Minutes of Evidence
House of Lords
Minutes of Evidence
taken before the
Canterbury City Council Bill
Leeds City Council Bill
Nottingham City Council Bill
Reading Borough Council Bill
Wednesday 2 November 2011
Knight of Collingtree, B (Chair)
Blair of Boughton, L
MS NATHALIE LIEVEN QC appeared on behalf of the Promoters of all four Bills.
MR ALASTAIR LEWIS of SHARPE PRITCHARD appeared as Agent.
The following Petitioners appeared:
Canterbury City Council Bill
MR SIMON CASEY in person.
Leeds City Council Bill
MR ROBERT CAMPBELL-LLOYD appeared as Agent on behalf of Mr Tony Furnivalis
Nottingham City Council Bill
MR SIMON CASEY in person.
Reading Borough Council Bill
MR ROBERT CAMPBELL-LLOYD appeared as Agent on behalf of Andrew Carter.
MR GRAHAM BRANTON and MS NADIA COLLINS from the Department for Business Innovation and Skills were present.
Ordered at 10.30am: that Counsel and Parties be called in.
1. CHAIRMAN: Good morning, ladies and gentlemen. Just one or two words from me first. My name is Baroness Knight of Collingtree and I am chairing the Opposed Bill Committee. My colleagues are Lord Blair of Boughton, Lord Glasman, Viscount Eccles and Lord Strasburger, and we are all ready to hear you. There are first, however, one or two important information points I am bound to make for those who are not used to working or being in this House.
2. If you were to hear loud bells ringing, they will be announcing a division in the House of Lords, which may happen this afternoon but will probably happen this morning, I should say, almost certainly. I shall then have to adjourn the Committee while we go away to vote and we are very swift. I cannot say all of us are in every marathon that is ever run, but we do get through the lobby quite quickly and that would not be a long stoppage of the Committee. But I am bound to adjourn it while we go away and vote. If you should instead hear the sound of a two-tone siren the place is on fire, or is having a fire practice. Should that very unlikely event occur, it is important that you take the guidance of the official on the door who will tell you what you should do then.
3. It is important that you should know – and that I should report that at this stage – that I have asked officially whether any of my colleagues, who are Members of this Committee, have an interest in any of the Bills before us, and to say that if any of them have had second thoughts. We have all read through very carefully this section of the ruling and I will ask them again if they have any second thoughts. If any such interest does exist, please declare it now. No. That is quite clear then that there is no interest in any of those two proceedings. They have obviously pronounced their interest at that time.
4. I should, I hear, ask you all separately, should I?
5. VISCOUNT ECCLES: I have no interest.
6. LORD STRASBURGER: No interests.
7. LORD GLASMAN: No interests.
8. LORD BLAIR OF BOUGHTON: No interests.
9. CHAIRMAN: It is apparently very important that that is minuted. Regarding sittings, the hours will normally be 10.30 to 4.00. Should any of you feel – and you who are giving evidence to us – that you need to take more than this time, I will consider an extension, though not for more than one hour. Lunch will be for one hour, normally from 1.00 to 2.00 or that can be changed slightly. If, for instance, a natural break in the discussions were to happen, say, at 12.45 we could adjourn it then, but I do want to make it plain that it will be one hour and one hour only. This is not a European Committee. When we say we meet at 2.30 or 1.30, or whenever I say, that is the time we should be back in this Committee in action. The quorum of the Committee is four members. If we should be down to three, for any reason, I should have to adjourn the Committee. I wanted to make that very plain, and could I ask all of you – that is my colleagues as well – please if any of you have any mobile phones, please switch them off now. Is there anything else I should inform you? I think we have covered that therefore. Thank you. That is not a noise I wish to hear in the next few hours.
10. First of all, you will be aware that Committee Members are entitled to interrupt anyone, the Counsel, Petitioner, any witness, at any stage if they want elucidation on any particular point and can I ask then first the Promoter’s case should be put and could I ask that the Counsel for all four Promoters, that it is to say all of those, would make an opening statement, which will relate to all the Bills please.
11. MS LIEVEN: Thank you, my Lady. As your Ladyship and your Lordships know, I appear on behalf of all four Promoters in this matter. I will make an opening statement. I should say it will take not a huge amount of time but a little time, because there are complications in explaining the differences between the Bills, and I will keep it as short as humanly possible. I should also say that I will call witnesses in the order on the sheet, starting with Mr Vick, who is the witness on behalf of the Canterbury Bill. Again, Mr Vick will take a little time because I will take him through all the evidence, but I hope the subsequent witnesses can be a lot shorter because they can refer back to Mr Vick’s evidence.
12. In terms of the opening, what I intend to cover is briefly explain what the Bills seek to do, explain the differences between them by reference to a schedule, which I will take your Ladyship and your Lordships to, explain why we are promoting them and then, as a fourth topic, deal with the report from this, the Government Department, and briefly issues that arise under the Services Directive. So turning to the first topic, what are the Bills seeking to do? As the Committee knows, the Bills are all concerned with matters relating to street trading. Street trading nationally, except in London, is dealt with by the Local Government Miscellaneous Provisions Act 1982, which I will call "the 1982 Act", and in particular schedule 4 of that Act. The relevant schedule is in the Committee’s papers but I am not going to take you through it. It is at divider 4 of the exhibits bundle, and in essence it allows councils to designate streets within their area as either prohibited streets, consent streets or licensed streets.
13. What these Bills do is in essence four things. They extend the definition of street trading from simply covering sale of goods to include the provision of services in those streets; secondly, they allow for the better enforcement of breaches of street trading laws by allowing, subject to very strict controls which are clear on the face of the Bill, the seizure of goods; thirdly, they give the councils the ability to issue fixed penalty notices when there is an offence of the street trading regime; and fourthly, and most controversially, this is really the subject of the petition, the Bills amend the law in respect of the exemption for pedlars, which I will deal with in detail in a moment, in the relevant council areas.
14. Before I go through the provisions of the Bills in a little more detail, can I refer the Committee to divider 9 of our exhibits bundle, which should be a slim black bundle. Again, I will come back to this in a moment but divider 9 has a schedule which summarises the differences between the Bills. So the Committee may find that is a useful aide-mémoire when if like me, Members of the Committee get somewhat confused as to which Bill will cover what. So divider 9 is a schedule which just points your Ladyship and your Lordships to the relevant differences.
15. So then briefly, why are these four local authorities promoting these Bills? I am not going to presage the evidence, that is appropriate to come from the witnesses, but you will hear evidence that for all four of these authorities there are very real and manifest problems with the existing legislation to manage street trading. In each case, albeit you will hear there are slight differences between the four towns and cities involved, but in each case the local authorities are trying to manage very busy city and town centres where, in recent years, there has been a proliferation of forms of street trading which it is very difficult to manage and which are causing real problems for local people, both in terms of people trying to use the street but also for lawful street traders.
16. The Committee will be aware, I am sure, that the clauses in these Bills are precedented in other private Bills in similar although not always exactly the same terms. Similar trials have existed in London for a number of years and have also now been precedented in recent years by Acts in a number of other councils. I think it is seven other councils and these four will bring it up to 11. One of the questions that has clearly been raised, both through passage of this Bill and earlier Bills, is why cannot these problems that exist in these four areas and others be dealt with through national legislation and would it not be more appropriate to deal with it by national legislation? The Committee will be well aware of the instruction that it was given in the House of Lords’ Second Reading Debate, which I will just read so that it is on the transcript and it is absolutely clear. The instruction is, "That it be an instruction to the Select Committee to whom the Bills are committed, that they should consider the Bills in the light of the conclusions of the report of the Select Committee on the Bournemouth Borough council and Manchester City council Bill which, while allowing those Bills to proceed, expressed [and I quote] ‘strong reservations about the use of piecemeal private legislation to remedy perceived problems in national legislation’, and recommend that, [quote], ‘The Government should undertake an urgent review of the law on trading in the street and selling from door to door with a view to producing national legislation which reflects current conditions’", and the Committee will also be aware of the reference there to the Bournemouth and Manchester Bills, which effectively the special report said the same thing referring to the, "strong reservations about the use of private legislation and urgent review of the law being needed". I think it is important to deal up front in the opening in our response to that instruction and to the concerns.
17. The Promoters of these Bills are entirely in support of national legislation coming forward that allows local solutions to these very real problems. We are not in any sense opposed to national legislation. We think it would be a very good idea, but national legislation on this topic has been under discussion for many, many years. When Westminster introduced similar powers through Parliament well over ten years ago, the relevant Government Department put in a report saying, "This should be dealt with by national legislation". So national legislation has been under discussion and contemplation for many years and it has not come forward yet. Equally, these Bills – as the Committee will be aware – have now been in Parliament for nearly four years and the Promoters do not feel it is reasonable to expect them to wait for an indefinite period for national legislation to come forward when there is no certainty as to when, or indeed if, it will come forward but probably it is fair to say it is probably more of a "when" than an "if". It is relevant that these Bills were lodged now almost four years ago, I think it is 3 years and 11 months, because if we delay these Bills further in the hope that national legislation will come forward, then we will have to seek yet another carry over motion to the next session and, of course, there is no guarantee we would get it. So the position of the Promoters is entirely supportive of national legislation coming forward that allows them to deal with their local problems in a local manner but that it is not reasonable that they should have to wait, given the real uncertainties over timing.
18. It is also, in this regard, important to understand that there is nothing about these Bills becoming law and going forward which would in any way prevent, limit or frustrate national legislation coming forward when it does come forward. So if this Committee approves these Bills going forward, it does not either stop or in any way impede the Government bringing forward national provisions when it gets round to it. So it is not an either/or situation. Our position is there is a problem now, the sooner it is dealt with the better, and if there is then a national scheme, then that is all to the good. I hope that deals, albeit briefly, with the instruction and the issue of national legislation.
19. Can I then say a little bit more about the nature of the powers sought, particularly focussing on the pedlar provision, which is the most controversial issue in the petition, and I will try to summarise what is quite a complicated area but if I have lost any Members of the Committee, please, I am more than happy to try to clarify. The present position under the 1982 Act provides for exemptions from the street trading regime, in other words for people who do not need a licence or consent, and the most important exemption for present purposes is persons who are acting as a pedlar under a pedlar’s licence pursuant to the Pedlars Act 1871, and if the Committee takes up its exhibit bundle again, one can see the 1871 Act appears at divider one, and the definition of "Pedlar" is at section 3 of that Act, which is on the second page, "The term ‘pedlar’ means any hawker, pedlar, petty chapman, tinker, caster of metals, or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot and goes from town to town or to other men’s houses, carrying to sell or exposing for sale any goods, wares, or merchandise, or procuring orders for goods, wares, or merchandise immediately to be delivered". So I hope the Committee can see that the definition is – perhaps unsurprisingly given it is 1871 – somewhat dated. But more importantly than the fact it is an 1871 Act is the fact that there is huge difficulties in trying to establish precisely whether somebody is trading as a pedlar or not. You will hear the evidence on that. It is an issue that requires a great deal of observation to decide, in accordance with the case law, whether the person is indeed trading as a pedlar.
20. The other issue to come out of the Act is that, although there is a requirement for a pedlar’s certificate, the Committee may be aware that certification of pedlars is a matter for each different police authority and it would be fair to say – as the evidence will show – that it does not provide either a high level of scrutiny or indeed a high level of certainty as to the nature of the pedlars, and perhaps most importantly, in terms of management of the street, there is no power in a local authority to say, "We will have 10 pedlars in Canterbury or 50 pedlars in Canterbury". You can get a pedlar’s certificate in Manchester, Leeds or Aberystwyth and you can peddle all over the country with it. So it does not provide any kind of street management control.
21. The position, as far as the pedlars’ exemption is concerned – and again you will hear evidence on this – is that it is very expensive and cumbersome for local authorities to enforce and that the levels of fines and prosecutions, even when enforcement action is taken, do not act as an effective disincentive.
22. What do the Bills propose to do in respect of pedlars? If the Committee take up one of the Bills, and we will take Canterbury as the first example. Clause 4 extends the provisions for street trading regime for services, and then clause 5 amends the references in the 1982 Act to remove the pedlars’ exemption, so to remove the right of pedlars to trade in places controlled by the 1982 Act unless the trade is carried out only by means of visits from house to house. So where that gets one to – and this is a point where there is a difference between the different Bills – is that in respect of Canterbury and Nottingham, the pedlars’ exemption is removed save for house to house trading. In respect of Leeds and Reading, if the Committee cross refer clause 5, you will see that in the Leeds and Reading Bills there is a clause 5(b), clause 5 is amended, so that there is a provision that says, "Trading is carried out in accordance with this sub paragraph if: (a) it is house to house, or (b) all items used for any purpose connected with the trading are carried without any other means of support by the holder of the certificate during the time in which the trading takes place".
23. So as far as the pedlars are concerned, there is a distinction between Nottingham and Reading, where the Bills allow pedlars to continue to rely on an exemption where they are carrying their goods or services in accordance with that clause, and the other two Bills where the exemption is removed in its entirety.
