HOUSE OF LORDS

2

 
MINUTES OF EVIDENCE

taken before the

COMMITTEE

on the

LONDON LOCAL AUTHORITIES BILL [HL]

Tuesday 8 July 2008

DAY TWO

Before:

Lord Acton

Lord Bew

Lord Brougham and Vaux

Lord Burnett

Lord Geddes (Chairman)

 

Ordered at 10.30am: that Counsel and Parties be called in.

529. CHAIRMAN: Good morning. Ms Lieven, do you want to start? I gather that you have something you would like to tell us.

530. MS LIEVEN: There are three things I wanted to refer to at this stage. The first is we did listen obviously, as is our job, to the Committee's concerns yesterday, particularly about the prospect of having different mandatory schemes within London. What we have done is tried to address that by proposing an amendment to the Bill which Mr Lewis is just about to hand around, (same handed) which we hope might go some way to meet the Committee's concerns. What it does is, first of all, it amends section 10, so instead of "the Council shall determine", it shall be "shall be prescribed in accordance with section 10A" and then we have a new 10A and I will not read through the words because obviously the Committee can do that themselves, but what it does is say that section 10 will only apply to food hygiene documents which have been prescribed by a joint committee under the Local Government Act 1972. A joint committee under the Local Government Act 1972 is a committee of all 33 local authorities in London. The effect of this clause would be that such a joint committee would consider what food hygiene documents, in other words what certificates and stickers, were to be approved under the scheme. It was only those documents. So say the joint committee approved the five star scheme with five star stickers and five star certificates, it is only those food hygiene documents to which clause 10 would apply. It would only be the approved scheme approved by the majority of the London local authorities to which the mandatory provision of the Act of the Bill applied. What that would mean is it would not be possible to have the theoretical position of two London authorities, two London boroughs having different mandatory schemes. To take the example that I know best, you would not walk up Charlotte Street and have Camden restaurants on one side with one mandatory scheme and Westminster restaurants on the other side with a different mandatory scheme.

531. I should make it clear that this clause does not stop the possibility - we say it is a theoretical possibility - that there would be one cross-London mandatory scheme and some boroughs may choose to stay with their voluntary schemes, so at the moment we know that Greenwich has a different voluntary scheme. In my submission, the second benefit of this clause is that it provides a very strong incentive to all London authorities who want a scheme at all to go with the cross-London scheme. If we take the example of Greenwich, we know that Greenwich want a mandatory scheme. If they want a mandatory scheme, they basically will have to join the cross-London scheme, otherwise they are stuck with their own scheme but only on a voluntary basis.

532. The clause has two benefits, one is it stops the two mandatory things going on at the same time but, secondly, it provides a very strong incentive to all the London authorities to buy in to the one scheme because it is only by doing that that they get the benefit of the mandatory element which they want.

533. I should say that the detailed drafting is subject to any comments from Councils, who, as the Committee will know, makes comments on detailed matters. We hope this goes at least a little way to meeting some of the concerns expressed yesterday. The other thing that we are happy to say in order to meet some of the concerns about the Food Standards Agency is to give an undertaking to the Committee that we will not bring the powers in clause 10 into effect until the Foods Standards Agency consultation process is completed and they have published their report as a consequence of that. As I indicated yesterday, that is an undertaking we can very easily give because we think the parliamentary timetable is such that the FSA process will be well completed before the Bill gets Royal Assent. Just in case something goes wrong, we are happy to give that undertaking to the Committee. Again, that probably does not meet every concern raised yesterday, but I hope it goes some way to make clear that the FSA will have completed its process on the consultation. As I indicated yesterday, local authorities obviously will be under a duty to take the position of the FSA into account when deciding what scheme to go forward with under clause 10.

534. CHAIRMAN: There are two points I want to ask about. Just to be quite clear on the second point you have raised, Ms Lieven, the undertaking would be not to bring the proposal into force until the FSA report is published, so it is post-consultation, then they report?

535. MS LIEVEN: Yes, then they report, then we can bring it into effect. There does not seem very much point to say just post-consultation because there will not be any view from the FSA.

536. CHAIRMAN: I just wanted to make quite sure there was emphasis on report. In lay terms, could the Committee take this as being an opt-out situation, albeit an opt-out to a non-mandatory scheme, so a borough can opt-out of the overall but if it does so, it cannot opt-out into its own mandatory scheme, it would need to be a voluntary scheme.

537. MS LIEVEN: Absolutely.

538. CHAIRMAN: What in 2A is meant by the word "substantially"?

539. MS LIEVEN: My Lord, my instructions are the intention was no more than to allow different local authorities to put their names on the certificate. If you were in Camden it would be a certificate issued by the London Borough of Camden. Because there is no cross-London authority doing this, it is not being promoted by the GLA, there needs to be the name of the public authority concerned and that name will differ borough by borough. To that degree, there needs to be some flexibility in the form of the certificate. I will say this and then Mr Lewis will tell me if I have got it wrong, there is no intention that the fundamental elements of the certificates, that is the stars and the rating scheme would be different.

540. CHAIRMAN: I think it would be fair to say - I have not consulted my colleagues - that in the event that the Committee found that this modification to your proposal made sense, we would want an undertaking to the effect of what you just said because the word "substantially" could be interpreted in a completely different way, if it is restricted to the name of the borough concerned.

541. LORD ACTON: Could you not draft that, "shall be in the same form but for the name of each borough council" or something?

542. CHAIRMAN: Counsel may well come up with something on that.

543. MS LIEVEN: Obviously, also, there have to be different signatures, but can I suggest that Mr Lewis and I can have a think about that during the course of the morning and see whether something could be put in to deal with the concern.

544. CHAIRMAN: We are not here to draft, with great respect, it is just the principle of the thing goes without saying. I do not think any of the members of the Committee would disagree with that application.

545. LORD BURNETT: Could you tell us a lit bit about the joint committee, please.

546. MS LIEVEN: My Lord, the joint committee is a committee of all 33 London local authorities. I believe, and Mr Lewis will tell me if I have got it wrong, that it does sometimes meet but it can also deal with its matters in writing if they are non-contentious. It is a forum which has been used for consistency of schemes across other issues in London. I will just check what they are. If you are happy, I might ask Mr Lewis to address this himself because he is much more familiar with this.

547. MR LEWIS: My Lords, just to give you a recent example where we have made reference to a joint committee in a recent London Local Authorities Act. The London Local Authorities Act 2007 made provision in allowing the London borough councils to require, for example, statutory undertakers, like electricity companies, to treat their street furniture with special stippled paint to prevent fly-posting and graffiti. It is quite similar to the circumstances we are facing today. During the select committee proceedings we came forward with a similar provision which required the London borough councils to come forward with a code of practice about how they would enforce those provisions so that there was some uniformity across London and that code of practice has to be approved by the joint committee. There are one of two or three other examples I can think where the joint committee has had to approve a code of practice. Another example, the joint committee sometimes sit jointly with Transport for London as well and it is that joint committee who sets levels of parking fines and bus lane fines.

548. LORD BURNETT: I would like to ask some further questions. Does the joint committee meet on an ad hoc basis or does it meet regularly every month?

549. MR LEWIS: That I do not know.

550. LORD BURNETT: Does it have a staff?

551. MR LEWIS: Yes, absolutely.

552. LORD BURNETT: A permanent staff? Sorry about my ignorance.

553. MR LEWIS: No, no. There is an organisation called London Councils, which used to be called the Association of London Government, which is the representative body of the London borough councils. It is under their auspices that the joint committee is formed. In fact, in a sense, London Council is a joint committee, I think is probably how they would answer that question if they were here, my Lord, so they do meet regularly. There are a number of different committees who deal with things like environment and transport. The Road Traffic Act 1991 required a joint committee to be set up by the 33 London boroughs for the very purpose of fixing parking fines, it just so happens that TfL have come on board with that.

554. LORD BURNETT: Each borough council has what, one elected member on a joint committee or more than one?

555. MR LEWIS: I would have to have somebody from London Councils to answer that, my Lord.

556. LORD BURNETT: Could we get an answer to that? What is the mandate of those drafted councillors, those councillors who are serving on it, they are elected councillors but do they speak on the basis of the democratic decision taken by their individual councils?

557. MS LIEVEN: I can probably answer that because of my knowledge of local government chamber. The answer is yes. If you sit on a joint committee of another body as a representative of your local authority, you do it in a representative function and so in controversial cases you will be mandated to vote in a particular way by a local authority.

558. LORD BURNETT: Has that mandate been given in respect of the 27 who have signed up to this?

559. MS LIEVEN: I do not know how that process was gone through. I have been told that approval for the London scheme went through the Transport and Environment Committee of London Councils.

560. LORD BURNETT: Each London council?

561. MS LIEVEN: No, London Councils, which is the body which used to be called the Association of London Authorities, it is now called London Councils. That body has a Transport and Environment Committee which approved the London scheme. I do not know the statutory authority for that committee. As it is a voluntary scheme, it may not be a statutory body, I do not know the answer to that, but as far as this clause is concerned, because this is a mandatory scheme under statute, this Committee is a statutory committee and there would have to be a vote by that committee. So far as the existing scheme is concerned, all I know is it went through the Transport and Environment Committee of London Councils. I can seek further information on that during the course of the day.

562. CHAIRMAN: Would any of the petitioners like to comment on this new draft at this stage? Do you want time to look at it? Have you had time to look at it?

563. MR COUCHMAN: My Lord Chairman, we have had a few minutes beforehand to look at it. I may say something about it in my remarks, but I do have one question. I am not sure what happens if a number of the councils then want to change the mandatory scheme. How do they then determine that the Committee should meet again to change the scheme. They might, for example, having established a five star scheme under this, which I guess might be the intention, might decide then to switch to another scheme. I am not sure how that happens or whether you have to go through a complete parliamentary process for that to happen.

564. MS LIEVEN: No, my Lord, that is dealt with by a set clause 10A (2)(b). The form of the food hygiene documents so prescribed may be varied by a joint committee. Any variation would have to go back to the same committee. Clearly it does not have to be prescribed by Parliament, but equally it has to go through the same process prescription.

565. CHAIRMAN: Any other comments from petitioners?

566. DR RAWLINGS: If I may, as a quick reaction. I do not think it addresses the problem between those people, as I said yesterday, having lunch in London and dinner in Hertfordshire, it does not solve the customer problem, what is bad for customers is bad for business.

567. CHAIRMAN: With respect, it is a perfectly valid point, but it is not the point that this is trying to address, this is trying to address the 33 as an entity.

568. MS LIEVEN: My Lord, there are a couple of other things I want to deal with at this stage, if that is appropriate.

569. CHAIRMAN: I do not know yet!

570. MS LIEVEN: Let me say what they are and then you can say whether you want to hear them. If you remember yesterday, Mr Rawlings' witness gave evidence about inconsistency between authorities and in particular in respect of Westminster City Council. He said Mitchells and Butlers had 18 premises in Westminster, they had all been given one star and the Committee asked that he go and find the relevant letters. We have this morning done a bit of investigation on Westminster's database and we can produce for the Committee a letter from 9 June 2008 that went to one Mitchells and Butlers premises, together with the food safety summary of the investigation and the standard form Scores on the Doors leaflet that went with the letter. I do not know whether the Committee wants to consider this now or consider it after Mr Couchman but I wanted to give Mr Rawlings as much opportunity as possible to see these documents. Obviously one of the difficulties with parliamentary procedure is that one has no idea what evidence is going to be put, so when the witness was in the stand yesterday and he made this mention of Westminster - it is no criticism - but I had no forewarning he would say that and therefore could only do the investigation after he had given the evidence. I think in the light of what he said, it is important that the Committee see the document as to what the actual position of Westminster is.

571. CHAIRMAN: Could we see them if that is appropriate? Have the petitioners seen these?

572. MR COUCHMAN: No.

573. MS LIEVEN: My Lord, that is because they were literally being copied until 10.29.

574. CHAIRMAN: You will need time to look at them; we will not address this issue at the moment.

575. MS LIEVEN: The first thing I should say before I turn to the letter and the attached document is we have been going through the Westminster database this morning and so far we have found six Mitchell and Butler premises, because you cannot put in "Mitchell and Butler", you have to go through all the premises. We found six Mitchell and Butler premises which have been inspected since the voluntary scheme came in. Three have been given three stars and three have been given two stars. That is the information from the Westminster database to date.

576. CHAIRMAN: That is restricted to Westminster?

577. MS LIEVEN: That is restricted to Westminster and it is restricted to Mitchell and Butler premises.

578. LORD BEW: Are we absolutely clear that we are comparing like with like? In other words, here is not an earlier grading which is 18 one star, that we are comparing like with like here, that these are not new and improved figures carried out more recently?

579. MS LIEVEN: My Lord, the star system only came in in October 2007 so we must be talking about pretty recent inspections. We have only been searching for Mitchell and Butler premises. I do not want to cast doubt on the witness' credibility, maybe he was referring to some subset of Mitchell and Butler that we have not got to yet on the database. I therefore put as a factual position, having examined the database so far this morning, we have come up with six Mitchell and Butler premises, three with three stars, three with two stars. The first example that we found this morning we printed out documentation from so this is just the first one and there is a letter dated 9 June 2008 referring to the Wellington Public House. The Committee can see in the top left-hand corner that it was sent to Mitchell and Butler Retail Limited so that is how we know it is Mitchell and Butler premises. The letter refers to the visit of 3 June when the officers went to the premises. The visit was also to investigate a complaint made by a member of the public who claims to have witnessed rodent activity at the premises, so it was both a regular visit but also in response to a particular complaint. It refers to the attached schedules and I will show the schedules in a moment.

580. "You will see I have indicated a timescale when I would expect the matters in the schedule to be completed by. A revisit will take place in 4 weeks to assess compliance with the attached schedule and Hygiene Improvement Notice", so in this particular instance a Hygiene Improvement Notice was served. He says he is enclosing a Hygiene Improvement Notice and he says the notice describes what is wrong, why it is wrong and specifies the measures that must be taken to remedy the contraventions. "If you wish to carry out alternative remedial measures of at least equivalent effect to those specified, you are requested to discuss any alternatives", and then there is reference to the period of time to comply with the notice and the right of appeal over the page.

581. Then we come to the section of Scores on Doors. "Westminster City Council are participating in the London Scores on Doors pilot scheme supported by the Food Standards Agency to show how well food businesses are complying with food law. We are making your food hygiene rating publicly available so customers are informed about the food safety standards of your business. This means that high achieving businesses receive the recognition they deserve and underachieving businesses have the incentive to raise their game and improve food safety. You have achieved a star rating of 3 stars out of a possible five stars. Please find enclosed a leaflet explaining the scheme, a right to reply, your certificate and a window sticker which you are encouraged to display in a prominent position", and then there is a reference to a contact number and a weblink if you want further information on Scores on Doors. My Lords, obviously I do highlight the fact that it is very clear from that letter that this is an encouragement not a requirement.

582. Then the notice itself we have attached just for information, but there is on the notice reference to the statutory provisions. Then one can see under "Pest Control" mouse droppings were seen and then the various other particular issues that arose are set out there. I will come back to this point in closing, but it is very clear from the form of the notice that you have non-compliance there set out in various express forms.

