With this it will be convenient to take the following:
May I first pay tribute to my hon. Friend Mr Brazier? He has spent considerable time on the Bill and I thank him. His duties on the Select Committee on Justice will prevent him from being in the Chamber for the duration of the debate. My only hope is that he does not regret asking me to help with the Bill today.
As I have said, considerable time has been spent debating these issues, and it is therefore not my intention to speak for too long. The first group of amendments made in the other place relates to enforcement. When the Bill was introduced to the Lords, the Bill provided that council officers could seize articles, receptacles or equipment when a person was reasonably suspected of committing a street-trading offence or of helping another to commit the offence. The Bill also stated that a court before which a person is convicted of a street-trading offence could order the forfeiture of seized items, and that an authorised council officer could serve a fixed penalty notice on a person whom he reasonably believed had committed a street-trading offence, or an offence of aiding and abetting, counselling or procuring the commission of such offences.
The Lords Committee was concerned that some of those enforcement powers were disproportionate, and that they could be used to prevent pedlars from lawfully carrying out their business. It therefore removed the power of seizure, but left the power to issue fixed penalty notices. It inserted a provision requiring councils to train all officials charged with exercising the remaining powers, and to publicise on their websites information about street trading and street trading enforcement in their areas.
I am aware that amendments to Lords amendments have been tabled. The amendments proposed by my hon. Friend Mr Chope are, as I understand it, concerned with the publicity provisions. They would specifically require the details to include information on the streets contained in the designated areas within which special provision on pedlars will apply. The amendments would mean that the publicity must describe the boundaries of designated areas and require the councils to display the information prominently in a designated area.
The councils believe that the amendments are unnecessary. The information that they publish will be comprehensive and it would be neither practicable nor desirable to display all the information in a designated area. These days, most people have access to the internet, where all the information would be found. The prudent street trader would check the rules in advance of trading.
There are also concerns about the proliferation of signs and unnecessary street clutter. I hope the House supports the amendments I have tabled.
I thank my hon. Friend Stuart Andrew for taking this on. I will not be able to be in the Chamber for most of the debate because of the duties he mentioned. The matter has been running for some years and has cost Canterbury city council a great deal of money—no doubt, it has cost the other councils a great deal of money too. We made concessions on the original Bill in the Commons and further concessions were made in the Lords. I very much hope we can get this business finished this afternoon.
Given the first two speeches, it might be advantageous for the House if I set out the Government’s position. We do not normally seek to intervene on private business, but we have in this case—not on the substance, but to ensure that it is consistent with the EU services directive. We are content for the business to go forward. As it happens, I am a great personal fan of all four cities concerned not least because one is the city of my forefathers—that is my personal position. The Government’s position is that we are content for the Bill to go forward.
I have listened with interest to the three contributions to the debate. My hon. Friend Stuart Andrew, with typical understatement, said that their lordships had some concerns about the Bill—the disproportionate powers, the power of seizure and so on. We will discuss the pedlars aspect of the Bill under the second group of Lords amendments, but essentially, their lordships have filleted the Bill. The Bill originally extended to some 18 clauses, but it now has only 13. The clauses that have been taken out are the subject of the Lords amendments we are discussing under this group—clause 6, on seizure; clause 7, on the seizure of perishable items; clause 8, on the return and disposal of seized items; clause 9, on the forfeiture of seized items; and clause 10, on compensation when seizure is unlawful.
You, Mr Deputy Speaker, may recall that the concerns expressed by their lordships were also expressed by my hon. Friend Philip Davies and I, and by other hon. Members, during the passage of the Canterbury City Council Bill and the three other Bills we are considering.
Let us briefly remind ourselves of the history. The Canterbury City Council Bill was presented to Parliament as a private Bill on
Fortunately, Members of the other place took the Bills seriously—we owe them a great debt of gratitude. My noble Friend Lord Lucas, who took an interest in earlier Bills, did not serve in Committee in the other place, but he has been instrumental in working closely with pedlars and their representatives to ensure that the importance of the Bill was raised in the other place. As a result of that and Lords petitions against the Canterbury City Council Bill and the other Bills, the House of Lords Opposed Bill Committee sat for three days in November 2011. The other place debated the Bill in Committee on
I welcome my hon. Friend the Minister to the Front Bench. I was hoping that my hon. Friend John Penrose, who was in his place earlier in the Bill’s passage, would continue his interest in today’s subject matter, but unfortunately he is unable to do so. What the Minister failed to tell us about in his short contribution was that between the Committee stage on
One consequence of what the Minister said—if the Government are happy for the Bills, as amended by their lordships, to go on to the statute book—is that we will have several different regimes for dealing with the regulation of pedlars operating in this country: the regimes of councils that got their Bills through before now and that tend to have a tighter regulation than this one; the Bills before us today; and all councils continuing to operate under the existing law relating to pedlars. The Government have said that they do not think that that is satisfactory. I am therefore surprised that they seem to be relaxed about allowing to go on to the statute book four new local Bills that will be inconsistent with the Government’s intentions as set out in the consultation paper. My hon. Friend the Minister could argue that the closing date for contributions to the consultation paper is not until
In the Third Reading debate on the Canterbury City Council Bill in the other place—
Before my hon. Friend moves on, given that a number of the amendments relate to the amount of training that would need to be given to people by local authorities, would it not be a spectacular waste of money for local authorities to spend an awful lot of money on training people, only for a Government Bill to make all that training completely redundant?
I could not agree more with my hon. Friend on that point. He refers to the money that has been wasted. Councils and council tax payers will need to ask questions about how they got themselves into this mess. They have each probably spent hundreds of thousands of pounds to try to promote legislation that was ill-conceived from the outset and was certainly ill-conceived following the implementation and introduction of the EU services directive. It has also been much criticised at all stages in this House and in the other place.
It would be wrong not to pay tribute to the work that was done in the other place to examine the Bills in detail. The Committee was set up and chaired with enormous aplomb by Baroness Knight of Collingtree, whom we all remember as a formidable Member of this House. Its members included Lord Blair of Boughton,
Viscount Eccles, Lord Glasman and Lord Strasburger, who took a detailed interest. If any hon. Member wishes to have a handy summary of its conclusions, they are set out in the House of Lords Third Reading debate on
. I will not quote extensively from it, but in the context of this group of Lords amendments let me say that Lord Bilston, who introduced Third Reading in the other place, said on the issue of enforcement:
“All four Bills would have allowed the councils to seize items from unlawful street traders. The committee thought that this was a step too far and removed the seizure provisions. The councils were naturally disappointed, but were pleased that the committee was content leave in the fixed-penalty provisions.”—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 444.]
Given the extent to which the Lords amendments fillet the Bill, as my hon. Friend described, where do they leave its substance? He will recall that when we were debating these matters in the previous Parliament, we were told that all the clauses relating to seizure were essential for local authorities, and that without them the Bill would be pointless and worthless. Does my hon. Friend have any comment on where it would leave the Bill if we were to accept the Lords amendments?