24. LORD BLAIR OF BOUGHTON: Excuse me; do you not mean Leeds and Reading?
25. MS LIEVEN: Yes, I do mean Leeds and Reading. I am sorry. I will get that wrong again and again. I have written notes, again and again, and I still get it wrong. Yes, your Lordship is entirely right. In terms of the evidence, the Committee will hear why Leeds and Reading feel that the amendment is acceptable in their areas but Canterbury and Nottingham do not, and that is a matter for evidence which I will leave to the witnesses. So that deals with the pedlars’ clauses in outline.
26. Just going back to exhibit 9 and the schedule of differences, the Committee will see that there are also differences in respect of ticket touting and touting between the different Bills, and I will leave that to the witnesses to explain why those differences exist. It is all to do with local circumstances. These Bills have been drafted to try to deal with differences between local areas. In very brief terms, that is an overview of the powers in the Bills.
The final topic I want to deal with in opening is the BIS report and the EU Services Directive. The Committee, I am sure, will have already seen the BIS report on the Bill, and BIS raised concerns, primarily, in relation to clause 5 – that is the pedlars’ clause – but also to a lesser extent in relation to clause 4 – the extension to services – and they do so, as I understand it, because of the terms of the Services Directive. The Services Directive, in broad terms, its purpose is to provide for free movement and non-discriminatory access to the provision of services throughout the EU. I would summarise it as removing barriers to entry between services across the area of the Union, and one particular aspect, the aspect of the directive which is, I think, relevant for these purposes is in relation to what the directive called, "authorisation schemes". In the last tab of the exhibits bundle, we have not copied the whole of the directive, although we do have it in the room if the Committee want it, but in the last tab, all I have had copied is the recital 40, which I will come to in a moment, and article 9 in respect of authorisation schemes. If I can just focus on article 9 at this stage, what it says is, "That member states shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied: (a) the authorisation scheme does not discriminate against the provider in question; (b) the need for an authorisation scheme is justified for an overriding reason relating to the public interest; and (c) the objective pursued cannot be obtained by means of a less restrictive measure, in particular because of a posteriori inspection would take place too late to be genuinely effective". So I do not think (a) needs to concern the Committee very much. It is not being suggested, as I understand it, by anyone that the authorisation scheme does not discriminate against the provider in question, or does discriminate. So I think it is (b) and (c) which are in issue.
27. Now, BIS is raising doubts over whether those requirements can be met by the terms of clause 5, removing the pedlars’ exemption. So the first question under article 9 must be, "Is there an overriding reason relating to the public interest?" In terms of what is the public interest, that is why we have produced recital 40 of the directive, because if the Committee look up the page at article 40, you can see that it covers an extremely wide range of issues or interests. The third line down, "The notion is recognised in the case law. The Court of Justice covers at least the following grounds: public policy, public security and public health, maintenance of order, social policy objectives, protection of the recipients of services, consumer protection". I am skipping down to the next ones that are relevant, about three lines further down, "the prevention of unfair competition, the protection of the environment and the urban environment". So the concerns that lead to the promotion of this Bill, about the protection of the urban environment, securing the safety and good environment for the public in these town and city centres and protecting the trade of legitimate street traders who have paid for pitches in those towns, those are all matters which quite plainly are matters which are potentially in the public interest, according to the directive. Now
28. VISCOUNT ECCLES: Could I just ask is that leading you to argue that pedlars constitute unfair competition?
29. MS LIEVEN: My Lord, that is really a matter for evidence, but yes, the evidence will be that in certain circumstances, pedlars in these town and city centres are leading to unfair competition on street traders who have obtained licences and paid for them, and the ability for pedlars to turn up and trade right next to them can lead to unfair competition.
30. VISCOUNT ECCLES: Thank you for that. Is it also going to be part of your contention that the licence fees constitute unfairness in that pedlar’s licences are in general much cheaper than street traders’ licences?
31. MS LIEVEN: That is certainly an aspect.
32. VISCOUNT ECCLES: It has not come out of any of paperwork which we have been presented with to date, has it?
33. MS LIEVEN: I think that is probably right, my Lord. It is not so much in the paperwork, but you will hear from the witnesses, and perhaps it is clearest in the evidence from Leeds, Ms Follin, that Leeds does everything it can to promote street trading by promoting licence sites, by promoting markets, and by allowing unfettered numbers of pedlars to trade that is making it much more difficult for existing licensed traders. So all my witnesses touch on it, but I think it is perhaps clearest in the Leeds evidence.
34. CHAIRMAN: While you are on this point – because some of these points are difficult certainly for me to translate into precisely what it means – for instance, has the promotion of a national language come into it, and also what about the question, when we talking of public safety and public interest, of the size of the vehicles which may or may not be being used? That comes up elsewhere.
35. MS LIEVEN: I will deal with those completely separately because I think they are very different points. As far as a national language is concerned, what is important to understand is that the Services Directive covers all provision of services so, for example, it covers legal services, architectural services, potentially it could be media consultancy, matters such as that, and I am thinking off the top of my head, but I would assume that in some member states there may be restrictions. For example, you have to have a certificate that you can speak a certain language in certain parts of Romania, or wherever, and the justification made for that may be that that is for the protection of the national language. So it does not have anything to do with the facts of this case at all, but I think the point that is being made in that recital is that support of national language may be a legitimate public policy concern. So for example – and I hope this is not overly speculative – if there was some provision brought in in Wales that a certain proportion of media suppliers should be Welsh speakers, that could be argued not to be discriminatory, contrary to this directive, because it was for the protection of the national language. So I think that is where national language comes in.
36. CHAIRMAN: But before you leave that point, could we be very clear on this? Are you saying that we have to take account of regulations which obtain in Romania when we make ours here, because you did mention ----
37. MS LIEVEN: No, no, absolutely not, my Lady. All I am trying to do is explain why in that long list of things that could be legitimate grounds of public policy, national language might be one. It has got nothing to do, in my submission, with the facts of these cases at all. It is just in a very different context, it might be a legitimate matter of public policy.
38. In respect of your Ladyship’s other question, the size of the vehicles, one of the issues, one of the concerns of my clients is that many people trading under a pedlar’s exemption, a pedlar’s licence/certificate, are using trolleys, and the Committee will see the photograph, very big, very cumbersome trolleys which are blocking pavements, which are making it very difficult for people to move and which may, in certain circumstances, have public safety implications. So size of vehicles, vehicles in the terms of these trolleys, can indeed be relevant both to the protection of the urban environment and potentially to public safety.
39. So just stepping back to article 9, and 9.1(b) in the particular, is the authorisation scheme, is the Bill here justified by an overriding reason relating to the public interest? In my submission, article 9.1(b) does no more than put in regulatory form what this Committee would have to consider anyway, which is are these provisions that we seek through these Bills justified in the public interest? If the Committee reach the conclusion they are not, because there is no problem with what is happening at the moment and this is all a fuss about nothing, then whether you think about the directive or whether you just think as you would in any event of the parliamentary Committee deciding whether these provisions are justified, effectively the question is the same. So 9.1(b) is relevant but, in my submission, it does not change what the Committee has to consider.
40. As far as 9.1(c) is concerned, is there a less restrictive way of achieving the same result or dealing with the problem? The first point to make is that, in my submission, what 9.1(c) is primarily focused on is in particular because an a posteriori inspection would take place too late. What this is really trying to grapple with is the position where take, for example, legal services, where very high barriers to entry are placed through an extremely onerous authorisation scheme. Perhaps if you are a French lawyer and you want to practise in Germany, you have to go through an extremely complicated examination in German law, and what the directive is asking is, "Could the same protection of German consumers of services be undertaken by investigation and inspection later?" So every authorisation scheme, you have to consider, "Well, could you deal with the problem by investigation and inspection later?" That does not really arise in the context of street trading, where you have got to have the authorisation scheme in advance, because once you have had the breaches, in effect it is too late to do anything about it. So that, in my submission, is the primary focus of 9.1(c), but in any event, again, it really comes back to the same questions that this Committee would have to deal with anyway, which is can the concerns raised here be dealt in a less intrusive manner?
41. I will not shy away from the fact that the obvious question here must be Leeds and Reading, as I have already explained to the Committee, have accepted an amendment to clause 5 which allows pedlars to maintain the exemption if they are carrying without any other means of support their goods. So in effect, if they do not have a trolley, they are not trading from some kind of physical object. Canterbury and Nottingham have not accepted that amendment – I hope I have got it the right way round this time – so clearly the Committee have to consider whether or not that difference is justified in the light of 9.1(c). But if the Committee reach the conclusion again that all of this is unnecessary because there is not that big a problem, then the Committee would reject the terms of the Bill in any event. So again, 9.1(c) does not change anything.
42. BIS also touch upon in their report clause 4 and the extension of the provisions to services. In my submission, as I understand BIS’ position, clause 4 does not really make any difference, because as I understand the BIS position, it is that sale of goods is covered by the directive in any event. But in terms of whether the extension to the provision of services is justified, again, the Committee will have to hear the evidence as to what the problems are with services – and when we talk about services, you will hear the evidence, but it is things like henna tattooing, teeth whitening, those kind of services which are being provided on the street, and the Committee will have to consider whether or not extension is justified.
43. So then just concluding on the BIS report, the report at the end in paragraph 8 asks the Committee to consider or to remember two things. First of all, what BIS says is, "Our view is that genuine pedlary is a legitimate business activity. Pedlars should be free to trade with the minimum of restrictions placed on them. Clauses 4 and 5 of the Bills in question will restrict the activity of genuine pedlars". I would like to stress to the Committee that this Committee is not about whether genuine pedlary is a legitimate business activity. We are not here to discuss the philosophical basis of pedlary and whether it is legitimate or not. The issue for this Committee is whether in the factual situation of these four areas there is justification for the restrictions contained in the Bill. So these Bills are all about whether in Canterbury, Nottingham, Reading and Leeds the problems caused by the existing street trading environment, whether lawful or unlawful, whether legitimate on some economically philosophical basis or not, whether that is causing such problems as to justify these Bills. So I would phrase that question rather differently as to what the Committee has to consider.
44. The second thing that BIS ask you to do is, "We strongly advise that in the light of our views mentioned within this report, you ascertain whether the Promoters of the Bill have thoroughly screened clause 4 and 5 for Services Directive compliance before the Bills are enacted" and that is something which I can reassure the Committee on. The promoters and their legal advisors have very carefully considered the Services Directive and whether the provisions have been met, and have concluded that for the reasons that partly I have made in opening, but most importantly, in terms of the justification, the evidence the Committee will hear that those provisions are met, and therefore I can assure the Committee that these Bills have indeed been thoroughly screened. So my Lady, my Lords, that is all I am intending to say in opening. I am conscious of the fact that I have not gone through the Bills in detail explaining each clause. I have chosen not to do that because it would take some time, and to the degree that there are questions on specific clauses, it may be more appropriate to deal with them once the Committee has heard the evidence and can see how the evidence relates to the clauses, but I hope that that is a sufficient overview for the Committee to at least understand the Promoters’ case.
45. CHAIRMAN: Does any Member of the Committee wish to say anything? No. Then could we have the evidence in regard to Canterbury?
46. MS LIEVEN: Certainly, my Lady. Can I call Mr Vick, please. The Committee should have not just the black bundle of exhibits, but also a small handout of Canterbury-specific photographs.
MR ROGER VICK, called
Examined by MS LIEVEN
47. MS LIEVEN: Mr Vick, we start at the slight disadvantage that I am talking to the back of your head, but we will do our best. Can I introduce you to the Committee? Your name is Roger Vick, is that right?
(Mr Vick) Yes.
48. You are employed by Canterbury City Council as a Commercial Health Manager in the environment division, is that right?
(Mr Vick) That is correct, yes.
49. I think you have worked for Canterbury since 1987 in a number of posts, is that right?
(Mr Vick) It is, yes.
50. You have also represented the Local Government Association and LACORS during the Bill stage of the Licensing Act and the Gambling Act?
(Mr Vick) I did, yes.
51. This is not the first time you have given evidence to a parliamentary committee, because I think you gave evidence to the All Party Markets Group in respect of street trading, is that right?
(Mr Vick) I did, yes.
52. Now, can you just explain to the Committee what your responsibilities are as commercial health manager?
(Mr Vick) Yes. I am responsible for licensing, for commercial, for food safety, health and safety and various other aspects of licensing, gambling and also street trading is part of the remit of my division, so I have those areas of regulation, basically.
53. Can you then explain to the Committee how street trading has developed in Canterbury in the years that you have been working there?
