| Previous Section | Home Page |
Madam Deputy Speaker : Order. That would require a great deal of ingenuity, but I know that the hon. Gentleman has that. I shall be as tolerant as possible.
7.15 pm
Mr. Neubert : I am indebted to you, Madam Deputy Speaker. I cannot respond to the hon. Member for Normanton (Mr. O'Brien), but I was present during all the previous proceedings, and I recall the occasion that he mentioned.
The rights enshrined in clause 6 relate to the establishment of a market in Ilford, which is in a part of Redbridge that comes within six and two thirds miles of Romford market, a distance thought to be archaic. However, under clause 6, Redbridge council wants not only to establish such a right against the long-standing claim of common law that ensures a safeguard for Romford market, but to transfer that right to others.
It might have been helpful if my hon. Friend the Member for Ilford, North had explained the background to the Lords amendment. It is not clear to me, or to the advisers from the London borough of Havering, why we are even considering it. We can only speculate, as I intend to do during my speech. The clause states :
"any person entitled or authorised by virtue of this Act to hold a market may transfer or dispose of all or part of his rights to another."
We need to examine not only the justification for whether we should tonight debate clause 6, but whether the privilege obtained by private Acts of Parliament should be for the benefit of others, and whether that is the right way to proceed.
It is a matter of some pain to me that the Bill has proceeded this far only through the support of Conservative colleagues. Members of Parliament have many calls upon their time and it is understandable that they may not always be as familiar as the sponsors with the issues involved in a private Bill. One reason for deferring consideration of clause 6 for another six months is to enable more hon. Members to attend the debate than the relatively few who are here tonight.
I have already mentioned the confusion caused by the title of the Bill, in which the removal of a franchise--a negative outcome--is revealed only upon closer examination. It suggests the positive purpose of establishing a new market. Nothing is more likely to enthuse a modern Conservative than the mention of the word "market", but "franchise" is an equally respectable commercial concept and, in effect, the royal charter granted to Havering all those hundreds of years ago is just that.
What sort of market are we dealing with? Its rights are to be transferred to others under clause 6. It is not just a single site, but part of a wider market economy. The
Column 987
relatively few colleagues who have voted for the Bill to date may think that the rights to which the clause refers extend the free market and increase fair competition, but do they realise that they are conferring rights on the new market similar to those that Romford has enjoyed for so many years? That is hardly progress. If we were to move on to considering the clause, and if we rejected the Lords amendment, as I understand it, that protection could be transferred to a third party--not the local authority or some other representative of public interest, but to anyone who might take over the ownership perhaps, or certainly the operation, of the market. Of course, I read the clause as a layman and without any advice from the promoters. It is likely and, again, understandable that some of my colleagues may have assumed that because the London borough of Redbridge has repeatedly had the good sense to elect a Conservative majority to its council, any private Bill promoted in its name must, by definition, be a good thing that deserves support without question. I have been a leader of a London borough council--before coming to Westminster, I was mayor of Bromley. I have a high regard for the benefits of Tory local council administration.However, I would not suggest that on every occasion, and on every issue, a Tory town hall administration is necessarily infallible. Perhaps I may derive some support for at least that assertion from Opposition Members. I hope that the fact that the Bill has been vigorously opposed by other Conservative Members--12 heroes voted against it on Second Reading--will be enough to raise doubts in the minds of other of my right hon. and hon. Friends about the advisability of accepting too readily the Bill's virtues and granting the powers and privileges that it seeks to establish.
Some of those privileges to be found in clause 6 would be capable of being transferred to another party. Although the Bill has received some support in this House, it has never received the support of the full Redbridge council. Before considering whether we should debate the Bill further, there are questions to be raised about the aspect. Opposition to the Bill by Havering council has been not only overwhelming but all-party.
Mr. Squire : My hon. Friend mentioned that 12 of our right hon. and hon. Friends opposed the measure. No doubt he will mention also the germane point that no fewer than 30 colleagues supported an amendment to delete a little piece of clause 6. When one considers that about 100 right hon. and hon. Members were present for that debate, it is obvious that there is scope for a larger number of them to examine clause 6 in its entirety.
