Joint Committee On Human Rights Eighth Report

7 Medway Council Bill

Date introduced to the House of Commons Previous Reports

22 January 2004 4th Report of Session 2003-04

Background

7.1 This is a Private Bill, currently before the House of Commons and due to be considered by the Unopposed Bills Committee. In accordance with Standing Orders, the promoters made a statement that in their view the Bill is compatible with Convention rights. However, the Minister in his comments on the Bill's compatibility statement has expressed doubts about the quality of the assessment undertaken by the Council.[36]

7.2 The Bill would extend the powers of officers of the Council and of constables to control pedlars in the Medway Council area, to seize items reasonably suspected of being intended for use to commit a street trading offence, and to forfeit such property.

7.3 After we had initially considered the Bill and in the light of the discussion, our Chair wrote to the promoters on 2 February 2004 asking about the impact of the Bill on various Convention rights.[37] In particular, we asked:

a)  why the promoters consider that clause 5, allowing seizure of goods by a council officer or constable, contains adequate safeguards for the right to respect for private life under ECHR Article 8.1 and the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR;

b)  why the promoters consider that clauses 6 and 7, allowing for the disposal, return or forfeiture of seized items, contains sufficient safeguards against violations of the right to a fair hearing in the determination of civil rights and obligations under ECHR Article 6, the right to be free of retrospectively imposed penalties under Article 7, the right to respect for private life under Article 8, and the right to peaceful enjoyment of possessions under Article 1 of Protocol No.1; and

c)  why the promoters consider that clause 4, which would make pedlars' licences operate in the Medway Council area as permitting pedlars to trade only by means of visits from house to house, would be compatible with the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1.

7.4 The promoters' parliamentary agents, Messrs Sharpe Pritchard, replied on behalf of the promoters by letter dated 11 February 2004.[38] We now evaluate the human rights implications of the Bill in the light of that response.

Seizure of goods

The right to respect for private life

7.5 The Council accepted that the right under ECHR Article 8.1 is engaged if the seizure involves a search in the home or, in some circumstances, in business premises. However, the Council points out that clause 5 does not confer any power to enter a home or other premises, and takes the view that it is therefore doubtful whether Article 8.1 is engaged.

7.6 We disagree. Article 8 rights can be asserted in public, as a number of cases (including Peck v. United Kingdom[39]) make clear.

7.7 Perhaps anticipating this, the Council went on to argue that the power of seizure is in any event justifiable under Article 8.2. It would be in accordance with the law, and necessary in a democratic society for the prevention of crime. An officer would be able to seize goods only if he or she reasonable suspects that a street trading offence has been committed. The Council said that seizure would be proportionate to the legitimate aim, because only those goods that may be required to be used in evidence, or those which may be subject to forfeiture following a conviction of the offence, may be seized.

7.8 The answer goes some way towards meeting our concerns. However, the weakness of safeguards for the rights of those affected by a seizure also caused concern when the Committee first examined the Bill. Had those concerns not been addressed by the Council, we would not have regarded the response as wholly satisfactory. In fact, the Council has accepted that the Bill should be amended to improve the protection for the rights of owners of seized goods and interested third parties (see below, paragraphs 7.12-7.15). In the light of the Promoter's proposed amendments, we accept that clause 5 of the Bill can be operated in a manner compatible with Article 8 rights, and that the safeguards for the rights are likely to be adequate.

The right to peaceful enjoyment of possessions

7.9 In relation to the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1, the Council noted that the state has a wide margin of discretion in deciding how to act where it merely exerts control over property rather than depriving a person of it. A seizure does not deprive someone of property. In the context of a seizure, the Council argued that the provisions of clause 5 serve a legitimate aim (the prevention of crime) and strike a fair balance between the rights of the owners of property and the general interest, as required under the case-law of the European Court of Human Rights on Article 1. In relation to the fairness of the balance struck by clause 5, the Council relied on the same considerations as were outlined in paragraph 7.7, above.

7.10 As we indicated in paragraph 7.8 above, this is more convincing given the range of other safeguards for Article 1 rights which the Council is prepared to propose by way of amendments to other provisions of the Bill. In the light of the Promoter's proposed amendments, we accept that clause 5 of the Bill can be operated in a manner compatible with Article 1 rights, and that the safeguards for the rights are likely to be adequate.

Disposal, return and forfeiture of property

7.11 When we first examined the Bill, we had a number of concerns about the ability of people from whom items are seized, and the owners of the items when they are not the people from whom the items are seized, to recover the goods afterwards. The Council has agreed to propose significant amendments to the Bill to take account of these concerns.

Goods the owners of which are unknown or cannot be traced

7.12 The Council has agreed to propose that an officer who seizes goods should be required to notify the person from whom the goods were seized of the right of a person claiming to be owner of or otherwise interested in the goods to show cause why the goods should not be forfeited etc., and to invite the person from whom the goods are seized to give his name and address to make tracing easier. There would be a certificate of seizure, listing:

a)  the name and address of the suspect and the owner (if different, in which case the Council would forward a copy of the certificate to the owner for his or her attention);

b)  the quantity and type of the goods and any associated equipment seized; and

c)  information about the owner's right to appear before the court.

