|Previous Section||Index||Home Page|
Mr. Deputy Speaker: With this, we will take amendments 3, 74, 7, 24, 8, 25, 9, 26, 10 to 12, 27, 13, 14, 28, 15 to 17, 29 to 31 and 18 to 23 to the Bournemouth Borough Council Bill [ Lords], and amendments 2, 3 to 5, 34, 9, 26, 10, 37, 11, 28, 12 to 14, 29, 15, 16, 30, 17 to 19, 31 to 33 and 20 to 25 to the Manchester City Council Bill [ Lords].
Mr. Chope: It is a pleasure to move amendment 2, which is supported by four hon. Friends. With it, we will discuss 27 other amendments on the Bournemouth Bill and 28 on the Manchester Bill. In this debate, it will become apparent that the amendments go to the heart of the concerns that have been expressed by many people about the wide-ranging content of the Bills and the potential impact on the livelihoods and very survival of pedlars the length and breadth of the country.
Amendment 2 needs to be considered with other amendments, but it is designed to ensure that pedlary and trading are treated as separate activities. For too long, some councils have equated street trading with pedlary and, by extension, rogue and unlawful street trading with lawful pedlary. That is at the root of the problem. That issue is addressed in the detailed amendments to clause 5, which I shall discuss shortly. However, I shall take the amendments sequentially, so I shall start with amendment 3, which would delete clause 4.
I tabled amendment 3 because clause 4 extends the application of the Local Government (Miscellaneous Provisions) Act 1982 to services. For example, as we have discussed during earlier stages, services might include teeth whitening, or applying an artificial tattoo to someone's skin. Since the Bill was drafted back in 2007, however, there has been an important legislative development-the implementation under UK law of the European Union services directive by means of a statutory instrument. I had the honour to chair the Committee that considered the statutory instrument. Under the directive, which came into effect on 31 December last year, pedlars of services only will no longer need a pedlars certificate, and those obtained by pedlars of services before the changes came into effect will continue to apply until they expire.
I tabled amendment 3 to try to draw the Minister on the important issue of the interaction between the services directive and pedlary, and the provisions in the Bill. That point was referred to briefly last week on Third Reading of the Nottingham City Council Bill and the Canterbury City Council Bill. My hon. Friend the Member for Canterbury (Mr. Brazier) said, in a throwaway line, that he thought that the advent of the services directive had made the extension of the Bills to
cover services redundant. Since then, I have received a letter from the agents acting for the promoters of the two Bills before us today stating that they assume that the effect of the services directive interacting with the rules relating to pedlars will be different. However, the whole issue is up in the air. By proposing that we leave out clause 4, I thought that we could try to probe the representatives of the promoters in the Chamber or the Minister on the interaction with the services directive.
The importance of the services directive is that it enables people who are supplying services and resident in other parts of the EU to come to this country and continue supplying those services without inhibition or legal restriction. To carry on activities as a pedlar in the UK, the person concerned needs to obtain a pedlars certificate, which they can from any police authority in the land if they can establish that they are of good character. Importantly, however, they must also establish that they have been resident for some time at a fixed address within the area of the police authority to which they applied for the pedlars certificate.
The provision relating to pedlars is at odds with the services directive, because it is regarded by the EU as an unreasonable restraint on the right of somebody to work wherever they wish within the EU. UK law currently states that one can engage in pedlary only if one is resident and has a fixed abode in the UK; one does not have to be British, but one has to show evidence of residence here. So at the very time that the services directive has been brought into law, we have before us a Bill that purports to extend the scope of pedlary to services. I find that rather confusing. It seems to me that clause 4 is probably redundant.
Much of the stuff that comes from Brussels is pretty impenetrable to people of ordinary intelligence such as Members of Parliament. Perhaps the Minister, with the benefit of legal advice from people who are better remunerated and wiser, will be able to guide us through the interaction of the services directive with pedlary and explain to us whether, in the light of its implementation, he too believes that clause 4 is redundant and superfluous, not to mention rather confusing.
Sir John Butterfill: Surely leaving out clause 4, which would extend the Local Government (Miscellaneous Provisions) Act 1982 to the provision of services in the street, would do the very reverse of what my hon. Friend is suggesting, because there is no residency requirement under that Act. Extending it in that way would be helpful to pedlars, rather than the reverse.
Mr. Chope: I hope that my hon. Friend will be able to explain that point more clearly to me. As for the application of the 1982 Act, my understanding is that Bournemouth borough council is seeking to take more control over people who provide services than it has under existing law. I find it hard to understand how that will be in the best interests of pedlars.