583. Then if I can turn to the last sheet which is the leaflet which Westminster send in and is referred to in the letter. It actually comes folded over in nice yellow glossy paper but we photocopied it in black and white. "Pilot scheme explained", and then on the back page "What's the score?" "Scores on the Doors is a pilot scheme supported by the Food Standards Agency. You will be given a certificate and a sticker to display that shows your food hygiene rating by stars. You are encouraged to display the sticker in a prominent place in your business, for example on the window or door. Your score will also be made available online". We set out why we are doing it, how is your star rating calculated and there is reference there, the Committee might note, to the Code of Practice produced by the FSA, then "What if I can't find my business on the website?" Then importantly the right to reply. If you wish to make comments about star rating, then complete the right to reply section and then what to do if you do not agree with the star rating. "If you do not agree with the rating the inspecting officer has issued, then you should discuss the rating with that officer. If you still do not agree that your star rating is accurate, please contact the food safety team manager within 14 days". Then at the end of the leaflet, if you go back to the other page, on the back is the star ratings. The Committee may be baffled by this because there are no stars on the copy but that is because in the leaflet itself the stars are in yellow and they did not come out on the photocopier, so excellent it is five stars and then it works its way down to very poor with no stars. The box is the same box as appears on the standard form notice which I showed the Committee and Mr Mason showed the Committee yesterday.

584. CHAIRMAN: Before asking the petitioners for any reaction, I just have one question at this stage. It seems looking at the letter of 9 June that this was an inspection outwith the Scores on Doors programme, if you like, it was a specific investigation because of a complaint by a member of the public?

585. MS LIEVEN: We can find out, but we may not know now but my reading of it was it was a combination of a routine inspection and the fact there had been a complaint. I get that from the second line that says: "This visit was also to investigate". I could be wrong on that, my Lords. We will try and find out but obviously we are trying to do all this in a bit of a hurry.

586. CHAIRMAN: Is that all you have to say on this?

587. MS LIEVEN: Mr Rawlings gave me this morning a copy of a letter from Barnet to Mitchell and Butler Retail.

588. CHAIRMAN: Can I suggest we just pause so we can clear this set of documents and then go on, otherwise we might get confused. Any questions from members of the Committee at this stage? I am going to invite the petitioners to comment in just a minute. Would you like to comment, talking now of the 9 June letter and its attached documents? You have only just had a chance to look at it and I quite appreciate that. If you want time to consider and come back to the Committee, that is quite acceptable.

589. DR RAWLINGS: My Lord Chairman, I would make the same observations as yourself. It does not seem to be a standard letter, it is in regard to a complaint on this particular issue so the reference to the Scores on the Doors is perhaps not a usual one. Just to say that the comment raised by Darryl Thomson yesterday was in relation to a general overall impression, not for Westminster in particular. I did speak to him last night and, as you will appreciate, he was not in his office and spent what time he could to find what he could and hence that letter has come around to you, which we will come back to.

590. CHAIRMAN: Mr Couchman, do you want to make any point?

591. MR COUCHMAN: Not on that particular point.

592. CHAIRMAN: Mr Bish?

593. MR BISH: No, my Lord.

594. CHAIRMAN: We can go on further.

595. MS LIEVEN: Just to give the Committee a reference at paragraph 482 yesterday,
Mr Thomson did expressly refer to Westminster was replaced when it had 18 premises with one star, but I will leave that there.

596. My Lord, I do not know whether the Barnet letter has been handed around. I will leave that because Mr Rawlings is producing it and if he wants to make some point on it, I will come to that later.

597. The third thing I want to refer to here so again petitioners have the opportunity to respond to it if they want to is that Mr Thomson raised issues about inconsistency of enforcement yesterday and the concern about reputational damage from being prosecuted. I thought it was important that the Committee see what is called the "Enforcement Concordat", which is set out by the Cabinet Office but to which all local authorities have agreed because there are a number of points in that about consistency of enforcement action, about how enforcement action is taken only at the end of a process, which is important the Committee understand. I will come back to it in closing, if I may. It is one of the oddities of the procedure, because you do not know what is coming in advance, you have to put in the documents as the matter goes on and I did not want to spring it on the petitioners in closing. Your Lordships can see that this document sets out the principles of good enforcement, standards, openness, helpfulness, complaints, proportionality and then consistency on the right-hand side, which is probably the most important in the light of
Mr Thomson's evidence. "We will carry out duties in a fair, equitable and consistent manner. While inspectors are expected to exercise judgment in individual cases, we will have arrangements in place to promote consistency, including effective arrangements for liaison with other authorities and enforcement bodies through schemes such as those operated by the Local Authorities Co-Ordinating Body on Food and Trading Standards". This is a document that refers to all local authority enforcement but it is interesting we have picked up a particular example of consistency in food and trading standards and local authority national-type approval confederation. I am instructed indeed that following from the Concordat the steering group and implementation group for the voluntary scheme has its own consistency framework, so consistency is the theme that runs through local authority enforcement action. I will refer to this further in closing. Those are my three matters, my Lord.

598. CHAIRMAN: Thank you. Do the petitioners want to say anything at this stage on any of those?

599. DR RAWLINGS: My Lord, sorry, I am not very sure of procedure, whether we should look at the letter from London Borough of Barnet or not at this point.

600. CHAIRMAN: It is really up to you. I do not know whether Mr Couchman will want to. You still have the floor, your witness is still to be called.

601. MR COUCHMAN: Thank you, my Lord Chairman. In that case I will make my statement briefly and then introduce my witness and deal with the Barnet letter as part of that point. We have given it to officials to be handed around, but I do not know where it is at the moment.

602. My Lord Chairman, I am Martin Couchman, Deputy Chief Executive of the British Hospitality Association. As our petition notes, we are the representative body for the hotel, restaurant and catering industry in Great Britain. Our members range from large hotels and restaurant chains to small and microbusinesses operating in excess of 40,000 establishments, of which an estimated 4,000 are in Greater London. Our members almost without exception serve food and are subject to food hygiene inspections. As an association, our position is very clear. We want food businesses to meet their legal obligations, we support enforcement of food hygiene laws and we work with the Food Standards Agency to draw law and good practice to our members' attention.

603. One of the mysteries that emerged yesterday was the non-appearance of the Food Standards Agency. Though that is perhaps regrettable, our view is that the FSA did appear by proxy through its consultation document, approved by its board and currently open to public comments. On every significant point about clause 10 and about the way Mr Mason indicated he and his colleagues wished to operate if it was enacted, the FSA consultation takes the opposite view on compulsion, on the scoring scheme options and on re-inspection and rescoring.

604. There has also been, as indicated, some mystery about the decision of some Mitchell and Butlers managers to display star ratings contrary to company policy because apparently they believe they were required to do so by the local authority. Counsel drew Mr Thomson's attention yesterday to two pages of a standard scoring certificate and challenged him to find anything which suggested display was compulsory. He was not able to do so yesterday but overnight we do have this document from Barnet. Although we gave to officials, I am not sure we gave copies to officials.

605. CHAIRMAN: I think it is being copied as you speak, Mr Couchman.

606. MR COUCHMAN: May I read the relevant extract or would you rather leave it for the moment until you have copies?

607. CHAIRMAN: I think if we can leave it unless that is going to disrupt your flow.

608. MR COUCHMAN: No, not at all. It will simply make the point that there are some boroughs, and this happens to be Barnet which is Mr Mason's borough, which arguably question in our view, but you will be able to form that conclusion yourself, that it is compulsory or at least that may give the impression to those unaware of the legal position and receiving an official letter but we will come back to that.

609. CHAIRMAN: We will see it anon.

610. MR COUCHMAN: The final point I want to make before we conclude was about the new section that has been given to us this morning. We have not had a great chance to look at it. It perhaps shows the reason one needs to have proper consultation about these matters before they come into Parliament rather than afterwards. I think we have indicated before there was something like an 18-day consultation, not in terms of the wording of the Bill but simply on principle. If the Bill had been brought out first we might have avoided some of those problems. It is not what we would regard as better regulation. I am not sure it helps because, of course, it still raises the possibility of a conflict in a decision by the FSA, it puts, as counsel rightly indicated, those boroughs that do not want to participate under pressure to come in, which may or may not be right, but that is a democratic issue for them I guess. Of course, there is an issue and counsel said it is easy enough, you can call the Committee again if you wanted to change the documents, but it is not absolutely clear to me that if some wanted to change and others did not want to change, for example, the scoring system or the nature of the documents, they can necessarily force that Committee to meet so you can end up with boroughs unhappy with the situation.

611. Finally, I will say this before calling my witness. The fact is that clause 10 jumps the gun. If the FSA decides after keeping the voluntary approach under review that it wishes to move to compulsory display across the UK, it can bring forward legislation to Parliament which will have to be supported by the results of consultation and such things as compliance, cost assessment and so on. The promoters have done none of this and fail to show why London should have rules that are different from those applying elsewhere in the country.

612. As the document is coming around now, perhaps I can draw your attention to it. This is a letter again to Mitchell and Butler Retail at the same address but from an environmental health officer in Barnet. It happens to relate to premises in Whetstone, but I do not think that is necessarily the point. I would like to draw your attention to the paragraph which starts right at the bottom of the first page and I will read out it, if I may. "Details of your star rating and relevant inspection scores are enclosed together with brief guidance on the scoring system, the right to reply procedure and your star rating certificate and sticker. We would like you to display the sticker near the front entrance to your premises where it can be clearly visible to customers outside the premises. The certificate should be displayed inside the premises where your customers can read it. This information will also be displayed on a public Scores on the Doors website", et cetera. It seems to me that it is not unrealistic to think if you did not know what the position was and you got an official letter from Barnet that was telling you were under some obligation to display the sticker on the door and a certificate within the premises, and I think that does suggest that is why possibly some of their managers were doing that.

613. My Lord Chairman, if you have got any questions on that, obviously we are happy to take them. Otherwise, I will move on to my witness, Mr John Dyson.

614. CHAIRMAN: Questions from members of the Committee? No, thank you.

 

MR JOHN DYSON, sworn

Examined by MR COUCHMAN

 

615. MR COUCHMAN: Mr Dyson, could you say to the Committee who you are, who you work for, who you have worked for and what your qualifications are?

(Mr Dyson) I am John Dyson, I am a qualified environmental health professional and I am a corporate member of the Chartered Institute of Environmental Health and a Fellow of the Royal Institute of Pubic Health. I have over 30 years' experience in food safety, both in the public sector and in the private sector. I previously worked for a company known as Dexa (?) where I was responsible for food safety and had under my control 20 environmental health officers, carrying out 4,000-plus audits a year and, therefore, have some knowledge and experience of all of the issues around consistency. I am currently the Food and Technical Affairs Adviser in a team of consultants at the British Hospitality Association.

616. Can you explain what has been your involvement with the Scores on Doors, in policy terms, with the FSA and other bodies?

(Mr Dyson) Yes. I sat on the evaluation panel for the Scores on Doors pilots which the Food Standards Agency supports. There were a number of pilots carried out throughout the UK: five local authorities in Scotland, six local authorities in the Midlands and the London scheme were all part of official pilots, all given financial support by the Food Standards Agency and I sat on the evaluation panel which met in the autumn of last year and the early part of this year to look at the operation of the pilots, how they have been received by consumers and consumer research, how the local authorities would operate them, and so forth. We were asked by the Food Standards Agency to put forward a view on whether the Scores on Doors scheme could operate in Scotland or not. A working group was put together and we carried out substantial research, some of which was referred to yesterday afternoon, including what happened overseas, and we then moved to a steering group and put together the Scottish scheme which has been operating for 18 months.

617. CHAIRMAN: For how long?

(Mr Dyson) Eighteen months.

618. MR COUCHMAN: Mr Dyson, could you give us your view on the issue of compulsory display, which is of course what clause 10 is specifically about?

(Mr Dyson) My concern about compulsory display, at this stage, relates to the consistency of the operation of the local authorities in relation to this matter. Much has been said about the London five-star scheme. At the moment, the five-star scheme is on the risk rating scheme, as was said yesterday. I was part of the working group that put together the risk rating scheme and the food safety code of practice several years ago with the Food Standards Agency. That risk rating scheme is intended purely to guide local authorities on frequency of visits to premises, and it includes a number of other areas including consumers, number of consumers who actually visit the premises, the type of consumers - are they older people, people at risk and so forth - so there is wider package in relation to the risk rating scheme. It is not a scheme used for auditing or as a means for assessing the compliance standards at that time. Interestingly, the Scottish version of the scheme which is currently being consulted by the FSA, in fact, does not fully require the risk rating scheme to be operated; in fact it refers to it but it is not completely part of it. So the risk rating scheme itself is a difficulty. Interestingly enough, I have done some research over the last few months on how the authorities in London are operating the scheme. I compared off the website the London Borough of Westminster and the London Borough of Camden. At the moment, Westminster have 3,152 businesses on their website, of which 1,441 are two-star or less, which is 45.7 per cent. The London Borough of Camden, a neighbouring local authority with similar problems and a similar size, has 2,063 businesses, 559 of which are two-star or less, which is 27 per cent. So there is a significant difference in approach between the two local authorities on achieving the five-star option. If you go out of London, interestingly, Herefordshire has 35 per cent of businesses with two stars or less, and the Malvern Hills, next door, has 5 per cent with two stars or less, which seems to suggest that the operation of five stars does create problems. We have had members actually - I have spoken to members about some of the issues in relation to stars and the business establishments which can be created. One member who runs a five-star hotel outside a racecourse where there is a festival every year where the Irish tend to go in large numbers around March ----

619. CHAIRMAN: It could not possibly be Cheltenham?

(Mr Dyson) It could not possibly be! At the festival the five-star hotel had been given three out of five stars - three stars - for food hygiene. He lost £20,000 worth of business in cancellations. This was purely down to the fact that people thought that a five-star hotel would have a five-star for hygiene. The two things are totally not related in any way; a five-star quality grading scheme which operates throughout the UK is a completely different system from the star approach to hygiene. We are concerned about the inward tourism into the United Kingdom. At the end of the day, you may believe and people locally may be aware of what a five star on hygiene and a three star on hygiene mean and get used to it, but I suspect that Americans visiting the United Kingdom may have some difficulties if they land in a five-star hotel and see three stars up, and they will glance at it - they will not necessarily fully look at it. So there is real potential for damage to business. We have had members who have had a visit from the local authority: one member operates a club in London (not a nightclub), and he was visited by a local authority environmental health officer, who actually suddenly realised that she was in the wrong place, halfway through the inspection - same name, different street - aborted the inspection, went off to the correct premises and then, two weeks later, they got three stars in a letter. So, clearly, these things are not easily operated.

620. MR COUCHMAN: The Scottish scheme. Can you explain how that works without compulsory display?

(Mr Dyson) Okay. The Scottish scheme has really been engaged with consumers and the local authorities who carried out a substantial amount of public engagement on the operation of the scheme. The deputy minister of public health in Scotland actually launched the food hygiene information scheme in Scotland. Therefore, it has received substantial national press. The fact that it is voluntary has been rather different from the experience in London, although London has obviously only been operating for a short time. In Scotland, after 12 months, 68 per cent of businesses were displaying their pass certificate voluntarily; nine per cent said that they intended to, and three per cent (unsurprisingly) said they were not sure, and the rest did not, mainly because they were a fail. In Scotland it is a "pass", a "fail" or "improvement required" situation, and those who have failed did not display. Consequently we believe that because it is a voluntary scheme, because there has been substantial discussion with local authorities, with people in their areas, people are aware of it, businesses are content to actually display their certificates. It is a pass certificate, it is easy for consumers to understand, and when we carried out research with consumers, 98 per cent of consumers felt they had a right to know what hygiene standards are in premises, and 85 per cent said that they were likely to buy food where a pass certificate was being displayed. Clearly, this is a situation where the voluntary approach is working, which is probably why the Food Standards Agency have consulted on the Scottish scheme, along with the three-tier scheme, not the five-star scheme.

