London Local Authorities Bill [HL]
Tuesday 18 February 2003
260. The Promoters have decided to take a cautious
line. Once the Licensing Bill has made further progress a decision
will have to be taken as to whether to drop Clause 21 entirely
or to seek amendments which will have the effect of applying the
Licensing Bill differently in London. No Government Department
has reported against Clause 21.
261. The main purpose of the Clause is to deal with
the situation which has arisen in recent years, particularly in
certain areas of Westminster where a number of establishments
which would appear to be run as though they were cafes are in
fact not caught by the existing night café regime.
The present regime, which will be replaced by the
Licensing Bill in due course, applies only to premises which remain
open after 11 pm and where public refreshment is provided, in
other words cafes and takeaway premises which serve food
and drink are certainly caught by the night café licensing
262. It is obvious that the night café regime
in the London Local Authorities Act 1990 and the coexisting
regime for the rest of the country, both of which are long established
by previous legislation, is intended to ensure nuisance to local
residents is regulated late at night.
263. The types of establishment which cause Westminster
City Council concern are mostly to be found on or near the Edgware
Road and mainly cater for the Muslim community. Many of the late
night restaurants on the Edgware Road do indeed serve public refreshment
and have the benefit of a night café licence.
264. However, there have been some incidents in recent
years, and in one case in particular where injunction proceedings
were instituted by the City Council where a café had been
kept open after 11 o'clock but had been able to do so without
a licence because no public refreshment was served. The attraction
of the premises is what the council call "hubba bubba pipes".
In other words, smoking. The customers often remain on the premises
until the early hours.
265. The purpose of the amendments contained in clause
21 is to ensure that such premises fall within the night café
regime, because it is clear that they are likely to be a source
of nuisance as any other similar type of café premises.
They are laid out as a café and they operate as a café
and attract numbers of people to them. The clause as deposited
originally made specific reference to smoking, but it has been
decided that the clause should be altered somewhat, with the assistance
of your counsel, to provide that premises which serve refreshments
before 11.00 pm but remain open after 11.00 pm and do not provide
refreshment after 11.00 pm will require a licence.
266. Clause 21 also contains alterations to the existing
regime which would enable authorised officers of the Council to
enter licensed premises to ascertain whether conditions attached
to the licence are being complied with. It is an anomaly in the
1990 Act that this provision was not included, and it is well
precedented in other licensing regimes.
267. My Lords, unless there are any questions, we
move to clause 22 - street trading?
268. CHAIRMAN: It seems sensible to us. As you say,
the Licensing Bill has spent a good deal of time with a Committee
of this House, and no doubt still has a long way to go if it gets
to the Commons.
MR LEWIS: I believe it will be in the report stage
269. CHAIRMAN: In here, yes. It has got a long way
to go. Street trading?
270. MR LEWIS: This clause, which introduces schedule
5 to the Bill, provides for a large number of amendments to the
existing street trading regime, which is currently set out in
the London Local Authorities Act 1990. That Act applies to most
of the Councils in London, but specifically does not include Westminster
City Council. That is because the City Council promoted their
own Private Bill which led to the City of Westminster Act 1999
and which provided them with their own separate street trading
regime. The 1999 Act followed closely the provisions of the 1990
Act, but made further provision in areas where the Council thought
there were weaknesses. The two main areas which that Act dealt
with were the removal of the exemption for those who carry a pedlars
certificate and the strengthening of the powers of enforcement
of the Council.
271. I will deal first with the pedlars exemption.
Broadly speaking, the 1990 Act provides that if one is to sell
or supply articles of services on the streets of London, one needs
a licence from the local authority first. For the street trading
provisions of the 1990 Act to apply to any particular street,
the Council first has to designate the street as a licence street.
Some councils simply designate all of the streets in their area.
There are a number of exemptions contained in the 1990 Act. One
of those is contained in section 21(2)(a) which provides that
a street trading licence is not required by somebody who is acting
under the authority of a pedlars certificate. A pedlars certificate
is issued by the police under the Pedlars Act 1871. A certificate
must be granted if the chief of police is satisfied that the applicant
is above 17 years of age, is a person of good character and in
good faith intends to carry on the trade of a pedlar.
272. A pedlars certificate once issued can be used
anywhere in the country, so quite often people from outside London
who have obtained a certificate in their own home town trade with
the authority of that certificate in London. No conditions can
be placed on a pedlars certificate, for example regulating the
type of goods which can be sold.
273. A substantial body of case law has developed
since the 1871 Act about what is actually meant by being a pedlar.
Different courts have come to different views, but it is commonly
held that if a pedlar remains stationary in one position for less
than a given period of time - and I think 20 minutes was referred
to in one particular judgment; or there may have been a judgment
last year where 30 minutes may have been mentioned - and then
moves on, then he is properly acting as a pedlar. What happens,
therefore, and what used to happen in Westminister, is that people
have been found to set up their goods in one particular part of
a street, and then if they are fearful that the police or a local
authority inspector is watching them, they move along a few yards
and trade in the same street but in a different place, and continue
to do so throughout the day. This became a particular problem
in Westminster, particularly in the West End, which led them to
promote successfully the 1999 Act, despite the opposition then
of the Home Office.
274. It is noteworthy that there is no report from
the Home Office this time round, and that since the 1999 Act,
the City of Newcastle-upon-Tyne have also promoted a similar provision.
275. The Bill does not do away completely with the
rights of pedlar under a Pedlars Certificate. You will see that
in schedule 2, paragraph 2(a), page 26, the pedlars exemption
is simply qualified by the addition of the words "if the
trading is carried out only by means of visits from house to house",
so a door to door salesman would still be able to act under the
authority of a pedlars certificate without the need to obtain
a street trading licence.
276. The second major reason for the amendments is
the tightening up of the enforcement regime. These amendments
can be found in paragraph 5 of schedule 2, starting on page 27.
277. Once again the amendments are modelled on the
City of Westminster Act 1999. This time, the councils are seeking
to make the enforcement of the street trading regime more effective,
particularly in respect of seizure and forfeiture of goods and
receptacles used in unlawful street trading. Under the present
legislation, it is only lawful for a Council officer to seize
goods for the purposes of evidence at any subsequent prosecution.
The amendments enable the seizure of goods and receptacles not
only for use as evidence, but also so that if there is a conviction,
they can be forfeited if the court so orders. As mentioned it
is not just goods, but also receptacles which can be forfeited
and these provisions have been used particularly successfully
in Westminster in dealing with unlicensed hot dog vendors of the
sort which are, unfortunately, still seen quite frequently on
the streets of the West End. It should also be mentioned that
the Council has used these powers to forfeit ice cream vans.
278. That was all I was going to say on that clause.
279. CHAIRMAN: As you mentioned at the very end,
the major problem was with hot dog sellers. It seems Westminster
has dealt with that. I think the Royal Parks have now dealt with
it, have they not?