Mr. Tobias Ellwood (Bournemouth, East) (Con):
We have had Bills from councils in other areas across the country, which are already in place as Acts and have
been for a number of years-we are in one such area now: London has the exact legislation that we are seeking in Bournemouth-and they are also subject to the 1982 Act, to which my hon. Friend the Member for Bournemouth, West (Sir John Butterfill) referred. I am not aware-perhaps those on the Front Bench can illuminate this point for me-of any requirement to change legislation in any of those places, whether it be London, Liverpool, Maidstone, Leicester, Medway or Newcastle. All those places have had their own borough council Bills, which is what we are seeking today. All have been able to work with the same legislation, despite the 1982 Act.
Mr. Chope: I am grateful to my hon. Friend for that, but I am not sure that he understands my main point, which is that since the 1982 Act was introduced we have had the services directive, which came into effect on 31 December. Although other local Bills might have been enacted with equivalent provisions to those contained in clause 4, I do not think that it is open to Parliament-my hon. Friend the Member for Stone (Mr. Cash) has different views about this-to bring forward legislation that is inconsistent with a European directive.
Dr. Andrew Murrison (Westbury) (Con): Is my hon. Friend therefore saying that since the enactment of the services directive, the measures to which my hon. Friend the Member for Bournemouth, East (Mr. Ellwood) referred have become ultra vires?
Mr. Chope: I think I am saying that, yes. The implementation of the directive serves as the automatic repeal of those provisions, which is why I cannot understand why, when we are considering a Bill that is not yet on the statute book, we should be seeking to put provisions such as those in clause 4 into law, in prima facie breach, in my view, of the services directive.
Mr. Peter Bone (Wellingborough) (Con): May I offer some clarification? We could not place restrictions on doctors coming in from the European Union and offering their services. That has been made clear despite what the General Medical Council might wish to do. Is not that the kind of thing that we are talking about? If the services directive is in force, people have the right to bring their services here, so this restriction would be ultra vires under European law.
The Government are consulting on a document at the moment. It was issued by the Department for Business, Innovation and Skills on 6 November 2009, and it is entitled "A joint consultation on modernising Street Trading and Pedlar Legislation, and on draft guidance on the current regime". On page 29, there is a whole series of paragraphs under the heading "Services Directive". Paragraph 113 might be of particular interest to hon. Members, because it states:
"Incidentally, we understand that those local authorities who apply street trading licensing to service providers are required to justify that those regimes operate within the requirements of the Services Directive. If they are unable to do so those authorisation schemes will need to be removed insofar as they apply to service providers."
Mr. Edward Leigh (Gainsborough) (Con): Is my hon. Friend therefore arguing that a pedlar who is an EU citizen who is stopped in Bournemouth could appeal under the services directive and carry on trading in Bournemouth high street, but that a home-grown English pedlar who could not appeal under the directive could be driven from the streets? Would not that be unfair?
Mr. Chope: It would certainly be unfair, if that were the position. I am not sure that my hon. Friend's interpretation is quite correct, however. The pedlar would have to be offering services, rather than trading, within the terms of the legislation relating to pedlars. If he were offering services, and came under the category of service provider, that would be exactly the sort of jeopardy in which he would be placed.
"It may be possible to institute a national system of authorisation for service providers within the requirements of the Services Directive although we are conscious that our justification for imposing such a scheme may be challenged in respect of the qualifying criteria. However, we are of the view that attempting to introduce such a system in respect of a small number of pedlars of services only, would not be a proportionate response to any perceived detriment which may result from the situation where no certification or authorisation scheme exists."
"the Services Directive applies stricter tests in relation to authorisation schemes in respect of temporary providers of services in the UK to the extent that any scheme which might be capable of applying to established pedlars of services could not apply to temporary pedlars of services visiting the UK."
"This inconsistency of application would be unfair to established pedlars and would introduce significant enforcement difficulties."
I know that my good hon. Friends the Members for Bournemouth, East (Mr. Ellwood) and for Bournemouth, West (Sir John Butterfill) are sceptical about some of the arguments that I deploy on this legislation-both of them have intervened on me on this point-but I hope that we will be able to get an answer from the Minister on this question. It will be relevant not only to the two Bills that we are discussing today, but to the two that we discussed last week, which are now on their way to the other place, as well as to the other two Bills on the Order Paper, which we are not discussing at the moment.
John Thurso (Caithness, Sutherland and Easter Ross) (LD): I follow the hon. Gentleman's argument on the services directive; I shall wait to see whether it is right or wrong. If the services directive were not in force, would he still wish to strike down this clause, or would he be content with it?
