reason to believe that, by doing so, he will have forced on him legislation of a kind which he does not feel he can accept he will be rather laggard in undertaking legislation. The House would be wise to keep to the principle that, if promoters desire legislation and then find that it is not possible to have it more or less as they require it, the option to decide Whether they should proceed with it should be left with them.
I wish to deal first with the very important point raised by my hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross). If the hon. Member for Lewisham, North (Mr. Chataway) feels that the Government should have power to instruct the Metropolitan boroughs on how they should operate street markets, surely the Government should introduce legislation to that effect. The L.C.C. has put forward a general powers Bill embodying all sorts of things, including a request from the street traders to take certain decisions arising out of a court decision. The L.C.C. decided to put Clause 25 in the Bill. My hon. Friend the Member for Stepney (Mr. W. Edwards) made a powerful case with which I entirely disagreed, but nevertheless it was reasonable and it stood up to examination. However, eventually he agreed to withdraw his opposition to the Clause in order that it should be re-examined.
What happened? As I understand it, one of my hon. Friends said that he legally advised the street traders in this matter. If so, and if they were wrong, I do not complain.
Then I must have misunderstood my hon. Friend's intervention, but, as I understand it, the street traders were advised and proceeded on certain lines.
In the previous debate, I said that if I were given the job of examining applications for street trading licences—and I was a member of the local authority far nearly forty years—I should feel that I was competent to decide the people who should get them, having regard to the number of people who sold bananas, nylon stockings and even linoleum and having regard to the public requirements. I thought that to allow a Metropolitan magistrate to decide such a matter was entirely wrong. If I were a member of a local authority and if that were the law, I should have said to the Government, which I believe many Metropolitan borough councils did, "If you regard me as a rubber stamp, then you get on with the job".
We have a very big market in Ridley Road in my constituency, and I pay tribute to the people who stand out in all weathers selling all sorts of goods. My hon. Friend the Member for Deptford (Sir L. Plummer) on a previous occasion did not say that they were altruistic. They like to make a profit, like everyone else, but they lead a hard life. However, someone must regulate the situation.
The new Clause says that when a street trader dies the pitch must automatically be transferred to his relatives, even if they are illegitimate. Hon. Members must learn the facts of life. Street trading is not confined to families who live in a particular area. Street traders travel from London to Southend, Wick-ford, Billericay and Romford. It is fantasy to believe that old-established families stay in one market all the time. How do hon. Members think that Petticoat Lane, Middlesex Street, is made up?
Street trading is a legitimate form of trading which adds colour to London's life, but it is wrong to believe that the wife of a street trader who has died is scared about getting a living. Many traders have to stop trading because they are sick. This new Clause does not deal with them. Sometimes a man cannot put his stall out and do business because he has contracted a disease, and the local authority must decide what should be done in his case. This new Clause does not deal with such a man. He may be away from his stall for three or four months, and the street markets committee must decide what should be done with his pitch.
If hon. Members assume that ordinary people who live in the area concerned do not know the difficulties which arise when a street trader dies, then they are living in a world of fantasy which has no relation to fact. Members of the street market committees know the people with whom they are concerned. They know the people who occupy the stalls.
The hon. Gentleman shakes his head. At eleven o'clock this morning, after I had been sitting on the bench, I consulted the town clerk in my area about whether the committee considered passing the licence of a deceased person on to the relatives of the deceased.
Assuming for the sake of argument that what my hon. Friend says is correct, has not the decision of the magistrate in that case, however ill-advised, had the practical effect of deciding the situation?
I have no aspirations to be on the Front Bench, but if I am not very careful I shall get a reputation for loquacity. I do not want that. The House will remember that my hon. Friend the Member for Stepney took a certain view about this matter, and I do not want to put into his mouth again the views which he then took. The decision in the Schneider case laid down a certain course of action, and all I am saying is that if both hon. Gentlemen examine what goes on in the 28 Metropolitan boroughs they will find that the Schneider decision has not influenced the Committees in any way.
Am I not right in thinking that the decision in the Schneider case was the decision of a Divisional Court and that therefore it is the law of the land and binding on all local authorities and magistrates? It is because we all agree with the hon. Member that the decision is unfortunate and regrettable that we want the law of the land changed.