7.13 This would bring the arrangements more closely into line with the provisions of the Police and Criminal Evidence Act 1984, Part I, and the associated Codes of Practice, in relation to notification to be given when constables seize items from people in the exercise of the stop and search powers. We welcome the proposed amendment relating to seizure of goods, and consider that it would provide an acceptable level of safeguard for the rights of owners and other interested parties to appear before a court to defend their rights (ECHR Article 6), as well as other Convention rights.

Taking account of financial effects of forfeiture on the owner of goods

7.14 The Council has agreed to propose an amendment to clause 7 of the Bill to provide that a court, when considering whether to order the forfeiture of goods following conviction of a street trading offence, is to consider not only the financial effects on the offender but also, where different, the financial effect on the owner of the goods.

7.15 We welcome the proposed amendment to clause 7 of the Bill, and consider that it, coupled with the notification arrangements outlined in paragraph 7.12 above, would be a significant protection for the rights of owners of goods to their possessions under Article 1 of Protocol No. 1 to the ECHR.

Compensation if original seizure is found to have been erroneous or unnecessary

7.16 The Chair raised with the Council the protection in clause 8(3) of the Bill for the Council and the Chief Constable against claims for compensation where an initial seizure was lawful because goods were reasonably suspected of being related to a relevant offence under clause 5, but it subsequently turns out that no such offence has been committed. The Council was asked to justify this restriction of the right to compensation for interference with property.

7.17 In reply, the Council pointed out that the compensation provisions in clause 8(2) and (3) relate only to the seizure of the goods. If the person who seized the goods originally had the requisite reasonable suspicion, the seizure is not unlawful, so compensation for it is not required.

7.18 We are persuaded that the Council is correct, and that clause 8 of the Bill is compatible with Convention rights.

Retrospective effect

7.19 We raised with the Council the fact that clause 7(1), together with the definition of "relevant offence" in clause 2, would allow a court by or before which a person is convicted of a relevant offence after the Bill has been enacted and has come into force to forfeit seized goods, even if the offence was committed before the Act came into force. This seemed likely to be incompatible with ECHR Article 7.1, which provides, so far as relevant:

… Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

The Minister in his statement on the Bill had made a similar point.

7.20 The Council replied that it did not intend clause 7 to have retrospective effect, and undertook to come forward with amendments to ensure that the provisions will apply only to offences committed after the Bill comes into force. We welcome this.

Restricting pedlars' licences to house to house trading

7.21 Clause 4 would make a pedlar's licence operate, in the Medway Council area, as a licence only to trade from door to door. This contrasts with the effect of a pedlar's licence at present under the Pedlar's Act 1871, which, by virtue of the Local Government (Miscellaneous Provisions) Act 1982, exempts a pedlar ("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") from the legal regime governing other street trading.

7.22 When we first examined the Bill, we were concerned about the impact of the restriction in clause 4 of the Bill on the right to trade under the licence for which a pedlar has paid, and so on the pedlar's right to possessions under Article 1 of Protocol No. 1 to the ECHR.

7.23 The Council replied that, in its view, the traditional idea of a pedlar as someone who trades while he travels is out of touch with the reality of the modern pedlar, who often sets up a stall and, although he moves it around regularly (the example is given of a portable hot dog barrow), is hardly distinguishable from a street trader, who is subject to a more restrictive legal regime and holds a street trading licence costing many times more than the price of a pedlar's certificate (£10, paid to the Chief Officer of Police in the pedlar's home town, wherever that may be). The Council said that it intends to argue before the Unopposed Bills Committee that the quality of pedlars' goods is often shoddy, or they are sold in breach of copyright. The Council cannot attach conditions to their licences, or check for a pedlar's fitness to trade, or revoke the licence if the conditions are breached, and cannot control where pedlars trade in order to avoid obstruction and nuisance. The Council's general powers over obstructions and nuisances are more expensive to exercise than the imposition of conditions on street trading licences. Pedlars can currently set up where they want, making it difficult for the Council to protect the safety of pedestrians.

7.24 The Council contended that clause 4 would affect very few, if any, 'genuine' (whatever that means) pedlars, and those who are affected would be free to apply to the Council for a street trader's licence, allowing checks for fitness to trade to be carried out and appropriate conditions to be attached to the licence. Although the Council has limited spaces available for street trading pitches, that is necessary in order to protect pedestrians' safety and ability to pass along the highway.

7.25 For these reasons, the Council said that it will argue that clause 4 is justifiable as pursuing a legitimate aim and representing a fair balance between the rights of holders of pedlars' licences and the general interest. It would not be incompatible with the right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the ECHR.

7.26 This Bill would effectively redefine 'pedlar' for the purposes of the law as it applies in the Medway Council area. It may well provide a precedent for other councils to seek similar legislation. The potential impact on pedlars nationwide is considerable. Despite the Council's response, we still have reservations about the justification for clause 4 in terms of Article 1 of Protocol No. 1 to the ECHR. This depends on whether removing pedlars' right to trade in the street is proportionate to a legitimate aim. Ultimately that will be a matter which the Unopposed Bills Committee can take into account when deciding whether the promoters have established the case for the Bill. We draw our concern about this matter, and the Council's response, to the attention of each House.

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36   See Appendix 6a below. Back

37   See Appendix 6b below. Back

38   See Appendix 6c below. Back

39   App. No. 44647/98, Judgment of 28 January 2003. Back

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Prepared 15 March 2004