(Mr Vick) I came to Canterbury in 1987, and you may well know Canterbury, it is quite a small, old medieval city, but we get a lot of visitors. What happened was that in the early 1990s, there was obviously a number of visitors coming over, and what happened was we had the Channel Tunnel opening, you also had an increase in the movement of people coming across the Channel, the differences in the values of the pound or in the franc, particularly we had a lot of visitors coming. Also at the same time the local Canterbury market was moved on the street, and I will refer to that in my evidence a little bit later on about the position. That then developed – because of the Cathedral particularly, and because of the aspect of Canterbury being a very attractive place – obviously in the growth of the number of pedlars coming into Canterbury. Now, when I came into Canterbury, they had already enacted something from the 1982 Act, and they were prohibited streets in the centre of Canterbury particularly, which is the main area of Canterbury, which is where the public goes and tourists go, residents go, and also where the pedlars and other people wanted to go to. So back in about 2002 – and if I can just refer to my dates correctly – the council decided that because of the number of street traders that were coming into Canterbury that we would – I am sorry, it was probably before that, but we decided to re-designate, going through the Local Government Act and the provisions of the Act, to re-designate the streets particularly in the centre of Canterbury as licensed streets, to licensed street trading. We had a large consultation, public consultation, ward councillors, the various trade organisations, Chamber of Commerce and those sorts of groups, and particularly with the police as well, and the council resolved by advertisement of all the procedures carrying through on that, to make these into licensed streets. If I can draw your attention to map 3 on the bundle you have, you will see there is ----
54. If I can just stop you for a moment, I think it is tab 4 for the Committee in the black bundle.
(Mr Vick) I beg your pardon. I have got a slightly different set.
55. The last fold-out page in tab 4, you have got a series of maps that focus down on Canterbury City, and I think map 4 shows the core of the city centre, is that right?
(Mr Vick) That is right, that is right, with a blue box, as it were, and a number of red stars in it. It is this one here. Those red positions are where it was agreed we would have licensed street trading pitches and, as it were, the south-east corner of that is the blue hatched area, which is where the market goes in, and that operates on a Wednesday and a Friday, that we have pitches in there otherwise on the non-market days. So that basically was the way we felt as the council of trying to control the numbers of the street traders that were coming in, and obviously the street traders have been very much attracted by the numbers of tourists and visitors we have coming into the city. Current estimates at the moment are about 5.5 million to 6 million tourist visits a year and that is not counting the residents that come in obviously for shopping as well. On top of that, we also have 40,000 students in Canterbury. We have three universities and a further education college, and I think that what developed is a very attractive marketplace for people, for street traders, particularly for the tourists. We do get even now coach loads, and I think the latest estimate, we had 70 coaches a couple of weeks ago in one day, just before the start of the holidays from France, of French schoolchildren coming over. They love to buy stuff off the street traders, and our licensed traders obviously cater for that sort of business as well. What happened was that we do get – obviously we have had pedlars coming in as well and other traders, and this is hence really why we have brought this Bill forward in front of you, and we are hopefully towards the end of the period, where we have been about four years ago, as Ms Lieven said. So that is really how street trading has developed in Canterbury, and I think if I may also refer you to the bundles of photographs that you have. These photographs were taken, which are ----
56. Hold on, Mr Vick. Can I just get you to wait a moment? What I think you are looking at, peering over your shoulder, is if the Committee take up tab 5, there is kind of a glossy brochure of high street traders and pedlars, and what might be helpful, Mr Vick, quite speedily is to take us through those photos and then just relate them to where they are on the plan, so for the Members of the Committee who do not know Canterbury, we can get this.
(Mr Vick) Image 1 is basically right in the middle of the street trading area, across there. If you can see, you have the Cathedral on the north-east junction. Then you have a large street coming down towards the south-west, the market street. That is the junction there, that is the key point in the middle of the city and they ----
57. The way I have done this, Mr Vick, is I have taken my plan out so I can cross-refer my plans and my photographs.
(Mr Vick) Would it help if I pointed it to Members?
58. Mr Vick, what you need to do, because those behind you can’t see, is tell us which image you are using and then tell us the location.
(Mr Vick) Right. Image 1 is that central junction ----
59. VISCOUNT ECCLES: We are clearly interested in the problems that are created by this. The fact that there is trading going on and people are effectively buying things and adding to the economy of Canterbury is not the point, is it? The point is that this system, for one reason or another, has created problems for Canterbury.
60. MS LIEVEN: Absolutely, and that is what I am going to ask Mr Vick to focus on when he goes through the photographs, so he can show you the evidence of the problem.
(Mr Vick) Page 1 is basically right in the centre of that map.
61. So is that on what is called High Street and Parade?
(Mr Vick) High Street and Parade, and it is looking towards the market area.
62. That chap on the right in image 1, the little chap with the hat, is that a licensed pitch?
(Mr Vick) No, that is a licensed pitch, but that is not a licensed trader. The licensed trader was not there on that day and this is a trader who has come in to take over that pitch. That is a pedlar.
63. In terms of how he could argue he was peddling under a pedlar’s certificate, that little stall we see, is that on wheels?
(Mr Vick) That is on wheels, yes, Ms Lieven, and what would happen is that person would then stay there for a short period of time and then move on, which is ----
64. CHAIRMAN: It looks like ----
65. VISCOUNT ECCLES: Sorry, and he is a licensed pedlar?
(Mr Vick) Yes, I think this person has a pedlar’s certificate, yes, not a licensed trader. Not licensed by Canterbury City Council.
66. But not a licensed trader, but a licensed pedlar. Exactly.
(Mr Vick) A licensed pedlar, yes.
67. CHAIRMAN: I am right in deducing that – it is a bit difficult, because we are seeing it from one angle – it looks like the size of a small car.
(Mr Vick) It is. It is probably about the size of this table, a bit longer.
68. Much like one of the very small cars?
(Mr Vick) Yes, a very small car.
69. I presume this is a pedestrian area?
(Mr Vick) It is pedestrianised, yes, between 10.00 and 4.00 in the afternoon. So this area there ----
70. VISCOUNT ECCLES: Can I just ask, at the time, would it have been Canterbury Council’s opinion that he was trading illegally or that he was not trading illegally?
(Mr Vick) At that point in time, he was probably trading legally, trading as a pedlar, but then I do not exactly know how long he stayed in that pitch before he moved on, and that is part of the key problem, because they have to keep moving on. This is part of the issue about pedlars.
71. LORD STRASBURGER: Did you say this was a licensed street trader’s pitch?
(Mr Vick) There is a pitch. There just happens to be a pitch on there.
72. Which was at the time unoccupied by a street trader?
(Mr Vick) Unoccupied, yes. It was unoccupied by the licensed trader, yes.
73. MS LIEVEN: So just to be clear, Mr Vick, as far as you are aware, the chap with this trolley probably had a certificate, so he was trading with a pedlar’s certificate. The question of whether he was acting lawfully or unlawfully will depend on the degree to which he was moving to trade, is that right?
(Mr Vick) Yes, that is right. Yes.
74. CHAIRMAN: Could you just answer one more question on that? What would be the difference, the trader who has a licence and could have put something there is not using it, but what would he have paid for his licence as a trader as compared to what the pedlar paid?
(Mr Vick) That pitch is £10 a day.
75. £10 a day?
(Mr Vick) £10 a day, yes, and a pedlar’s certificate I believe is £12.50 a year.
76. I see, thank you. That is quite helpful.
77. LORD BLAIR OF BOUGHTON: Can I ask a supplementary? According to this map, on the day when the market is working, you have got about 30 pitches.
(Mr Vick) Yes.
78. How easy is it to get a pitch?
(Mr Vick) We have a waiting list for pitches at the moment. It is a very attractive area, as you can imagine, with the number of tourists that we get, and students and whatever coming in. We try very hard. We allocated the pitches, the positions of the pitches with the police particularly, because they wanted sight lines down the street obviously for viewing purposes. We very much encourage as a council new enterprises to start up, so we do have a waiting list. People want to sell food particularly in that area, and we have a limit, because Canterbury has innumerable numbers of food premises as well, and we try very hard not to put stalls that are selling the same products as maybe a souvenir shop as well, so it is difficult. But there is a turnover, people do move on. Some people work different seasons, so we do have a waiting list and people can come on to that list and we will obviously put people in, as and when a pitch becomes free. As you get further down, not down, but towards the north-east, those pitches become less popular because the main tourist area is effectively where you see on that map "street trading", down to the start of the market area. It is about 400 metres. That is the sort of real key hub point of the city.
79. Just one more, if I may, which is can you give me an estimate, if I decided to come in and wanted to have a pitch in the centre of that, how long would it take me to get through that waiting list?
(Mr Vick) Probably to the spring.
80. Oh, not years?
(Mr Vick) No, not years. There is a turnover, and again, we very much look to try to encourage different types of products as well, so more unusual. You can have a stall selling everything the same, you know, a number of stalls all selling the same, so we do try to have a variation as well.
81. LORD STRASBURGER: May I ask, what would have happened in this situation in image 1 if the licensed street trader turned up and found the pedlar on his pitch?
(Mr Vick) I think there may have been words said. Normally, that pedlar would have moved on by the time the licensed trader set up. They have to be set up and in place at 10.00, so they would have moved on by then. That is normal. What does happen ----
82. Would there be contention between the two?
(Mr Vick) We have had occasions when there have been words said, shall we say, but we have not had any ----
83. Normally the pedlar would move on?
(Mr Vick) To make themselves comply with the peddling legislation, as such, they keep moving, so they do not stay in that. It just happens to be this photograph was taken at that point and there just happened to be a person at that point who was not a licensed trader.
84. But of course they are not restricted to the use of the pitches, are they?
(Mr Vick) No, no, and what does happen, unfortunately, is that the trader will come in, a pedlar will come in and pitch up right next to a licensed trader, and it can certainly obscure their pitches and obviously take their trade away.
85. VISCOUNT ECCLES: Yes, Ms Lieven, you mentioned time as being to some extent of the essence. If I look at the interpretation of what a pedlar is, it does say, "Who without any horse or other beast bearing or drawing burden travels and trades on foot and goes from town to town or to other men’s houses to do his selling". Is there case law about what that means in the sense of how long a pedlar should be in any one place?
86. MS LIEVEN: There is very extensive case law, my Lord.
87. VISCOUNT ECCLES: Yes. What does it tell us?
88. MS LIEVEN: Well, I think summarised, the key test is travel to trade, so you have got be moving. You can stop and sell something, and then the case law says that you need to move on after that. But the case law, I think it would be right to say some of the case law mentions periods of something like moving every – yes, Mr Lewis said – 15 minutes, and that was my recollection. Case law indicates the pedlar needs to be moving approximately every 15 minutes in order to be meeting the law. That is the kind of rule of thumb, but that is not a statutory test, that has been developed through case law.
89. VISCOUNT ECCLES: So it would be open to a council to decide if somebody with a pedlar’s certificate was in the same place for, say, two hours, that that could be prima facie actionable?
90. MS LIEVEN: Yes, and all ----
91. VISCOUNT ECCLES: Take them to the court?
92. MS LIEVEN: Yes, and your Lordship will hear from all four witnesses that all four authorities do take enforcement action and prosecution on the basis that people are relying on pedlar’s certificates and not moving, but you can imagine it is quite an onerous job for the local authorities or the police to be checking whether that is going on. The other thing is that the case law is very unclear as to how far the pedlar has to move, so does he just move his trolley three steps on? Does he have to move to what might be perceived to be a completely new pitch? That is the different case law that touches on different issues, but that is by no means clear. So Mr Vick will come on to it in a few minutes, and the other witnesses will touch on the problems of enforcing these kinds of definitions in practice. (Alarm bell rings)
93. CHAIRMAN: Just in case anyone is worried, those bells do not apply to us. It is something that is going on in, as we say, the other place in the House of Commons. Please continue.
94. MS LIEVEN: Thank you, my Lady. Now, Mr Vick, can we, as it were, skip through the other photographs, focusing, if you may, on the Committee’s questions about just highlighting where the problems lie.
(Mr Vick) Right, again, if we go to image 4, this is virtually the same position, but just looking a little bit further down the street towards the north-east, and that is a henna tattooist who had a pedlar’s certificate, and that person moves very frequently up and down the high street in that area.
95. That is the provision of a service, is it not?
(Mr Vick) Yes, that is a provision of service. Image 5 is taken from that very central point, as I said before, just again looking down towards the south-east, as it were, and that is another pedlar, not on a pitch, and that is the size of sort of trolley, as my Lady pointed out, and that is again moving around; that person moves every ten minutes or so. This is a very frequent pedlar coming to this area, and he operates on an egg timer basis. When his egg timer runs out, he moves.
96. LORD BLAIR OF BOUGHTON: Can I just ask one more, and it is about the trolley. Viscount Eccles mentioned no horse, and so on, but has the case law now allowed for the fact that you cannot have a horse, but you appear to be able to have a rather large trolley?
(Mr Vick) I think yes, effectively the case law ----
97. The case law permits this?
(Mr Vick) It permits that, yes.
98. MS LIEVEN: As long as it can move I think is the critical thing, and I suspect it has to move under human power rather than engine power.
(Mr Vick) If you go image 10, that in a way, as you can probably see, is a repeat of the image 1. That is the licensed trader sat on that pitch there with the hat. What you do have there is part of the problem, and one of the issues that we particularly have in Canterbury is the very constricted street, a lot of people moving around. That is not a pedlar moving the trolley on the left-hand side, but behind the young lady’s hair with the ponytail, you see that is the henna tattooist again, and the man wearing the Panama hat, you have a man behind him, just behind that is another pedlar there, and right in the middle there, you have got these signs, which again cause part of the confusion and obstruction in the street itself.