I should get into real trouble if I were to start arguing with lawyers. All I am saying is that, in regard to the local authority with which I have been connected for a considerable number of years—and I have been connected with the Metropolitan Boroughs Standing Joint Committee for a number of years—and as far as my own experience tells me, together with the knowledge which I have gained only today, the Metropolitan boroughs themselves are not in the position with regard to this matter which apparently the hon. Gentlemen who are supporting this Clause seem to think. Therefore, I hope that the two hon. Members will not press this matter to a Division.
I am sure that a very important Bill like this London County Council Bill, which involves so many important items, should not be delayed upon a matter which can be dealt with by the Metropolitan borough councils themselves, without getting involved in this controversy. I would also include the hon. Member for Clapham (Dr. A. Glyn), who comes here on Fridays to make contributions to various subjects, but who, in this case, does not know anything about the subject at all. I hope he will not try to impress this House with the story of this terrible widow or somebody who diedx2014;—
Unlike my hon. Friend the Member for Hackney, Central (Mr. H. Butler), I hope that those who put down this Motion will press it to a Division. It seems to me to be essentially a matter on which this House should express an opinion, whichever way the vote may go. I think it raises a very interesting and very important constitutional question, and a vital question of Parliamentary procedure, on which the House should come to a conclusion.
I listened with great care to the speeches of both my hon. Friends—the hon. Lady the Member for Peckham (Mrs. Corbet) and the hon. Member for Hackney, Central, and I think that it is important to keep the salient facts in the issue clearly before us. Whatever we may think of the decision in the Schneider case, surely it cannot be the fact, as one hon. Member said, that local authorities and magistrates will ignore it.
It may well be that the hon. Member for Lewisham, North (Mr. Chataway) knows much more than a great many of us about what the practice of issuing of licences has been in the past, but the serious matter that has arisen is that, by the decision of the Divisional Court in the Schneider case, local authorities are no longer entitled to go on doing what they have been doing, quite sensibly, no doubt, but in future must act upon the principle of "first come, first served". Therefore, they no longer have any freedom——
When my hon. Friend says "first come, first served" what does he mean? Does he mean that somebody walks in to the town hall at ten minutes past nine and says, "I am first"? Is that what my hon. Friend means? If so, it would not be much use, because there is no one there until half-past nine.
That may well go to show the absurdity of the situation. Because hon. Members who put down this Motion are so impressed with the absurdity of the situation they want it changed. In a sense, as the hon. Member said, it is only a minor change and deals with one aspect of the whole subject of the granting of licences for street trading.
The burden of the argument of my hon. Friend the Member for Hackney, Central, who put the views of the London County Council and the Metropolitan Boroughs Standing Joint Committee, was that, ideally, there should be some other Clause and that this Clause does not deal with the whole problem. If there were plenty of time, we could have further consultations and draw up a code for the benefit of the metropolitan boroughs stating how street trading licences should be granted in the future. That might be a sensible thing to say, but I do not consider it a valid argument for opposing this Clause, the whole purpose of which is to correct, either temporarily or permanently, what, in the Schneider case, has been revealed as a patent injustice.
There is nothing whatever to prevent the London County Council, or the Government, from passing further legislation in the future. I cannot believe that the acceptance today of this Clause and its inclusion in the London County Council (General Powers) Bill will in any way inhibit the Council from introducing a wider measure in a General Powers Bill next year to deal with the whole subject, or prevent the Government, if they desire to do so, from legislating through the Home Office, with regard to street trading in the country. I still do not understand why there should be one law on this matter for London and, presumably, a different law for other parts of the country. On that aspect, on the merits of the case, I am wholeheartedly in favour of the Clause. It seems to me that all the arguments on merit lead in that direction.
As was pointed out by my hon. Friend the Member for Stoke-on-Trent, Central (Dr. Stross) there is an equally vital issue regarding precedent and principle. We should be clear about this. It is one thing to talk about precedent and another to talk about principle. I also have had communications from the Association of Municipal Corporations, of which I am a vice-president, and to whose representations I always listen with respect. But on the issue of precedent it was suggested by one of my hon. Friends that this is a matter with which Parliament could not deal. But surely that argument must be resisted at the outset.