It would leave the Bill exactly as it is now, but with those aspects removed. The point needs to be made—my hon. Friend is probably making it—that there are going to be a lot of words to be eaten as a result of this. Some of my hon. Friends and Opposition Members were saying how essential these powers were, and that the Bill would be wholly unworkable without them. Now that these powers have been removed and they are carrying on quite contentedly. Either their bluff has been called, or they do not want to face up to the new reality. I cannot ascribe motives to my hon. Friends or to Opposition Members; all I can say is that the councils will need to think carefully about whether they took the right line in promoting the Bills. Apart from anything else, Baroness Knight said that
“the four Bills presented would undoubtedly have given councils a disproportionate power in relation to suspected street trading offences.”—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 446.]
That is why they reduced those powers significantly and, in relation to the issuing of fixed penalty notices, introduced a requirement that councils trained all officials. Viscount Eccles was even more robust, saying:
“I want to talk briefly about fixed penalties. I think that in principle fixed penalties are undesirable. They may be necessary but, when they are, they are a necessary evil. The problem is that many people acquire the power to impose fixed penalties. We try to offset that by training and I hope that that works, but”— it had to be recognised that—
“all power corrupts.”
He could see the dangers in the Bill as originally drafted, and that there is still potential danger in the Bill as amended by their lordships in relation to training. Then the noble Lord Strasburger explained:
“We added a requirement for better training of council officials on trading laws and”— my hon. Friend the Member for Pudsey did not make this point—
“constrained the value of fixed penalties.”—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 452.]
That differentiated, for example, between the fixed penalties imposed for failing to give a name and address from those imposed for giving a false name and address. That was a sensible amendment from their lordships’ House.
The amendments on enforcement are steps in the right direction, but I have tabled amendments to amendment C27 on information and training, which inserts a new clause after clause 17, but leaves rather a lot of loopholes. For instance, amendment (a) would leave out “on its internet website”, so that subsection (1) would read:
“The council shall publish information about—“
Why tell a council that it only needs to publish such information on its internet website?
It might have been a slip of the tongue, but my hon. Friend the Member for Pudsey said that all street traders could access the internet and find out what was going on, but the Bill is primarily concerned with pedlars, and pedlars and street traders are very different animals. Pedlars are on their own and normally travelling from town to town and from street to street. It is important, therefore, that a pedlar registered with the police in, say, Liverpool, when visiting Canterbury can find out what the rules are. A pedlar who has travelled to Canterbury from, say, Gravesend, might not have had access to the internet—perhaps because the local library was shut over the weekend, or whatever.
I have much sympathy with my hon. Friend’s point, but were we to remove “on its internet website”, how does he imagine that the information either would or should be published?
I imagine it would be published in a form that people could read, without having to access the internet—in other words, in a document or notice that could be obtained from local council offices or sent in advance.
I am presuming that, in essence, my hon. Friend’s amendment would actually help local authorities. Under their lordships’ amendment, the information would have to be published on the council’s internet website, whereas if his amendment was accepted, presumably the council could publish it in any form it liked. It could still be on the website, but the council would have a choice.
I accept that. If my hon. Friend is saying that my amendment is ill-conceived because it would not achieve the objective of enabling pedlars in a city such as Canterbury to find out what was happening, I am beginning to understand his point. That, however, is why I tabled amendment (e), stating that the information
“shall also be displayed prominently in any designated area”.
That would mean that when a pedlar arrived in a street on which he was not allowed to operate as a pedlar unimpeded, there would be notices in the street telling him so.
I take those sorts of allegations very seriously, particularly if one is talking about going soft in the head. I think my hon. Friend was referring to the Local Government Association. It is worth pointing out, therefore, the disparaging remarks made in the other place about how the LGA responded to the Government’s consultation in November. The noble Lord Lucas said:
“It would have been nice, too, to be able to praise the Local Government Association, but its reaction to the consultation was immediate, negative and silly.”—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 450.]
Even if I am going soft on the LGA, my hon. Friend will be pleased to know that the noble Lord Lucas is not pulling his punches.
Amendment (b), which stands in my name and those of my hon. Friends the Members for Shipley and for Wellingborough (Mr Bone), would insert a new paragraph after paragraph (a). The clause would then read:
“The council shall publish on its internet website information about the provision of this Act and of the 1982 Act as amended by this Act; and any street comprised in any area designated in section 5.”
If particular streets are to be brought within the ambit of streets on which pedlars cannot carry on their business normally but have to comply with requirements set out in these Bills, it is essential that there be no doubt about the ambit of those streets and that pedlars be given proper notice of where they may operate. That is why I tabled amendment (b)—so that the council has to publish information about any street comprised in a designated area.
Amendment (c), which would insert a new paragraph after subsection (1)(b), deals with information about
“the boundaries of areas designated under section 5.”
It would require that the information provided cover not only the streets but the boundaries of those areas. At the moment, the Bill enables the council to designate an area either on health and safety grounds or because the highway might be obstructed. The Bill gives it those powers but without the requirement to specify exactly how they are being applied.
I totally support my hon. Friend on these amendments. Does he agree that it is in the local authority’s interest to make this information clear, because if it wants to deal with an issue in a particular part of its city or district, it would be helpful for that information to be made clear? Given that my hon. Friend the Member for Pudsey seemed to dismiss his amendments very quickly, are we not in danger of repeating the scenario where amendments are discarded but later shown to have been perfectly sensible?
It is a significant danger, and that is the problem. Whenever anyone suggests we should deal with something on the nod, it means that the full implications of the proposal are not examined, but that is the whole purpose of scrutiny in this place. That is why I hope that in responding to this debate my hon. Friend the Member for Pudsey will address the substance of the points that my hon. Friend the Member for Shipley and I are making.
In all honesty, I had not expected that there would be objections, save perhaps on the basis of the “not invented here” formula, because people are not always generous in accepting other people’s ideas and suggestions.
However, I would like to put on record the fact that in considering these four Bills, I had a constructive meeting with a representative from Leeds city council, from which came the idea that the way forward would be to impose constraints on the size of the trolleys that pedlars can use in Leeds city centre. That theme has now been picked up in the other Bills and the Lords amendments, as well as in the suggestions in the Government’s consultation paper on where we go from here. That was a good example of constructive working between a Member of this House and an official from one of the councils seeking to promote this legislation. My hon. Friend might remember that when the question arose of whether any of the other councils would be prepared to accept similar constraints or amendments, they resolutely refused to engage. In a sense, they have now been forced to do so as a result of what happened in the other place, but there is always a lot more scope for those promoting these Bills and the officials behind them to speak with colleagues directly about issues such as the one my hon. Friend identifies.
“The information published shall, in particular, be such as the council reasonably considers is sufficient to enable those wishing to trade in the city to understand the circumstances in which they may lawfully do so.”
That would be much stronger if, instead of saying that the information shall be such as “the council reasonably considers”, it said that the information shall, in particular, be “such as is sufficient”. The important thing is that the information should be sufficient to enable those wishing to trade in the city to understand the circumstances. Whether the council thinks that information is sufficient is of subsidiary importance.
Is my hon. Friend contending that if the council reasonably considered that it did not need to provide any information at all, that would be fine under the current wording? He is much more skilled in the law than I am. What constraints would there be on the local authority before a court if the existing wording was not amended as he seeks?