Mr. Neubert : I am indebted to my hon. Friend for his intervention. The question whether we should give the Bill further consideration without interruption relates to my point concerning the support that the Bill received before it was promoted. My advice is that, for such a Bill to be promoted in Parliament, it must receive a minimum level of support from the local authority in question, as expressed by a vote in council for the Bill to proceed. My information is that that level of support was exceeded in Redbridge council by only one vote. Local elections were held in May. It would be interesting to know whether that narrow margin of necessary support for the Bill survived the changes of councillors that occurred in those elections. Perhaps my
Column 988
hon. Friend the Member for Ilford, North can say whether the council has been consulted about the promotion of the Bill since the May elections. One also wonders whether the council has been consulted about the Lords amendment and the attitude that should be adopted towards it. We have received no advice from the promoters on whether the Bill still has the council's support. We should know the answer to those questions before we consider the deletion or otherwise of clause 6.Sir Nicholas Bonsor (Upminster) : On a point of order, Madam Deputy Speaker. In view of the comments of my hon. Friend the Member for Romford (Mr. Neubert), perhaps we should seek the guidance of the Chair on whether it would be right to proceed with the Bill if it no longer has the majority support of Redbridge council.
Madam Deputy Speaker : That is a matter for debate, and there is no reason why the debate should not continue.
Sir Nicholas Bonsor : Further to that point of order, Madam Deputy Speaker. My understanding is that, if we pass the Bill today, there is no further step the House can take to stop or reverse its progress. If it would be unlawful in procedural terms for the Bill to be promoted without its having the majority support of Redbridge council, surely we should not proceed with it tonight.
Madam Deputy Speaker : The House must decide, at the end of this debate, whether or not to proceed with the Bill.
Mr. Neubert : If that is so, perhaps I am wrong in thinking that a council must have the support of its own members for a Bill before it can be promoted. It may be that, having once made the decision to promote a Bill, no further reconsideration is needed in altered circumstances. Nevertheless, it is unusual for a Bill to take two calendar years to get under way. The original Bill was printed on 16 November 1988. It is feasible that the newly elected council does not support the Bill by the majority needed for it to be promoted. That is relevant when we are considering whether we should continue to consider it in this House. We must question whether it has the necessary legal and statutory support from the promoting local authority. I cannot answer my own question on my feet, but we owe it to the House to give that aspect some thought before reaching a decision on the motion.
It may appear at face value that the Bill has received the support of Conservatives both at a local level and to a limited extent in Westminster. The matter is less clear-cut than it appears. Line 13 of clause 6 makes reference to section 50 of the 1984 Act, which in turn refers to the Food Act 1984. That legislation, enacted by a Conservative Government, left intact the rule that a franchise market is protected against any rival market within six and two thirds miles, and that a statutory market is protected within six and two thirds miles of any rival other than another statutory market.
If we reject the motion and move to consideration of clause 6 and it is passed, and if the Bill is passed with or without clause 6, Redbridge will enjoy protection against another market being established in the borough. Such protection is of very real commercial value and would be an important consideration in any arrangement to transfer the rights with which clause 6 deals. As the relevant legislation is so recent, having been enacted only six years ago, it follows that a number of right hon. and hon. Members--at least on these Benches--who supported the
Column 989
Bill in the belief that it would in a small way create a free market would have certainly voted for the 1984 Act that embodies the protection that Redbridge will to a large part enjoy under the Bill. Alternatively, they may argue that in this respect they are being consistent. If so, why do those same Members of Parliament not respect Romford's long-held common law rights? Why favour Redbridge over Romford and at Romford's expense?On Second Reading, the Bill as then drafted would have given Redbridge protection within the same six and two thirds miles' distance as has been attacked as anachronistic in the case of Romford. Subsequently, the Bill was substantially amended in Committee. The Lords amendment is only the latest in a number of amendments to ensure that the protection was limited to the area of the London borough of Redbridge only, which is less than six and two thirds miles distance from Ilford in the round. Nevertheless, an inconsistency remains--and to vote for the Bill and for the proceedings to continue would be a vote for statutory protection, not for a free market.
The reference in clause 6 to section 50 of the 1984 Act is consistent with clause 5, which states :
"A market established under this Act shall be deemed to have been established by the Council under section 50 of the Act of 1984." It is not clear why clause 6 was inserted in the Bill and subsequently amended, or why it is now proposed that it should be deleted at this late stage, on the Bill's return from another place. It is not clear either why we are being asked to give further time to its consideration.