99. So in that photograph, just to be entirely clear – because of the disadvantage of having the back of your head –on the right, you have got the licensed street trader with the hat?
(Mr Vick) That is right, yes.
100. But behind the licensed street trader, we have got two people trading on pedlar’s certificates, whether lawfully or not, in that space?
(Mr Vick) That is right, yes.
101. Thank you.
102. CHAIRMAN: What is this sign? Who puts that up?
(Mr Vick) That is basically someone who is employed apparently by a number of businesses to advertise where they are located down on the street to the right-hand side, and they stand in the middle of the street. There are no powers that we have at the present time to move those on, unless the police move them on for obstruction.
103. Is he carrying it?
(Mr Vick) No, it is a sign on a stick and they stand there holding it.
104. So he is carrying it, yes.
(Mr Vick) Yes, carrying it, yes, in the sense that it is ----
105. LORD STRASBURGER: A sandwich board.
(Mr Vick) Yes, it is a sandwich board effectively, yes, but it is on a stick. That is part of the problems we have in Canterbury particularly is the obstruction, that all these conglomerate together to cause difficulty in free passage up and down the street.
106. Why do not street traders apply for pedlar’s certificates, rather than pay £10 a day?
(Mr Vick) I think because they have the guarantee of the pitch. At that point, we will do our best as a council, as the licensing authority, to protect them in terms of taking action against the other – what we regard as – pedlar’s or illegal traders.
107. Presumably if they decided that £10 a day is worth it to have a fixed pitch and not to have to move ----
(Mr Vick) Is worth it? Yes, absolutely. I mean, that particular pitch there – this one with the hat –is one of the first ones we licensed, and it is a very good pitch, because it is right at the sort of centre of the crossroads of the city.
108. CHAIRMAN: This is the same ruling that governs the traders in the market which you have shown us on the others?
(Mr Vick) No.
109. What are the differences?
(Mr Vick) Well, again, it is a licensed market from the council and they pay a fee to come in. Again, they do have a set pitch, but they have different types of products and they are set up in the market area, which we had to obtain planning permission for, and they are set up in that as a market side-by-side.
110. So it is more permanent there?
(Mr Vick) Yes. I mean, basically they have market gazebos, which are like tents, large stalls, and they are not mobile whatsoever, and they operate there on a Wednesday and a Friday, and we also have on Saturdays; from time to time we have Continental markets coming into that. There is a performance area as well.
111. LORD STRASBURGER: What do they pay?
(Mr Vick) I think they pay £25 to £35 a day, dependent upon the size of their pitches, in the market pitches. The other images, I think image 11 again is the henna tattooist on the move. She just moves up and down in the area, and the other images are really just street scenes, as we have got there. Image 12, you may wonder why we put that in. That is in the Butter Market, which is immediately in front of the Cathedral gates, and you see just to the north-east of the centre of the map there is a round circle and it is called the Butter Market. This is number 12. The reason why he was put in is although he is busker – so that is nothing to do with this legislation –he also is selling CDs. So he is street trading and he is selling CDs of his performance, so that is why we incorporated that in. He does not move. So a number of them have been prosecuted for that. I think really the other photographs – if I may say, number 16 is just up from the other side of the main street, roughly on the Parade, as you can see, and that is an illegal pedlar who stayed in that position was summonsed. He was doing Chinese calligraphy and he stayed there all day. His case is yet to come to court. If I may, Ms Lieven, just a quick reference to the small bundle that you have separately in front of you, these are just CCTV images of very much the same areas, again mostly taken from the camera which is halfway along the Parade, the camera there, and we just thought we would incorporate those to give the Committee some idea of how there is a lot of movement of people in the street there. If you go to about the fourth or fifth one in, you can see that sign again that my Lady mentioned as well, the sign on the stick. It is just from the other view that is all.
112. CHAIRMAN: He can’t move around much, can he?
(Mr Vick) No, he does not move at all. He stays there, because he is pointing down the street to tell people where other restaurants and places are.
113. LORD BLAIR OF BOUGHTON: He is not selling anything?
(Mr Vick) He is not selling anything, no, but he is ----
114. Therefore he is outside the ----
(Mr Vick) He is outside of the legislation. We did have a clause in, but it is one we had to give up, which was touting.
115. LORD STRASBURGER: He is working for shops, not traders.
(Mr Vick) Yes, yes. I believe in London they used to have them, but I believe one of the London Government Acts has removed those, because I remember I used to see them in Trafalgar Square, pointing out various restaurants.
116. MS LIEVEN: Yes. The Committee may want to know in terms of those people holding placards that there is a specific London Act, not one of the London Local Authorities Acts, that prohibits that in London and that is why the Committee may not have seen them in Oxford Street any longer, although they used to be.
117. Thank you, Mr Vick. Now, let us try and pull that together in terms of understanding why Canterbury feels the need for a Bill to control these kinds of activities. Why can’t you just rely on the 1871 Pedlar’s Act and the law on lawful peddling?
(Mr Vick) Effectively, the real reason that we need it is that we would like to be able to stop the congestion that occurs in the streets when the pedlars move around. We have set places. We, as a council, very much want to encourage small businesses to start up in these small stalls, the licensed traders. We will allow them to start up. They come to us with an idea, as Lord Blair was indicating, and if they come with a nice, original idea particularly, we will give them an opportunity, to give them a reasonably good pitch in a good position and give them a short licence so they can see if their idea and their business works, and if that is the case and it works properly, then they will obviously then go on to having a permanent licence on that pitch for whatever length of time they wish to. We can only licence them for a maximum of a year, they have to be renewed every year, but there is a turnover. I think that the big problem is that pedlars also keep moving on. The experience we have, and I am sure there are some very good pedlars, but a lot of them we have is that some of their products are not as good as the products that other licensed traders will sell, and it takes a huge amount of officer time to try to regulate this environment. The councillors want the streets to be a nice environment, they want it to be an environment in which business can flourish and that people, the tourists to Canterbury particularly, can have a good experience, and it is very important, tourism is one of the key activities in the city obviously, and that a huge amount of officer time has been spent over the years trying to deal with this issue. So having the ability to deal with pedlars particularly who move, they will move on and, as I said, one of them has an egg timer, so it is very difficult for my staff to take any action against him, because he keeps on moving on. If you went back to what Ms Lieven said about the stated case of 15, 20 minutes, they will stay that long and then move, and so the observation time becomes worse and worse, the length of time we have to do. We do find that obviously there are no conditions on pedlar’s certificates. They just can peddle, so ----
118. Can I just stop you there, Mr Vick, and move on to that topic of pedlar’s certificates? I touched on it in opening, but can you explain the degree to which pedlar’s certificates really give any assistance in this situation at all?
(Mr Vick) As I said, the current cost of a pedlar’s certificate is £12.50. It is issued by the Chief Constable of the area. The person should be resident in that area when that certificate is issued, but we do have instances, we know, where we had people that came to trade in Canterbury that did not have a pedlar’s certificate, went away, and we knew they lived in the district, and they got a pedlar’s certificate from North Wales because they had gone and lived in a caravan site for a couple of weeks.
119. Can I just be entirely clear, Mr Vick? When you say you get a certificate from the Chief Constable of the area, you do not need to trade in Canterbury. You do not need to have a certificate from the Chief Constable of Kent, do you?
(Mr Vick) No, they should get a certificate from the area in which they live.
120. VISCOUNT ECCLES: Could we just ask the question, we have been given an estimate – which is very round – that there are about 4,000 licensed pedlars in the Kingdom. Is that an estimate with which you would agree?
(Mr Vick) I am afraid, my Lord, I could not really ----
121. No, but if I may suggest a ----
(Mr Vick) It probably may be something ----
122. The four cities concerned, if we can come to how many pedlars would you expect to see, and then the Committee can probably have some thought about how accurate the 4,000 is. How does it relate to your own experience in Canterbury?
(Mr Vick) In Canterbury, we probably see something in the region of about 10 to 12 different pedlars, maybe sometimes 20 a year, because what will happen is that some people stay virtually working fulltime on a pedlar’s certificate in the city.
123. The same people appear regularly?
(Mr Vick) Yes, very much so. I mean, that young lady that I pointed out with the henna tattooing, she has a pedlar’s certificate. She stayed in Canterbury for five months.
124. LORD STRASBURGER: Are you saying there would be 10 to 20 in any one day?
(Mr Vick) No, no, no, over a period of time.
125. On any one day, how many would you expect?
(Mr Vick) Normally, one or two; perhaps three a day. It depends on the day. It depends on the weather very much. We expect our licensed traders to be there every day. That is part of the licence, whereas the pedlars will come and go if the weather is not very good.
126. How many licensed traders are there?
(Mr Vick) We have got about 25 licensed traders.
127. LORD BLAIR OF BOUGHTON: So it is not a matter really of capacity, in the sense that if there are only two or three pedlars per day, it is not a sense that you have 30 or 40 pedlars, you have just got two or three, and what you would hope is that if this was passed, they would apply for a street licence?
(Mr Vick) Yes, ideally. Yes, and we would then be able to accommodate them on pitches. To be fair, on certain parts, coming up to Christmas we will get quite a few more.
128. MS LIEVEN: I was going to ask you that, Mr Vick. Is this a problem that fluctuates through the year?
(Mr Vick) Very much so, yes. In February/March you do not see many people. End of March, yes, you do again, because that is when the French school kids start coming in again, so suddenly there is some more coming in.
129. But can I just ask you, Mr Vick, what is the maximum number of pedlars that you are conscious of on any day?
(Mr Vick) I believe about five years ago we had about ten in one time, and that on top of our licensed traders, but often it is the persistence of this continually working, moving on, working, moving on and they do pitch up against the licensed traders, and if they are selling the same product, they will undercut them, and that does cause problems. We have not had disorder but – as I think I indicated before – we have had words being said.
130. VISCOUNT ECCLES: Does the council receive representations from Canterbury residents about these matters?
(Mr Vick) Yes, yes. In fact, we did quite a wide consultation before the council decided to go for a Bill itself, because we had had a lot of problems about trading, street trading, because of the narrowness of the streets, and we certainly had representations from the partnerships and the Chamber of Commerce, from other business organisations, and from the local residents. Canterbury is a small city. The spine is the sort of the shops, but immediately either side, you have residential areas, and the residents like to have relatively free movement around, acknowledging that tourism and tourists are a very important part of the city.
131. But I suppose I will pursue it a little bit. I was not thinking of the residents’ response to a formal consultation, but residents making representations as a result of an incident in the street.
(Mr Vick) Yes. Oh yes, we do get complaints as well, yes, but as I said, the reason to bring forward this Bill in a way was because we had representations from residents and from shopkeepers and other businesses in the city saying the situation was getting out of control.
132. The shopkeepers’ representations, do they go down the unfair competition line?
(Mr Vick) I think yes, partly, because they were saying that it was these people are turning up and not paying anything, but they would be much happier if some of them paid a licence to be in a fixed pitch, but also just the general movement of people and the constrictions in the street they felt were restricting their businesses.
133. LORD STRASBURGER: You said the quality of the pedlars’ goods is inferior.
(Mr Vick) Sometimes. Not always, but sometimes.
134. What evidence do you have for that?
(Mr Vick) Because people come to us and complain that they have bought something. We had instances of Pashminas, which there seemed to be quite prolific sales a couple of years ago, and our licensed traders were selling Pashminas. The people that were coming on, on pedlars' certificates, were selling Pashminas, undercutting them, and they were very much a poorer quality. People were complaining when they brought them back and they had pulled apart and that sort of thing.
135. Can you give me a clue as to how many complaints you might have had?
(Mr Vick) I would say in the last year, we have probably received about 10 to 15, but also we ----
136. Relating to pedlars?
(Mr Vick) Mainly relating to pedlars, yes, because the street traders are there, so if there is a problem they will go back to the street trader, because each licensed street trader has a pitch number on it. They wear an ID badge so they can be recognised. The other thing I can’t add for you, in a sense, is because sometimes the complaints will go to Trading Standards, which is a part of Kent County Council, so we would not necessarily know that we had had complaints about that. The other point perhaps I may make on that was that the other thing that we do have in particular is that we will restrict the types of goods that can be sold, and in particular, in the sense of, I suppose, I could call them dubious goods, but particularly stink bombs and stuff like that, because we had a phase a little while ago, about three years ago, where someone was coming in and peddling a stall with lots of tricks, you know, magic tricks, kids’ bits and pieces, and including stink bombs, and we had a whole period of time where we got a large of complaints on that basis, because they were being thrown into shops and all sorts. So we restrict the types of goods that can be sold. Again, we restrict stuff that has anything to do with drugs, obviously in the sense of paraphernalia that kids seem to like to buy, cigarette lighters with cannabis leaves and insignia and all that sort of stuff, so we will not allow our traders to do that.
137. CHAIRMAN: Thank you very much. I think there are two points particularly that I want clarification about, and I would say to you and the Promoters that there is no doubt that whether people have complained and the numbers of complaints there have been and how the local citizenry feel about it, it is very important to our deliberations, and I personally would have liked to have more evidence on public objection. With regard to the quality of goods, what one might say almost a fly-by-night, here today gone tomorrow person might sell will be quite the same caveat emptor rule to follow, but I would like to ask you, because there were two points that arose from what you had said which I feel are not clear. First of all, is it a case that a pedlar can get a licence from one city and use it to trade in another?