It would be open to a council to provide minimal information, on the basis that the council reasonably considered it to be sufficient. Somebody who felt that it was insufficient—a pedlar who was potentially suffering a fixed penalty—would not be able to argue that the information was not sufficient to enable him to understand the circumstances under which he could trade, because all the council had to do was provide information that the council itself reasonably considered sufficient. The council would therefore be introducing a subjective test, thereby removing the effectiveness of what, on the face of it, seems perfectly sensible—that the information provided should be sufficient. The notion that the information is sufficient if the council considers it to be sufficient effectively negates what would otherwise be a worthwhile amendment.
I would like to press my hon. Friend on the words “the council reasonably considers”. Would what the council reasonably considered sufficient be materially different from what anybody else reasonably considered to be sufficient?
It may well be, and that is my concern. Let us look at what has happened in the past. Their lordships found a lot of evidence that councils were making assertions about the conduct of pedlars that they could not back up with evidence before their lordships’ Committee, so a council might consider something to be sufficient when it is not sufficient, because of that council or its officers having a particular prejudice or taking a cavalier approach.
My hon. Friend is absolutely right that the Bill would surely be clearer if it did not allow the council discretion. If the council were to err in its use of discretion, that could lead to judicial reviews and all sorts of expenses to the council, so the promoters of these Bills would benefit by accepting his amendments.
I am most grateful to my hon. Friend for that succinct and, I hope, persuasive—indeed, conclusive—argument in support of my amendments. I hope that our hon. Friend the Member for Pudsey has noted it—although sadly I do not see any messages being passed between him and the people sitting in the officials’ Box on behalf of the promoters of the Bills.
“and shall also be displayed prominently in any designated area.”
It is obviously useful for a motorist visiting a town who is thinking of parking somewhere to know where the parking restrictions apply, and the way to find out is by looking at a notice close to where they intend to park. Similarly, it is quite useful for pedlars intending to peddle their goods in a city or town centre to be able to see on a notice whether a different regime operates there compared with the national regime. That is fundamental to ensuring fair play and justice for visitors to a designated area who are not quite sure whether it is indeed a designated area, and so on. What harm would there be in requiring signs on the circumference of a designated area to make it absolutely clear to any passer-by?
I wonder whether my hon. Friend has given any consideration to the design of such signs and how it might be made clear to people that they are in a peddling or non-peddling zone.
It would be useful if there were distinct signs. Indeed, an enterprising local authority might want to invite local schools to enter a competition to see who could produce the best design for such a sign. I do not think there should necessarily be uniform signs across the country, because that sounds rather bureaucratic and top-down. The most important thing is that the signs should be prominent and clear and not contain a lot of detail—unlike the conditions on the back of one’s new credit card, for example. There need to be relatively few words, prominently displayed.
I urge my hon. Friend not to do down the communist route of centrally dictating things, because these are individual Bills. It would not be beyond the wit of man to have little signs, as we do with conservation areas, for instance. That would be useful. Will the promoters of the Bill will accept these amendments?
I thank my hon. Friend for supporting these amendments. I have yet to hear officially, although in introducing the debate on their Lordships’ amendments and mine at the beginning of the debate—I know my hon. Friend the Member for Wellingborough was not in his place at that time—our hon. Friend the Member for Pudsey implied en passant that he did not want to accept any of these amendments. Perhaps in the light of the ensuing debate, he will change his mind.
Colleagues elected in 2010 have discovered that when they are asked by promoters to promote a Bill in this House, it does not mean that they lose all their discretion over it. It is ultimately up to them as Members of Parliament to decide what to accept and what not to accept, and they do not need to be beholden to the officials.
I am grateful to my hon. Friend, as I was getting very worried about this constitutional principle. It is surely up to this House and not up to individual promoters or local councils, to decide what passes into law.
Absolutely, and I am sorry if I did not make that clear. There was an occasion—you may remember it, Mr Deputy Speaker—on a different private Bill earlier in this Parliament when one of my hon. Friends felt a certain reluctance to do anything other than what he had been told to do by the promoters. I explained to him that he would be doing the promoters, himself and the House a good service if he showed some flexibility. In fairness to him, he did show such flexibility. That is a good precedent, and I draw it to the attention of my hon. Friend the Member for Pudsey in case he was not there at the time.
Going back to the substantial issue of notices, as my hon. Friend knows, I am with him on virtually all of this and have been for a number of years. However, we are in danger of parting company, I fear, on the issue of the notices being different in every local authority. Surely the whole point of the objection is that people going from one place to another cannot be expected to know the exact regime in a particular place. Surely therefore it would be helpful if the same notice were in place in each local authority. Just as “no parking” notices are the same across the country, should not the same thing apply to pedlars’ notices?
Fortunately, if we disagree on this issue, it need not concern us because the amendment does not spell that out. It was only in response to an intervention from our hon. Friend Jacob Rees-Mogg that I ventured to suggest that if any notices were produced, they need not be uniform across the country. That, of course, would be left to the discretion of the local authority, so I think my hon. Friend and I can probably live together on that particular interpretation.
Sorry, I should not anticipate next Tuesday’s debate. I can see that my hon. Friend is going to be on really good form next week.
Amendment (f) to subsection (1) of the inserted new clause on training deals with the same theme of trying to remove the subjective test for the council so that there is some objectivity about it. Instead of saying:
“The council shall not authorise an officer to act for the purposes of this Act unless they are satisfied that the officer has received adequate training”,
subsection (1) of the inserted new clause on training would say:
“The council shall not authorise an officer to act for the purposes of this Act unless the officer has received adequate training”.
It would no longer be an issue of whether or not the council was satisfied, but a more objective test of whether the officer had received adequate training. Obviously, if the council is doing the training and it is by any objective test inadequate, that would not be a problem under the current wording. Only when the council has to satisfy an objective test in relation to training will we ensure that the right quality of training, to which our noble Friends in the other place referred, will be implemented. My amendment would strengthen this part of clause 17.
I am sympathetic to what my hon. Friend says, as he is making a good point. Does he know how this compares with what is required for other officers employed by local authorities—whether it be parking attendants or even perhaps the police force? Are my hon. Friend’s proposals the norm or is what is in the Bill the norm in that respect?
In all honesty, I do not have the comparable statutory provisions before me to be able to answer my hon. Friend’s point. I am sure, however, that with the resources that have gone into the budgets of the promoters’ advisers, that sort of information should be available. Perhaps we will hear in due course from our hon. Friend the Member for Pudsey and find out whether similar provisions apply anywhere else.
This issue should not be treated lightly. Their Lordships were quite concerned that, if we are going to allow people who are not constables or police community support officers to intervene in these areas, and we are going to allow “authorised persons” to intervene, it is essential that those authorised people are properly trained.
In many respects, this amendment is more important than my hon. Friend’s previous amendment. The provisions on information at least ask the council “reasonably” to consider whether they are sufficient, whereas without my hon. Friend’s amendment, the wording on the training provisions is that the council needs only to be “satisfied”—not that it “has reason” to be satisfied or is “reasonably” satisfied. It is literally as blanket as that. Surely my hon. Friend would agree that his amendment on the training aspect is even more important than the one on information.