If this Clause were not in order, we should not be having this debate. Therefore, there can be no doubt about the matter. It seems a platitude to say that this House is competent to insist, if it wishes, on this Clause being inserted in the Bill. That is the case, as my hon. Friend the Member for Greenwich (Mr. Marsh) observed, whether there are precedents or not.
Now let us come to the question of principle. This is a very important matter and it ought to be fully analysed. It is said that if a Bill is promoted this House ought not, as a matter of principle, to insert in it some Clause to which the promoters object. But I cannot accept that doctrine for a moment. Were it accepted, or even thought to be accepted, it would undermine completely the sovereign authority of Parliament. Let us remind the London County Council, and all municipal authorities, that they are the creatures of Parliament.
They are subordinate bodies which very often have duties thrust on them whether they like it or not. They can be abolished by this House. In fact, some of them are to be abolished whether they like it or not. Their powers and duties can be changed by this House. It is, therefore, not for any local authority—not even the London County Council, and certainly not the metropolitan borough councils—to have the final say as to what it wants to do or what should be the law of the land. That is the duty of this House, and it is one of the functions of this House to cure injustices.
I will deal with that point, because it is important. It is important to observe this. In some respects Private Bills promoted by local authorities stand in a different category from Private Bills promoted by other persons or undertakers or individuals, and this distinction should be borne in mind.
It may well be the case that in respect of certain Private Bill promoted for some purely minor local interest it would be unreasonable—and Parliament would not dream of doing it—to insert in a Bill something contrary to what the promoters wanted, and, of course, in that case the promoters would have their remedy because they could withdraw the Bill.
The position of local authorities, and particularly the London County Council is slightly different. It is not quite true to say of them that they need not promote a Bill, and that they can withdraw a Bill, because experience shows that if the London County Council is to carry out responsibly the statutory functions imposed on it by Parliament it has, as a matter of course year by year to ask Parliament to give it certain additional powers to do various additional things which have arisen as a result of experience over the years.
Therefore, it is right to observe that one cannot, in fairness, say to the London County Council, "If you do not like this new Clause"—which I hope Parliament will insist on being inserted in the Bill—"you can withdraw the Bill", because the County Council might then sensibly say that to do that would be acting irresponsibly and would be depriving it, and through it the people of London, of certain powers given in other Clauses of the Bill which are for the general interest.
But that does not conclude the matter. The fact that the London County Council has not that right, which other promoters might have, of withdrawing the Bill, does not conclude the matter. That is no reason why Parliament should not insist, if it wants to, on inserting a Clause to cure injustices, and for this reason. Local authorities promote Bills which they think are in the interests of the public. Parliament revises, amends, considers and either approves or disapproves those Bills because Parliament has the final say as to whether those Clauses are requisite for the protection of the public or not.
Parliament also has the right to say to any local authority—and amendments have been moved to the City Corporation Bills to this effect—" Parliament will not give you the powers which you are seeking in your General Powers Bill unless you also take steps to do things which Parliament thinks you ought to do for the protection of the public in other respects, including such respects as curing an obvious injustice".
That seems to me the issue of principle, that Parliament must assert its right in a General Powers Bill promoted by a local authority to insist on a Clause being inserted if Parliament thinks it is necessary to insert it to cure an injustice. This seems to me additionally important in a sphere in which the promoters of the Bill have themselves, in their original Bill, recognised that this is a branch of the law which requires some amendment.
It may well be that this year they could not get the agreement which ideally they would have liked, and they may be able to get it next year let us hope that they will—but that cannot be a reason for their asking Parliament to resist this minor, modest Measure which we think is urgently necessary to remove an admitted injustice which has been revealed by a decision of the Divisional Court. I therefore hope that the House will support the new Clause.