(Mr Vick) Yes.
138. Whereas the conditions in such a place as Canterbury, which are very clearly indicated here, will not apply in one place but somebody there could have given them it or they could have got the permit from a different place. That is right?
(Mr Vick) Yes, my Lady. A pedlar’s certificate can be obtained in one county, as it were, one constabulary, but it can be used over the whole of the country, anywhere, whereas a licence pitch in Canterbury only applies to Canterbury and that is it.
139. To Canterbury, yes. Thank you. That I think too is an important point. The other thing that puzzled me, you did say at one stage that the quality of goods being sold was sometimes a reason for action to be taken. Is it really a duty of the council to check the quality of the goods being sold?
(Mr Vick) No. What I was trying to emphasise there was that we do get complaints. That people have complained to us about the quality of stuff they have bought on the street.
140. Yes. Well, that is in fact the same point that you made earlier, but I did not understand the suggestion that there was this duty somewhere.
(Mr Vick) Well, the Trading Standards officers would have a duty to check on the quality, but not licensing officers. What I am trying to emphasise is that we have received complaints that people have bought things which are pens perhaps or something like that that have not worked; batteries is another item I do remember from the dim and distant past, they bought batteries and they ran out in very, very short order.
141. LORD STRASBURGER: Presumably the customers do not know whether they are buying from a street trader or a pedlar?
(Mr Vick) Well, no, and that is part of the problem. As I said, our licensed street traders have badges, large plates on their trolleys and they will wear ID badges, proper ID badges, but again, if you are a customer going up and seeing someone there, you would go up and buy it and disappear.
142. LORD BLAIR OF BOUGHTON: Have there been instances of people moving from the status of pedlar to street trader?
(Mr Vick) Yes. Yes, we have. In fact, quite a few when we brought the regime in, in 2002, quite a few moved from being pedlars, because they were prohibited streets before, moved from being pedlars to being street traders.
143. CHAIRMAN: Thank you. Have you finished, Ms Lieven?
144. MS LIEVEN: Not quite, my Lady. There are a few points to cover still, if I can bring Mr Vick back for a moment. First of all, Mr Vick, this is really me giving evidence, information to the Committee. In terms of the numbers, the Durham report, which was commissioned and which there is reference to in the papers, refers to an estimate of 3,000 to 4,500 pedlars being granted certificates, so that is the best evidence on the total number in England and Wales. I think Scotland is different.
145. Just coming back to the unfair competition issue for a moment, Mr Vick, is there any experience of pedlars almost specifically targeting licensed street trading, to distract trade? Is that something you have ever come across?
(Mr Vick) Yes. Yes, we certainly have. I think I have probably alluded to it before. What happened a few years ago – again, it was particularly with Pashminas – is we had a spate of three or four pedlars with trolleys being unloaded from the back of a van and it was just up in one of these side streets, just off the map, and they would then move up. They were selling Pashminas, which was one of the main items. Christmas time – that was being sold at that time, and these pedlars would then move up. They would send someone up to ask the licensed trader what they were selling their products for – and we did have a number of complaints about this –and then they would go and set up a couple of feet away from it with a reduced price for their Pashminas, and again, it was difficult to take action, because they would stay there for 20 minutes and then they would move on and they would move on to somebody else, but certainly we felt that was unfair, so we had a lot of my not very many staff down there making observations on these people and we did move a lot of people on. You know, we can move them on by warning them or we can prosecute them, and obviously prosecution is a very slow process, and you are talking about six months down the line in real terms.
146. MS LIEVEN: That is what I want to touch on next, Mr Vick, is how Canterbury have been tackling unlawful street trading so far. The Bill contains clauses to allow the seizure of goods where there has been a breach, and also to impose fixed penalty notices. So can you just explain to the Committee very briefly the process that Canterbury has to go through at the moment if it wishes to enforce the law and what the benefits of those clauses are as far as you can tell me?
(Mr Vick) Right. Yes, certainly. What happens now, if my staff see an illegal trader, they will have to observe them for certainly a fairly lengthy period of time. The person has obviously got to be in a position staying still for probably 30, 35 minutes in real terms. They will approach that person, the officers, and identify themselves. They will ask to see their pedlar’s certificate, if they have one. They will then normally advise them that they are trading illegally, in their opinion, and they should move on. If they do not, then we do try to be reasonable. They will normally observe them again and again possibly warn them. When it comes to three times, and it may be three times in a day, it might be over a period of a couple of days, if they persistently do that, then they will basically interview them, they will caution them on the street. The big problem is that under the Police and Criminal Evidence Act my staff do not have the powers to demand the names and addresses of the people concerned, which normally means we would try to get a police officer in attendance, and they are pretty good, but not always available. Sometimes people will volunteer their names and addresses, which is fine, and then the whole process then starts. My staff have to put the case papers together - the usual bits and pieces - and eventually we take it through our lawyers. It eventually goes to the Magistrates’ Court for prosecution. So often what we try to do would be also to just warn people and move them on. The real nub of the Bill before you is the ability to stop it happening, is actually the fear of having their goods seized, and colleagues that work in Maidstone, I know they have a Bill already and Medway as well have Bills, and I can relate to those, because they are sort of in Kent, and as soon as their Act came in, no illegal trading whatsoever. The power to seize the goods is actually a very great control, and also again, the ability to serve fixed penalty notices. My staff have powers to serve various fixed penalty notices. If someone is persistently not complying but really maybe it is better to deal them by way of a fixed penalty notice than by prosecution, but I think the power to seize goods is a powerful control.
147. MS LIEVEN: Thank you.
148. VISCOUNT ECCLES: Could I just ask a question? If I read your draft clause 5 correctly it says the words, "If the trading is carried out only by means of visits from house to house" I think that gives rise to two questions. One would be is there in fact trading from house to house in Canterbury at the present time, and the second question is if that was the law, then presumably the present activities of pedlars in Canterbury would cease.
(Mr Vick) Certainly they do not call from house to house in the city centre. I believe, if I am right in saying, that our clause would not stop trading outside of a certain area for traditional peddling, which is going from house to house, but it certainly does not happen within the city centre. As I have said, there are residential areas. It is the trolleys moving through, that is where the marketplace is for these people and not door to door selling whatsoever.
149. MS LIEVEN: So far as Viscount Eccles’ second point is concerned, it is right, is it not, that if this clause is passed, then what would now be lawful peddling in the city centre would cease? I think the Committee has to understand that.
(Mr Vick) Yes, that is the whole point. Yes.
150. VISCOUNT ECCLES: I just want to be absolutely clear that the effect of the clause – I will forget the house to house bit of the clause quite happily for the moment – but the actual activity now carried out by pedlars in the market area and street trading area of Canterbury would cease?
(Mr Vick) It would cease, yes. It would become illegal.
151. MS LIEVEN: That leads me very neatly, Mr Vick, on to one of the last questions I want to ask, which is in respect of Reading and Leeds, an amendment has been adopted to clause 5, which allows pedlars to continue to trade where they are – I am going to paraphrase – carrying the goods. Now, Canterbury has not adopted that amendment. Can you explain why not? It may be obvious, but just so that it is set down on the record.
(Mr Vick) I think what we did feel was that, with someone carrying the goods around, the mechanism to try to observe whether they were complying with that legislation in very crowded streets is going to be extremely difficult. There would be a large amount of officer time trying to see, "Did the person carry that? Did they put it down? How long did they put it down before they picked it up and moved it on again?" Also, I think just the fact that it is a crowded area, and there are a lot of people. You can see from the photographs, the CCTV photographs, I believe, and all the other photographs that to have people moving around trying to sell things, putting them down, moving them on again would be impractical from the purpose of trying to enforce what we are trying to do in Canterbury particularly.
152. LORD BLAIR OF BOUGHTON: Can I ask. In coming to that conclusion, did you take account of free customer choice in the sense that they might like some of the goods that the pedlars are selling?
(Mr Vick) We did, yes. I think the main thing was that most of the goods that the pedlars sell are very, very similar, if not identical, in many ways, to what our licensed traders sell. There is not a lot of difference. They have identified what the market is there. The licensed traders have identified the market, because they do it week in, week out, and the pedlars, the only different one would be the henna tattooist.
153. CHAIRMAN: Thank you. Did you wish to say something more?
154. MS LIEVEN: No, my Lady, I was only going to say that as far as I am concerned, that has covered all that we needed to cover in evidence.
155. LORD STRASBURGER: I have just one more question, if I may. How many trading days are there in a year, street trading days?
(Mr Vick) They can trade 365 days a year. I do not think anyone does. What they mostly do is they will book in, in a sense. When they apply for their licence, they will indicate they want to work maybe four days a week but quite often very few of them work February/March, because that is the quiet time. But technically, yes, I mean, Christmas Day they would not. We do not see people there.
156. What I was trying to get to was what revenue do you get from ----
(Mr Vick) The council’s revenue from street trading is about £30,000 a year, I believe.
157. And your costs of administering it and policing?
(Mr Vick) The cost would be probably slightly more than that.
158. You make a small loss?
(Mr Vick) Yes, because if we have got cases going to court, each court case costs a minimum of £800 and that is just to take the case, and then that is not counting the cases when the officers are out working, obviously doing other jobs as well, but it is the administration and then there is work, the observation to deal with, seeing if traders are trading illegally. One of the big problems you have is you summons people, then they disappear and that is gone again.
159. CHAIRMAN: Thank you.
160. MS LIEVEN: I am sorry, my Lady, there is one other thing that I just need to cover, just so formally the Committee have it. It is right to say, is it not, that the powers in the Bill extend beyond Canterbury City Centre to other consent streets, and there is a particular issue, I think – it is not in any way contentious – that the council wish to deal with, which is the sale of cars, second-hand cars on the street. Is that right?
(Mr Vick) No, that is right.
161. Do you want to just touch on that?
(Mr Vick) Yes, I will touch very briefly. We have consent streets on the two major towns in Canterbury on the coast, which is Herne Bay and Whitstable. We have had a plethora of complaints from residents that people are coming down, particularly from Medway town, and dumping cars for sale with a mobile phone number and a ‘for sale’ sign outside people’s houses, and causing obstruction. You will see in the booklet I just took some photographs of them, and so we have again a problem, because we serve a notice on the vehicle to say it is parked illegally – and we will give consents obviously to anyone who lives in the street and wants to sell their car on the street individually – but these are people coming in. We work closely with Trading Standards, because apparently a lot of these cars have been clocked and they have a dubious history, shall we say, if nothing else. But we do not have the powers at the moment to remove them. The Bill will give us the powers to remove these vehicles off the street. They block people’s houses. They stop people parking outside their own houses, that sort of thing.
162. CHAIRMAN: But they do this with no permit of a pedlar or anything else.
(Mr Vick) No, they should have a consent. These are consent streets which is another type of licence, and these vary, and they do not do that. So we are extending the powers so hopefully we will be able to deal with these as well.
163. MS LIEVEN: The critical point of the Bills in respect of this problem, as I understand it, is that you have the power to seize the cars.
(Mr Vick) Yes. Seize and remove them from the street.
164. VISCOUNT ECCLES: Under clause 6 of the proposed Bill.
(Mr Vick) I believe it is clause 6.
165. That covers ----
(Mr Vick) Seizure of goods, yes.
166. ---- the seizure of cars, is that right?
(Mr Vick) Yes.
167. CHAIRMAN: Thank you.
168. MS LIEVEN: Yes, my Lord, a car is a good.
169. VISCOUNT ECCLES: Yes. There is one other question. I think it is in the Canterbury Bill. Yes, it is. Clause 7, "Seizure of perishable items". That is to some extent a new feature of these Private Members’ Bills, I think, and what is it that is in mind about there being perishable items?
(Mr Vick) If I may answer it?
170. MS LIEVEN: Yes. If I just answer the precedent point and then Mr Vick can answer the substantive evidence point. My instructions are that these powers are precedented in London, they are in one of the London Local Authorities Acts, but they are not precedented in the other seven local Acts. We will check that, but that is my instructions at the moment. So, Mr Vick, can you just explain the problem?
(Mr Vick) Yes, this is because we have had from time to time people coming in selling food off trolleys, and we had some particularly not very pleasant hot dogs being sold off a trolley, which takes me back to my days in Westminster, when we had the hot dog laws. This clause gives us the ability to seize those products, and because they are perishable, we have to have some way of dealing with him, so if they are not dealt with immediately, they are goods that will break down and be of no value whatsoever. So that clause was put in to deal with foodstuffs that we seize.
171. CHAIRMAN: Just for complete clarity, I found it very puzzling that it should be necessary to say that, "A perishable item means an item of a perishable nature". I wonder whether it is possible, Mr Vick, for you to tell us the difference between something which is a perishable item and something which is of a perishable nature?
172. MS LIEVEN: I think that is probably more one for my instructing parliamentary agent who drafted the clauses than for poor Mr Vick.