621. Is there any other point you want to draw to the Committee's attention?

(Mr Dyson) Not at this stage.

622. MR COUCHMAN: Thank you.

623. CHAIRMAN: As a matter of interest, is this a devolved matter in Scotland?

(Mr Dyson) No.

624. LORD BURNETT: So it is up to the local authorities?

(Mr Dyson) In Scotland this is a Food Standards Agency scheme. The Food Standards Agency in Scotland and the Food Standards Agency England worked together, along with Northern Ireland and Wales, on the pilots and the way the whole thing has been put together. So the local authorities decided on the food hygiene information scheme because, in fact, we believed, when we put it together, this would be simpler for consumers to understand, simple for businesses to operate and it would reflect the standards that were found at the time of the visit. In Scotland there are re-inspections, so that if you, for example, get a visit and you are required to do some work by the local authority and you then carry out that work, you can ask for a revisit and you get it. In fact, the numbers of revisits have been relatively low. People have not asked for many revisits in Scotland. It has worked remarkably well, and people are quite content.

 

Examined by THE COMMITTEE

625. CHAIRMAN: Within what period of time if an establishment asks for a revisit, can you give us how many days, weeks or months?

(Mr Dyson) The establishment can ask for a revisit and that will be carried out within seven days of a request.

626. Within seven days?

(Mr Dyson) Yes.

627. LORD ACTON: I was not quite clear (and you probably said this), if there was a sticker would it say "Invented by the Food Standards Agency" or "Supported by the Food Standards Agency"?

(Mr Dyson) It would say "Supported by the Food Standards Agency". The stickers are different between a pass ----

628. It is conceptually the same; it is supported.

(Mr Dyson) We have suggested that the Food Standards Agency should be responsible for the Scores on Doors system nationally and that, therefore, all local authorities will be required to carry out the Food Standards Agency scheme. The Food Standards Agency have suggested in their consultation that they expect there will be some local authorities who will not follow their scheme, but they will be, probably, on the smaller size in numbers - very much lower than it is at the moment. So the FSA within their consultation are actually suggesting that local authorities will follow the Food Standards Agency scheme, so therefore you could have a situation in London with clause 10, where you have got the mandatory approach under clause 10, you have some local authorities who follow the Food Standards Agency scheme, which will be developed after the consultation (I think we can be almost certain that will happen) and that will become the national scheme. So you will have a plethora of situations where you have got the mandatory clause 10 scheme in London, along with the Food standards Agency's voluntary scheme in London, which may look completely different, and then you could have other schemes that are currently operating in London. So the mandatory scheme in London will not help; it will actually only create more consumer confusion because it is inevitable that some local authorities will want to follow the national scheme.

629. LORD BEW: Mr Dyson, can I ask you your opinion on your penultimate point, about the percentage of inspections, and so on.. It was put to the Committee yesterday that, in fact, there was an element of recidivism - i.e. establishments with poor standards under an inspection where the inspection deals with that problem will then lapse back, and there is a practical way of working with these things in the way this is dealt with that reflects a certain reality about how people behave, the timing of inspections and so on. What is your view about that?

(Mr Dyson) The Scottish scheme, from experience, shows that we are encouraging people to actually improve their premises. That is critical. If you invite people to ask for a re-inspection and they meet the standard, then the premises are safe and consumers are free to go in there. If they fall back at the next inspection, if the issues of non-compliance are the same again, they will not get a pass, so you will be punished with the next inspection.

630. CHAIRMAN: Are there any more questions from the Committee at this stage? Ms Lieven?

 

Cross-examined by MS LIEVEN

 

631. MS LIEVEN: I have a few questions, my Lord. Good morning, Mr Dyson.

(Mr Dyson) Good morning.

632. First of all, can I ask you about the Scottish scheme. You said that 68 per cent of businesses display their certificates. Is that right?

(Mr Dyson) Yes. That was about eight or nine months ago, so it is probably more now.

633. As I understand it, it is a "fail", "improvement required" and "pass".

(Mr Dyson) Yes. "Pass", "improvement required", "fail". Most people are a "pass".

634. What percentage of those establishments that "fail" display their certificates?

(Mr Dyson) They do not.

635. Nought per cent.

(Mr Dyson) Nought.

636. What percentage of those that have "improvement required" display their certificates?

(Mr Dyson) In fact, that was around nine per cent. What happened there was, interestingly enough and quite humorously, some of the Chinese restaurants in one local authority actually framed their "improvement required" certificates and put them up in the restaurant. So there were some - we were quite surprised - businesses which put up their "improvement required" certificates.

637. I think the obvious conclusion from that is that if you do not have a mandatory scheme then the public are not being informed about those premises that are doing badly.

(Mr Dyson) No, on the contrary. Failure to show a certificate when other businesses are actually showing a certificate informs consumers that that business has actually failed. The fact that there has been significant publicity in Scotland to demonstrate how the scheme works seems to work well for consumers.

638. A much more straightforward way of informing consumers that the business has done poorly is to require them to display a certificate with (in our London scheme) nought or one star. Is it not?

(Mr Dyson) It is a question of whether consumers understand the difference between nought and five starts and whether, in fact, businesses fully understand the differences and how to get between the stars. The reality is that if a business does not show a certificate and other businesses do, the businesses that are now showing certificates will be motivated to get to a position where they will pass, consumers will realise that those businesses that have failed are not showing certificates and will probably take their business elsewhere.

639. The other problem with having a "silence means failure" system is what happens with new businesses? Presumably, they have no certificate they can display until their inspected, so there is an assumption that they have failed.

(Mr Dyson) No, part of the scheme includes "awaiting inspection".

640. On consistency - I am sorry, I did not get the figures. You said that in Westminster 27 per cent of premises had two stars or less. Is that right? What was the equivalent figure in Camden?

(Mr Dyson) In Camden it was 27 per cent had two stars or less. In Westminster it was 45.71 per cent had two stars or less.

641. I think you gave the equivalent example for Herefordshire and Malvern Hills, where the difference was between 35 per cent and 5 per cent. Yes?

(Mr Dyson) Yes.

642. Obviously, one could describe differences between Westminster and Camden (with things like Camden Market), but I will leave that up to the Committee, but it is right, is it not, that in the London scheme the steering group has a consistency framework?

(Mr Dyson) I believe they do. We have had little contact with the committee in London for the scheme because it did not bother to consult with us as a trade association.

What the two sets of figures that you have cited show is that actually in London there is a movement towards convergence whereas in an area where there is no consistency framework - Herefordshire as opposed to Malvern Hills - the differences are actually much greater.

(Mr Dyson) The fact remains that the London scheme has only been running for a very short time. As you said earlier, it is difficult to make a comparison. All we can do is work on what the London schemes are doing at the moment. It is difficult to see how any convergence has occurred when the schemes themselves have only been running for a few months.

643. One of the explanations for why Camden might have a lower percentage of two stars or less than Westminster is that the Camden scheme has actually been running for a year longer than the London-wide scheme. Has it not?

(Mr Dyson) The Camden scheme has been running longer. I am not sure that that is a reason why there is a difference.

644. The final thing I want to ask you, really, out of curiosity, is that you referred to the Cheltenham Festival example and you say they lost £20,000 through cancelled bookings. Is that right?

(Mr Dyson) Yes.

645. Did they, in every case, have a letter saying: "We cancelled the booking because of your hygiene rating"?

(Mr Dyson) The owner of this hotel is quite clear in his own mind that the complaints were cancelling because of the hygiene rating scheme - the five-star scheme.

646. Is there any documentary evidence? There might be lots of reasons why you cancel your hotel for the Cheltenham Festival (I cannot remember what the weather was like this year, for example), but do you have any documentary evidence that that is the issue that led to the cancellations?

(Mr Dyson) I have nothing with me. I have just got information from the owners to that effect.

647. Then, finally, on the consultation issue, my instructions are that we held a business consultation on the London scheme in August 2006. Were you involved in that? Did you go to that?

(Mr Dyson) No, we were not involved in the consultation. We received no consultation documents from the London scheme, we were aware of it through various discussions privately with various other companies, but we did not actually receive an invitation to provide evidence to a formal consultation on how that scheme in London would work, and a number of other trade associations did not receive a similar consultation. I suspect the consultation in London was carried out with local businesses.

648. I am sorry, there is one other thing I should ask you. You have spoken quite a lot about the Scottish scheme, we know that they have this "pass", "fail" and "improvement required", and we know the FSA is consulting on a couple of different schemes. Is there any commitment in Scotland that if the FSA ultimately recommends a national scheme, say, with either five stars or three stars, that the Scottish will give up their scheme and go with the FSA scheme?

(Mr Dyson) There has been no indication that the Scottish will go on their own - that the Scottish will run their own scheme.

649. The position is, is it not, that so long as these are voluntary schemes there is always the possibility that different authorities will go their own way. That is a function of the voluntary nature of the schemes.

(Mr Dyson) At the end of the day, if the Food Standards Agency, who are the regulators of food safety in this country, who have got the highest level of consumer acceptance (?) and respect for food safety, set up a national scheme it seems to me very unlikely that the vast majority of local authorities will not go with it.

650. If that assumption is right, then there is every reason to believe that London, too, would go with the national scheme. The way the system works is there is the possibility of local authorities going their own way but, obviously, every local authority will have to take into account what the FSA recommends.

(Mr Dyson) Mr Mason yesterday said that his view was that local authorities in London were minded to stay with their five-star scheme.

651. The position is exactly the same across every local authority; they have the right - as long as it is a voluntary scheme - to go their own way, whether it be Scotland or London. However, equally, they all have a duty to take into account the position of the FSA. Yes?

(Mr Dyson) They do have a duty to take into account the FSA, but the concern is that the London authorities, up to yesterday, were saying that they are minded to stay with the five-star scheme. Clearly, that is a huge concern.

652. MS LIEVEN: Thank you very much, Mr Dyson.

653. CHAIRMAN: Mr Couchman, have you any further questions?

654. MR COUCHMAN: No, thank you, my Lord Chairman; I think we have finished, thank you.

655. CHAIRMAN: Mr Dyson, I would like you to repeat what you said just at the end of your evidence, when you were talking to Mr Couchman, about your opinion on the confusion that would result in London. Can you reiterate that?

(Mr Dyson) The confusion between ---- ?

656. Between the respective schemes. You said there might well be (if I remember correctly) three schemes running concurrently. Could you reiterate what you said?

(Mr Dyson) Yes. You could have a situation where the Food Standards Agency scheme, which will be produced, is then taken up by some local authorities in London, which is a voluntary scheme - and the FSA have made it clear that they are going with the voluntary scheme in their consultation. You could have the mandatory scheme under clause 10, which could be the five-star, which was said yesterday people were minded to continue, and you could have two or three of the other local authorities running their own schemes, which could also be voluntary, which would be different from the others. So you could end up with a complete mess.

657. CHAIRMAN: Thank you. Are there any questions from Members of the Committee to Mr Dyson? No. Thank you very much.

 

The witness withdrew

658. CHAIRMAN: Ms Lieven?

659. MS LIEVEN: I am so sorry, my Lord. I am not sure how the procedure works at this stage; whether I make my closing speech.

660. CHAIRMAN: Mr Couchman has just said he has finished.

661. MR COUCHMAN: My Lord Chairman, we are finished.

662. MS LIEVEN: I do not know whether Mr Bish has finished.

663. MR BISH: I have nothing to add.

664. MS LIEVEN: My Lords, I will turn to closing and I will try and pull some of the threads together, if I may. First of all, I think I need to emphasise that the clause is only about making display mandatory; it does not prescribe the form of the documentation that shall be displayed. We have shown the existing documents for illustration, but the form of any mandatory scheme is one that will be decided quite a long way in advance, in effect, probably sometime in mid- to late-2009.

665. We do understand the Committee's concerns that the FSA consultation has not finished and we have not got to the report stage from the FSA, and the danger of having different mandatory schemes, and we do - and I think Ms Potier was quite clear about this - accept that is an undesirable situation, and we believe that clause 10A entirely addresses that danger of having different mandatory schemes.

666. I have to say, and strongly submit, that the chances of ending up with different schemes within London is, in my submission, a very small one because, in fact, clause 10A works strongly in favour of uniformity there because if London authorities want a mandatory scheme, and there is every reason to believe that they will (and we know that even Greenwich, who are the outlier at the moment and have their own scheme, want a mandatory scheme), then there is every reason to believe that every borough that wants a scheme at all will opt in to the one mandatory scheme. So I very strongly submit to the Committee that the suggestion that there are going to be lots of different schemes in London is very unlikely.

667. LORD ACTON: If one reads both clause 10 (if you read it for my benefit) and clause 10A, what happens (I have understood your undertaking that if this gets through it would not be brought into operation until after the FSA report) if, subsequent to the FSA report but subsequent to this coming into operation, a London local authority says: "We have made a mistake. We shouldn't have gone for mandatory; we should have gone with the FSA"? Can they get out?

668. MS LIEVEN: Yes.

669. LORD ACTON: They can.

670. MS LIEVEN: Yes, they can get out. They can get out at any stage. I do not think you have to go back to the joint committee.

671. LORD ACTON: How do they get out?

672. MS LIEVEN: The joint committee is only used if it is a mandatory scheme. Say Camden decide that they do not want to be in the London-wide scheme and they want to go with the FSA scheme, assuming they are different schemes. They can simply stop saying to people: "This is mandatory", they can stop using clause 10 and they can go to the FSA scheme ---

673. LORD ACTON: So it is not mandatory?

674. MS LIEVEN: There is no suggestion that the FSA ----

675. LORD ACTON: I am sorry. So clause 10 is not mandatory; you can just get out of it. All 33 London authorities could subscribe to it and two days later say: "No, we are ----

676. MS LIEVEN: They could decide not to put it into effect, my Lord. That is the same with any statutory provision. You can always decide not to put that into effect. So they would simply decide "We do not want a mandatory scheme in Camden any longer; we want a voluntary scheme". My Lord, in my submission, and I accept your Lordship may not agree with it, that is an extraordinarily unlikely situation to arise. Why on earth should a local authority decide that it positively wants a voluntary scheme? There is no doubt (I will come to this in a moment) that the arguments in favour of a mandatory scheme over a voluntary one are overwhelming, because we have heard from the petitioner's own witness that when you have a voluntary scheme the poor performers simply do not display. So a voluntary scheme is good for good performers but completely pointless in terms of raising the standards of the poor performers. So there is absolutely no reason to believe that any London local authority would opt out of a mandatory scheme into a voluntary scheme.

677. LORD ACTON: I would like to be clear on this. Is it not possible that the Food Standards Agency scheme is such a success that some London authorities might say: "We would rather go with that"? You are saying no, it is highly, highly, highly unlikely. I am afraid I find that difficult.

678. MS LIEVEN: My Lord, what in my submission is a much more likely scenario is that if the FSA scheme is a great success - assume to start with that London takes a mandatory scheme which is different; it keeps its five-star scheme and the FSA takes the three-star scheme and the three-star scheme is fantastically successful - there is every reason to believe, in those circumstances, that the London authorities would look at the FSA scheme and say: "This is much better than our scheme; let's opt for the FSA scheme", and then we get the FSA scheme and we get the mandatory provisions. Personally, I find it difficult to imagine why a five-star scheme should be so much less successful than a three-star scheme, but just assume it was for the moment, and then London swaps over. That is a possible scenario.