I made my position clear during the Second Reading debate in February on the London County Council (General Powers) Bill, but I want to correct some of the statements made by hon. Gentlemen opposite about the case of the Stepney Borough Council v. Schneider. I think that those who have listened to the debate will have got the impression that what was being asked for today was something which was being done in the 28 Metropolitan boroughs before the Divisional Court gave its decision in the case to which I have just referred. This is not so. This is something which is brand new in street trading legislation. If there had been no Stepney Borough Council case, the relatives of street traders would be in the same position as they were before this decision was taken.
Let me repeat what I said during the Second Reading debate. The Stepney Borough Council dealt with this problem by withholding the granting of a new licence once it knew that the street trader had passed away. I want to make it clear that this is something new.
I do not want to repeat my Second Reading speech, when I referred to this. Not all the boroughs were involved, but the Metropolitan boroughs had the impression that they had to go through a list, sometimes of 100 or 200 people. In many cases there were 40 or 50 people from Petticoat Lane. Occasionally one found that the aggrieved applicant would go to the police court and that the magistrate would decide that a wrong decision had been taken and that it should have been made in favour of the applicant. Stepney did not like the idea of traders being able to go to the magistrates' court and to obtain a decision contrary to that of the borough council. Because they wanted the law clear, the matter was taken to the Divisional Court. But that decision took nothing away. We have applied the Divisional Court ruling in Stepney. I am sure that the hon. Member for Lewisham, North (Mr. Chataway) has had no case from Stepney in which the relatives of the deceased trader have been den6ed the licence.
Stepney Borough Council is not behaving illegally. This judgment does not mean that the applicant who puts in his application at 9.5 a.m. or 9.35 a.m. must be successful. The Stepney Borough Council has decided—and I think that it is within the law in so deciding—that the pitch is not vacant until the Council declares it vacant.
A pitch is not vacant until the Stepney Borough Council declares it vacant. After all, the council is responsible for the upkeep of the street and is entitled to rights in regard to the letting of market pitches. Once the Stepney Borough Council declares a pitch vacant, however, the council can offer it to the relative of the deceased trader.
That is how we have overcome the situation. I do not think that we are breaking the law. We are not using any device. No law states that a local authority must meet on a day when a pitch becomes vacant and decide that day who is to have it. It is necessary to wait until such time as the appropriate committee is able to meet and the officials of the council have been able to send out to members of the council all the details in connection with these cases.
The hon. Member for Lewisham, North is asking for something completely different which has no connection whatever with the Stepney Borough Council and the Schneider case. I have every sympathy with genuine street traders' relatives who are dependent upon having the pitch, but I must not say too much because I feel that some of them are not really genuine. The vast majority may be. Nevertheless, I have the greatest sympathy and I am pleased that there is no complaint against the Stepney Borough Council since the Divisional Court ruling with regard to the granting of licences to these persons. The hon. Member for Lewisham, North must have undertaken a lot of research with my hon. Friend who is dealing with the case legally. We can rest assured that my hon. Friend would know of every case which existed, but there have been only four since the Divisional Court ruling.
I wonder whether there really is the great injustice which has been mentioned and whether some hon. Members appreciate that it is necessary to have people serving on local authorities. It is all very nice to get up in this House and to say that Parliament is paramount and can tell the local authorities what to do, but how would the country carry on but for the people who serve on local authorities?
Parliament itself could not run it, and if Parliament, by legislation of this description, which forces upon a responsible authority Clauses which it does not consider desirable at this moment, Parliament will not stand in a very good position in the general picture of our democratic institution. I have served on a local authority for a long time. If I am to be told by my hon. Friend the Member for Islington, East (Mr. Fletcher) exactly what I have to do when I belong to a council, he can go on it instead of me.
I am not suggesting anything of the sort. Like my hon. Friend the Member for Hackney, Central (Mr. H. Butler), I do not belong to the legal profession and I am not going to answer legal questions. All I say, quite plainly, is that I am sure that most people who serve on local authorities feel that Parliament should interfere with them only if it is found that they are lacking in their duty. There is no such lacking in duty on the part of the London County Council. The London County Council brought a proposal forward at the request of the Street Traders' Union, but the street traders afterwards said that they did not want what was proposed but wanted a new Clause.