(Mr Vick) I could tell you what a perishable food item is, but I am not sure of a perishable nature. I would say I think it must literally, my Lady, be a way of explaining it in law.
173. MS LIEVEN: I think the honest answer, my Lady, is that it was an excess of caution of behalf of Mr Lewis and Sharpe Pritchard to cover every possibility. I do not think it adds anything to the definition.
174. CHAIRMAN: Well, I must admit that thought had occurred to me. Thank you very much. Now, Mr Vick, would you please remain in our witness box, as it were, as I invite Mr Simon Casey, who may wish to cross-examine the witness. I should warn you, Mr Casey, that, should you choose to do so, you must restrict yourself to points on the Canterbury Bill alone. We know that you have interest in another Bill, but it is the Canterbury Bill we are discussing at the moment. So could you confine your comments to that, please?
MR CASEY: Thank you, my Lady. My Lady, my Lords, I would like to start this with the cross-examination of the evidence that we have heard from Mr Vick, yes? Then I think what I would like to do because my Petition is quite specific to some of the clauses, and I would also like to cross-examine Mr Vick on clauses and my objections to some of their clauses. At the end of it, I think I would like to go back to the opening statement and ask for comments from Mr Vick on some of the comments that Ms Matthew-le Vine(?) also made.
175. CHAIRMAN: We would prefer, if you do not mind, that you keep in mind always that if you repeat things then that will not be acceptable. Please try and confine your remarks. If you can do so it would help the Committee.
176. MR CASEY: Yes, I will do my best.
177. VISCOUNT ECCLES: Could I suggest, we are not all as good at hearing as we once were.
178. MR CASEY: Speak up?
179. VISCOUNT ECCLES: Amongst that I include myself. Could you be as close to the ----
180. MR CASEY: To the microphone. Yes, I will do, okay. Shall I move it slightly?
181. VISCOUNT ECCLES: I am sure the Lord Chairman will be perfectly happy for you to sit.
182. CHAIRMAN: Yes, if that gives you better access. I have already been told that I must speak louder, which I am trying to do.
183. MR CASEY: Okay, we will all try. Thanks.
Cross-examined by MR CASEY
184. Okay, I think what I will do is I would like to start with image one. Mr Vick, if I recall, you said that this particular person was certified pedlar. Is that correct?
(Mr Vick) I believe so, yes.
185. In your submission you said that he moves regularly. Is that correct?
(Mr Vick) Yes.
186. Do you know this individual?
(Mr Vick) No I do not, not personally.
187. Has he been prosecuted, as far as you are aware?
(Mr Vick) Not as far as I am aware.
188. You mentioned that he was in a licensed street trading pitch, at that moment in time when a picture was taken. Is it possible you could identify to me on the map where that was?
(Mr Vick) Yes it is the pitch that is ----
189. I would like to be quite sure that that was the case.
(Mr Vick) Right. If you go to the centre of that map and you turn to the map, between High Street and the Parade, you then see a pitch. You have St Margaret’s Street; can you see that coming in from the south-west? And then there is a star on the end of that.
(Mr Vick) And it is the next one up to the north-west.
191. I see, yes, it is the one up with the bollard. Okay. Fine. No problem. I presume we are all aware of the statutory definition of a pedlar. He is an itinerant; I presume that is correct, yes?
(Mr Vick) Yes.
192. You have submitted that he moves?
(Mr Vick) Yes, I understand from my staff this person moves, yes.
193. Can you tell me what the problem is? Would you say that he is acting lawfully as a pedlar?
(Mr Vick) I cannot give you the definition right at that point in time because I do not know how long he was stationery there. I was not there. The police photographs have been produced for us. The problem is he will move about, and my understanding is that this particular person moves about, stays for about 15 minutes and moves on again.
194. Okay, thank you.
195. LORD STRASBURGER: Even though it is a public place?
(Mr Vick) Yes.
196. MR CASEY: Could you give me an approximation of the width of the street there? Looking on this map it would probably be difficult on the scale.
(Mr Vick) I think actually I do have that. About that point there it is 4.5 metres wide and the pavement is 1.5 metres wide. It is very restricted.
197. LORD STRASBURGER: What are the restraints on the size of the street trader’s pitch?
(Mr Vick) If they pitch and the trolleys are basically approved by my staff then they are basically a standard size that is slightly ----
198. Would they be larger or smaller than what we see here?
(Mr Vick) About that sort of size, like maybe some are slightly larger. The pitches are identified; they know exactly where they were. We did have studs, but unfortunately they redid the road and removed the studs. The licensed traders know exactly where their pitches are.
200. MR CASEY: The licensed trader, I presume, who is in that position, and we have just heard from you that it is approximately the same size; does the licensed trader cause any problems being there?
(Mr Vick) No.
201. Have there been any complaints against them?
(Mr Vick) No.
202. What you are telling me is you cannot identify a problem with this person, this particular individual in this picture?
(Mr Vick) No. At that particular point in time, apart from the fact that these are Bills to police to remove the ability of that person to trade in the street without a licence from the council.
203. Yes, but I presume that the individual who has a licensed pitch, so to speak, was off that day?
(Mr Vick) Yes, or had not turned up that day. Yes, I cannot ----
204. He made a choice, is that correct, not to trade that day?
(Mr Vick) Yes.
205. Okay, thanks. Okay, let us move on. Please bear with me; I am not the quickest of cross-examiners here. Sorry. I will go straight to image 2. I presume this is the same street we are talking about here?
(Mr Vick) Yes. All the photographs are taken on the stretch of the street in the blue box.
206. Okay. You mentioned that the pavement is 1.5 metres wide, the rest of it is about 4, from my approximation, plus another 1.5. What would that make that roughly, what, 7 metres in all?
(Mr Vick) About that, yes. It is narrower at the top, at the neck. The street varies in width all the way up and down.
207. We have, I believe, a licensed street trader there. Is that correct?
(Mr Vick) Correct, yes, he is licensed. Yes.
208. Okay and he is on the pavement?
(Mr Vick) On the pavement, yes.
209. Does he cause any problems that you know of?
(Mr Vick) No, not there because, as I think I previously stated, that position was selected by the police for that particular unit.
210. Let me just turn to the booklet pictures. I believe there is another picture of that. Yes there is. Let me just count in from here. It is actually quite a way in. The fourth picture in on this booklet. (Pause while people locate picture)
211. CHAIRMAN: What was the number please?
212. MR CASEY: It is the fourth picture, my Lady.
213. CHAIRMAN: So many of these are the same pictures.
(Mr Vick) Just slightly taken apart in time.
214. Please continue.
215. MR CASEY: Yes, sure. Hopefully we are all looking at the same picture. You will notice towards the foreground there is a bin and also it appears to me (if I am not mistaken) that between the actual licensed trading units there is a wall and a very, very narrow gap. Would you not say that that was rather an inconvenient place to place that permanent structure with the bin and that lady, who I believe is wearing a skirt, and the gentleman next to her with a black shirt, and he is trying to sort of squeeze past the structure? It appears to me, I do not know if it is just my opinion, but I would like to ask your opinion whether or not you think that is causing a problem.
(Mr Vick) No, it does not cause a problem at all, the bin can be moved. The bins are placed by our cleansing operatives and that is obviously moved. If I may refer, my Lady, if you see the second star up from the previous one and it says, "Memorial Garden" there.
216. Did you say it can be moved?
(Mr Vick) It can be moved, yes.
217. How would you move that?
(Mr Vick) What the bin?
218. No, the bin and the licensed street trading unit, if you needed to, in case of say an emergency?
(Mr Vick) That will not move; that one there.
219. It will not move?
(Mr Vick) As I said, the police selected that point as part of our work with them. They selected that point as a place where that particular trader could go.
220. Okay, thank you. Moving on. If I look at images 3 and 4 of the larger brochure. There are two pictures, one of somebody selling ‘I Love London’ t-shirts; another henna tattooist. They both appear to have customers.
221. CHAIRMAN: Which pictures are we talking about?
222. MR CASEY: Sorry, my Lady, 3 and 4.
223. CHAIRMAN: Three and four, thank you.
224. VISCOUNT ECCLES: I hesitate to intervene in this dialogue. Why is what you are asking relevant to the consideration of these Bills by the Committee?
225. MR CASEY: It is relevant, my Lord, because I think he was asked earlier on whether or not there was a problem evidencing these photographs, and I think in my questioning in cross-examination you will find that there is not any problems.
(Mr Vick) Sorry, was I asked a question then, I am not sure.
226. I was just giving and answer to the Viscount.
227. CHAIRMAN: He was asking a question as to whether or not, or how what he was saying was relevant materially.
228. VISCOUNT ECCLES: Yes, and if I have the answer right, the answer was that there are allegations by Canterbury that there are problems and you are seeking to show that there are not any problems.
229. MR CASEY: That is precisely what I am trying to achieve, my Lord.
Just a brief comment, a quick question, images 3 and 4 you would presume, is that not correct, that the person standing there, the boy the rucksack and the lady with the Batman t-shirt is most likely a customer?
(Mr Vick) Possibly. As I say, these photographs were produced. They are illustrative of the sorts of problems that we have in terms of where the stalls are pitching up in the street.
230. Yes. Is there a problem with that, a pedlar having customers, for you?
(Mr Vick) Not if a pedlar has customers, I do not have a problem with that. What we have a problem with is that they are causing problems in terms of blockage. They stand next to other traders, as you have seen in the pictures. The other pictures, particularly that one in image 10; this one in image 4 is actually right on the corner and that causes the problem of movement around that area as well.
231. Excuse me; I will just take you up on your comment on page 10. Can you explain that photograph to me? You said there is a pedlar next to a licensed street trader. I fail to see that myself.
(Mr Vick) Sorry, what?
232. You mentioned image 10, I believe.
(Mr Vick) Yes.
233. You have said perhaps that there was a licensed street trader.
(Mr Vick) No, what I said there was that was causing congestion.
234. LORD STRASBURGER: What other constraints are there on where a pedlar may operate? Presumably he cannot place his goods across the actual shop. He cannot put it on the pavement? Are there laws or bylaws that impede where a pedlar can operate, or where anyone can?
(Mr Vick) No, not really. No. I think obviously the ----
235. There are no laws of obstruction?
(Mr Vick) I think obviously the police have laws of obstruction but certainly Canterbury City Council, as far as I am aware, has no powers to deal with that sort of obstruction.
236. LORD STRASBURGER: Right.
237. MS LIEVEN: My Lord, if I can help the Committee on this, under the Highways Act there are powers for highway authorities to stop obstruction of the highway, which can include the pavements. I would claim to be a bit of an expert on this because I am advising Westminster in respect to the process on the pavement outside the Houses of Parliament. I would not want the Committee to think that there are not such powers, but they would be extremely difficult to enforce in respect of somebody who was moving.
(Mr Vick) Perhaps if I may answer that as well that Canterbury is not Highway Authority, it is the county council.
238. MR CASEY: Okay. Back to image 10, I see there is a gentleman with a lady next to him pushing a trolley. You mentioned that he was not a street trader or a licensed ----
(Mr Vick) No, just as far as I am aware he is just delivering goods.
239. Would you say that his trolley is, well, let us go back to say, somewhat taller in image 5 but on around about the same scale as image 5, in width, dimensions? Would you not say that you could equate them to being the same size?
(Mr Vick) Possibly, yes.
240. Do you intend in your Bill to stop the deliveries of goods in the High Street of Canterbury?
(Mr Vick) Certainly not. That is not part of this Bill at all.
241. I just fail to understand the logic of an objection to a pedlar when you have somebody doing exactly the same thing, albeit not a certified pedlar. Can you explain that to me?
(Mr Vick) A person who is delivering something or moving something, as their goods, to somewhere else, they are not there for the purposes of trading.
242. It is trading that is the problem?
(Mr Vick) If the trading is staying in positions, and the fact that we have licensed traders in positions around and it is the general problem of obstruction in the street.
243. If you were, say, walking down the street and you saw a bin, for example, in front of you, what would you do?
(Mr Vick) Sorry, if I saw a ----
244. A bin or a telephone box, for example, would you walk into it or would you walk around it?
(Mr Vick) I would walk around it.
245. Would you say it was your observations, over the years that you have been a street trading licensing enforcement officer in Canterbury, you would have observed people walking around those hawkers, or pedlar, call them what you will under the definition of pedlar, you have observed them walking around?
(Mr Vick) Of course people will walk around, but it is about free movement of passage up and down the High Street. If it has restricted the positions. As you can see, My Lady, from the map, the positions of the licensed street traders were sufficiently put to allow free passage and to allow observation, particularly by the police and CCTV cameras if they need to follow anybody. If people suddenly turn up and pitch up across areas that will cause obstruction, people will not walk into them but it does hinder the movement of people up and down the street.
246. CHAIRMAN: Mr Casey, are you actually suggesting that because people walk around telephone boxes they could walk around traders as well? Is that what your suggestion is?
247. MR CASEY: Absolutely, my Lady.
248. CHAIRMAN: I see, thank you.
249. MR CASEY: I will come back to the fellow with the Billboard in image 10. I know you mentioned that you do not have any lawful authority to prosecute this particular person for any offence of the highway, but presumably under the Highways Act would it not be arguable that he would not have lawful authority to do that?