Yes, it would be a shame if we could not vote on all of them—perhaps some of them will be accepted. I must not be downhearted at this stage, as they might all be accepted. However, in the event that this one is not accepted, I can understand my hon. Friend’s point that it would be a useful amendment on which to test the opinion of the House. The essence of my amendment (f) is that it is designed to prevent the officers of the local authority from being judges in their own courts. That is a pretty fundamental principle, and I would have thought that all Members would like to sign up to it and apply it in practice.
I am sorry that I was not in my place to hear the beginning of my hon. Friend’s exposition of his various amendments. On this particular amendment and even allowing for it, it will still be up to the council to determine what is and what is not “adequate”. Does my hon. Friend think that it is right for the council to decide rather than some independent body?
I would have hoped that we could trust councils to provide adequate training. The purpose of my amendment is to try to ensure that that happens. If the training is not adequate, it will be open to somebody to make a complaint to the council or the councillors; ultimately, it could be used as a defence to a fixed penalty notice or something like that—although I would not want to speculate on that. The test is that the officers must be properly trained: that is what the provisions would require—rather than that the council thought the training was adequate. I hope it would not be necessary to set up a new bureaucracy—an appeals panel or something like that—to deal with the situation, as we are already overburdened with bureaucracy and officialdom in this country, and we do not want even more of it.
My amendment (g) to Lords amendment C27 proposes the deletion of subsection (2), which makes training provided by the council mandatory. It states:
“The council shall make the training referred to in subsection (1) available also to constables and community support officers empowered by section 5(1) to give a fixed penalty notice.”
That is redundant, because constables and community support officers receive training that enables them to perform this function outside the ambit of any particular local Act relating to pedlars, and it is therefore unnecessary to require the council to become involved in training them. Obviously, if the chief constable asks the local council whether it will provide training for constables and community support officers, the council will probably be happy to oblige and to explain the procedure.
I thank my hon. Friend for giving way—he is being exceptionally generous—but did he mean to refer to the police and crime commissioner just now, rather than the chief constable?
I think that it would be the chief constable in this instance. My understanding is that police and crime commissioners are there to decide whether to hire and fire, and to set out the budget for the police authorities, whereas operational issues are dealt with by the chief constables. I would regard the question of whether constables or community support officers on the beat are capable or knowledgeable enough to introduce or apply a fixed penalty notice regime as an operational issue.
I would understand my hon. Friend’s logic if this were national legislation, but given that it is local legislation, by virtue of being a private Bill, surely it should be up to the police and crime commissioner to decide whether he wants to get involved with this nonsense at all.
I take my hon. Friend’s point, but I trust that police and crime commissioners have bigger fish to fry.
I hope that my hon. Friend the Member for Pudsey will support my amendments. As was made clear earlier, they also apply to the other Bills with which we are dealing today. We are not picking on Canterbury in particular, but it is the first Bill on the Order Paper.
I commend my hon. Friend Mr Chope not just for his speech, although it was of the customary calibre, but for his dedication in ensuring that, if the Bill ever leaves this place, it will leave in a much better state than the state in which it arrived. Without my hon. Friend’s personal dedication to this issue, and his determination that we should do what we ought to do in this place—that is, defend people’s freedoms and defend enterprise—the Bill would have passed through Parliament in a much less satisfactory manner.
Like my hon. Friend, I am grateful for the work that was done by their lordships. I do not know whether my hon. Friend felt the same, but I feared that the Bill would go through on the nod in the House of Lords. Their lordships should be commended for going through it in great detail and considering the arguments properly, and, consequently, tabling some amendments with which I think we can be particularly pleased.
I agree with what my hon. Friend said about many of the amendments. He focused on the subject of seizures, and on the Lords amendments that proposed the omission of various clauses relating to it. He may recall that the issue caused great controversy when it was debated for the first time in this place. It struck me as unacceptable that local authorities should employ authorised officers to go around seizing people’s goods willy-nilly. As my hon. Friend will recall, we argued the case vehemently for many months. We were told that the clauses were essential to the Bill, and that without them it would be unworkable and meaningless. We were also told that the proposals in the amendments would be unenforceable, and that they were in effect wrecking amendments: that, if I remember rightly, is what my hon. Friend was accused of when he tried to persuade the promoters that what they were saying was over the top.
I should be interested to know why the promoters thought that removing those clauses then would wreck the Bill, whereas removing them today apparently does not wreck it all. It seems that it will still be fit to proceed into law. It is difficult for us to consider the merits of the amendments until we are given some satisfactory answers to the question of how important the clauses are to the Bill as a whole.
I have the impression that we have reached a stage at which the promoters are determined to produce an Act of Parliament, irrespective of what is in it and whether anything that is in it will ever be applied. This seems to have become a war of attrition, a battle of wills. The promoters seem merely to want an Act of Parliament to hang their hat on. I certainly support the removal of all these clauses—page after page of them—and I think we should be grateful for the fact that the promoters may have come round to my hon. Friend’s way of thinking.
My hon. Friend has made a good point. Is there not a chance that because so much council tax payers’ money has been wasted on Bills that were not thought through thoroughly to start with, the promoters are determined to drive through a Bill to justify that waste?
My hon. Friend is right. A similar attitude was taken by the previous Government. The idea is to waste a lot of money on something that is clearly not working, and then, instead of drawing stumps and cutting your losses, to keep spending more and more, just so that there is something to show for all the money spent. All that happens, though, is that even more money is wasted.
My hon. Friend is far better read than I am. The right hon. Gentleman’s book is gathering dust on my shelf, and I have not got round to reading it. However, I will look out for that section when I do get round to it. I agree with what my hon. Friend the Member for Christchurch had to say about seizures, and our comments about seized items are on the record from the previous debates. I stand by what I said then and I am sure that he also stands by what he said, and I am delighted that their lordships have agreed.
Does my hon. Friend agree that it is important that other promoters preparing private Bills take into account the verdict of their lordships on these seizure powers? We have seen a lot of attempts to introduce or smuggle equivalent powers in other private Bills.
I absolutely agree. I hope that, in many respects, what their lordships have done will set a precedent and that we will not have to worry so much about some of the worst consequences of such legislation.
A notable omission from my hon. Friend’s speech was the issue of touting, although I appreciate that he was trying to be as brief as possible. If he did mention that and I missed it, I apologise to him. One amendment before us today deals with touting. He did not mention it—[Interruption.] I think it comes later on in our proceedings. It is in the third group, so I will save up my expertise on touting until that time; I apologise for mentioning it now.
The amendments tabled by my hon. Friend the Member for Christchurch were focused mainly on training. My hon. Friend Stuart Andrew is my parliamentary neighbour and an excellent Member of Parliament. The only bad thing about having him as my neighbour is that he puts me to shame. He has already successfully steered a private Member’s Bill through Parliament in his short time in the House. He did so with an awful lot of panache and charm, and by being practical and reasonable about what it was sensible to do in order to get that legislation through. I very much hope he will adopt the same strategy now, because he saw how well it worked with his Bill; I hope he will use that experience when considering this legislation, too.