Is Parliament to act in that way with all local authority general powers Bills? If so, what is the good of bringing them forward? Hon. Members have a right to say that they do not want a certain Clause, but if Parliament is to mess about with local authority general powers Bills in the way that the hon. Member for Lewisham, North is trying to do, it will be very difficult for local authorities to carry out their job properly.
The hon. Member has overstated his case. There is very little suffering. All that is required is a little common sense on the part of local authorities with regard to the administration of their markets committees, and then hardly anybody would suffer. But here we have a fundamental issue. If Parliament is to tell London County Council, Manchester City Council and Liverpool City Council that they must administer their markets committees in the way Parliament wants, where will it end? Will Parliament next say "You must carry out your housing allocations as we want you to"? Parliament has not told the London County Council that Mr. A. or Mr. B. must be given accommodation.
Parliament has done that to a certain extent, but there is an end to that situation. There is no end to this one. The provision in this case is not confined to close relatives—widow, daughter or son. It goes on for ever. Once the pitch is let, on reallocation as a result of a death in a family, the local authority has no more control over it. Must local authorities work under these conditions? It is hard enough now to get good people to give up their time to serve on local authorities. But if this is the way in which members of the London County Council are to be treated, I fear that the quality of its membership will suffer as a result.
It is for these reasons that I feel that the request of my hon. Friend the Member for Peckham (Mrs. Corbet) should be met. The hon. Member for Lewisham, North mentioned four cases in two years. I wonder how many cases of this so-called grave injustice will happen in the next six months. Could this matter not be dealt with as it was last year? Then, the London County Council met the street traders and the Standing Joint Committee and all those interested. It would be far better to accept the view of my hon. Friend the Member for Peckham that the matter should be reconsidered so that the Council, in its general powers Bill next year, could come forward with something acceptable to all the local authorities.
We have enjoyed the debate, particularly the defence made by the hon. Member for Stepney (Mr. W. Edwards) of his local authority. He gave an interesting description of the benevolent interpretation of the Schneider case that is adopted in Stepney. Nevertheless, I think that he would agree that maybe some of the other metropolitan boroughs do not adopt such a benevolent construction, and, also, that there is, at the very least, some confusion and vagueness about the rights and duties of the metropolitan boroughs in this matter since the Schneider decision.
It seems, from the careful, moderate and persuasive speech of my hon. Friend the Member for Lewisham, North (Mr. Chataway) that in some boroughs, at any rate, the view that he who gets to the town hall first gets the pitch is the one that is adopted, and that the ability to sprint—not merely the ability to run a mile or three miles—is an essential if one is to get hold of one of these sites, which are extremely valuable, as the hon. Member for Greenwich (Mr. Marsh) showed.
It is obviously an unsatisfactory position, as we indicated, and, indeed, as the London County Council has very fairly indicated in its statement which we have all had. I think that, on the merits, the general consensus of the debate must be to support what the L.C.C. says about the effect of the Schneider decision. It says that the decision led to an undesirable position whereby traders intending to give up pitches could obtain substantial sums of money for telling would be licensees the exact time when they would be notifying the Metropolitan borough council of their intention.
One can imagine all sorts of dodges which this decision might lead to. Certainly, the hon. Lady, who speaks with such authority for the L.C.C., never for one moment attempted to defend the consequences of the Schneider decision and the injustice which will continue from day-to-day so long as the decision remains. We have to bear that in mind when we are urged to let this run for another year, because it would mean that during the course of the year, or whatever the period may be, at least in many boroughs that take a rather more rigid view of the Schneider position than perhaps Stepney does, this injustice might continue and that the families of deceased traders would be denied the goodwill of a very valuable site.
Having said that, I will attempt to summarise the view which has been put best by the hon. Lady against accepting this new Clause put forward by my hon. Friend. It is said that precedents are against imposing upon the promoters something which they do not want in the case of Private Bills. The hon. Member for Stoke-on-Trent, Central (Dr. Stross) invited me, as speaking on behalf of the Home Office, to give the House some guidance on this question. I cannot accept that flattering invitation. The procedure of the House in these matters is not really within the office of the Home Office. The Home Office is, of course, a mighty mother, but it is not quite as mighty as that. The procedure of the House is really in the charge of this House and this House alone. In so far as there are precedents, that must be a matter for you, Mr. Speaker, rather than the Home Secretary.