(Mr Vick) I am sorry, I cannot answer that question.
250. No. Can I take you to image 14? I see a band (a Mexican band it would appear). Are they selling goods, as far as you know?
(Mr Vick) Yes, they were selling CDs and that is shown on that on the right-hand side.
251. Were they licensed street traders or certified pedlar or unlicensed, full stop?
(Mr Vick) They were unlicensed, full stop.
252. Can you tell me what action was taken shortly after this picture was taken?
(Mr Vick) They were asked to stop selling that, which they did. However, we have no powers to stop the busking.
253. Okay, so they removed their goods.
(Mr Vick) They removed their goods.
254. The issue was the trading, not the actual them being there, is that correct?
(Mr Vick) Yes.
255. LORD STRASBURGER: Presumably they were not competing with any licensed street traders in the sale of those CDs?
(Mr Vick) No. It can be quite loud sometimes.
256. LORD BLAIR OF BOUGHTON: Am I to understand you do not license buskers?
(Mr Vick) No. We had hoped to. We were starting to look at that. However, unfortunately at the end of the year DCMS are looking at deregulating regulated entertainment and that is one of the things they are going to get rid of.
257. CHAIRMAN: Mr Casey?
258. MR CASEY: Sorry, yes. Image 16, I believe, you mentioned the Chinese person, I do believe, yes. He was obviously writing people’s names - calligraphy.
(Mr Vick) Yes.
259. Did you mention that he was prosecuted, is that correct?
(Mr Vick) There is a case pending against him, yes.
260. Okay. I presume that was because of – well, can you tell me?
(Mr Vick) He did not move at all.
261. He did not move at all?
(Mr Vick) No. He was warned three times and did not move so he has been reported.
262. Okay. That solved that problem then, I presume?
(Mr Vick) It solves the problem in the sense that he does not come back any more but it does not solve the problem in terms of the fact that now my staff have to produce the papers and eventually will have to attend court.
263. That is the nature of the justice system, is it not?
(Mr Vick) Yes.
264. Would you agree?
265. LORD STRASBURGER: What do the people of Canterbury gain from that particular transaction?
(Mr Vick) What, the prosecution?
(Mr Vick) In a sense it is only that we are trying to enforce what the people of Canterbury have decided they want in terms of street trading. We would far rather people moved on and we had the powers to stop this happening without having to take formal action, in this sense, because we certainly do not want to hinder people trading. As I tried to explain before, part of our whole ethos is we would encourage people to start little businesses up as licensed traders.
267. It is not only cutting local calligraphers anyway?
(Mr Vick) Probably not that, no.
269. CHAIRMAN: Is it the case, or is one safe to assume that it is a deterrent because others will know that he has been moved on and summonsed?
(Mr Vick) Yes.
270. It does not mean that necessarily someone will be taking his place in the next 10 minutes?
(Mr Vick) No.
271. Thank you. Mr Casey?
272. MR CASEY: Thank you. I think I have finished with the pictures but I will carry on to some of the answers that you gave council for promoters.
273. We heard your submission that there is a problem with the quality of the goods that were peddled, is that correct?
(Mr Vick) Some of them, yes.
274. Sometimes. Is it not a fact that you said also that there is not a lot of difference between licensed street traders’ products and those of pedlars, is that correct?
(Mr Vick) Not always. As I said, some products are worse and some are the same, because they are actually selling very similar sorts of products from time to time.
275. Would you then not presume that you would have equal numbers of problems with the licensed street traders’ products as compared to the pedlars’ products, if they are selling very similar products?
(Mr Vick) What I tried to point out was that from time to time we have received complaints, and I think one of the Members of the Committee asked ----
276. Sorry, I did not quite catch you then.
(Mr Vick) We have had complaints from time to time that some of the products that have been sold – certainly some of the products that have been sold from licensed traders have been what they – have been substandard and we have been able to deal with that because we know who they are. With pedlars we do not know who they are and there is no recourse for people to get any compensation.
277. Thank you. Is it not correct that in your submission earlier you stated that there has been – I will change the question. You have just said to me that there have been reports to you from licensed street traders about faulty products, or shall we say sub-standard products. I am presuming you have records of that for the licensed street traders, within the council files, do you?
(Mr Vick) No, if someone complains to us we will try and deal with the situation there and then.
278. Do you keep a record?
(Mr Vick) No.
279. There is no record?
(Mr Vick) No.
280. And there is no record of pedlars then I presume?
(Mr Vick) No.
281. So you do not have any evidence to prove your fact?
282. CHAIRMAN: Mr Casey, could I just suggest to you that your questioning might be more helpful if it confined itself to indications that the Bill itself, which is now before us, was operating unfairly in some way? I am getting a little difficulty in connecting your points with a relevant piece of information for us.
283. MR CASEY: Could I take that as a question?
284. CHAIRMAN: By all means.
285. MR CASEY: Yes, I do believe it is unfair. This is what I am trying to get across.
286. CHAIRMAN: You are saying that because there are complaints about the quality of some of the wares sold by pedlars, the Bill is unfair, because I do not quite ----
287. MR CASEY: I think the accusation that he made was unfounded and did not have an evidence base. That is my point to Mr Vick here. It was anecdotal to say the least.
288. CHAIRMAN: Please go on then.
289. MR CASEY: Thank you.
290. CHAIRMAN: But please bear in mind what I have said that what is helpful in giving us the ability to judge wisely is if you concentrate on where the Bill is deficient from the point of view of a working pedlar.
291. MR CASEY: Okay. I will try my best to bear that in mind. (After a pause) I think I will have to turn to some of the specifics now of the Bill itself.
292. CHAIRMAN: Please do. We do not really have a lot of time for long pauses, if you do not mind.
293. MR CASEY: Sorry, I was just trying to get my thoughts together.
294. CHAIRMAN: Okay, carry on.
295. MR CASEY: Thank you. If this Bill was to be enacted, Mr Vick, can you give me your interpretation of what it actually means for a pedlar who is then effectively forced to go trading only by means of visits from house to house? Could you give me your interpretation of what that actually means?
(Mr Vick) I think, my Lady, what that means is that effectively what we are trying to do in the Bill is to remove pedlars from the city centre as traders. They can still trade from house to house.
296. Could I just stop you there for a second? Sorry, no, carry on. I do apologise.
(Mr Vick) The point of the Bill is that we want to be able to regulate and allow free passage in the street, to encourage street trading, but to allow the businesses that have set up, that the council licenses, to be unimpeded and to have fair competition for those. I think that by giving us the power to deal with pedlars, which do cause problems, which do obstruct the street and do set up and take business away from our small businesses that we are trying to encourage, then that will actually enhance what is going on within the City of Canterbury.
297. I put it to you, Mr Vick, that your Bill is in fact protectionism of the local street traders. Would you agree with that?
(Mr Vick) No. The Bill is designed to allow proper trading in an environment that is fair to all.
298. CHAIRMAN: Not to prohibit pedlars who are actually in a way that is compatible with easy passage for pedestrians. Will that be correct, that you are not trying to stop pedlars, you are trying to ----
(Mr Vick) No, this Bill would actually stop pedlar trading in the city centre.
299. I see. That is very helpful.
300. MR CASEY: There is one question I forgot to ask earlier. I do not think I have completely received the answer to your interpretation of ‘house to house’ but I will come back to that.
301. In 140 years of pedlary, which I believe is probably about the right amount. It is about the time that the Pedlars Act has been enacted, do you have any evidence to suggest, any newspaper records, people that have been sued, anything to suggest that a genuine pedlar who may use a trolley or carry his goods, as case law states, do you have any evidence to prove that they have caused a genuine problem in the streets of Canterbury in 140 years of the existence of the Act?
(Mr Vick) Yes I do have, because they have taken trade away from licensed traders and they have caused obstruction.
302. The evidence is, I presume, the photographs?
(Mr Vick) The evidence is not photographs. The photographs are illustrative of the sorts of problems that we encounter. The evidence is the fact that the courts have convicted a number of people for that. In fact, we have issued formal cautions on a number of occasions.
303. For obstruction or for illegal street trading?
(Mr Vick) For illegal street trading.
304. I think my question was really aimed at the charge of obstruction that you were mentioning earlier. In 140 years do you have any instances of a pedlar causing injury or death or anything like that to an individual or a member of the public in the streets of Canterbury?
(Mr Vick) No.
305. Thank you. Back to the question of the house to house, should the Bill be enacted, your interpretation and meaning of ‘house to house’ and how the individual will have to operate, in understanding of the Bill, could you please explain that to me?
(Mr Vick) That a pedlar would go from knocking on someone’s doors selling something, then would go to another house and sell something, so they are calling on their customers.
306. Would you think that members of the general public, have they been consulted upon this measure; the residence of Canterbury have been consulted upon this measure? That the pedlars would be forced onto their doorstep, knocking on their doors at whatever time of the day, is that a reasonable thing to expect a resident to have to accept?
(Mr Vick) I think that there is traditional pedlary, which is going from door to door calling on people.
307. I will have to draw you out on that point, sorry. I will just give you another question there before you carry on. You mentioned the words "traditional pedlary" I now presume that you have read case law. Is this correct or not?
(Mr Vick) I have read some case law, but I am certainly not a lawyer and I would have to ask my legal advisors to advise me.
308. Okay. I just want to draw you out on this one particular point. Have you ever read Shepway District Council v James Vincent 1994?
(Mr Vick) No.
309. It is in the bundle, my bundle. It is tab 2 if you care to look at it.
(Mr Vick) Can I say I do not have that and the fact that I think we saw it, my colleague’s counsel, we saw this this morning. As I said, I am not a lawyer, my Lady, so I am ----
310. CHAIRMAN: No.
311. MR CASEY: Tab 2 in the bundle, on page 5, this is a High Court judgment. I will just read it to you perhaps. Would that be useful?
312. CHAIRMAN: I am sorry, page 5?
313. MR CASEY: Page 5 of tab 2 of my bundle. It should be there. It is the blue index at number 2, page 5, the highlighted section, my Lady.
314. CHAIRMAN: You will appreciate that it is a fair point that is made that if you are asking for a legal judgment this is not possible.
315. MR CASEY: I know, but I wanted to see what his understanding of case law was, as opposed to what it actually is, if that is okay.
316. CHAIRMAN: I see. Right.
317. MR CASEY: So may I continue? If you read the paragraph you would see that the learned Justice said that the definition of section 3 of "pedlar", in his view, its ordinary meaning in his view, the ordinary meaning of the term pedlar, "Would not exclude somebody with a small means of assistance to transport his goods, such as a trolley in the present case".
318. CHAIRMAN: Yes.
319. MR CASEY: Do you accept that that is in fact a genuine pedlar; they can either carry their goods or have some means of assistance?
(Mr Vick) If that is the judgment, my Lady, I cannot really make any comment more than that.
320. Okay, thank you. So a pedlar who is carrying his goods, or perhaps with some mobile means of assistance is to make a journey from house to house and he had a trolley, can you explain to me exactly how he is going to negotiate arriving at the person’s premises, executing a sale and not being prosecuted for illegal street trading?
(Mr Vick) Sorry, I do not actually follow the question, because the ----
321. To put it another way, I am trying to see how you interpret a pedlar who is going from door to door with a trolley, which he is lawfully allowed to use as a pedlar, how he is going to stay within the law, in your interpretation of your Bill?
(Mr Vick) Because our Bill, as far as I understand, covers mainly a commercial area where there is very little housing and this Bill is particularly designed to deal with peddling up and down the High Street.
322. MS LIEVEN: My Lady, I think it may be helpful just to save time if I try and clarify this. If the person is trading door to door then the Bill does not change the existing law. So that person, if at the moment they can have a trolley, and the case law show that they can, will be able to continue to have a trolley trading door to door. So the Bills do not affect that activity. I hope that clarifies. Does that help you, Mr Casey?
323. MR CASEY: That does, thank you very much. To continue, can you tell me what the pedlar will do if he travels and trades between two houses and he sells something in the street? Would he be caught by the Bill, as he is trading house to house, from one house to another house, and sells something in between the two houses?
(Mr Vick) He sold it on the street. If he sold it on the street I think he probably would be caught by the Bill.
324. He would be caught.
(Mr Vick) Because he is not selling house to house, he is selling on the street.
325. It confuses me somewhat, because if I look at the Local Government Miscellaneous Provisions Act, schedule 4 and section 2(f), there is a mention of this is currently exempt under the Local Miscellaneous Provisions Act, which regulates street training. There is an exemption for, "Selling things, or offering or exposing them for sale, as a roundsman". I noticed the word "selling" as opposed to "trading", whereas your Bill actually says "trading". There must have been a reason for that distinction when this Bill was drafted. No, sorry, not the Bill, the Local Government Miscellaneous Provisions Act, and there is a distinction between selling and trading. Therefore, would you not say it was impossible if a pedlar was trading between houses he could then sell something?
(Mr Vick) I am afraid, my Lady, I would have to take advice on that. I am not qualified to give that sort of answer.