679. However, the scenario that lots of individual London local authorities are going to decide to go into a voluntary scheme rather than a mandatory scheme ----

680. LORD ACTON: I said "some".

681. MS LIEVEN: ---- in my submission, is not terribly likely. The Committee has to reach its own conclusions on that. Given that we have got 27 authorities signed up at the moment to the London scheme, and given that we are not talking about major different philosophical approaches here (I know we have spent a day-and-a-half on Scores on Doors but one does have to step back for a moment - this is not a party political issue on some great philosophical difference - five stars or three stars), in my submission it is pretty unlikely they will give up the mandatory element for the benefit of three stars over five, but if they do they are much more likely to do it en masse, rather than individually. The Committee will have to reach their own conclusions on that.

682. Obviously, the other scenario that the Committee has to consider is that by the time we move forward to adopting a scheme by reason of the undertaking, the FSA will have reported and, whatever Mr Mason says, all those local authorities, 33 local authorities, will have to consider the FSA report. If there were overwhelming reasons to go with one of the other options then the London authorities will have to very carefully consider that, and may well see the benefits of going with the FSA scheme. It is impossible to speculate on that, in the light of the fact that we have not got to that stage yet.

683. The other point I would emphasise a little is that, in my submission, the horror of having a London scheme and a different scheme in Hemel Hempstead is perhaps a little overstated by Mr Rawlings. Consumers, in my submission, are unlikely to find it that difficult to work out how the five-star scheme as opposed to the three-star scheme works, and if you think about probably every member of the Committee's common experience of trying to park in London, you very quickly learn that different boroughs have different rules and you have to check the signs. In my submission, when you go to a restaurant and you see five stars as opposed to the three stars, you will very easily work out what is good and what is bad. So, in my submission, although one can quite see the problems of having two mandatory schemes on different sides of Charlotte Street, different schemes between London and Hemel Hempstead, in my submission, is not an insuperable problem. I would remind the Committee of the example of the USA where cities have different schemes. Ms Potier referred to San Francisco and Napa Valley, which of course adjoin each other, and people visit Napa Valley or commute to San Francisco and there is no reason to believe they do not manage to cope with the fact that there are different schemes. That is part of the nature of an urban conurbation.

684. My Lords, although there are various possibilities that might arise as a contrast between schemes, first of all, in my submission, clause 10A makes that much less likely in London, and, secondly, in my submission, it is not really quite as much a problem as perhaps has been suggested.

685. Can I turn to the position of the FSA? I understand the Committee's concern that the FSA were not here to give evidence, but there is an absolutely clear convention in private Bills in relation to government departments and agencies. What happens is that those departments, including the agencies, are consulted on them and if there are any aspects of those Bills that they do not like they can report against the Bill. Indeed, there are two representatives of DCLG here who are here to speak on their problems with the HMO provisions that will come this afternoon. So the absolute convention is that if a government agency does not like something it tells the department and they report against the Bill.

686. Here, Defra were consulted, the FSA are very well aware of clause 10, they have been closely involved in the Scores on Doors issue and they have not reported against the Bill. In my submission, in those circumstances the Committee can completely fairly assume that they do not have a problem with it. If, as was suggested yesterday, the FSA thought that clause 10 would potentially leave a gaping hole in their voluntary scheme - a hole the size of London - then, in my submission, they would undoubtedly have come and said so. It is a negative resolution situation. If the FSA thought that this clause caused them any major problems then they would have told the Committee. That is the way the convention works, and they have not done so.

687. In terms of the FSA giving evidence, my instructions are that it is almost unheard of for a representative of a government department or agency to give evidence in support of a private Bill. Mr Lewis, who is extremely experienced as a Parliamentary Agent, can remember one occasion in about the last 20 years when a government minister gave evidence on a private Bill, and that was in a last-ditch effort to keep the first Crossrail Bill alive in 1994, when Stephen Norris came and gave evidence. That is the only time Mr Lewis can remember it ever happening. Mr Blackwell from Westminster, who has been closely involved in the promotion of all ten of the London Local Authority Bills says that in his experience he can never recall it happening. So it is just not something that happens under the procedure.

688. I should say that in the light of the Committee's comments yesterday morning we did ring the FSA and say: "Would you like to come and give evidence to the Committee?" - not give evidence in our favour but come and give evidence - and they said: "No, that is not our job." Having looked at the Standing Orders, I do not think the Committee has the power to summons somebody from the agency.

689. So, in my submission, the fact the FSA are not here, if weight should be given to it at all (and I understand the Committee are clearly concerned about the position of the FSA), then silence means assent. It does not mean support but it means assent. They certainly do not see a gaping hole in what they are doing.

690. I am going to turn quickly to the benefits of the clause. In my submission, the benefits of Scores on Doors, generally, are very clear. The public should be entitled to see the outcome of the latest food hygiene inspections in an easily understood format. This provision is all about transparency and information. In fact, the public are already entitled to see it but only if they exercise the powers under the FOI (Freedom of Information Act) which I think few of us are likely to do when we decide to go out to a restaurant.

691. The other very clear benefit is in terms of raising the standards, and those benefits can be already seen in the material Mr Mason showed you. In my submission, the importance of the display being mandatory is absolutely obvious and, indeed, Mr Dyson's evidence supported that, otherwise poor scorers are unlikely to display. In my submission, the Committee can completely reject the suggestion that consumers work out that if there is no score on the door that means they have failed. Why should consumers have to go through that exercise? Even if they work it out, they will probably think that the score has been hidden behind some other piece of paper. Surely, if we want transparency and consumer empowerment, then what you do is require everybody to put the score up.

692. Then: why London? Mr Couchman said that London is jumping the gun. Yes, up to a point, that is true. The way I put it is that London is leading the way on this issue. London is our capital city; it has millions of visitors every year, far more than any other city in the UK, and it is an Olympic City, and we are not embarrassed by the fact that London is first, and that is appropriate. I said to your Lordships in opening that London is often first on these kinds of matters, and they often get adopted elsewhere, and that seems a very strong possibility here. London is different from the rest of the UK; it is a huge, international city and it should be leading the way on an issue such as this.

693. Very briefly on the petitioners' objections, scoring is unclear. I took the Committee through this yesterday in terms of the scoring sheets in the exhibits. The scoring is entirely based on the FSA's own code of practice and that code clearly establishes tiers of compliance, it sets out perfectly clearly what are the issues that are to be addressed. It is only the three criteria that are being adopted for the scores. The suggestion from the petitioners that somehow the scoring is unclear in my submission is entirely wrong. As far as inconsistency is concerned, if I can refer the Committee back to the concordat, that clearly acknowledges that obviously inspections are carried out and sometimes people are going to come to different conclusions, but if I ask your Lordships to look at these concordat, the way to get around that is to work on consistency. That is exactly what is happening in London with a consistency framework.

694. In my submission, you are always going to have some inconsistency, but actually if you compare Camden and Westminster and you think of the differences between Camden and Westminster, perhaps I am prejudice here because I know both areas extremely well, but Camden is rather a different place from Westminster, it has far more street stalls and far more cheap restaurants, so actually an inconsistency of 10 to 15 per cent is not unreasonable. We are working hard through the consistency framework to get consistency across London.

695. The second problem was people might get confused. In my submission, it is quite difficult to see why people would get confused by a five star system. The realistic issue which is addressed in the form of the certificates is to make it absolutely clear that this is about food hygiene and not food quality and we have done that through the form of the certificates and will work on it further.

696. Administrative burden: it was clear from Mr Thomson yesterday, it is not the burden of compliance because there is really not burden of compliance. In terms of the burden of reputational damage, again, can I ask the Committee to consider the concordat because what is so clear from that is that actual prosecution is very much a last resort. One thing is local authorities do not have the money to throw at prosecutions in anything other than the most outrageous cases. In terms of prosecution under environmental health, Scores on the Doors is going to make no difference whatsoever to that. If you have got a terrible case of no stars, you may end up being prosecuted, but that is not because of Scores on the Doors. In fact, when we look into, are all the Mitchells and Butlers premises in Westminster getting one star, the answer is no. If people get low stars, then that will largely be, but not entirely, be because of the inspection that has been carried out, to which they have the right to ask for a review and then appeal.

697. In my submission, the reputational damage is one which will follow from poor performance and nothing else. I would also ask you to treat Mr Thomson's evidence on reputational damage with a little bit of caution because he expressed great concern about Westminster, he had taken the matter up with the food safety manager and he had not taken it any further, so it does not seem that was a huge concern.

698. Then the petitioners only want a national scheme: we quite accept what Ms Potier said, a national scheme would be good, but a national mandatory scheme may be many years away because of the need for public legislation and all the problems that go with that. In my submission, as I have already said, having one scheme in London and one scheme in Hemel Hempstead is not an insuperable problem.

699. Finally, re-inspections: there are starkly different views on this, but it is not part of the Bill, that is the critical thing, and the different views will be taken into account, the benefits of the Scottish method, which Mr Thompson spoke to, the benefits of the London method, which Mr Mason spoke to. It may be that there are horses for courses, it is may that in Scotland because food has become such a high profile political issue, there are different concerns there, I do not know, but it is clearly something we will keep under review in whatever scheme is adapted. The critical point is that matters such as that are not part of this Bill. My Lords, unless there are any other questions I can assist with, those are my submissions. Sorry, I was passed a note which I probably lost about joint committees to answer Lord Burnett's question. I think I will read it. There are two existing joint committees formed under Section 101 and which could prescribe the forms under the new clause 10A. The Leaders Committee of London Council comprises the 33 leaders of the Council and meets eight times a year and has a varied agenda. The Transport and Environment Committee of London Councils consist of one member from each council, not necessarily the leader. That is the Committee which approve the existing London scheme. It also sets parking charges and approves the code of practice that Mr Lewis referred to earlier. That meets four times a year, but there are also four separate subcommittees.

700. LORD BURNETT: I wonder if the Committee could have a copy of that note.

701. MS LIEVEN: Absolutely, it is handwritten at the moment. Would that be acceptable to the Committee or shall we type it up over night?

702. CHAIRMAN: I think a handwritten one in the circumstances would be preferable.

703. MS LIEVEN: Certainly, Mr Lewis' handwriting is very clear (same handed. Subsequently copied and circulated).

704. CHAIRMAN: Are there any questions of Ms Lieven?

705. LORD BURNETT: The undertaking in relation to the new clause 10A, did you say you were going to give us a draft of that?

706. MS LIEVEN: I do not think I did, but I very happily will. I will ask Mr Lewis to write it out.

707. CHAIRMAN: This was the one not to bring into force until the FSA report is published?

708. MS LIEVEN: Indeed, my Lord.

709. LORD BURNETT: Maybe that is not necessary, Lord Chairman.

710. CHAIRMAN: I think from my past experience once Counsel has given an undertaking, it will come in writing but I do not think we need it at this stage.

711. MS LIEVEN: It think the critical issue is it goes on the transcript so the world can see it through that means.

712. CHAIRMAN: Any further questions? I think, if you agree and the petitioners agree, this is quite a convenient moment for the Committee to try and reach a conclusion on this particular clause. We have spent a day and a half on it. I do not guarantee that we can but it would be quite convenient to wrap it up since we are breaking for lunch at 12.30pm anyway. We will do our best, but I do not promise we will succeed. If we could clear the room and then the Committee can deliberate.

 

At 12.00pm Counsel and Parties are directed to withdraw and at 2.30pm are again called in.

 

713. CHAIRMAN: Good afternoon. Thank you very much for being so prompt in coming back and indulging the Committee in allowing a rather longer lunch hour than usual, it is much appreciated. Without looking at anyone in particular, could I please ask everybody to have their mobile phones turned off or on silent. If there is no objection, I would like to advise the promoters and the petitioners that the Committee has reached a conclusion on clause 10 and having spent a day and a half on it, it might be convenient if I was to let you know the conclusion of that. I do not promise to do the same thing on the remaining three parts that we are dealing with this week, we may well wrap all those up together at the end of the week. We will just have to play that by ear, if that is acceptable.

714. The Committee is content that the London Local Authorities Bill, House of Lords, makes provision for a mandatory scheme for the display of food hygiene documents ('Scores on Doors'). The Committee welcomes the promoters undertaking that they shall not bring such a scheme into effect before the Food Standards Agency has concluded its consultation on a nationwide Scores on Doors scheme and published its report. However, the majority of the Committee want the promoters to go further. The majority opinion of the Committee is that the London mandatory scheme should not be different from the scheme recommended by the Food Standards Agency. Therefore, the Committee requires the inclusion of a new provision in the Bill which will have the effect that the documentation required by any mandatory scheme in London shall be consistent with the nationwide Scores on Doors scheme recommended by the Food Standards Agency.

715. That is the conclusion of the Committee. Can I just make two comments? That deliberately does not include any requirement for an undertaking regarding the word "substantially", which was in the draft clause 10A, because it may well be that that draft clause 10A will itself be amended or, indeed, deleted dependent on the drafting given the Committee's conclusions. In the same vein, I should emphasise that the words "shall be consistent with the nationwide Scores on Doors scheme" is drafted to include the same parameters as we discussed over the word "substantially ". In other words, "consistent with" means "shall not be different from, other than", for instance, which borough local authority it happens to be, who the signature is, is it a mandatory scheme, is it a voluntary scheme, et cetera. That is the purpose of the words "shall be consistent with". In other respects, the Committee does not want it to vary from the nationwide scheme. That is the conclusion of the Committee.

716. MS LIEVEN: My Lord, thank you very much for that. I think probably the appropriate way forward is first of all to say, I will take instructions on that and we will seek to come back to the Committee tomorrow with a draft. There is just one point of clarification which it might be helpful if I asked for now. Of course, there is a possibility that there will be no nationwide scheme, it has got to be a possibility, we do not know whether it will happen or not, but it has got to be a possibility. Would it be acceptable to the Committee if we drafted the new clause to cover the possibility of their being no nationwide scheme?

717. CHAIRMAN: I find no objection to that at all.

718. MS LIEVEN: I am very grateful. It was just one point to be clear on before I asked Mr Lewis to start drafting over night.

719. CHAIRMAN: I think it is a very fair point.

720. MR COUCHMAN: My Lord, I just wondered whether there ought to be some form of time limit placed on this because this could go on a very long time. Of course, we cannot be sure, as Counsel has pointed out, that the FSA will necessarily recommend a nationwide scheme. I am not quite sure. There is a slight hostage to fortune possibly in relation to the timing of something like that. I am very appreciative of what you have done.

721. MS LIEVEN: My Lord, the very reason I raised the "if any" is in case there was not a nationwide scheme and it was in my mind that there would be some longstop by which if the FSA do not bring forward a nationwide scheme within a period of time, it might be two years, it might be three years, then the powers in the Bill would go forward with or without that scheme. Effectively, that the FSA have a certain period in which to elect, so if they do not bring forward a scheme in three years, then the mandatory provision comes into effect with the 10A fallback. I am giving Mr Lewis an awful lot of work to do overnight in terms of drafting, but that is rather how I imagined your Lordships envisaged it.

722. CHAIRMAN: Your point is well taken again. Trying to relieve Mr Lewis of the burden of that, it might be preferable, taking those comments into account, if the counsel to the Lord Chairman of Committees produced a first draft which he would then show to the promoters and the petitioners obviously.