All that I can say about it is that we certainly accede to the view that there is a strong tendency, to put it no higher, against imposing on the promoters of Private Bills Clauses and conditions to which they strongly object. Therefore, it is a very difficult balance that the House must decide tonight, and it is one which it would not be proper, in view of this difficult and delicate balance, for anyone speaking at this Box to attempt to dictate. If the merits of the case were in dispute, that is to say, if the London County Council strongly objected to the substance of this Clause altogether, I think that the scales would overwhelmingly come down on the side of rejecting the Clause, since this is private legislation. But that, of course, is not the position. The substance of the case is conceded by the London County Council. It is a procedural objection by the Council.
Owing perhaps to the unfortunate history of the matter, it was not until a fairly late stage that this Clause was drafted in proper shape. As the hon. Member for Peckham (Mrs. Corbet) so rightly said, the Committee has not examined the Clause. It has come here now at this relatively late stage. That is true. But I have to remind the House that no one in this debate has criticised the drafting of this Clause or anything about it. I have to tell the House that so far as the Home Office examination of the Clause is concerned, we think that it is in proper form, fit for its purpose, adequately safeguarded, with all the definitions of the word "relative" and matters of that sort in proper order, and, therefore, there can be no objection to it from the drafting point of view and no one has attempted to say that it is in any way inept.
The hon. Member for Peckham says that it does not go far enough. That may well be true, but I must remind the House that there is no objection to either private or public legislation going further at any time it chooses, and, therefore, the force of that argument is somewhat diminished. Concerning public legislation, the hon. Member for Islington, East (Mr. Fletcher) asked why this was done piecemeal and only for London, and why there was no governmental move in these matters.
My answer is that street trading is governed by a host of local Acts and the Government have never considered that it is their task to harmonise those Acts beyond certain basic considerations of natural justice. It would be a task which I do not think the country, the traders themselves, or the localities would wish us to undertake. This must be a matter for the local authorities, particularly for the Metropolitan boroughs.
Therefore, I fully recognise the desirability of getting the agreement of the Metropolitan Boroughs Standing Joint Committee in the way that it has not yet, unfortunately, been obtained. Whether that consideration, that constitutional propriety, should be considered sufficiently weighty to outweigh the undoubted merits of the Clause, which may, in the course of the next year or so, remedy what might otherwise cause serious injustice to an important band of the commercial community in this city, is a matter which the House must decide.
Are we to preserve, on the one side, the purity of the constitutional steps at all costs, even though the merits and the substance of the matter are agreed on all sides, or virtually agreed, or are we to take a plunge, a dramatic plunge, and say that this is what we want and what everybody wants? This Clause may not go as far as it might, but it goes a long way. The House must decide and I can say no more.
Like the Under-Secretary, I think that our better course at this stage is to accept the Clause. I do not often disagree with the London County Council, which is an excellent authority, and, far reasons which I shall show, I think that it has been very hard done by in this matter. I am influenced by what the result will be if we accept or reject the Clause.
If we reject it, we leave the situation with regard to street traders as it is as a result of the decision in the case of Stepney v. Schneider. There is no doubt what that decision means. It means that when a site is vacant the first person who applies for it has a legal right to it. I must congratulate Stepney Borough Council on the way it has handled that decision. But if a site in Stepney becomes vacant, say, through the death of the stall-holder, or through his notifying the council that he is giving it up, and within ten minutes of that vacancy occurring an application is made and half an hour later another application is made by a relative and the Stepney Borough Council, meeting a week later to consider the two applications, gives the licence to the relative, on the argument that the vacancy had not occurred until the committee began to meet, and if it chooses to regard the relative's application as prior in time, if the other applicant then goes to the court, although I am not a lawyer, I will bet that the result will unquestionably be that the other applicant will get it.
The extraordinary thing is that nobody wants that situation. The Metropolitan brough councils, quite rightly, dislike it because it turns them into rubber stamps. It does not make sense, and it is a shockingly arbitrary rule. The street traders do not like it because, apart from anything else, it rules out the claim which the relative has in natural justice. Everybody thinks that the position is unsatisfactory, but that is the position which we perpetuate if we do not adopt the Clause.