Let us consider the debate we have had so far from a layman’s perspective—from the point of view of people who have no vested interest in the legislation and who have not been going through battles which started six years ago, as my hon. Friend the Member for Christchurch said. People who do not have that baggage and who listened to the argument that my hon. Friend made for his amendments to Lords amendment C27 could not fail to have been persuaded by his case. We started from the position that these Bills were designed to give local authorities far too much power—that was the whole point for us when we started out. As a result of my hon. Friend’s work and what happened in their lordships’ House, gradually, bit by bit, the excessive powers have been whittled down. We hope to end up with legislation that, although perhaps not ideal—it may not be something we particularly agree with—will certainly be an awful lot better than it was when we started out. We have an opportunity to carry on the theme that my hon. Friend started, and that their lordships continued, by removing some of the remaining parts that put far too much power in the hands of local authorities and give far too little protection, literally, to the man on the street.
My hon. Friend is absolutely right about that. It is why some of us felt so strongly about these Bills and, in particular, about the issues relating to seizure. It is to be commended that their lordships have done what they have historically done—defend people’s freedoms—but we should not have to rely on their lordships for that; we should be doing that in this place, too. We have a great opportunity to demonstrate how important that is to us through my hon. Friend’s amendments.
The promoters of the Canterbury City Council Bill chose well when they selected my hon. Friend the Member for Pudsey as the person to steer it through the House. I am sure that it would be in everybody’s interests if the amendments tabled by my hon. Friend the Member for Christchurch were accepted. I am a signatory to them, so I would say that, but their genesis lies with my hon. Friend and I do not want to take the credit away from him.
“The council shall publish on its internet website information”.
My hon. Friend wishes to remove the words “on its internet website” from that provision. I am not so bothered about that one, not because I disagree with it, but because I am not sure it would achieve what he intends. It would not preclude the council from simply putting the information on its website; the council would still be able to do exactly the same thing, so we would be no further forward. I think my hon. Friend intended that the council should not simply be allowed to leave it at that and that other forms of communications should be used, particularly for people who do not have access to the internet and the relevant website. I agree with his approach, but the amendment would not achieve its purpose and we could end up with a bizarre situation where the unintended consequence was that the local authority published even less information than was available for pedlars. Amendment (a) certainly does not require the local authority to publish more information, so I think we can leave it to one side—I hope my hon. Friend will agree.
There is far more merit in my hon. Friend’s other amendments to Lords amendment C27, and I very much hope that my hon. Friend the Member for Pudsey will give them serious thought. None of us wishes unnecessarily to delay further the proceedings on this legislation, and I am sure that the Bill’s promoters do not wish it to be delayed further, so my hon. Friend the Member for Pudsey has a great opportunity here. I cannot speak for my hon. Friend the Member for Christchurch but I think that if my hon. Friend the Member for Pudsey were to give way on these amendments, the progress of this legislation could be much speedier. That would be a small price for the Bill’s promoters to pay, because not only are these amendments designed to make things better for the pedlar, but, as far as I can see, they are better for the local authority.
Amendments (b) and (c) would mean that the council would make things abundantly clear by publishing details of the streets covered by the legislation. That is not catered for in the Bill at the moment. If that is such a big issue for these local authorities and something that needs all this time and expense to deal with it, surely it is in the best interests of these councils that everybody knows which streets are affected and which are not, and the boundaries of these rules. With the best will in the world, I am sure that even my hon. Friend the Member for Pudsey would not suggest—I hope he will not—that council officials will be on every corner of every street waiting for pedlars to appear in order to turn them around at the first opportunity and issue them with a fixed penalty notice. I would like to think that council resources do not stretch that far. On those days when there is no council official waiting to move a pedlar on or to issue them with a fixed penalty notice, surely it is in the interests of the local residents and the local area that people are following the rules because things are clear and that they are not mistakenly in a place where they should not be. Through his amendments my hon. Friend the Member for Christchurch is striking a blow not only for freedom but for the efficiency of the local authority in carrying out its wishes.
Is not one of the problems the fact that local authorities have form on this issue? On Third Reading in the other place, the noble Lord Strasburger said that the Select Committee spent a lot of time trying to find out why the four local authorities wanted the powers to seize and introduce fixed penalties. It was told that pedlars sell substandard goods, but as he said
“no evidence whatever was offered to prove this allegation”.—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 451.]
With this it will be convenient to take the following:
My understated manner was mentioned earlier, and I plan to carry on in that manner as I speak to this group of amendments. The pedlar provisions have generated the most interest, from those who petitioned against the Bills in the Lords and from a number of hon. Members in this House. Under the existing licensing legislation, an exception is given to persons who act as a pedlar under the authority of a pedlars certificate granted under the Pedlars Act 1871. The Bills would have limited that exemption so that it applied only to pedlars who traded by way of house-to-house visits. All other pedlars would have required a street-trading licence or consent.
The Lords Committee amended the pedlar provision very much in favour of pedlars. The amendments made will now restrict the exemption from the street-trading regime enjoyed by pedlars to trading by house-to-house visits, trading without any means of support—that is, by traders carrying the items they wish to sell—or trading with a wheeled trolley that does not exceed 0.75 metres in width, 0.5 metres in depth and 1.25 metres in height. The overall size of the display of goods has also been listed in the provision. So the Committee has limited the circumstances in which the restrictions on acting as a pedlar can apply.
My hon. Friend has referred to the Committee stage of the Bills in the other place. He will be aware that since then, on
I am grateful to my hon. Friend for that intervention. Honestly. This process has been going on for a considerable time. In fact, even back in the 1990s, the Home Office was promising to introduce changes, although it never did so. We could go on debating these matters for many years to come. I shall now continue to make my points.
In addition, the amendments provide that the restrictions on pedlars’ activities should be confined to areas that have been designated by the councils. Each designation must be justified against two criteria. One involves ensuring road safety; the other involves preventing the obstruction of the highway. So, as I mentioned, the regime in the Bills is now far more generous to pedlars than the one originally set out in the Bills. The promoters of course accept the decision of the Lords in this regard.
I am aware that my hon. Friend Mr Chope has tabled further amendments to these amendments on all four Bills. His amendments are mainly concerned with the designation of areas. They would have the effect of allowing designation of streets rather than areas, and would limit the reasons for designation further than the Lords Committee thought necessary. The promoters do not agree that his amendments are necessary or desirable. They believe it to be entirely appropriate that they should be able to safeguard against obstruction of the highway, as the Lords decided.
My hon. Friend has also tabled amendments to the Nottingham City Council Bill and the Reading Borough Council Bill. Nottingham and Reading have included extra provision whereby the councils will be able to control the purchase, as well as the sale, of tickets under street-trading legislation. It is perhaps worth noting that the sale of tickets on the street is already subject to street-trading legislation nationally, but ticket touts buy tickets as well as sell them. My hon. Friend’s amendments would not change the position in general for Nottingham and Reading councils. They would still be able to control the buying of tickets. The Lords amendment that he is seeking to alter is a consequential one, and the councils do not believe the change to be necessary or desirable. I therefore commend the Lords amendments to the House.