723. MS LIEVEN: The only issue about that, my Lord, would be timing. I am assuming the Committee would want to see the proposed clause while it was still convened. I am being told by one of the clerks that it would not be a problem. Perhaps we can ask Mr Lewis.

724. CHAIRMAN: I was getting exactly the same message while you were getting your message! That must make sense. If Mr Lewis and counsel can put their heads together to see if there is a practical way of doing this. I am being told that there will be something before the Committee finishes its deliberations, in other words sometime by the end of next week, but it would be preferable to get it way before that.

725. MS LIEVEN: I am instructed that is fine. There are issues about next week, that is why I was taking instructions on that.

726. CHAIRMAN: From what I just heard through my right ear, there is an extremely good chance it will be by the end of this week rather than by the end of next week, which would be preferable for everybody. Any further comments from either the promoters or the petitioners? Thank you very much. We have had a good day and a half on hygiene, perhaps we can move to the highway, clause 9.

727. MS LIEVEN: I hope so and I hope it will be possible to deal with this a great deal more speedily, it is a much more straightforward issue.

728. CHAIRMAN: Could I interject by saying I second your remark?

729. MS LIEVEN: I will certainly try and do my part and Mr Wilson who is giving evidence, we have already tried to cut down his evidence a bit. My Lords, clause 9 of the Bill is dealing just with the things that can be charged by local authorities for the placing of chairs and tables on the highway pursuant to the Highways Act 1980. The issue has arisen and become prominent in London because, as I am sure your Lordships will have noticed, more and more restaurants and cafes are placing tables and chairs on the highway, partly I suppose as a response to better weather, partly as a response to the smoking ban, that seems to be a reason for the quite rapid increase in the last year, and possibly partly just because of the cultural shift towards a more European style of entertainment.

730. Under the Highway Act 1980, section 115E, and your Lordships do have a bundle of legislation, but I do not think on this it is probably necessary to look at it, a local authority can grant permission for the placing of items on the highway, including tables and chairs. The power to grant the licence is there. Section 115N gives power to place conditions on the licence, including the power to make a charge, but the charge is related only to the reasonable costs of granting the licence. In other words, they are just the administrative costs of processing the licence. We cannot charge for the costs of enforcing the licence or the additional costs of street cleaning associated with the fact that there are tables and chairs on the pavements.

731. I should make clear that we are not seeking the power to charge for the removal of rubbish, we have deleted that part of the clause and the reason for the deletion is that those costs are covered by the general charge made to those premises for rubbish collection. I should also make it clear that when we seek to be able to recover the costs of enforcement, what we are talking about is not the costs of prosecuting in those rare cases where one might seek to prosecute somebody for breach of their licence, it is the cost of ensuring the licence is being abided by, so the officers have to go out, they have to check that the tables and chairs are in the right places and they have to check that the right number of tables and chairs are there. Again, I am sure your Lordships have noticed, what often happens is the customers go out, in fact I have certainly done it, you sit at a table, you pull the table a bit away from the wall, you move your chair into the highway and unbeknownst to the customer, you have just breached the licence. It is necessary for quite a high level of enforcement to check that the terms are being abided by.

732. I am sure the Committee can understand that if you are trying to get along a narrow pavement or you have a buggy or you are disabled, then it is very important that these licences are strictly abided by because often the streets are not particularly wide. The promoters think it is only fair that those additional costs should be borne by the operators of the premises and not come out of the general local authority budget and therefore ultimately be paid for by the council taxpayers of that borough. We think that this is simply a fair thing to do, to allow those costs to be charged back to the operator, who is ultimately benefiting from being able to put their tables and chairs on the pavement for no rent and often that can be a very valuable thing to be able to do, you will much expand your seating area.

733. One objection, and I suspect it is really the main objection to this clause, is the argument that local authorities can license tables and chairs under existing street trading legislation in other London local authorities acts. If they do it by that method, they then can recover the costs we are seeking to recover under the Highways Act. It is right to say that some boroughs do use the street trading legislation rather than the Highways Act to deal with tables and chairs. As Mr Wilson will explain to you, that street trading legislation is not at all well suited to licensing tables and chairs because, as is clear from the name, it is really to cover street market trading. It is licensing market traders, therefore the licences are personal to a particular trader, they have rights of succession upon them and any operation other than by the licence holder can itself be a breach of the licence. Whereas, for tables and chairs, a large proportion of the licences generally are granted to outlets where the operator is not trading personally. A lot of them are multiples, Starbucks, Costa Coffee, those kinds of places, but even then when they are one-off operations, they are very often not being operated by the actual owner or occupier, they will be operated by some manager on a day-to-day basis. It is our position that it is inappropriate that the licence for tables and chairs should be personal and should be granted, for example, to a manager who might not be there or might be a shift manager, so one person has got the licence and the other person is there in operation. Mr Wilson will explain it in more detail, but we do not think that the street trading legislation is the appropriate way to be dealing with tables and chairs, the Highways Act is a much better route and therefore it is appropriate we should be able to recover costs under that.

734. The other concern raised by petitioners is cost. They say there is going to be more cost and more administrative burden. In fact, as Mr Wilson will explain, we have done the work and we have worked out there is less cost and less administrative burden by doing this under the Highways Act. That is partly because the way that boroughs like Westminster deal with tables and chairs under street trading is by granting six month licences. They get around the problem that the manager might change or might not actually be there at all by re-granting a licence every six months, whereas under the Highways Act, a licence can be granted for an unlimited time, but even in Kensington and Chelsea they are granted every year. They certainly would not be granted every six months. We have worked out that those costs and administrative burdens are less under the Highway Act and it is a more appropriate power. With those opening comments, I was going to proceed directly by calling Mr Wilson, if that is acceptable.

735. CHAIRMAN: Do any members have any questions at this stage.

MR CRAIG DOUGLAS WILSON, Sworn

Examined by MS LIEVEN

 

736. MS LIEVEN: The Committee will find in their exhibit bundle a set of exhibits relating to clause 9. Mr Wilson, can I start by introducing you. Your name is Craig Douglas Wilson.

(Mr Wilson) That is correct.

737. You have a BSC in Civil Engineering and an MSC in Transport and Traffic Planning. You are a Chartered Engineer and a member of the Institute of Civil Engineers and a Fellow of the Institute of Transportation and Highways.

(Mr Wilson) That is correct.

738. You were until recently employed by the Royal Borough of Kensington and Chelsea as their Director of Transportation and Highways, a position which you held for nine years?

(Mr Wilson) That is correct.

739. I think your total experience in London Local Government is some 37 years, covering a large number of traffic and highway issues, is that right?

(Mr Wilson) That is correct.

740. Can you tell us in a nutshell what problem clause 9 is addressing?

(Mr Wilson) Basically, clause 9 is addressing what has be deemed the cafe culture. There has been a significant increase in the number of coffee bars and restaurants and establishments which are catering for outside dining. More recently, there has been a thing called "a patio heater", which was introduced in those areas and subsequently we have had the smoking ban, which has brought people outside. A number of things have taken place which have promoted outdoor dining and activities. Currently we have 80 licences in Kensington and Chelsea and we are processing 15 more at the moment. We estimate that within a few years that number could probably grow to about 200. Basically when the Highways Act 1980 was first formulated, I do not think the cafe culture and tables and chairs were in the minds of the people who were creating the legislation. There is expressed powers to charge for the administration of the licence but there is no power in the Act to allow the continuing charge to take place as a result of the tables and chairs being on the highway. There are instances where licences are issued for things which do not have a continuing cost. I can think of bus ticket machines which have been placed on the highway where it is an item of street furniture and as a result of that piece of equipment being there, there is no continuing cost arising on to the council. However, with tables and chairs, there is a use made of them by people and as a result of that, things are happening, the object is moving around, litter is created and therefore things are not as stable as they would be if it was a ticket machine which is an inanimate object. Clause 9 is attempting to address the fact that there are no powers for the local authority to recover the ongoing costs for street cleansing and enforcement.

741. Can we move to the argument being put against us, which is, there are alternative powers under the street trading legislation which are sufficient. What do you find is the difficulty with trying to license tables and chairs under street trading legislation?

(Mr Wilson) The main difficulty with street trading legislation is that the licence is issued to an individual person and that is very clear. There is an overriding requirement for personal trading by the individual named licence holder. This is directed towards an individual person, sort of pursing their livelihood as a market stallholder in a sort of traditional London street market. The fact that there is a strong individual family orientation to this legislation is that there are 18 named relationships to this licence holder who may acquire the licence if the licence holder dies, retires or has to give up trading for ill health purposes.

742. Are there administrative problems with doing it under street trading in terms of the revocation and renewal processes?

(Mr Wilson) Yes, it is quite a long process of withdrawing a street trading licence, I think primarily aimed at protecting the small licence holder. There is a 21-day notice period which has to be given to the licence holder. He then has the right to make representation to the council. If they are not satisfied with the result at council level, there is an appeal to the Magistrates' Court and then subsequently there can be appeal to the Crown Court.

743. If the licence holder is not trading personally, is that a ground for revoking the licence?

(Mr Wilson) That is probably one of the main grounds for revoking a licence because it is really intended that there should be a personal trader.

744. Contrast those problems with the Highways Act, what are the benefits under the Highways Act?

(Mr Wilson) In the Highways Act the licence is issued to the business at the associated premises address and that sort of thing. It does not require personal trading. It does not single out any individual to be responsible for any breaches of the licence trading conditions and there is an expressed requirement for consultation with the owners and occupiers of adjacent premises which may be affected by the issuing of the licence, whereas under street trading, the only requirement is to place a notice in the local paper.

745. Just focusing on that because I suspect it is quite an important point for people who live in London close to these things, can a licence for using tables and chairs outside have quite a material impact on local residents?

(Mr Wilson) It can, particularly in a mixed residential area like Kensington and Chelsea. It is not unknown for a restaurant in front of a mansion block to have 200 letters of consultation sent out to the people who are affected by that block or are adjacent to it.

746. Give us an example of when the street trading legislation would be inadequate to deal with a problem arising under tables and chairs?

(Mr Wilson) I think one of the reasons we have come across is that we find ourselves dealing with different people when we go to the particular premises. A number of premises do have different managers for different shifts, so that if you visit the premises to talk to somebody who is the manager at one time, you will find you are talking to another manager the next time. One could also envisage a possible scenario where the manager or an employee is the licence holder, but that person ceases to be employed by the company. Possibly there may have been a dispute and therefore the person who is the employee could seek to gain an advantage to by being the named licence holder to frustrate the business concerned.

747. Any other problems with using the street trading legislation, just in brief?

(Mr Wilson) The street trading legislation requires the street itself to be designated as a trading street and the process for that is quite cumbersome and that is on top of the issuing of the licence itself to the individual person.

748. Take the example of Westminster who, I think, do deal with tables and chairs under street trading legislation, albeit it is their own specific street trading legislation. How do they get around some of the problems you have mentioned?

(Mr Wilson) Westminster actually issue temporary licences. A temporary licence is valid for a six-month period and anybody who wishes to trade beyond six months will have to keep re-applying for another licence every six months.

749. Let us turn then to our clause and can you explain what costs the council is seeking to recover pursuant to the law's nine powers?

(Mr Wilson) The council is seeking to recover costs under two areas. The first is actually the cost of enforcement and the second is actually the cost related to street cleansing. At the moment both those costs are actually being absorbed by the council taxpayer and other businesses, and we feel it is only fair that those businesses that are causing those costs should actually meet those costs.

750. One of the points that has been raised in the consultation over this clause is a concern that costs may be excessive.

(Mr Wilson) We have attempted to illustrate in appendix one of our evidence a sample calculation of how these costs could be worked out.

751. MS LIEVEN: If the Committee could turn to appendix one, the first exhibit, we set out there - this is right, Mr Wilson - an analysis of street trading licence costs and turned them into annual costs?

752. LORD ACTON: What page are we on?

753. MS LIEVEN: I am so sorry, it is tab B, my Lords, I understand. I have numbered tabs.

754. CHAIRMAN: Tab B 1, appendix one.

755. MS LIEVEN: Tab B, appendix one.

756. CHAIRMAN: One that starts, "Street trading versus Highways Act", appendix one?

757. MS LIEVEN: Yes, that is it.

758. CHAIRMAN: In the black folder, tab B appendix one.

759. MS LIEVEN: The first page is a picture of Kensington Court with some nice Spanish flags perhaps and then behind that is appendix one is itself, "Cost comparison street trading against Highways Act".

760. CHAIRMAN: Pause there a minute. Tab B which is a sort of greenish tab.

761. MS LIEVEN: Page two in the bottom right-hand corner, that might help. Mr Wilson, what we have done there is, first of all, we have analysed our street trading licence costs and we annualised them, is that right?

(Mr Wilson) That is correct.

762. MS LIEVEN: Then we sought to set out paragraph 2 Highways Act licence costs current costs, so the annual cost currently for a Highways Act licence is £720 for your first licence and £600 thereafter and then we have broken down the additional costs that we are seeking under the powers of the Bill. I should say these are illustrative only and of course different authorities may have slightly different costs, they may have slightly different breakdowns, but we thought it would be helpful to the Committee to see some idea of what kind of costs you are talking about. One can see, first of all, enforcement costs and then the additional street cleansing costs and you can see without reading all the way through the enforcement costs come out at about £50,000 per annum and the street cleansing costs come out at about £12,000 per annum, so a much lower level. On the final page, page five, we have estimated if those costs were spread over 100 licences it would amount to an additional £620 per licence per annum. Again, I stress that is only illustrative, it is not part of the Bill but it is to give the Committee some sense of the kind of costs that are envisaged.

763. CHAIRMAN: Could I ask for clarification, given that illustration and I think we take your point that it is illustrative, the total cost for a year under the Highways Act you would say would be £1,220?

(Mr Wilson) That is correct for a renewal which, in the main, most are.

764. For a renewal. With what initial fee?

(Mr Wilson) The initial fee is set out at the top of page three.

765. So that would remain at £720?

(Mr Wilson) £720 for a brand new licence and a renewal is £600 because there are some savings to be made.

766. MS LIEVEN: Then, my Lord, just to be clear, both of them would have the £620 added to them so the first year's licence would go up from £620 to ----

767. CHAIRMAN: To £1,320.

768. MS LIEVEN: £1,340.

769. CHAIRMAN: £1,340, I cannot add, yes.

770. MS LIEVEN: The renewal would go up from £600 to £1,200, that is right, Mr Wilson?

(Mr Wilson) That is correct.

771. CHAIRMAN: Those two respectively, can we compare those with the ones on page two?

(Mr Wilson) Yes, you can compare them directly. The main difference is actually there is refuse collection disposal costs built into the street trading fees.

772. CHAIRMAN: Thank you.

773. MS LIEVEN: Is it right, Mr Wilson, that shows one of the difficulties with applying street trading legislation, which is that the street trading fees do include extra rubbish collection because that relates to the rubbish collection from the particular store, whereas if you are operating a Starbucks and you have got tables and chairs outside, your street rubbish is being paid for by the premises levy for rubbish so you would not necessarily expect them to be paying an additional amount for rubbish collection?

(Mr Wilson) That is correct. Each premises in any borough has to have a refuse collection arrangement either with the council or a private contractor and we do not envisage there would be any additional rubbish collection as a result of tables and chairs, it would just be taken back into the restaurant or pub itself and disposed of as normal rubbish from that location.