On the other hand, if we adopt it, there is only a slight improvement. The Clause operates only in the case of the death of the stall-holder. If the stall-holder is permanently disabled, Stepney v. Schneider still operates.
If the stall-holder is permanently disabled, he can determine the moment at which he will hand in his licence and therefore enable his relative to get the licence.
But what is to prevent him in that situation from selling the information as to when he will notify the vacancy to the borough council as, it is alleged, some do now?
I thought that part of the objection to the present situation was that the stall-holder could do that very thing—sell the information. The only way in which he is stopped from doing that is by his being obliging enough to die. This does not give certain protection in the event of that possibility, or in what is perhaps the more usual case, where a man reaches an age at which he feels that he can no longer carry one. This provision is not a very great improvement, but it is some improvement on the present situation, which is so profoundly unsatisfactory, and I feel that we ought to accept it.
In the course of putting forward what I believe to be the right answer to the question I shall explain what I meant when I said that the L.C.C. has been hard done by. The right answer is to give borough councils a discretion in the matter. This ought to be a matter within their discretion. It is the kind of matter that their representatives are elected to judge. It is not the kind of matter which magistrates are elected to judge.
If my hon. Friend believes that borough councils should have this discretion, should he not hesitate to agree to a Clause which will fetter borough councils even more than does the Schneider decision? The whole object of the original Clause was to leave out from the Bill all these considerations. All this was to be worked out between the Metropolitan boroughs and the street traders. None of these categories was to be mentioned in the Bill. The Metropolitan boroughs will have all the facts before them. In these days, when so many people travel by motor car, it may easily happen that although a husband has nominated his wife to succeed him both he and his wife are killed in the same motor accident. What provision is made then? A number of similar cases could be referred to. I hope that my hon. Friend wild not be carried away by the appearance of the Clause but will look at the solid substance underneath.
I share my hon. Friend's admiration for the original Clause, but unfortunately it is no longer before us. If the Bill goes forward, with or without the Clause, the discretion of borough councils will be hopelessly fettered. We cannot get away from that.
The right answer is to provide that this matter should be within the decretion of borough councils, provided that, in natural justice, in exercising that discretion they should have regard to the claims of relatives. That is what the L.C.C. sought to do, and that is why I say that it has been hard done by. It reached agreement with the Federation of Street Traders in the matter, and it is a little feeble for the federation to say, "We did not realise that there is nothing in the provision about an appeal to the magistrates' court". One does not have to be an expert lawyer to observe whether a provision of that kind is in a Clause. I am sure that the federation is not composed of innocents who are likely to be misled by any complications of drafting.
The L.C.C. sought to arrive at this solution, but it has been unable to do so, through no fault of its own, but through the ineptitude of the federation and what I regard as the unsatisfactory comments of the Home Office, which waded in and said that it did not approve of the idea of giving discretion to borough councils. We are now in the unhappy dilemma when no choice is the right answer before us, and we have to choose which, on the whole, seems to be the better of two rather unsatisfactory situations.
Since what the L.C.C. sought—namely, the absolute discretion of borough councils, subject to an undertaking to respect the rights of relatives—is not possible, and since the Government have pronounced against it, cannot we say that the right answer is probably to bring in a statute giving discretion to borough councils, subject to certain clearly laid down exceptions, one of which would refer to the rights of relatives.
There are plenty of parallels to that in statutes where Ministers, local authorities and other bodies are given the right to decide certain things but are required by statute when making a decision to take certain things into account. If they fail to take them into account their decision can be challenged in the courts. I still think that the simplest way to have got that would have been to give in law absolute discretion to the local authority on a clear understanding that it would act in the way in which the L.C.C. said it would act. Since that course is not to be followed by the Government, would not the right thing be to have a Clause giving discretion to borough councils subject to certain limitations which could be agreed between the local authorities and street traders?