In fairness, I have not at any previous stage of our debates on this Bill raised an issue about clause 4. I was alerted to the issue only after reading the Government's consultation paper and having had the privilege of chairing the Committee I mentioned. In fairness to myself, and perhaps to the hon. Gentleman's
surprise, I would not otherwise have sought to amend clause 4 in respect of pedlars providing services. I hope that that clarifies the matter. It is an issue on which we look forward to hearing the Minister's views so that we can make a judgment. It is implicit in what we have heard so far from my hon. Friends who represent Bournemouth constituencies that the promoters of the Bill believe that it is right to go ahead with clause 4, notwithstanding the advent of the services directive.
I now move on to deal with the large number of amendments that we are debating in tandem with amendment 2. I start with amendment 74, which relates to clause 5. I shall not read out all the words in the amendment, but I will say that those words provide a much better and clearer way of setting out what the Bill's promoters have to some extent been asking for, which is to ensure that pedlars with large trolleys are no longer able to operate within Bournemouth-or the city of Manchester. The amendment would allow pedlars with
"a wheeled vehicle with a carrying capacity no greater than one cubic metre"
"the display or offer of items for sale."
Mr. Leigh: This is the kernel of the matter. There is absolutely no point in driving small-scale pedlars off the street only to have them bothering people door to door. These people will go on trading anywhere anyway. It is better to regulate them on the street in a small-scale way than have them bothering people in their houses.
Mr. Chope: I agree with my hon. Friend, but I am not sure that I would concede that pedlars bother people in their houses. There is a perception these days that many householders do not want to be harassed by people knocking on their doors, seeking their attention or selling goods door to door. Quite a lot put up notices on their front door, saying "No hawkers or pedlars" or refusing delivery of circulars and the like.
However, we know from evidence produced for the Durham university report published about a year ago that in city centres quite a lot of people enjoy being able to engage with pedlars and to purchase goods-usually relatively small-value items-and to do so in the freedom of the open air. These people would not want to be bothered with offers on a door-to-door basis. Some pedlars sell balloons or mini-kites-goods more associated with people on holiday who may have their children with them, people who want to have a bit of fun at not very great expense. It is much easier for pedlars to meet those sorts of people in the streets in the town centre, near the seafront or wherever, rather than have to seek them out by calling door to door.
Reading and Leeds, two of the councils in the group of six bringing forward the Bills, have accepted amendments to clause 5 that are more restrictive than my amendment 74. Their Bills are proceeding on that basis, and their Report stages and Third Readings are coming up shortly. I have included provisions relating to people being able not just to carry goods on their person but in
"a wheeled vehicle with a carrying capacity no greater than one cubic metre pushed or pulled by him."
That is because the issue was referred to in the Opposed Private Bill Committee, which concluded that clause 5, as originally drafted by the promoters from Bournemouth and Manchester, was too restrictive of the traditional right of pedlars to operate. After listening to the evidence, it proposed amendments which are set out in the minutes of evidence.
At the end of the Committee, it was concluded that the Bills should be amended to take on those concerns. On Wednesday 1 July 2009, at page 63 of the minutes of evidence, the Committee Chairman said, at paragraph 1119:
"Clause 5 is amended as follows...The pedlar trading house to house survives; for those not trading house to house their goods or tools or handicraft must be carried on foot on the person or in a trolley pushed or pulled by the person with a carrying capacity of no more than one cubic metre; they must not stop in one place for more than five minutes".
Many more detailed constraints followed. The detail, which is now reflected in the revised wording of clause 5, adds nothing that is worth while, and is likely to cause confusion, as it is an attempt to introduce through the back door a redefinition of what a pedlar can do lawfully. It picks pieces out of the common law, puts them in statute, and applies them to the two localities in Bournemouth and Manchester.
Sir John Butterfill: Does my hon. Friend not agree that his proposal in fact extends what pedlars can do under the current legislation? At present, they have to carry such items with them. The introduction of wheeled vehicles of some sort extends, rather than breaches, their existing rights.
Mr. Chope: My hon. Friend is not correct about that. Under the existing law, they are entitled to take goods with them not only on their person but using equipment. I quote from page 2 of the explanatory memorandum to the Bournemouth Borough Council Bill, which 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".
Mr. Chope: I was merely trying to respond to the point made by my hon. Friend the Member for Bournemouth, West, Mr. Deputy Speaker. I did not intend to anticipate the debate on a subsequent group of amendments, and I will not be drawn any further down that avenue.
|Next Section||Index||Home Page|