774. That is an illustration of the kind of costs one has to bear in mind. Can we look at the costs a little further. In terms of the increased street cleansing costs, can we have a look at your appendix six and the photographs. Can you just explain, it may be obvious, why there are greater street cleansing costs when you have tables and chairs?

(Mr Wilson) In the main it relates to the difference between being able to sweep the street with a mechanical sweeper or having to use a broom to access the litter or what have you on the pavement. I think the best example of that is if you look at the lower left-hand corner of the Kensington High Street picture - I apologise for the size of it - you will notice there are quite a number of leaves and things in amongst the base and legs of the chairs. In a normal of course of event an operator would pass down that street with a mechanical sweeper with a couple of brushes that collect things in and sucks it up into a vacuum. He would spend a few seconds walking past there and collecting up all the litter, leaves and things that accumulate. With the presence of tables and chairs they have to be fished out with a broom and then sucked up with a mechanical sweeper and it is additional time and a question of efficiency really in terms of sweeping the streets.

775. I think to illustrate the point we brought the Committee a photograph of the mechanical sweeper, is that right?

(Mr Wilson) That is correct.

776. We will have it passed around, so it is an additional exhibit. I am sure the Committee have seen them wandering the streets of London. The particular point is one can see the brooms that have to be got out to be used by hand on the side, is that right?

(Mr Wilson) That is correct.

777. That is the additional cleaning cost. In terms of enforcement costs, if we keep the photographs in mind but turn back to the previous exhibit, exhibit five, you can see the form of one particular licence issued under the Highways Act by Kensington and Chelsea for a Starbucks on Kensington High Street. One can see the particular configuration of the tables and chairs is laid out in the licence. Is that the standard form?

(Mr Wilson) That is correct, yes.

778. Flick back to the photographs if you would and take one example where I have certainly got stuck, Basil Street in the middle on the right-hand side. Why do you need a high level of enforcement in terms of checking people are abiding by their licences?

(Mr Wilson) In the criteria which is contained in the exhibit the council sets up minimum footway widths it wishes to maintain for the pathways of pedestrians. A licence will be issued as long as that minimum can be maintained with the siting of the tables and chairs. Because we are working at minimum, we therefore expect that the tables and chairs will be kept outside that minimum area and not encroach on it and it is therefore we are working always to keep that minimum area open for pedestrians to pass and re-pass the footway.

779. The Committee will see, if I take you through this at, exhibit two, appendix two we set out the Kensington and Chelsea guide; exhibit 3 is the application form; exhibit four is a flow chart of what needs to be considered in whether an application should be granted or not; and exhibits five and six we have already looked at. Just finally, Mr Wilson, so there is no misunderstanding on this, the level of charges, can you just explain are they set by each individual borough and how will they be set?

(Mr Wilson) Each individual borough will set its own costs and, therefore, its own charges. It would really be up to each borough to set charges in its own context but there is a provision that the year on year aggregate shall be set to a cost recovery basis rather than a surplus generation basis. The accounts for the council are open to scrutiny should somebody wish to do that.

780. This provision cannot be used as an income generator, is that right?

(Mr Wilson) No, it is purely a cost recovery basis.

781. MS LIEVEN: Those are all my questions at this stage, my Lords.

782. CHAIRMAN: Before cross-examination any questions from members of the Committee? No.

Cross-examined by DR RAWLINGS

783. DR RAWLINGS: Thank you, my Lord Chairman. Just a few questions, if I may. Could you confirm for us - I think I am right in saying - that Kensington and Chelsea at least are looking to raise charges effectively to businesses by 100 per cent or thereabouts?

(Mr Wilson) That is what it amounts to in the round.

784. LORD BURNETT: I am so sorry, I did not hear the question.

785. CHAIRMAN: I did not either.

786. DR RAWLINGS: I beg your pardon. I simply asked whether he could confirm the costs of businesses would be increased by 100 per cent.

787. CHAIRMAN: Would be or have been?

788. DR RAWLINGS: Would be.

789. CHAIRMAN: Under the proposals?

790. DR RAWLINGS: Under the proposals.

791. CHAIRMAN: Sorry. Just one more. Cost to businesses for what?

792. DR RAWLINGS: For the licence.

793. CHAIRMAN: If it was street trading, under the street trading scheme?

794. DR RAWLINGS: Sorry, I was not talking about street trading, my Lord.

795. CHAIRMAN: No, you were talking about highways.

796. DR RAWLINGS: Yes.

797. CHAIRMAN: But I am probing this 100 per cent increase.

(Mr Wilson) The cumulation of £620 for street cleansing and enforcement added to the £600 for renewal gives you £1,200 but effectively it is a 100 per cent increase over the old straightforward administration fee for the issuing of an initial licence.

798. That is give or take £600 at the moment.

(Mr Wilson) Yes, and that is 100 per cent as I understand it.

799. CHAIRMAN: That is what I was trying to get at. Thank you.

800. DR RAWLINGS: This may be a question you cannot answer but do you know what the level of charge is across London and what might be proposed by the London boroughs?

(Mr Wilson) The level of charges vary to some extent across London. I do have some figures for Westminster but they are using their own Act of Parliament.

801. I think we would be interested to hear what they are.

(Mr Wilson) Their charges for a six-month period range from £325 to £2,400 plus a variable supplementary charge for each hour of trading beyond 7.00 pm.

802. CHAIRMAN: Under the present?

(Mr Wilson) Under their street trading act.

803. DR RAWLINGS: That is the street trading act.

(Mr Wilson) They have their own private street trading act.

804. Thank you for that. Would you agree that tables and chairs outside a pub or café is not really street trading?

(Mr Wilson) I think I would because that is why we are seeking to administer this under the Highways Act.

805. DR RAWLINGS: I would agree too. We are not seeking, my Lord, to say that street trading should be used here but we agree that the Highways Act should be used in these cases. The problem comes in how much is being asked for.

806. CHAIRMAN: That is a rather important point of principle, let us get this quite straight. The petitioners are not contesting that the relevant licence for tables and chairs should be under the Highways Act, you are content with that?

807. DR RAWLINGS: Yes.

808. CHAIRMAN: Your problem is with the level of charges that are proposed to be laid.

809. DR RAWLINGS: Yes.

810. CHAIRMAN: That is very important. Thank you.

811. LORD BURNETT: Lord Chairman, I am afraid I have not - I am very sorry - grasped your first two points on costs and on the City of Westminster's costs. I am sorry.

812. CHAIRMAN: If I may, I was going to come back to costs because I, too, am completely lost. I thought it might be helpful if we finished the cross-examination and we honed in on costs because personally I am at sea at the moment.

813. MS LIEVEN: Shall I try to explain?

814. CHAIRMAN: Shall we finish cross-examination first?

815. MS LIEVEN: Whatever is easiest.

816. DR RAWLINGS: I am fine with that. I will move on. A short one. In your evidence that on average, I think you say, that 200 letters of consultation are sent out to local residents?

(Mr Wilson) No, I was not implying that was an average, I was saying that was up to 200 or plus.

817. Two hundred would be a maximum?

(Mr Wilson) Somewhere in that neighbourhood. Two hundred has been exceeded in the Royal Borough of Kensington and Chelsea.

818. Would I be right in saying there is no legal requirement for you to send such letters?

(Mr Wilson) There is a legal requirement to consult adjacent properties.

819. But not to send letters? The parallel I am more familiar with is licensing where there is a duty to consult and to inform of an application but not necessarily to send out letters, and councils choose to send out letters at their own cost. Is that something you are familiar with?

(Mr Wilson) I would have to take advice on that. I am not aware the system requires a letter to be sent or whether it could be done by notice only.

820. Perhaps counsel could help answer that later. Just pursuing costs at the moment, I think you referred to the highway enforcement team and your cost estimate is that one-seventh is concerned with the highways.

(Mr Wilson) That is correct, yes.

821. Are there any other enforcement activities that team deals with?

(Mr Wilson) Quite a lot actually, yes. In other highway matters and markets, Portobello Market, things like that, yes.

822. Do they receive fees for all those other enforcement activities?

(Mr Wilson) The market account is an established account already, an existing account.

823. Anything else? Any of those activities they receive fees for?

(Mr Wilson) I am not aware of any particular one, other than the market itself which generates fees.

824. You will be aware, of course, that the current legislation does not allow for an enforcement fee to be charged.

(Mr Wilson) That is why we are seeking this amendment.

825. Then I have to ask you, there are many activities that councils carry out that do not charge enforcement fees, is that not right?

(Mr Wilson) The difference in this is that the enforcement that is taking place in other areas it is not something that the council has initially licensed to take place, it is actually people who are transgressing other areas of the law and we cannot predict who is going to transgress and put a fee on them for enforcement that is subsequently going to take place.

826. I will ask you this then, it is a common question, why therefore those that are obeying the law and the licence are paying for others who are not licensed perhaps?

(Mr Wilson) I think counsel made clear we are not seeking to recover enforcement costs and prosecution against other street offences through this cost. This is directly the cost related to the inspection of the licensed sites. I can give you a list of the functions that takes place, if you like, in terms of checking the terms and conditions, that the licences are adhered to, but principally it relates to the fact that the tables and chairs must be kept within the area of their licence for safety purposes so people can pass and re-pass up the highway. Certainly, the times that people are expected to adhere to they are supposed to take the tables and chairs off the highway at night and things like that.

827. Thank you. You showed us some photographs earlier on. I notice there was a paper cup and so forth. Would you agree, however, that most proprietors who operate these outside areas have it in their own interest to keep these places clean and would not necessarily wait for your man with a broom?

(Mr Wilson) Yes, there is an obligation in the licence to keep the area clean but in actual fact it does not work 100 per cent and there is litter arising from these places. It is an outside environment, paper napkins, wrappers and things like that do blow down the street causing extra work but also, as you can see in the picture of Kensington High Street, litter does accumulate in those areas as well because it creates a wind vortex which becomes a deposit area for street litter generally.

828. I think you are not contending, though, that litter is necessarily generated by the business that owns the licence then?

(Mr Wilson) Not necessarily but in the main it is a source of litter itself.

829. If you are operating outside alfresco dining, those businesses are not going to want to sit in a pile of leaves and dirty cups until the cleaner comes along, are they?

(Mr Wilson) Generally the areas are well kept, but it is not always the case and because the street sweeper cannot move down the street with his mechanical sweeper he does incur extra cost and time.

830. Coming back to costs then, what would be the increase in Kensington and Chelsea's cost in the last 12 months?

(Mr Wilson) I cannot give you an increase in the last 12 months, but we have done an estimate of the overall additional annual cost of approximately £12,000 per annum of street cleansing costs which are incurred through the inefficiency, you might say, of the street sweeping method with the tables and chairs present.

831. These are not all new costs, are they?

(Mr Wilson) A number of licences have been there for several years and therefore they are not new costs this year, but it is a cost area that is growing as each individual area comes into trading. We are expecting 15 in the future additional to what we have got and we can see that probably we will be up to 200 before long.

832. Kensington and Chelsea is quite a big area, is it not, and I am quite surprised there are as few licenses as there are here, but there must be many other obstructions for the cleaners going around Kensington and Chelsea? Even on your own pictures, telephone boxes and lamp posts and so forth, that must also involve the use of the broom? The mechanical sweeper cannot go everywhere, can it?

(Mr Wilson) I think the difference is that those options are not there for the profit of a private company or individual.

833. I am not sure profit has anything to do with this, has it?

(Mr Wilson) I would expect that if it was not profitable they would not be there.

834. DR RAWLINGS: If they are not profitable at all they would not be there, that is for sure. I think, my Lord, I will leave it there. Thank you.

835. MS LIEVEN: I do not know if Mr Couchman has any questions.

836. MR COUCHMAN: No.

837. CHAIRMAN: Does either petitioner want to ask questions?

838. MR BISH: No, my Lord.

 

Re-examined by MS LIEVEN

839. MS LIEVEN: There is just one point in re-examination. You said that it was your view that street trading legislation was not appropriate for tables and chairs. I think we may need to make it entirely clear. That is a Kensington and Chelsea view rather than a cross-London view.

(Mr Wilson) No, there are authorities that are using street trading legislation at the moment, but we feel that the fact that there is personal trading and personal licensing and things like that makes it inappropriate, and certainly turning the licence over every six months is a major factor that would suggest it is not the appropriate legislation to use.

840. CHAIRMAN: Can I ask your definition of "we"?

(Mr Wilson) We, Kensington and Chelsea.

841. CHAIRMAN: Are you able to represent the views of other boroughs?

842. MS LIEVEN: My Lord, the reason I am saying this, and I need to get it on the record, is that Westminster, who of course are actually formally promoting the Bill, do use the street trading legislation and presumably have legal advice that it is appropriate. There is no concession being made; I was just nervous about Dr Rawlings' question because it sounded like it might be the first line of a judicial review of Westminster's street trading regime. The Kensington and Chelsea view is that street trading legislation is not the appropriate way to deal with tables and chairs. I have a schedule of every London borough and the truth is there is a complete mixture of who uses what. Most of the inner London boroughs are using the Highways Act, as Kensington and Chelsea do; a number of the outer London boroughs use the street trading legislation.. So there is no uniformity in London on that point.

843. CHAIRMAN: I am sorry, can I just probe a little further on this? We are looking at the London Local Authorities Bill; we are not looking at the Kensington and Chelsea Bill or, indeed, the Westminster Bill, even though Westminster are the promoters. Can you give the Committee a feel - and it must have been discussed I imagine - of what is the view of the other 32 London boroughs?

844. MS LIEVEN: I think I can answer that in this way, my Lord: all the London boroughs voted to resolve to promote this Bill. I said that in the general opening yesterday. So they are all content with the provisions of this Bill, but it is right to say (I have not added them up) that a significant number at the present time deal with tables and chairs under the street trading legislation. Westminster we know do - that has already been mentioned. Just going through the list: Bromley do; Brent do; Richmond and Enfield do, as do Lewisham and Barnet. There may be others but that is what I have got. Equally, the City of London Corporation, Islington, Camden, Lambeth, Hammersmith and Fulham and a number of others deal with the matter through the Highways Act legislation.

845. The provisions of this Bill will apply to all London local authorities. So if this clause is passed then it would be open to all London local authorities to decide whether they want to use the Highways Act powers under section 115 and, if they do, whether they want to recover the costs which they are now entitled to recover. Some may, for whatever reason, continue to use the street trading legislation. That is a matter entirely for their election.

846. MR BISH: My Lord, I said "no" to my learned friend. May I change my mind and ask a question?

847. MS LIEVEN: Certainly, as far as I am concerned.

 

Cross-examined by MR BISH

848. MR BISH: Mr Wilson, we have dealt with cleansing but I wonder how you came to the conclusion in the Royal Borough that (and by extension acting for the other boroughs) there was a problem with encroachment on to the thoroughfare from what might be described as the licensed area? We have seen the pictures and understand the problem about buggies and so on, but how do you assess that there was a problem? How have you arrived at that position that we need enforcement?

(Mr Wilson) It has been arrived at by experience. I can illustrate that in a minor way, perhaps, but the Holland Park Avenue picture in the lower right-hand corner of the picture page, page 17, does show an installation where the chairs are not backing on to the front window of the restaurant, and one of the customers has swung around and has put the chair out into the area which is the pedestrian area. In this particular case it does not cause a great problem but it is illustrative of the fact that customers do move tables and chairs around to their own convenience.