That would be the right answer. Is it absolutely too late to get that into the Bill? This Bill has to go to another place. The procedure on Private Bill legislation is something which I think I may say without fear of contradiction only a few of us are expert about unless we have taken the precaution of looking up the particular points during the previous hour or so. I therefore took the precaution of ascertaining that there is no technical impassibility of having this Bill amended in another place, although of course such an Amendment, as in the case of any Bill, would have to return to this House for approval.
I am told, and I am quite willing to accept it, that it may be a somewhat lengthy process to get agreement of the Metropolitan boroughs, the L.C.C. and the Federation of Street Traders, but is it absolutely impossible? Could not the Government lend a hand in trying to bring the parties together and possibly even suggest the form of Amendment which would get the right result? I think the. Home Office has some responsibility in this matter, because it was its remarks, adverse to the L.C.C.'s original Clause, which helped to produce this situation.
I do not see why it should be impossible to get an agreed Amendment before the Bill finishes its course in another place. I think that would be the best solution. If it is impossible to agree on the Amendment I accept that we would have to wait another year, but I do not see why we should accept that counsel of despair from the start. Although I think the Bill would be better with this Clause than without it, I do not think it is very good because, apart from this Clause, the case of Stepney v. Schneider still operates and the discretion and rights which boroughs should have still seem to be the right answer. Whether there is a chance of achieving it in this Bill is, I agree, doubtful, but I do not think it should be assumed to be impossible.
In the meantime, faced with these two unhappy choices, I think we should do better to accept the Clause. I think it odd and inconvenient that matters like this should come under Private Bill procedure. The kind of things we have been discussing, the powers and duties of local authorities and how they should be exercised, are in their nature part of the public law of the land. This ought to be dealt with by some kind of public committee. We ought to have a kind of committee analogous to the Scottish Committee which would deal with legislation particularly that affecting London. After all, we are dealing with not far short of as many people in London county as there are in Scotland.
A great many of our difficulties tonight have been due to the fact that we have been dealing with what should be public law in this specialised Private Bill procedure. If the Government must interfere with the local government of London, that is one of the things they might at least look at while they are on the way.
I hope that some weight will be given to the suggestions which my hon. Friend the Member for Fulham (Mr. M. Stewart) made at the end of his speech. I am inclined to reach the opposite conclusion on the Clause, because if we have this admittedly inadequate Clause put into the Bill we shall not be able to remedy the major injustices for a good time to come. I can think of nothing more ridiculous than that we should put a Clause in the Bill this year and have a new Clause next year to repeal this one and then lay down the wider considerations which we ought to have before us.
It is evident from the confessions made and the statements made on behalf of certain Metropolitan borough councils this evening that many things which are not in accordance with the law, quite apart from the question of the Schneider case, are going on and that it would be as well if we had the whole matter settled on some such line as my hon. Friend the Member for Fulham suggested. It is surely ridiculous that it is now the law of the land that if a licence lapses for any cause the licensing authority is bound to give the licence to the first customer who puts in an application. It must lead to a lot of connivance when these valuable licences can be passed from one to another in some of the ways which have been explained to us tonight.
I hope that the hon. and learned Under-Secretary of State will take the suggestion made by my hon. Friend the Member for Fulham and try to get the authorities together. I hope that if it is possible to amend the Bill in another place we can have this year a Clause which will not deal with the establishment of a new hereditary caste in this country of people who have the right to succeed to a pitch in the market place merely because they are near relatives of the person who holds it at present.
I can see this becoming a considerable factor in the London marriage market and people saying, "Marry the girl. Her father has a pitch in the market place. She is the only daughter and he is not going to live much longer. With a little judicious help from you, of an unsympathetic nature, before you know where you are you will be the proprietor of a licence and will have your fortune made. When you have got it, get rid of the girl. It is yours and you can sell it in the black market," a black market which we have had so graphically described to us this evening.
It is ridiculous that this state of affairs should exist. It will be ludicrous this year to insert in the Bill this inadequate Clause, pointing the way to fresh abuse, and then next year to have another Clause in front of us to repeal this one and to deal with the matter on a wider basis. I hope that the Under-Secretary will report to the Secretary of State the suggestion made by my hon. Friend and I hope that in that way we may be able to deal with the situation satisfactorily this year.