As my hon. Friend Stuart Andrew suggested, we have now come to the meat of the Bills—namely, the provisions on pedlars and street trading. Their lordships looked at the issues and decided that clause 4 should be left out. Amendment C8 covers that. Under amendment C9, clause 5 would be left out and the new clause to which my hon. Friend briefly referred would be inserted.
Confusion has been caused. Since the Lords looked at these issues in November 2011, the Government have come forward with a consultation that effectively says that, because of the impact of the services directive, it is important that the Pedlars Act be repealed nationally. Although I agree that this process has been going on for a while—many years, perhaps—this is the first time we have got what might be described as a European dimension. If the European services directive is going to apply as the Government interpret it, we in this subordinate legislature will not be able to act outside its terms. The Government will not have any option but to proceed along the lines set out in the consultation document.
The Department for Business, Innovation and Skills impact assessment states:
“In any case, our assessment is that the Government has no choice but to abolish the Pedlars Act to comply with the European Services Directive.”
Unusually, my hon. Friend Mr Nuttall accurately represents the Government position. Some aspects of the Pedlars Act are inconsistent with the European services directive. The consultation that will close on
I am grateful to my hon. Friend for that intervention, and I therefore presume that the Government will vote against Lords amendment C9, which was passed in the other place in 2011, as it has been overtaken by events. It tinkers with amendments to the pedlars legislation, but the Minister says the legislation should be completely repealed.
That may be the case in the future, but our national Parliament is still sovereign to the extent that, until we implement the services directive in legislative form, we will have the existing law on the statute book. If we accept Lords amendment C9, we will in effect be re-enacting something the Government tell us is no longer consistent with European law.
Many Members—and, I suspect, many pedlars, too—would be very pleased if we were to free ourselves from the shackles of Brussels, and we are greatly looking forward to the referendum on the matter. The points being discussed today are part of the campaign, as we are setting out reasons why we would be better off out. Until we rid ourselves of distractions from Brussels, however, we are stuck with having its rule of law apply to our own legislation. I hope that in due course the Minister will explain the Government’s position: do they support or oppose amendment C9?
I have some sympathy with amendment C9 as it contains many of the proposals that we were trying to persuade councils other than Leeds to accept when this Bill was before our House. Leeds conceded that instead of having a regime under which pedlars could only go from door to door, it would be content with one where pedlars could go to pedestrianised high street areas, provided they did not cause an obstruction by having a very elaborate and large apparatus. That is where the concept of having trolleys of limited size came from; it came from Leeds city council, and the idea was discussed with me and some of my hon. Friends. The proposal to give pedlars the freedom to operate on the street with a trolley of sufficient size to enable them to display their goods and provide articles to those who wish to purchase them is a valuable development and makes a lot of common sense. Although the Government consultation specifies a maximum size of trolley rather larger than the one specified in amendment C9, they appear to accept the principle.
On whether I personally agree with that amendment, I am still very sceptical about whether the Government interpretation of the services directive is correct. When we first raised this issue after the services directive had come into force, the Government took the line that it was of no consequence or interest, so their interpretation has changed significantly in just a couple of years, and they might change it again. Because things are in a state of flux, it would seem to me premature—if one can use that word in respect of a Bill that has been before this House for over six years—to proceed now with amendment C9.
The Minister has said that the amendment was passed in the Lords and since then there have been developments, but there has been no opportunity for us to accommodate this in our legislative process, because the promoters of the Bill could not anticipate what the Government were going to say in their consultation at the end of November. It is interesting that the consultation paper was issued so late that it would not have been possible, even with their lordships’ procedures, for the promoters to move a Third Reading amendment, even if they had been really on the ball. The promoters have therefore not been able to reflect in the Bills what the Government now say is the position.
One would have expected the Government to table amendments to the Lords amendments to set out, beyond peradventure, what, if anything, should be in the Bill instead of clause 5, which is being left out. I find the situation rather perplexing. It is important that it is clarified.
My hon. Friend mentioned that it was suggested in the consultation document that a rather larger trolley be allowed. Is he as surprised as I am that neither the promoters nor the Government have brought forward amendments to bring the new clause in Lords amendment C9 in line with the consultation document?
I am surprised about that. I am also a bit disappointed in myself, because I should have tabled such an amendment so that the House could have discussed it. I failed to do that, so the House does not have the opportunity to compare the alternative proposals for the best size of trolley.
While we are on the sizes of trolleys, my hon. Friend will see that Lords amendment C9 gives specific measurements for trolleys, including a width of 0.88 metres, a depth of 0.83 metres and a height of 1.63 metres. First, can he help those of us who do not understand the meaning of 0.83 metres by telling us what those measurements mean in old money? Secondly, does he have any idea why those measurements are so specific?
The short answer is that I am not able to convert metres into feet and inches. I take my hon. Friend’s point that it would be much better if the measurements were expressed in a way that most people can understand. Most people understand feet. I am told that I am approaching 2 metres in height, if that gives my hon. Friend any guidance on the size of the trolleys.
As my hon. Friend knows, the consultation is ongoing, so there is good reason not to bring forward amendments at this stage. To do so might be seen as prejudging the consultation. The appropriate size of trolleys is part of the consultation, so when the consultation closes, we will bring forward conclusions on what is the appropriate size.
So does my hon. Friend agree that it would be a good idea for the promoters of the Bills, when the appointed time for discussing them today has expired, to seek the indulgence of the Chairman of Ways and Means to ensure that the Bills are not brought back before the House until after the conclusion of the consultation period and until the Government’s position is clearer? That would enable the necessary consequential amendments to be made to the Bills, rather than their being rushed on to the statute book only for the councils that promote them to come back with fresh amendments in the future. Surely he would think that good advice for the promoters of the Bills.
Were our consideration delayed beyond the expiry date of the consultation, would the Government come forward with amendments to Lords amendment C9 so that it properly reflected the Government’s view on the impact of the services directive?
As a relatively new Member and Minister, I have much to learn from my hon. Friend about the procedures of this place. His ability to describe as rushed legislation that has so far been six and a bit years in the making, while at the same time speaking at great length to ensure that it is scrutinised properly, is very impressive. What he has said about timing is on the record and these things are always looked at.
I am grateful to my hon. Friend for his generous comments, and for noting, without expressing an opinion, that the point is now on the record for the promoters of the Bill. It is hard to imagine, but if I were a promoter of a private Bill, I would certainly be keen for everything to be dealt with in one Bill, rather than face a situation in which my Bill was amended and put on the statute book in a form that would not comply with legislation brought forward by the Government in due course. One difficulty the Government may have is that to amend private legislation that is different in different parts of the country could either involve hybrid Bills or rely on individual local authorities to bring forward their own private Bills, with all the scope that would offer for people to raise petitions and so on.
There is a serious issue about the status of pedlars, and what was said in the other place and resulted in these Lords amendments is highly pertinent to today’s discussion. The noble Lord Bilston told their lordships that the Bills were disproportionate, and that there was concern to protect the rights of
“genuine pedlars…who play by the rules, who move around when trading and who do not use oversized stores to display their wares.”—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 443.]