849. I can understand that but is this supplemented by any complaints from the public in any way that has propelled the council to come to the conclusion that there is a need for extra charges?

(Mr Wilson) I cannot say that I am personally aware of a complaint about this area, but I must admit that the purpose of our enforcement is to prevent these complaints happening by making sure that people do adhere to the area which they have been allocated. So it is a proactive area that we are actually taking a stand ----

850. Council driven.

(Mr Wilson) A council driven, proactive stand because that is sort of expected in that sort of area, particularly where we have streets like Kensington High Street and Basil Street, which has a very high footfall, particularly at different times of the day.

851. MR BISH: Thank you, my Lord.

852. MS LIEVEN: My Lord, before Mr Wilson leaves, shall I try and deal with the cost issue?

853. CHAIRMAN: Thank you. I was just going to invite you to do so.

854. MS LIEVEN: He can tell me if I have got it wrong. The current position in Kensington and Chelsea is that tables and chairs are licensed under the Highways Act, and because they are licensed under the Highways Act the costs are limited to those permitted by section 115A of the Highways Act. That is, the administrative costs of processing a licence. That is the cost reflected in appendix 1 on page 3: £720 for the first year and £600 for the second year, and for renewals. That is just the administrative cost of going through the forms, checking the papers and so on.

855. The additional costs which we would seek to recover under this clause are the costs of enforcing the licence - not prosecuting non-compliance but enforcing the licence - which is largely the cost of the officers going out and checking that the licence is being abided by, which has to be done on a reasonably regular basis; primarily making sure that people's tables and chairs are within the lines. The Committee may know, some boroughs actually draw lines (my borough, Camden draws lines) on the pavement. I do not think Kensington and Chelsea do that. So somebody has to go out and check that they are within one or two metres of the premises.

856. The other cost we seek to recover is the increased cost of cleansing related to the fact that there are tables and chairs out. My Wilson has given evidence on that. Those additional costs we estimate (and it is only an estimate) are in the region of the figure at the end of the page 5 of the appendix: about £620 per licence. So if the clause is accepted then the expectation is that in Kensington and Chelsea a Highways Act licence for tables and chairs will cost about £1,340 in the first year and about £1,200 thereafter. That charge will be determined, as is the case with almost all local authority charges, annually by each local authority.

857. Compare that with the cost under a street trading licence. What we have done on page 2 is set out the Kensington and Chelsea street trading licence fees as they stand at the present time, which is a total annual cost of £2,721 and a seven-day trading cost of £3,482. Those do not apply to tables and chairs in Kensington and Chelsea because Kensington and Chelsea do not use that legislation for tables and chairs, but that gives the Committee a feel for the kind of street trading costs that are being charged.

858. What my schedule tells me (which the Committee have not got) is that there is a vast range of how local authorities charge across London. That is why we have not given you one figure because there is not a cross-London figure. The other thing I should say on the costs (and I think Mr Wilson has already said this but to make it clear), is that one of the reasons why the street trading licence costs are higher is that they do include costs for rubbish collection, which might be perceived to be rather unfair because premises which have got tables and chairs are already paying for their rubbish collection. However, because places like Westminster are using street trading legislation, which, as Mr Wilson has explained, is actually designed for a slightly different purpose, those costs are being bundled up into the street trading licence costs. I hope that makes sense.

859. LORD ACTON: How much of it is rubbish collection? If we are going to talk about these figures at all, should we not be comparing like with like?

860. MS LIEVEN: My Lord, rubbish collection, to some degree, is a red herring because we are talking about moving from Kensington and Chelsea's existing licence costs to the additional licence costs, but in order to split the rubbish collection out of street trading figures - Mr Wilson, do you have any ----

861. LORD ACTON: Perhaps there is no point. I do not know why we are talking about street trading costs, but if we are going to talk about it should we not strip out the rubbish?

862. MS LIEVEN: We are talking about them, my Lord, firstly, because the petitioners have said: "We do not think this is a provision you can deal with under street trading". Secondly ----

863. LORD ACTON: I am sorry; I thought what they said was they were very, very happy with doing it under the Highways Act.

864. MS LIEVEN: Initially it was being argued that there were other powers so we needed to deal with that. It is now being said that the cost is unfair, but we say: "Look, if you were in Westminster or in one of the other boroughs and you were having to pay under street trading you would actually be paying a greater cost". So to that degree it is relevant, but only to that degree. I am perfectly happy to set it aside. It may be that it is an argument that was not actually put, and so we are trying to knock something down that is not actually up in the first place. That is the explanation for the figures that the Committee wants.

865. CHAIRMAN: Have you finished?

866. LORD ACTON: Absolutely. I am beaming with delight!

867. CHAIRMAN: Lord Burnett, I am sure, has a number of questions on costs, but can I ask two? You rightly said that Kensington and Chelsea do not use the street trading licence. So you have given us your estimate of what it would cost extra under the Kensington and Chelsea system. That seems to be pretty clear, although I do have a question I would like to come back to on that. What we do not know, and Lord Acton was trying to get at, is (and, maybe, this is, again, hypothetical) you said that Westminster use street trading licences. What we do not know is what the change would be, for instance, in Westminster.

868. MS LIEVEN: I can tell you that.

869. CHAIRMAN: Now, we are getting there.

870. MS LIEVEN: I can tell you that but it is not straightforward. Westminster have their own Act - the City of Westminster Act. The system they operate is that they charge graduated fees depending on how many tables and chairs there are and whether they keep them after seven o'clock. I have a table here.

871. CHAIRMAN: Mr Wilson did mention this, you are quite right.

872. MS LIEVEN: So, if you have got one to four chairs you pay an application fee of £325, a supplement for new applications of £50 and £7 for each hour beyond seven o'clock. Go to the other extreme: if you have 37 tables and chairs you pay £2,400 with a supplement for new applications of £300 and a charge per hour after seven o'clock of £38. I can easily have this copied for your Lordships, but there is a graduated system on both bases. Unless you were to choose some median figure you would not know if you were not comparing like with like. So Westminster have deliberately gone for this graduated system, banded system, depending on how many tables and chairs you have.

873. CHAIRMAN: If Westminster have gone for a potential turnover system, they are basing it on the theoretical turnover of the premises because that is X-number of tables and chairs, hence the graduated system.

874. MS LIEVEN: The other thing to remember about Westminster is that they are six-month licences. My understanding (and Mr Wilson will tell me if this is right) is that £325 for the one to four chairs will be for six months.

(Mr Wilson) That is correct.

875. CHAIRMAN: If you look at page 5 at tab one (you have summarised, very helpfully for the Committee), if the £620,000 was spread over 100 licences that would equal £620 a year (even my mathematics can do that!) However, Mr Wilson did say that he expected these numbers to grow. I think you mentioned the figure of 200; you were expecting 200 such entities.

(Mr Wilson) That was in the realms of possibility, yes.

876. What happens to the figures under the summary? If it was 200 (just to use that as an example) then how do the figures turn out?

(Mr Wilson) I would expect the figures to rise in proportion, basically, or even diminish slightly because of economies of visiting different sites. One of the main costs of actually enforcement is the travel time to a site rather than the actual inspection time. If a number of sites are in close proximity one could actually find economies of scale. I would expect it to grow roughly proportionate.

877. So if one looks, first of all, at the figure of £50,000 which, not surprisingly, is one-seventh of £350,000 would it be fair to say that if the number of outlets rose from 100 to 200, you would expect that figure of £350 to go up to £700?

(Mr Wilson) No, but I might expect the £50,000 would go up to nearer £100,000 because the £350 ----

878. So the fraction of one-seventh would vary?

(Mr Wilson) Yes. The fact is the time spent directly on tables and chairs equates to £50,000 worth of officer time and cost, and therefore if the number of tables and chairs were doubled that cost would double. However, the other work that enforcement officers are doing would actually stay the same. So I would expect the total rate to go up to £400,000, of which the increase between £350,000 and £400,000 would be an increase as a result of the extra number of tables and chairs.

879. That is exactly the point I am making. However, the fraction of one-seventh remains.

(Mr Wilson) No, it would not, actually, because 100,000 would not then be a seventh of 400,000.

880. CHAIRMAN: All right. That is how you get to the figure.

881. LORD BURNETT: The figures we have are illustrations. You cannot come up with a rough guide, I suspect, in relation to the proportion of costs for enforcement and the proportion that is cleansing. Is cleansing far, far higher than enforcement?

882. MS LIEVEN: No, my Lord, it is the other way round, actually. If you have a look at appendix 1, you will see, at page 3, we start to break down the enforcement costs, and we estimate, on page 4, where we end that section, that the enforcement costs analysed are about £50,000 per annum, whereas the cleansing costs are actually (it is at the top of page 5) only about £12,000 per annum. Much the bigger element is the officers going out and checking the licence is being abided by.

883. LORD BURNETT: Okay. The second question is: what inhibitions, other than the electorate, are there (whenever they come up for election - democracy)? What ensures that these figures are calculated transparently and fairly to traders?

884. MS LIEVEN: Two processes, my Lord. Under the Bill, clause 9 (1) in the Filled Bill: "In relation to a relevant permission, the standard amount in section 115F (2) of the 1980 Act means such amount as may be sufficient in the aggregate, taking one year with another to cover the reasonable costs to the council not otherwise recovered of", and then it covers cleansing, administrative costs and enforcement. So the statutory power is only to recover those elements taken year on year. Mr Wilson will tell me if I have got this wrong, then those amounts will have to be set out in public reports. They will be subject to the scrutiny of the district auditor and the whole gambit of local government law bites on them as it would with any other cost. The statute limits us, that is Mr Wilson said in evidence in chief, this is not an income generating provision, there is no statutory power to allow it to be and it is fully transparent in terms of going through the council's normal processes, is that right, Mr Wilson?

(Mr Wilson) That is correct. The council's accounts are subject to scrutiny and challenged and that has happened in the past and probably will happen again.

885. LORD BURNETT: One final point which I made a note to ask you. You made it quite clear that court costs were excluded and that basically the only costs for enforcement are the costs of the individuals who are going to go around and inspect.

886. MS LIEVEN: It is not the prosecution costs because they will be covered through the prosecution of the individual non-complaint premises. Enforcement costs, I do not want to be on the record as saying it is just the cost of the officer going out because there might be one scenario or there might be a whole series of telephone calls to try to get hold of somebody at Starbucks to explain the tables and chairs had wandered across Kensington High Street. It would be any of that type of cost, is that right, Mr Wilson?

(Mr Wilson) That is correct. It is basically the officer going out visiting the site, perhaps talking to the manager about something, making sure the tables and chairs are taken in at an appropriate time. It a general a geeing up of the process.

887. CHAIRMAN: Before the petitioners start, firstly, can I ask Members of the Committee whether they have any further questions.

888. LORD BROUGHAM AND VAUX: This chap here has moved his chair around the other way and is not against the window in Kensington High Street, the chair has been turned around and it is not where it should be, what is the fine if you are outside the yellow line?

(Mr Wilson) There would be no fine, my Lord, it is really a question of speaking to the manager to make sure his customers abide by the licensing regulations. The licensee would not be fined or the licence would not be withdrawn for that sort of offence. It is mainly a sort of making sure that people are keeping up to the mark.

889. CHAIRMAN: I just have two further general questions. Is the question of the ownership of the subsoil relevant or not?

890. MS LIEVEN: Not. As long as this is adopted highway, then the licensing regime applies. Even if technically the subsoil was owned by somebody else, it would not matter for these purposes.

891. CHAIRMAN: The second one goes right back to the beginning and I am still not quite clear in my mind. Under the Highways Act, to whom will the licence be granted?

892. MS LIEVEN: It is licensed to the business at their particular address.

893. CHAIRMAN: That is what I thought I heard, to the business?

(Mr Wilson) To the business.

894. Let us say it is Starbucks.

(Mr Wilson) I think the example does show that, if I am not mistaken.

895. MS LIEVEN: Appendix five, I think.

896. CHAIRMAN: Any prosecutions, et cetera, under that licence would be to that entity?

(Mr Wilson) Yes.

897. Or against that entity?

(Mr Wilson) Against that entity, yes.

898. What happens if the entity is not a limited liability concern?

(Mr Wilson) In the event that it was an owner-occupier or small arrangement, then that owner's name would probably be the one that was on the licence trading as or something like that.

899. I see, it would be Joe Blogs trading as ---

(Mr Wilson) The same responsibility that would apply to any other transgression by that particular individual or company.

900. LORD BURNETT: One extra point on that. You grant the licence to limited liability partnership, sole trader, corporation or maybe even trustees, whatever the person is trading it in. For infringement of the licence or prosecution, is there any likelihood of a custodial sentence? Is there a possibility of any custodial sentence? It is a money fine, is it?

901. MS LIEVEN: It is a money fine, my Lord, I believe, but let me just confer. My Lord, under the Highways Act regime, section 115K, your Lordships have a statutory bundle and it is at the end of divider one. Under 15K (1) the local authority serves a notice requiring them to remedy the breach. Under 2, if the person fails, then the council can take steps themselves and 3, where a council has incurred expenses, then the council can recover those expenses. I am afraid I have not looked at this before, but I do not think there is any criminal liability at all under these provisions. If you are such a persistent offender that it becomes a real problem, then you will not get another licence.

902. LORD BURNETT: You will just get withdrawn.

903. MS LIEVEN: What does happen is in really bad cases where you have narrow pavements and people are leaving their tables and chairs out and it is blocking people with prams and the disabled, then they can be prosecuted for an obstruction of the highway. If it was not for your licence, you would be obstructing the highway by putting your tables and chairs out. Your licence only goes to, say, one and a half metres from the edge of your premises. If your tables and chairs are persistently beyond the one and a half metres, then you have no permission to have them, you are obstructing the highway and there is an offence of obstructing the highway. I cannot remember if it is an offence that could lead you to end up in prison, I suspect it might do because it could be very serious. That is for the really extreme offenders, that is where it would end up.

904. CHAIRMAN: Can I ask you one more question. We are trying to get this clear in all our heads. The Westminster system, which is under the Street Trading Act, is to an extent a profit based one, to an extent?

905. MS LIEVEN: My Lord, I have had a note from Mr Lewis to say that I possibly should not have agreed with your Lordship in quite such clear terms before. It is not supposed to be related to profit at all.

906. CHAIRMAN: It is not?

907. MS LIEVEN: It is not. It is a graduated fee depending on how many chairs and tables you have permitted, licensed. There is likely to be a correlation between the number of tables and chairs and the profit you gain from the licence, but the fee is expressly supposed to be related to cost. It is not supposed to be a tax.

908. CHAIRMAN: How can it be related to cost, I am sorry, if it is a graduated fee? I do not understand that last point at all. It is related to square footage occupied, I would have thought.

909. MS LIEVEN: If you could give me a moment, my Lord. In schedule 5 of our Bill, the whole of the City of Westminster Act is set out.

910. CHAIRMAN: I am sorry, where are you?

911. MS LIEVEN: I am in the Filled Bill, my Lord. I am at schedule 5, page 46 of the Filled Bill. Schedule 5 is the whole of the City of Westminster Act. Section 22 of that Act, which is at page 62 of the Filled Bill, is the fees and charges that can be charged for street trading licences and section 22 (2) says "the council...", that is Westminster, "...may recover from licence holders such charges as may be sufficient in the aggregate taking one year with another to cover the reasonable costs of the collection, removal and disposal of refuge, the cleansing of streets, reasonable administrative costs and the costs of enforcement ".