What place does such a clause have in such a Bill? It has already been amended, and it is now proposed to delete it from the Bill. I am open to correction, but I have received nothing in my post from the promoters to explain that surprising turnabout.
Mr. Neubert : Apparently, my hon. Friend has received no such communication either. At a very late stage the Bill appears back in the House with a proposal that this clause should be deleted.
Mr. Squire : On a point of order, Madam Deputy Speaker. My hon. Friend has reminded me--I had not fully considered it--that to my knowledge, and obviously to yours, promoters of private Bills are required to notify hon. Members on either side of the House of details of the arguments for the Bill at each stage that the matter is debated in the Chamber. Echoing my hon. Friend's remarks, I have received nothing from the promoters of the Bill about this evening's debate. I wonder whether that is in order, or whether some breach of private Bill procedure has taken place which would negate our proceedings tonight?
7.30 pm
Madam Deputy Speaker : As far as I am aware there has been no breach of private Bill procedure. Of course it is usual for promoters to provide as much information as possible, but I assure the hon. Gentleman and the House that there has been no breach of our procedures in this matter.
Mr. Neubert : I am reassured by what you say, Madam Deputy Speaker. I was questioning why there should be
Column 990
such a clause in the Bill in the first place, so that I should have some inkling of why it should be removed. To answer those questions I sought advice from the borough secretary and solicitor, Mr. Michael Tink, who has been handling Havering's case against the Bill. I refer to his letter of 21 September on this matter, which confirms the lack of information that seems to be common to my colleagues and myself, as far as Havering council is concerned.Mr. Tink says :
"It may sound odd to say after all the attention given to this Bill that we cannot give a precise account of the reasoning for the amendment which now prompts the return of the Bill to the Commons" and which gives occasion for this procedural motion tonight. He goes on to say that he had
"no communication from the promoters but the amendment"-- as we know--
"is for the deletion of the whole of clause 6 of the Bill." He thinks that that may spring from arguments that he and others made before the Committee in the House of Lords, but he believes that the Committee did not recommend the amendment and that the Third Reading in the Lords was without debate.
The background to the matter was that Redbridge was apparently seeking in the Lords to counter the argument that it is wrong in principle to use piecemeal local legislation for overcoming limitations in the general law-- something which my colleagues and other hon. Members believe in very strongly and which we urge upon the Government, represented by the Under- Secretary of State for the Environment tonight. We think that that is a fair argument, and I may return to it later.
Redbridge's case was that local authorities throughout the country operate statutory markets under section 50 of the Food Act 1984, including Havering with the Friday market at Romford.
Redbridge wants to run a market under those powers and wants to site it at Ilford. Powers under the Food Act cannot be used to interfere with common law market rights in the area without consent. The Wednesday and Saturday markets at Romford are common law markets and their protection extends to the Ilford area. Therefore, Redbridge needed the Bill to overcome the effects of those rights and to allow it to use the powers granted by the Food Act without Havering's consent.
Redbridge has never sought Havering's consent. That is relevant to this motion. We might not be here tonight and we might not need to consider the motion if Redbridge had sought Havering's consent. From the outset, Redbridge has acted on the assumption that it would promote a Bill in Parliament rather than seek a licence. That is unfortunate because the Bill embodies the sort of compensation which as a licence fee might--I stress the word "might"--have interested Havering, and the House might have been spared hours spent on private legislation and any future hours we may spend debating clause 6 if we agree to do so tonight, or in debating the motion if we continue to do so.
I shall offer some evidence to the House to support my assertion. It comes from Committee proceedings last year, which show how long this unhappy Bill has been proceeding. I was supplied with some of the relevant Committee proceedings. I suggest that, rather than go on to consider clause 6 and give up further valuable parliamentary time, by not agreeing with the motion we
Column 991
might call upon Redbridge to consider opening negotiations with the London borough of Havering at this late stage, which would avoid the necessity of promoting the Bill. There appears to be no end to it. Is the licensed approach feasible? I have relevant extracts from Committee. If any members of the Committee are present in the House they may recall that on the first day in Committee Mr. J. Hawkins was giving evidence. He was asked :"In July 1986 did the Council by its Environmental Health (Urgent Action) Sub-Committee agree that, subject to consideration of a report on the establishment of a market dealing with legal considerations and so on, it was prepared to consider the establishment of a market in the Borough under the powers contained in Section 50 of the Food Act?"
