A

BILL
[AS AMENDED IN COMMITTEE]

EXPLANATORY MEMORANDUM

This Bill is promoted by Manchester City Council ("the Council"), which is the district council for the city of Manchester.

The Bill relates to street trading, which for areas in England and Wales outside London is governed by section 3 of and Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982 ("the 1982 Act"). Section 3 enables local authorities to adopt the licensing regime set out in Schedule 4. The Council has adopted the regime.

The Bill has five main purposes, namely—

Clause 1 of the Bill deals with citation, and Clause 2 with interpretation.

Clause 3 provides that the Bill shall apply for so long as any resolution of the Council under section 3 of the 1982 Act remains in force, in other words, for so long as the street trading regime of the 1982 Act applies in the area of the Council.

Clause 4 alters the effect of the 1982 Act as it applies in the area of the Council, by altering the definition of "street trading" and hence the type of activity which would be subject to regulation under Schedule 4 to the 1982 Act. Currently, the definition extends to the selling or exposing or offering for sale of any article (including a living thing) in a street. The alteration of the definition would bring within the scope of the Schedule the supplying of or offering to supply any service in a street.

Clause 5 alters the exemption from the street trading regime enjoyed by holders of a pedlar's certificate.

The existing exception is given to persons who trade and by doing so are acting as a pedlar under the authority of a pedlar's certificate granted under the Pedlars Act 1871 ("the 1871 Act"). The 1871 Act itself defines a pedlar as "a person who, without any horse or other beast, travels and trades on foot from town to town carrying to sell or exposing for sale any goods, wares or merchandise or procuring orders for the same, or selling or offering for sale his skill and handicraft". The fees for pedlar's certificates are considerably lower than those for a street trading licence, and pedlars are not subject to the extensive controls placed on holders of street trading licences. Pedlar's certificates are granted by the police, and the conditions for the grant of a pedlar's certificate are that the applicant has lived in the police area for a month, is over 17 and is of good character. A pedlar's certificate, once granted, entitles the holder to act under its authority anywhere in England, Wales and Northern Ireland for a period of one year.

The alterations made to the pedlars' exception by Clause 5 will have the following effect. First, the exception would still apply to pedlars who carry out trading only by means of visits from house to house.

Secondly, the exception will apply to those who trade with any goods or handicraft equipment carried on their person as a pedestrian or with any goods or handicraft equipment carried in a wheeled vehicle with a carrying capacity no greater than 1 cubic metre pushed or pulled by them. There are a number of other detailed qualifications which will apply to the holder of a pedlar certificate if he wishes to claim the exception as altered under this second head. These are referred to in Clause 5 as the "essential requirements". In essence those requirements are—

Clause 6 empowers an authorised officer of the Council or a constable to seize articles, receptacles or equipment in cases where a person is reasonably suspected of committing a street trading offence under paragraph 10 of Schedule 4 to the 1982 Act or an offence of aiding abetting, counselling or procuring the commission of such an offence. Seizure is only permitted where the article may be required to be used in evidence in any proceedings in respect of the suspected offence, or where it may be the subject of forfeiture by the court under Clause 8, and (in the case of articles) where the article is not of a perishable nature. The clause provides that a certificate must be issued by the Council to the person from whom the article was seized.

Clause 7 provides for the return or disposal of items seized under Clause 6. Items must be returned to the person from whom they were seized following the conclusion of proceedings in respect of the suspected offence, unless the court orders them to be forfeited under Clause 8, or if any award of costs to the Council has not been paid within 28 days of the order being made. In that case, the Council may dispose of the items as they think fit, paying to the person to whom the items belonged any sum obtained on the sale of the items in excess of the costs awarded.

Seized items would also have to be returned at the end of the period of 56 days beginning with the date of seizure if no proceedings had been instituted, or any proceedings that had been instituted had been discontinued or were discontinued at any time during or after the end of that 56 day period.

Seized items do not have to be returned where it is not possible to identify or ascertain the address of the person from whom they were seized. In such a case the Council or Chief Constable must apply to the magistrates' court for an order as to the manner in which the items should be dealt with.

Clause 8 permits a court before which a person is convicted of a street trading offence to order forfeiture of items. Items may only be forfeited if shown to the satisfaction of the court to relate to a street trading offence. Also, the court may not order the forfeiture of an item where a person claiming to be the owner of the item or to have an interest in it applies to be heard by the court, unless he has been given an opportunity to show cause why the order should not be made. In considering whether to make an order for forfeiture, the court, must consider the value of the item and the likely financial and other effects on the offender of forfeiting the item.

Clause 9 provides for compensation to be paid to anyone who at the time of seizure had a legal interest in the item, where the seizure was unlawful. Compensation is also payable where not less than six months have passed since the date of seizure and no proceedings have been brought against the person from whom the item was seized, or where proceedings have been brought but the person has been acquitted, or where the proceedings have been withdrawn or failed for want of prosecution.

Clause 10 empowers an authorised officer of the Council to serve a fixed penalty notice on a person who he has reason to believe has committed a street trading offence under paragraph 10 of Schedule 4 to the 1982 Act or an offence of aiding abetting, counselling or procuring the commission of such an offence. The fixed penalty notice gives the person on whom it is served the opportunity of discharging any liability to conviction for the offence by payment of a fixed penalty.

Clause 11 makes further provision about the procedure to be followed in relation to the giving of fixed penalty notices. It provides that no criminal proceedings may be instituted in respect of the offence in question until 14 days have expired after the giving of the fixed penalty notice, and that the recipient must not be convicted of the offence if he has paid the fixed penalty within that period. The clause also makes provision about the information which must be contained in the fixed penalty notice, the methods of payment allowed and the form of the fixed penalty notice. It also provides that fixed penalties are payable to the Council.

Clause 12 provides that the Council must fix the levels of fixed penalties. In doing so the Council must have regard to the reasonable costs incurred by them in administering theð ñstreet trading regime under Schedule 4 to the 1982 Act and the costs of enforcing the provisions of Schedule 4. The Council must also publish the levels of fixed penalties in a local newspaper.

Clause 13 provides the Secretary of State with reserve powers in respect of the levels of fixed penalty which may be fixed by the Council under Clause 12. He may reduce such levels where he considers them to be excessive.

Clause 14 makes provision about the accounting and the application of fixed penalty receipts. Any surplus in the accounts may be applied to purposes connected with the improvement of the amenity of the area of the Council. The Council must report annually to the Secretary of State on any action taken by them in relation to any deficit or surplus in the account.

EUROPEAN CONVENTION ON HUMAN RIGHTS

In the view of Manchester City Council the provisions of the Manchester City Council Bill are compatible with the Convention rights.