That is why he was keen to include in the Bill provisions to restrict the size of stores that can be used by pedlars, but otherwise enable them to carry on as before. His concerns were reflected by other noble Lords, including the noble Baroness Knight of Collingtree who said that, in essence, and as far as she interpreted the Bills, local authorities were
“seeking the total eradication of pedlars from their streets.”—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 445.]
Their lordships were, I think, wise and helpful in responding to the concerns expressed by pedlars on these issues, but I am not sure that they went as far as they could have done in ensuring that the new regime will work well in practice. The principal reason for saying that is reflected in my amendments to C9, which are centred around whether we should have “designated areas” or streets. Everybody understands a street; it has a name and can be found on a Google map—just to show how modern I am—and that name can be seen at the side of the street as someone walks along. A “designated area”, however, is much vaguer and could be large or small. The most difficult concept for us to deal with in clause 9, as amended, is that subsection (7) now states:
“The council may designate an area for the purposes of this section only if it has reason to believe that it is necessary to do so to ensure road safety or prevent obstruction of the highway.”
I have tabled three amendments to subsection (7). Amendment (e) would leave out “an area” and insert “a street”, and amendment (f) would remove the words
“it has reason to believe” thereby introducing an objective, rather than subjective, test as to whether the provision is necessary to ensure road safety.
My biggest concern is expressed in amendment (g), which seeks to leave out the words
“or to prevent obstruction of the highway”.
Obstruction of the highway is a wide and vague term, and means that any trolley, including one that complies with the sizes in the Bill, could be regarded as capable of creating an obstruction in the highway. The wording of the Lords amendment would enable a council to develop its bad faith towards pedlars. There is a lot of evidence that councils have such bad faith and that they wish to support the interests of their own street traders, who are licensed and pay substantial fees. Councils want to protect that income against competition from pedlars. We know that such ill will exists. The current wording would facilitate its development to the detriment of pedlars.
Does my hon. Friend share my concern that, if the words of the Lords amendment remained and were taken literally, virtually any article in the highway could be construed as an obstruction of it? It would therefore be possible for the authority to name virtually any street as being at risk of falling foul of the provision.
I am grateful to my hon. Friend for giving way—he is being exceptionally generous. In his desire to rush through his speech so that we can complete the business today, he has not admitted the fact that any obstruction of the highway is a police matter, and that they can deal with it. The measure is therefore superfluous.
My hon. Friend is absolutely right. Such measures are quite often a matter of interpretation. The trained police officer is in a far better position to interpret the law than a council that is prejudiced against the interests of pedlars. To reinforce the point about prejudice, the noble Lord Strasburger said on Third Reading that:
“It was alleged that pedlars create a situation that attracts pickpockets, but…no evidence was offered. It was also said that pedlars cause obstruction of the highway. Little evidence for this allegation was offered apart from a small number of cases where wide and expanding trolleys had been used…The witnesses who spoke for the local authorities were somewhat unconvincing. We heard evidence from pedlars that many council officers and the police are ignorant about the 1871 Act, and we also heard much evidence of a bullying culture on the part of council officials towards honest and hard-working pedlars.”—[Hansard, House of Lords, 3 December 2012; Vol. 741, c. 451-52.]
That is why we need to be alert to the precise wording of the Lords amendments. We need to ensure that the intention is to establish a level playing field for pedlars and street traders, and to ensure that pedlars cannot be undermined by over-zealous or prejudiced council officials. For those reasons, Lords amendment C9 would be much improved by amendments (a) to (h), which I have tabled.
Amendment (h) would remove subsection (8), which states that:
“The provisions of sub-paragraph…(2)…of Schedule 4 to the 1982 Act shall apply to a resolution under this section as they apply to a resolution under that paragraph but as if…for ‘street’ there were substituted ‘area’”.
That completely undermines the concept of pedlars’ freedom to go from house to house and sell their wares on the public highway by trading from street to street.
The Lords amendments grouped under the heading “Pedlars and street trading” are a significant improvement.
I was concerned that my hon. Friend seemed to be coming to a close. He does not seem to have mentioned—if he did, he glossed over it very quickly—Lords amendment C8, which relates to leaving out clause 4, something I think he mentioned only in passing. Does he have a view on whether leaving out clause 4 is a requirement of the services directive? It is unclear to me.
I am grateful to my hon. Friend for bringing that to the attention of the House, because it takes us back to our discussions on clause 4 in the previous Parliament. It was in the context of the provision of services that the issue of the services directive was raised. That was why, as I recall, we were arguing that the provision of services should not be covered under these particular local Acts. There seems to be a recognition that clause 4 is outlawed by the services directive. What I do not understand—I look forward to hearing what the Minister has to say about this—is why the directive also applies to pedlars who are dealing not in services, but goods. How does the directive apply to the sale of goods by pedlars? That is causing concern among the pedlar fraternity.
There may be as many as 4,000 pedlars in this country, so the implications are significant. They are concerned that if the legislation, which sets out a separate regime for pedlars and has been established for well over 100 years, is torn up and repealed, it may be that the significant status and freedom that pedlars have hitherto enjoyed—of being able to obtain a certificate and, as long as they are of good character, trade from door to door, place to place and town to town—will be removed from them.
As was said in their lordships’ House, pedlary goes back long before the time of Shakespeare to the time of Chaucer, if not before. Therefore, to tear up the 1871 Act, as the Government seem to be proposing in their consultation paper, would be damaging to the interests of pedlars.
Perhaps my hon. Friend can explain something to me before he concludes his opening remarks on this group of amendments. It is Government policy to encourage micro-businesses, and pedlars are small business men at the very smallest level. Therefore, it appears to me that these councils are going against Government policy.
That may well be so. If councils are going against Government policy, one would expect the Government to say to their supporters in the Chamber that they wish them to vote on the amendments in a particular way.
Sadly, my hon. Friend the Minister is temporarily not in his place, but I am delighted to see my hon. Friend Greg Hands in his place instead. I am sure he will make a careful note of what I am about to say. Under the heading, “Chapter 1 - Proposal to repeal the Pedlars Acts 1871 and 1881 (Part 2 of the draft Regulations at Annex A)”, the Government’s consultation paper, which is still out for consultation, reads:
“Below we detail our proposals (reflected in the proposed draft Regulations set out at Annex A) to repeal the Pedlars Acts 1871 and 1881 in relation to the whole of the UK.”
That is not a discussion of the possibility of repealing the Acts, but a specific proposal to repeal the Acts in toto. The proposal might still be out to consultation, but the Government have effectively made up their mind to repeal the Acts.
For reasons that my hon. Friend Mr Bone and others explained, the Government have been diffident about declaring their hand in relation to the provisions in the Bills when they have had the opportunity to do so. One of the difficulties when considering Lords amendments is finding out why they were proposed. As my hon. Friend Philip Davies just pointed out, removing clause 4 from this Bill and equivalent provisions in the other Bills was not referred to by my hon. Friend the Member for Pudsey. It was taken as a given, despite its having significant implications.
Neither was there proper explanation of why, if they thought that removing clause 4 would satisfy the services directive, the Government now say that to satisfy it we would effectively have to repeal clause 5 in toto and not replace it with any other provision relating to pedlars.