912. CHAIRMAN: Noted.

913. LORD ACTON: One thing I do not follow in that and perhaps I have misunderstood the whole thing, but I thought the very expensive thing was having an inspector wandering around inspecting. How does it cost more to inspect somebody with four tables and chairs or somebody with six tables and chairs?

914. MS LIEVEN: My Lord, this is getting confusing.

915. LORD ACTON: Sorry, the other way around.

916. MS LIEVEN: We are now looking at the City of Westminster Act who use the street trading legislation and under street trading there will be additional rubbish collection costs.

917. LORD ACTON: I appreciate that. I am sorry, I have got that, I am talking about the inspection costs. How can that vary? That is the heavy administrative cost you have given us for the scheme we are looking at, I do not understand how it can vary.

918. MS LIEVEN: My Lord, I think I can say two things about that. One is, there will be increased street cleansing costs by reason of having more tables and chairs, but the other thing, my Lord, is we are not here to examine the City of Westminster Act and I am afraid, I do not know how Westminster have reached these costs. It may be after a very long complicated and detailed analysis. I can produce a note to the Committee, but I am afraid it is not something I know. I know what the fees are because I have got a schedule, but I do not know how they were arrived at.

919. CHAIRMAN: I think the Committee must try and contain itself a little somewhat because we are talking under this Bill of what fees might or might not be under the Highways Act. That is a fair summary, is it not?

920. MS LIEVEN: Yes, that is a fair summary.

921. CHAIRMAN: I think we have gone off at a slight tangent. Let us try and come back.

922. LORD ACTON: My apologies, my Lord Chairman.

923. CHAIRMAN: It is all right, I was going down the same one. Anything further?

924. MS LIEVEN: My Lord, I think that finishes Mr Wilson's evidence. The petitioners have cross-examined Mr Wilson.

925. CHAIRMAN: Yes, but the petitioners have not yet put their case.

926. MS LIEVEN: No, absolutely not, but that finishes Mr Wilson's evidence?

927. CHAIRMAN: Yes, thank you, Mr Wilson.

 

The witness withdraw

 

928. CHAIRMAN: That finishes your case.

929. MS LIEVEN: Yes, thank you, your Lordship. I only had one witness.

930. CHAIRMAN: Dr Rawlings?

931. DR RAWLINGS: Thank you, my Lord. Perhaps I could begin by commenting, I think we have just seen the best demonstration of why we really should not have local bills for local authorities. The confusion that it causes for us in the business world has been demonstrated very well. You will be glad to hear that I am going to say it once and not refer to it again and that is street trading. We are not here to talk about street trading, we are here to talk about the proposals and the Highways Act and we will deal with that.

932. My Lords, we talked about the earlier clause and how some of our members operating in London would be affected by this provision in the Bill. I have to say, we are slightly confused as to why it only appears to be Kensington and Chelsea that is pursuing this. If I could just go back again to the consultation that came out on this. We did write in and one of the points we made early on was it is difficult for us to judge how this works since we have no cost estimates from the promoters of the Bill as to what it is. We had a meeting on 23 April where we raised the same point and we only got these costs finally on 27 June. I am afraid I could not ask Mr Wilson what other councils do because I assume he does not know, but nor do we either, how this will be applied and I will come back to that again. Kensington and Chelsea, however, have indicated likely costs which are around £62,000 which, as we have just gone through the mathematics, across 100 sites is around a £600 renewal fee. That is essentially double the fee.

933. The counsel here for the petitioners also state correctly that under the current regulations they cannot charge for enforcement under this legislation. We contend that they should not be allowed to under this Bill either. It was the expressed will of Parliament that the legislation works in the way that it does and we are content that it does work in the way that it does.

934. It is also quite hard to see how you can justify the charges that are coming through here. On the areas we have seen in submission of both petitioners frontage of these places now - I cannot do the maths in my head - 100 venues, ten yards each in terms of street cleaning in Kensington, that must be such a miniscule part of their street cleaning. I find it very hard to justify the figures; they have not done. However, we have to accept that is what they have done and that is what they are. However, what we do contend is that we should not be paying them. Street cleaning is carried out by the council and the community get that as a service and the business pay their rates for those cleaning services. There are 130 pubs approximately in Kensington and Chelsea, the only ones I can speak to, with an average rateable rate of around £58,000, that makes £7.5 million of rateable value which gives a rate income for those pubs of around £4 million. That is a quite a lot of money to pay for services to then be told, particularly in the economic climate we are in now, we are facing 100 per cent increase on the bill for something that has not changed for those businesses since yesterday. Nothing has changed, there is no more rubbish, there are no more people, no more chairs and yet a council has come in and is asking for a doubling of that fee. I do not think that is right.

935. The council has other powers also to deal with litter. It can impose conditions under section 115 E of the Highways Act and those can include such conditions as: "the licensee shall be responsible for keeping the designated area in a clean and tidy condition at all times", and they can take action on that. Councils can also issue Street Litter Control Notices to force premises to clean up any litter, et cetera, outside their premises so there are already duties on business to do that and there are provisions in regulations to do so. Why should we now be faced with another bill for that, as I say, because nothing has changed?

936. What are reasonable administrative costs? I will come to that. I have to say I am looking at this and I am quite surprised to see how high they are already, £600 for a licence. The licence fee for a liquor licence is on average around £500 a year. A liquor licence controls all sorts of conditions - I will not bore you with them all - all provisions written by a heavy piece of legislation for which they charge £500. Expressly within the provisions of that it says you will pay for enforcement, that again is an Act of Parliament, but you will not pay for those things that are in excess of what is required. That is why I asked Mr Wilson the question about the letters because the Licensing Act specifically says if you want to do that, that is fine, but you, the council, pay for it, you cannot charge people for it. Kensington and Chelsea and others are paying more for enforcement than is envisaged in the charge they have already got, then that is down to them and they should pay for it. We would be very aggrieved if this was to go through given our experience of some these charges. Public entertainment licences used to be charged in the same way, allegedly the cost would cover it. The variations across the country were just horrendous and one of the things the Licensing Act certainly did was bring those into a national framework, we have always been grateful for that. We are submitting legislation exists, it is national legislation, Kensington and Chelsea has no particular difference to anywhere else, not in London, not in the rest of the country.

937. If I can perhaps finish on a more positive note, why are we outside, why do we have tables and chairs out there? It is because essentially customers like it, people do not do it because we want to annoy Kensington and Chelsea and I submit Kensington and Chelsea provide licences because they want to provide that amenity to the people of Kensington and Chelsea. We are told certainly by the London Metropolitan Police who promote outside eating quite heavily, they believe it softens the night-time economy - we are happy to go along with that - it makes people relax and behave better. There are positive effects in this as well. For our £600 you could say we are also doing a public service. On that note I think Nick wants to say something, is that correct? I submit this clause should not stand in the Bill. Thank you very much.

938. MR BISH: My Lords, I endorse the bulk of what Dr Rawlings has said. I want really to make our own remarks because I feel strongly this is a clause that looks at cost recovery of an activity that is proactively arrived at to apply enforcement to a situation where, in fact, there is no problem, a technical offence maybe, as we have seen from the photographs, but certainly no complaints or insufficient to be raised here. Then to add cleansing costs for a premises which are already obliged to keep their areas clean and where other rubbish is either leaves or other people's wind-blown litter, most of these issues can be addressed by other legislation. This is activity in cost recovery for its own sake, we submit.

939. CHAIRMAN: Hold on for a moment, Ms Lieven. Any questions from members of the Committee? No. Ms Lieven?

940. MS LIEVEN: I will make a brief closing, my Lord. I think your Lordships are well aware of the issues. In my submission, this is an entirely fair provision ---

941. MR COUCHMAN: Sorry, Lord Chairman, I would like to question whether counsel is allowed to make any further submission?

942. CHAIRMAN: I thought you had closed your case?

943. MS LIEVEN: I assumed, my Lord, that I made a closing speech at the end of each clause, bringing the evidence together. I have to have the right to respond to points made against the clause by the petitioners.

944. CHAIRMAN: Hold on just a second. Could you let us consult?

945. MR COUCHMAN: My Lord Chairman, if one looks at appendix eight of the usual order of proceedings, it states under nine: "counsel for the promoters replies to petitioners, assuming the petitioners will place documents before the Committee or call witnesses". As we have done neither, it goes on to say there is no right of reply.

946. MS LIEVEN: My Lord, I am perfectly happy not to reply.

947. CHAIRMAN: Let us settle it down for a bit then.

948. MS LIEVEN: Let us settle it down and I will not reply. I think the Committee knows our case.

949. LORD BEW: May I ask Dr Rawlings a question? Dr Rawlings, you said that this was a charge based on a situation that had not changed since yesterday. I wonder if you would reply more directly to the argument which you heard that there is a change in culture, a number of factors behind, over recent years which justifies what the promoters want to do?

950. DR RAWLINGS: Yes, my Lord. What I was trying to say is that these licences exist now for people, there may be more of them this year than there were last year, some of them go back many years and that is what they are being paid for, these are not new licences for them, they are old licenses for them. The fact there is another café down the road does not mean to say he is creating any more problem or nuisance.

951. LORD BEW: Thank you.

952. CHAIRMAN: I have one question, if I may. I am not trying to impute anything by this because nobody likes to spend any more money or have any more costs than they have to. I would like to be quite clear, given the illustration we have been given, that the extra cost in Kensington and Chelsea would be £620 a year per outlet, if I could use that expression, very crude mathematics says that is slightly less than £2 a day on a seven-day week. Am I doing my rather simple mathematics correctly or is there something I have missed completely?

953. DR RAWLINGS: I am not going to argue with you on that, I will argue the point.

954. CHAIRMAN: I take the point and preface this by saying nobody wants to pay more costs, et cetera. I wanted to quantify it and you have done so. Thank you very much.

955. LORD BURNETT: Could I ask one question, please? Are these arrangements that we have just been discussing, that change to the Highways Act system, has this been done elsewhere where in the country or is this a London first?

956. MS LIEVEN: We believe it is a London first, my Lord, although your Lordship is well aware that even within London different authorities are operating different systems. Can I have a moment (Ms Lieven took instructions). I think, my Lord, the honest truth is it
Mr Lewis and I are both Londoners and we are perhaps struggling a little to know what happens in Manchester or Bournemouth or wherever. There may indeed be wholly different provisions, we are just not sure. We can try and find out overnight.

957. DR RAWLINGS: In consulting with our members, none have come to our attention anywhere else in the country.

958. CHAIRMAN: Again to reinforce what you said earlier, if this was to go through, there is no obligation of any particular borough in London to go down what I call "the Highways Act route"?

959. MS LIEVEN: Absolutely not.

960. CHAIRMAN: No obligation?

961. MS LIEVEN: No obligation whatsoever.

962. CHAIRMAN: But if they were to, then this Act kicks in?

963. MS LIEVEN: Yes, there is no obligation. Even if they go down the Highways Act they might choose not to charge the full amount they are allowed to under the Act, although I think that is unlikely in the current world of local authorities.

964. LORD BROUGHAM AND VAUX: My Lord Chairman, my colleague's question, are tinkers or street traders or pedlars not covered under the Highways Act? If they are, how is that used elsewhere to cover pedlars and street traders in Bournemouth and Coventry and other places?

965. MS LIEVEN: (Ms Lieven took instructions) It is the Local Government Miscellaneous Provisions Act, my Lord, that I understand covers street trading across the country but whether tables and chairs --- The Highways Act is a national act so in Bournemouth they might be using the Highways Act or they might be using the Local Government For Miscellaneous Provisions Act. Whether or not different authorities are using different acts, that is the moment when, I am afraid at the moment, Mr Lewis and I do not know the answer.

966. CHAIRMAN: Any further questions from members of the Committee? We did allow ourselves until 4.30 so perhaps we can have a chance to deliberate. Would that be convenient?

967. MS LIEVEN: Certainly, my Lord, or I can open HMOs, whichever.

968. CHAIRMAN: I think we could probably wrap this one up. We would like to deliberate.

At 4.08pm Counsel and Parties are directed to withdraw

and at 4.15pm are again called in

 

969. CHAIRMAN: The Committee is of the unanimous conclusion that clause 9 as drafted in the filled Bill should stand unamended.

970. We are now at just after a quarter-past four. The Committee's view is that it probably is not worth embarking on your next peroration (if I can put it that way), but could you give us your combined thoughts on what sort of timing we are expecting on Part IV and, if I remember correctly, clause 23? You will not be held to this, I may say - your best estimate.

971. MS LIEVEN: My best estimate on Part IV is that I will be about 15 minutes in opening and my witness will be about half-an-hour to 45 minutes in-chief.

972. CHAIRMAN: Call it one hour so far.

973. MS LIEVEN: Matters then fall outside my control.

974. CHAIRMAN: Indeed. From the petitioner's point of view we know that no witnesses are being called. I think that is correct.

975. DR RAWLINGS: That is correct.

976. CHAIRMAN: This is Part IV only. So we have a fair chance, do you think, of finishing Part IV in the morning?

977. MS LIEVEN: The only other party, of course, is the Department of Communities and Local Government, who have reported against Part IV. I think they have now left, but I think one of them was intending to speak, she indicated to me, not at length.

978. CHAIRMAN: I doubt it would be at extreme length because we have the report.

979. MS LIEVEN: We will have to assume half-an-hour in total for what they say and questions to them.

980. CHAIRMAN: I was already being rather generous when I said in the morning, because we have from half-past ten to one o'clock. Again, without commitment, would you combine resources and think that is a reasonable expectation?

981. DR RAWLINGS: I am sure.

982. CHAIRMAN: I would not be sure, if I were you, that is a terribly dangerous thing to be!

983. MS LIEVEN: I am slightly less sure than Dr Rawlings but I think that is reasonable.

984. CHAIRMAN: Again, just to help the Committee, we then move on to clause 23, which is the last bit of business for this week, I think I am right in saying. Is it not?

985. MS LIEVEN: Yes, it is.

986. CHAIRMAN: Again, you have one witness. Are we talking, again, about one hour total?

987. MS LIEVEN: My Lord, yes.

988. CHAIRMAN: I am not trying to lead you, but just to get a feel.

989. MS LIEVEN: Clause 23 is quite complicated. Both of them are quite complicated. Both involve looking at the Bill and looking at some other statutory provisions, but, again, with a fair wind I would say we would finish it in the afternoon.

990. LORD BROUGHAM AND VAUX: My Lord Chairman, would it be fair to say that we would finish it by lunchtime Thursday?

991. CHAIRMAN: Thank you, Lord Brougham. We have got the spill-over, if you like, up to one o'clock on Thursday. So, presumably, by one o'clock Thursday ----

992. MS LIEVEN: I think it would be very unlikely not to have finished by then.

993. CHAIRMAN: Any reaction from the petitioners?

994. MR BISH: I would very much hope to have finished before that, my Lord - if it was possible to finish tomorrow. I suspect, whatever counsel has said about the witnesses, our petition against it is very simple and goes to two pages, and, plus or minus any cross-examination of her witness, I do not see me troubling you for more than about 15 minutes.

995. CHAIRMAN: That is very helpful, and I do repeat: nobody will be held to anything they have said in the last five minutes; it is just to give the Committee a steer. Many thanks. Let us adjourn until 10.30 tomorrow morning. Thank you very much.

 

The Committee adjourned at 4.20pm until 10.30am the following day