The answer was, "Yes." Later, he was asked :
"Was it resolved that the officers should carry out a further study of the implications of pursuing private legislation and to report back?"
The answer was, "Yes."
The questioning continued :
"On 13 April 1988, did the General Services Committee authorise the officers to proceed with the promotion of Private legislation for the provision of a permanent market site in Ilford and to engage consultants?"
Mr. Hawkins answered :
"They made that recommendation, yes."
I stress the date--13 April 1988--as it is two and a half years since the general services committee of Redbridge council authorised the officers to proceed, which adds weight to my suggestion that it might be time, if the opportunity has not already been taken, for Redbridge council to be consulted again about whether it wishes to proceed. The circumstances may have greatly changed.
Mr. Squire : A major change since then, as my hon. Friend will confirm, is the arrival of the unified business rate, which must have had a major impact in Ilford, knowing the impact that it has had in Romford. Surely that is a factor which the council should have taken into account?
Madam Deputy Speaker : Order. It may well be a major factor, but it is not relevant to the question before us.
Mr. Neubert : To support my contention that at no time did Redbridge seek consent from Havering, as is allowed under common law and under statute law, I again refer to the Committee report on page 46, when Mr. J. Hawkins is being questioned. He was asked whether, about a week after the meeting of the general services committee to which I referred, there was a
"without prejudice meeting between the director of administration and legal services and the solicitor to the Havering London Borough Council."
The answer was, "Yes."
It was only after all those decisions to promote the Bill had been taken by the council that it finally approached Havering. Presumably it did so out of courtesy and a desire to inform it of the proceedings, but without any intention of negotiating and avoiding the necessity of a private Bill which would use valuable private Bill time in the House.
Hon. Members may think that perhaps it was not feasible for Redbridge to seek such consent. Perhaps Havering's past record went against it. That is certainly not so, because Mr. Tink also gives evidence about Kingston upon Thames, which is another example of a franchise market where such a license was sought and granted. There are hundreds of such markets and there may be other examples. In those circumstances it would be
Column 992
easy for Redbridge to make a similar diplomatic approach to the London borough of Havering, seeking its consent to have such a market within the six and two thirds miles' radius on the grant of a licence and on payment of the licence fee.Before we consider debating the Bill further, we should understand that there is an example in Kingston upon Thames. On page 38, Michael Tink, giving evidence to a Committee of this House, answered the question :
"Do you know, by way of example, of any other authority that has been prepared to grant a licence on proper terms in relation to its market rights?",
with :
"Yes, sir, I do. I have caused inquiries to be made, and I know that the Royal Borough of Kingston upon Thames does grant licences for, I believe, four or five rival markets, one of them in the London Borough of Sutton, one at Wimbledon Stadium. I am told there is another one in Kingston town centre itself, which operates on some sort of licence ; one at Kempton Race Course and one at Merton. I believe there was formerly one at Putney which has now ceased." It is perfectly feasible for Redbridge to negotiate with Havering, without our giving further time to considering the Bill in this House as we approach the end of the Session. I cannot guarantee a favourable outcome, but we should certainly consider that option before debating clause 6 and agreeing to the amendment. If the amendment is rejected, I imagine that the same applies to private legislation as to Government legislation, and that the Bill will have to go back to their Lordships who will have to consider the views of this House. Therefore, even if we reach a decision here tonight, it will not necessarily be the end of the matter.
The licence might be related to compensation. As a result of the decision of the Committee of this House, Redbridge would be required to pay compensation to Havering for the loss of commercial value to its market by the establishment of a market within six and two thirds miles of Romford. That has been put at 10 per cent. of the operating profit of the new market when it is established. I have no idea what sum that might be, but it might be the same as a licence fee negotiated directly between the two councils, without promoting a Bill or creating the precedents which threaten other markets, of which there are several hundreds. Indeed, there is a whole network of such markets.