During the debate on the first group of amendments, my hon. Friend said, quite rightly, that the Lords had “filleted” the Bill. On the second group, does he contend that the removal of clause 4 and the total rewriting of clause 5 has the same effect of destroying the original arguments for why the Bill was necessary?
Absolutely. This takes us back to the precursors to these Bills, one of which was the Bournemouth Borough Council Bill. The argument put forward by the promoters was that life was intolerable for retailers in the city centres because of the activities of pedlars, and therefore that pedlars needed to be banned outright from the city centres. Now, as a result of their lordships’ amendment, the promoters have recognised that pedlars are welcome and free to operate in city centres—or is that really what they intend? Does the local authority really want pedlars to be free, or will it seize on the provisions about obstructing the highways to create designated areas where pedlars cannot operate?
Absolutely, because this clause—new clause 5, as I am calling it—effectively gives local authorities the discretion to interpret in their own way what they regard as a road safety issue or a potential obstruction of the highway, and what it is necessary to do to ensure road safety or prevent an obstruction of the highway. If local authorities are able to persuade themselves that something is necessary for the purposes of road safety—a wide concept that includes pedestrian safety—and they couple that with the need to prevent obstruction of the highway, that almost drives a coach and horses through the provisions. Local authorities would thereby retain almost absolute discretion to designate areas as they wished, potentially arbitrarily way to the detriment of the pedlar fraternity.
My hon. Friend’s amendment (f) would remove the words
“it has reason to believe that” from subsection (7) of the clause inserted by Lords amendment C9. I apologise for appearing for ever to be picking his legal brains, but does he have any idea what, as far as a court is concerned, would constitute a legitimate “reason to believe”?
Obviously I cannot give any legal advice, but the short answer is that if we are talking about a subjective test, all the council has to do is to say that it has reason to believe, whereas if we are talking about an objective test, the issue is not what the council believes, but what actually happened and the impact. If something was going to be an obstruction to the highway or have an impact on road safety, that could be objectively verified.
Is not the key to this the word “reason”? The council must have a reason to believe, as opposed to just believing without reason. Presumably, there must be some tangible reason to justify the belief; I am just concerned about how strenuous that reason would need to be.
I cannot advise my hon. Friend on that. Obviously the reasonableness of any reason that was put forward could, I suppose, be tested, although that is more an academic or theoretical question, rather than a question about what will happen in practice. My concern is that the provision will be used to perpetuate a campaign of discrimination against pedlars and try to drive them out of particular cities, which was of course the original intent behind the four Bills.
What I am trying to get at is this: if my hon. Friend’s amendment (f) were accepted and we removed the words “reason to believe”—so that subsection (7) read: “only if it is necessary to do so”—what difference does he think that would make in practice to how the council had to operate?
If we left out the words “it has reason to believe that”, subsection (7) would read: “The council may designate an area for the purposes of this section only if it is necessary to do so to ensure road safety”. That is something on which evidence could be drawn from all angles. One could argue that designating an area was necessary for road safety or that it was not, but it would not depend on the council. Under subsection (7) as currently worded, as long as the council says that in its view designating an area is necessary for road safety, that is the end of the matter and it cannot be challenged.
I understand the thrust of what my hon. Friend is saying and, as he knows, I am sympathetic to it, but if subsection (7) was simply left to read: “The council may designate an area for the purposes of this section only if it is necessary to do so”, would not the people deciding whether it was necessary to designate an area still be the council?
Yes, obviously they would—I am sorry that it seems to have taken my hon. Friend quite a long time to drill out the answer he was looking for from this particular stone—because the council will be the one determining the matter. I do not know whether my hon. Friend is going to make reference in his own contribution to the circularity of the argument, but I understand the point he is getting at. I think the way to put it is to say “I surrender”.
Looking at the amendments in the context of the revisions to the legislation envisaged by the Government, my own view is that it would be wrong for the House to accept amendment C9 as drafted. Amendment C9 is a lot better than the provisions that were in place before it. If it were simply an amendment to leave out clause 5, that would be fine, but to
“insert the following new Clause” as set out in C9 risks the danger that the provisions, when enacted, will be totally at odds with legislation brought forward by the Government, whether it be legislation relating to the size of the trolleys or to the circumstances in which those trolleys can be used by pedlars, particularly because C9 seeks to amend the pedlars legislation at a time when the Government are saying that those Acts have to be repealed.
On that very point, is my hon. Friend aware of any reason why such very specific measurements are included in their lordships’ amendment C9? I refer to where a width of 0.75 metres, a depth of 0.5 metres and a height of 1.25 metres are specified. It would have been far better to go with the Government’s originally suggested amendments and measurements of 1 metre and 2 metres.
The answer to my hon. Friend’s question is that when their lordships drew up these amendments in November 2011, the Government had not declared their hand. They did not do that until November 2012—and nobody can be blamed for not anticipating what the Government would say.
If that is correct, I am grateful to my hon. Friend; I cannot understand why we do not use yards and feet rather than refer to 0.88 metres. We always say when we come to this place that we always learn something. That is certainly something I have learned today, and I am grateful to my hon. Friend for it.
Let me reach a summation on these particular issues. I have seen some movement on the part of my hon. Friend the Member for Pudsey, and I hope he will ensure that we have time to listen to the Minister’s response, as it is very important for the Minister to send out some clear messages to pedlars, many of whom are very worried by the proposed changes to the legislation and are confused by the attitude of the Government, particularly towards amendment C9 when looked at alongside the Government’s consultation paper.
I fear that an atmosphere is developing in which the Bill’s promoters think, “Well, it has taken us so long, so rather than try to improve it further, we might as well try to drive it home as quickly as we can and curtail debate as much as possible”, which obviously has the effect of creating a reaction. We know that the House’s procedures have resulted in a considerable curtailing of the rights of Members to speak in some debates. Fortunately, in private business, we still have the right to try to insist on getting the promoters of Bills to listen to our arguments.
I think that that is what we are looking for on this occasion. We are asking the promoters to reflect on the arguments that we have presented, and to consider tabling their own amendments to the Lords amendments. One of the virtues of a debate organised in this way is that, in this instance, we have so far discussed and voted on only Lords amendments C3, C4 and C5, which means that the promoters still have an opportunity to table their own amendments to those on which we have not yet voted.
I am grateful for my hon. Friend’s full explanation of the position. As I understand it, the benefit of the procedure that we are using today will result, eventually, in a better Act of Parliament. By allowing the promoters to reflect on the arguments and then come up with amendments that may even improve on those tabled by my hon. Friend, my hon. Friend Philip Davies and me, we are likely to end up with a much better Bill. Would it not be great if the Government followed the example set by private business and dropped programme motions? Then this could happen week in, week out when we debated Government business.
I think that there is a strong case for asking the Procedure Committee to look into the possibility of applying the principles relating to private business to public business. What has happened today demonstrates the virtues of being able to engage in what might be described as an iterative process, during which we discuss the issues, and the promoters have a chance to reflect on the points that have been made—over weeks, months or years—and to respond to them accordingly.
I do not need to speak any longer on this group of amendments—[Hon. Members: “Shame!”] I know that—
Three hours having elapsed since the commencement of proceedings, the debate stood adjourned (Order,
Debate to be resumed on