The question of such a licence was raised. At no time has Redbridge followed that path, although it might well have done. On page 18, the aforementioned Mr. J. Hawkins, a witness for Redbridge, was asked : "Do you know whether the London Borough of Redbridge has ever applied to Havering for a licence to operate a market within Havering's protected area?"
He answered :
"I am not aware that there has been such an approach." That confirms that there was not such an approach and that, instead, the House has been asked to spend considerable time examining the Bill with all its shortcomings and defects and despite its lack of popular support. That is the result of Redbridge's unwillingness to negotiate. We are again asked to give time to explore the reasons for deleting clause 6, without having been told those reasons in advance of tonight's debate.
Counsel examined Mr. Hawkins about the licence and asked : "Can we explore, nevertheless, some of what the basic terms of such a licence might be? Firstly, provision would be made, would it not, for which days of the week the licensed market was to be permitted to operate, do you agree?"
Column 993
The answer was, "Yes.""Secondly, and importantly, provision would be made for the duration of the relevant licence?"
The answer was, "Yes, it could be." Counsel asked :
"You could have provision for a fixed term, or you could have provision for a term capable of being brought to an end by either side by notice, could you not?"
The answer was, "Yes."
"In either event, the duration would be limited?"
The answer was :
"That is a possible approach, yes."
The examination continued :
"Thirdly, and importantly, there would be the amount of the fee to be paid by the licence-holder?"
The answer was, "There would be, yes", to which counsel asked : "Which you accept might be geared to the profit made by the licensee in operating his market?"
7.45 pm
That is relevant because it is exactly the conclusion that the Committee reached, which persuaded it to require the promoters to add such an amendment to the Bill. The answer was :
"That could be the approach of the franchise-holder, yes. What the reaction from the person seeking the licence would be, of course, is another matter."
Counsel continued :
"If that were the approach, is there any reason why a percentage should, in your view, be fixed at any particular figure--the percentage of the profit made by the licence operator?"
The answer was :
"If this was the approach that was being accepted on both sides, then yes, there could be negotiation on any figure."
In other words, it was open to Redbridge and Havering to negotiate a licence fee which would enable Ilford to realise its ambition to have such a market, without affecting the 750 years' franchise conferred by Henry III on Romford market. Counsel said :
"Thank you. That was going to be the next point I was going to put to you. It would be the result, would it not, of a bargain between a willing seller and a willing buyer, or to be more precise, a willing licensor and a willing licensee?"
The answer was, "Yes."
I raise that at length at this stage because it is still possible for proceedings on the Bill to be adjourned to enable the neighbouring local authorities to get together and negotiate a reasonable arrangement. It probably would not cost Redbridge more than it would cost in the amendment to the Bill, because it has already agreed to a substantial 10 per cent. of the operating profit of the market going to Havering in compensation. That might be held to be a reasonable amount for Havering to ask as a licence fee. I have no brief to speak for Havering council and I cannot anticipate what its answer would be, but I am sure that it would wish the precedents created in the Bill not to be established, if there were an avoidable way out, such as the negotiation of a licence for a fee.
Counsel continued :
"It is right, is it not, that while such licence continued, the licensor could not be in any position to complain that the licensee's market was causing him any damage, could he?"
The answer was :
"No. Subject to the terms of the licence, I am sure that would be right, yes."
In other words, once Havering had agreed to such an arrangement without the Bill, it could not complain. It
Column 994
would be getting its licence fee. That is what happens between markets in Kingston upon Thames and no doubt elsewhere.It occurred to Mr. Tink, the borough secretary and solicitor, that clause 6 was not related to any restriction arising from Romford's market rights. He concluded :
"if Clause 6 was necessary at all then it must have been intended to give Redbridge different (and better) powers than those available under the Food Act to any other Local Authority."
Hon. Members might well be surprised if that were the case. Clause 6 would certainly be objectionable, if we were told that Redbridge were underprivileged and Romford sought a great advantage. If it were known that originally Redbridge were promoting a Bill to give itself greater advantage than Romford and countless other charter markets, many hon. Members might have taken a different view from the start. The amendment seems to vindicate Havering's argument that clause 6 is either unnecessary or contrary to the case being made for the Bill. It is surprising that Havering has had no communication with the promoters on that point.
| Next Section
| Home Page |