326. Okay, fine, thank you. There just seems to be an anomaly in some of the wording here and I just wanted to see if you could clarify something for me there but it does not matter.
327. CHAIRMAN: Are you suggesting that selling is not the same as trading?
328. MR CASEY: It is just that there seems to be a distinction between selling and trading within the actual legislation that exists presently, my Lady, within the Local Government Miscellaneous Provisions Act itself.
329. CHAIRMAN: You are not making the earlier question again that selling in the street is different from trading in a house or what is the point you are trying to make?
330. MR CASEY: I suppose that is the point I am trying to make, I presume, yes. But it is a minor point. I think I will move on.
331. CHAIRMAN: All right, move on.
332. MR CASEY: I just wanted to ask you about the practicalities of say, myself for example, if I was to come to Canterbury with my trolley, my means of assistance. If I was at the gates of somebody’s house. Let us say I could not fit my trolley through that person’s gate or front door and some houses do adjoin on the street, I could be caught, could I not? Even though I was at somebody’s house, is that correct?
(Mr Vick) I think it is a matter of degree, if that is how you interpret it, because I think if you were genuinely selling from house to house and the fact that you had ---- you were carrying something and you had to carry that and the unit that was just left at the end of the path, if you were selling in the house, I think that that would be reasonable to say they were selling from house to house.
333. CHAIRMAN: To clarify this, and perhaps help a bit, supposing a pedlar sold something to a housewife or someone at the door of a house and before he has left the garden path a neighbour comes up and says, "Oh, I would like one of those as well" is one action legal and the other not?
(Mr Vick) I would say both actions were probably legal in that case. I think you have to have a degree of practicality about this. It is where the intention about where the selling is taking place I think is to be realistic. I think we ----
334. LORD BLAIR OF BOUGHTON: Can I just ask a question? I interpret what the council is trying to do is just to move the pedlars away from the city centre. You, I do not think, are particularly concerned about house to house selling. Your ambition is to go and get them to be a pedlar somewhere else than Canterbury. I that is the key component.
(Mr Vick) Yes.
335. There is something like 12 councils that will have this kind of legislation and presumably 475 other councils that have not. Your assumption is that rather than change their method of working they are just going to move to another town.
(Mr Vick) Yes, I think that is absolutely true.
336. MR CASEY: One more question concerning the consent streets, you mentioned earlier that they would only be affected in – let me see where it was, the name of the streets, it would be the area marked. Is this correct, the area marked on the High Street final map 3? Is this the area that we are talking about?
(Mr Vick) No, sorry, I think there is a misunderstanding. The consent street, on the map that you have Canterbury has licensed streets. The consent streets operate in the two coastal towns of Herne Bay and Whitstable and were brought in specifically to do with the ongoing complaints that we had from people who were having cars sold in front of their houses - nothing to do with Canterbury City whatsoever.
337. Correct me if I am wrong then, the scope and area of this Bill is actually far greater than what was marked on the map here. Am I correct there or incorrect?
(Mr Vick) Yes, it covers the district.
338. I am correct? It is a wider area than I actually imagined, is that correct? I thought we were talking about a single street. It is not actually, no.
(Mr Vick) No, it is not. Certainly not, no, it is ----
339. I will ask you another question a different way. Is it the whole Canterbury, the whole city?
(Mr Vick) Yes, it is the whole city and ----
340. And surrounding areas?
(Mr Vick) And it is the whole district council area.
341. So what you are saying effectively, a pedlar will not be able to trade anywhere within those areas?
(Mr Vick) Yes.
342. That is quite a large area. Okay. Just please bear with me, I just have to gather my thoughts here.
343. (After a pause) I want to just ask you about the prices of the certificate. It often gets mentioned. It seems to me that every Select Committee Meeting I have ever been to regarding pedlars, the sum of £12.50 is mentioned. That is the price that everybody pays for a certificate. Is that something that a pedlar could control himself? Is it something he has any control over? In other words, the price is set by Government, is it not?
(Mr Vick) Absolutely, yes. I make no illusions to that otherwise than that is the charge for the pedlar’s certificate. It is the cost of a pedlar’s certificate.
344. It is what it is and he has no choice, does he? Does he or not?
(Mr Vick) That is the fee that is payable if someone obtains a pedlar’s certificate.
345. If you were a pedlar, for example, (I am not saying you would ever want to be) and you paid £12.50 and the price was increased, would you pay it?
(Mr Vick) I do not know. I think that is an answer – if I wanted to peddle, yes, I probably would pay more – but I think it is a question I cannot really answer because I am not a pedlar and I do not intend to be. So it is a bit difficult to answer, because I do not know the economics of people who want to peddle.
346. Sure. The fee that is paid by a pedlar of £12.50, which they do not have any choice over, does that represent a problem for you?
(Mr Vick) No, not at all.
347. You do not have a problem with that. Thank you. (After a pause) Sorry, do excuse me; I am just gathering my thoughts again. I do apologise. (After a pause) I will move on to seizure. (After a pause) I will just find the clause, sorry. I am just trying to find that clause; 6, yes, here we go.
348. It appears to me that from the clause there that you are going to offer the powers of seizure to an authorised officer, I believe, and the constable. Is that correct?
(Mr Vick) Yes, I think so, yes.
349. ‘The constable’ meaning an officer of Her Majesty’s Police Force, I presume?
(Mr Vick) Yes.
350. Okay. Can you remind me for how many days that this receptacle or the goods can be held for and for what purpose?
(Mr Vick) I would have to just look in to the rest of the Bill, "Before the end of 14 days, beginning with the date of seizure, the officer or the constable shall give a copy of the document to any person who is named on the document, the address of the person it is seized from". Then clause 8 talks about the return and disposure of these items. You see clause ----
351. Correct me – sorry to interrupt you, carry on.
(Mr Vick) Clause 8(3) talks about a period of 56 days beginning with the date of seizure.
352. That is what I was looking for, 56 days, thank you. I could not find it. I had a feeling it was 56 days. When it comes to seizure, obviously you are trying to amend the Local Government Miscellaneous Provisions Act for the exemptions of pedlars, which they currently enjoy?
(Mr Vick) Yes.
353. That is mentioned within the Bill.
(Mr Vick) Yes.
354. It seems to me there is a conflict of law at stake with the seizure clause, namely the Police and Criminal Evidence Act 1984. Are you aware that this is a possibility?
(Mr Vick) No, I am afraid I would have to take legal advice on that.
355. I will not bore you with the details, but safe to say that on tab 12 of my bundle there is a copy of the Act. (Pause to look for document) Okay, sorry.
356. CHAIRMAN: Mr Casey, can I just interrupt just to say I think the Committee would like to know how long you anticipate that you will need to finish your cross-examination.
357. MR CASEY: Okay.
358. CHAIRMAN: We are under some constraint on the time.
359. MR CASEY: Yes, I will try to be as quick as possible. I was under the impression that there was three day put aside for this meeting. That is an awful long time I know, but I will try and cover all the points in my Petition with precision.
360. CHAIRMAN: Expeditious.
361. MR CASEY: Yes, I will try, if you do not mind.
362. CHAIRMAN: Can you give any idea of how long you think you will be?
363. MR CASEY: What time do we have now? Sorry.
364. MALE SPEAKER: 1.02.
365. CHAIRMAN: We should be adjourning for lunch very shortly.
366. MR CASEY: Yes. I will need some of the afternoon. Some of it; let me say an hour.
367. CHAIRMAN: What we want to hear ----
368. MR CASEY: I say an hour, that is the maximum, I think.
369. CHAIRMAN: We want to hear your objections, however, it would I think be helpful to your own case ----
370. MR CASEY: Not to bore you.
371. CHAIRMAN: If you could perhaps spend some of the time at lunchtime to get these big gaps in your ----
372. MR CASEY: Okay. I will be a little bit more succinct and not waffle so much if possible.
373. CHAIRMAN: We do not have time, yes.
374. MR CASEY: Okay. The question to you was the Police and Criminal Evidence Act. It strikes me there is a clash of statute here. Section 22(4), retention, "If a police officer seizes goods nothing may be retained for either the purposes mentioned in section 2(a) above. A photograph or a copy would be sufficient for that purpose. Also this relates to the Police Property Act 1897 and nothing in this section affects any power of the court to make an order under section 1 of the Police Property Act". The Police Property Act, my Lords and Lady, allows a person to go to a police station, a constable, where your property is held by the police and ask for a magistrate to return that property that is yours. The dilemma and the problem is reading into the Bill is that it authorises a constable to withhold those said receptacles or goods as evidence for a period of 56 days, but it does not appear to amend the Police and Criminal Evidence Act. Do you see my point?
375. MS LIEVEN: My Lady, I do think this is a legal point rather than a point of cross-examination for Mr Vick. The simple answer is that the powers in the Bill that we are promoting will give powers to the council and to constables acting under these powers to seize and retain goods. The Police and Criminal Evidence Act is primarily, I think, well, entirely dealing with the taking of goods for the provision of evidence, so it is dealing with a different situation. But the legal answer is that the powers under the Bills allow the goods to be retained for 56 days. The exactly equivalent powers have existed in London since 1990 and in seven other authorities and there has been no suggestion that the powers are unlawful. I rise just because this is really not a matter for cross-examination of Mr Vick that he can possibly answer the questions on. If the Committee have any concerns then we can produce a note to explain the legal position.
376. CHAIRMAN: Thank you. Did you want to ----
377. VISCOUNT ECCLES: My Lord Chairman, yes, that is very helpful. It seems to me that there are two areas that we have not yet discussed and that would be much better discussed directly with the Promoters of the Bills, which is the question of who is allowed to seize goods, which includes authorised officials of the council and also in one or two of the Bills community support officers. Also that we did discuss the question of the levying of fixed penalties. Those are two subjects we have not yet discussed, but I rather doubt whether the cross-examination that is in progress will throw any light for the committee on those matters. I am sure we can form a view of those matters in direct dialogue with the Promoters.
378. MS LIEVEN: Yes. My Lord, with respect, I entirely agree. This is a matter of law rather than evidence. What I would suggest is that overnight we will do a short note that firstly shows the precedence of these powers and secondly explains them in a little more detail in terms of who can operate the powers, and that could at least help the Committee on those issues. Of course then if there were other questions I am more than happy to do my best to answer them along with the assistance of Mr Lowden(?).
379. CHAIRMAN: I think also, to tie this up completely, I do think and, Mr Casey, we fully understand that this is perhaps a fairly new venture to give evidence of this kind, and we understand that it is not easy for you. However I do, I think, have to rule that you are mixing up the fact that you have a right later on to give a testimony.
380. MR CASEY: That is it precisely, yes.
381. CHAIRMAN: You are getting mixed up with what you are here to do at this moment.
382. MR CASEY: I agree.
383. CHAIRMAN: To examine the evidence we have heard from the person who gave it. Forgive me but I think you are mixing the two up.
384. MR CASEY: Yes.
385. CHAIRMAN: Please will you recall that you do have a right to give your testimony later and stop the questioning of a witness about matter that he has not discussed?
386. MR CASEY: Yes, point taken. I totally agree.
387. CHAIRMAN: Are you near the end of your actual cross-examination of the witness?
388. MR CASEY: Okay, I will move on.
389. A quick question: can you tell me what the purpose of the seizure is for?
(Mr Vick) It is to remove the goods from the street.
390. Is it for evidence use in a court of law?
(Mr Vick) If necessary, yes. It is also the experience has shown from other authorities that have this legislation in place that the ability for the local authorities to seize goods is actually a good deterrent to stop illegal trading.
391. If, say, one was to have their goods seized, how would that affect that person for that 56 day’s period, financially?
(Mr Vick) I could not answer that.
392. They would cease to trade, is that correct?
(Mr Vick) They would cease to trade in Canterbury.
393. They would cease to trade in Canterbury. (After a pause) Sorry, just give me one second.
394. CHAIRMAN: Mr Casey, you really are trying the patience of the Committee.
395. MR CASEY: Yes, sure. I think I will probably move on and call that a day.
396. CHAIRMAN: Right, are you saying then that your cross-examination of the witness is now finished and we all understand you will be coming back, as I have made clear.
397. MR CASEY: Yes, absolutely. Thank you.
398. CHAIRMAN: Right, thank you.
399. MR CASEY: Thank you very much.
400. CHAIRMAN: That does help. Thank you. It is down here to call Mr Campbell Lloyd, but only, and I have to rule, I think, what we have so far discussed and what he witness has discussed is entirely the question of Canterbury. He had not touched on either Leeds nor Reading already and, therefore, I rule that we cannot have this cross-examination, which would otherwise, had these two Bills been mentioned, have been permitted.
401. Right. The promoter has a right to re-examine if she so wishes.
402. MS LIEVEN: Yes, my Lady. Do you want me to do that now or after the lunch adjournment?
403. CHAIRMAN: Now please.
404. MS LIEVEN: I will be about five minutes. Certainly.
Re-examination by Ms LIEVEN
405. First of all, Mr Vick, just in respect of the last question, if goods are seized from somebody trading contrary to the terms of the Bill, in accordance with clause 8, is it necessarily the case that that person will cease to trade in Canterbury?
(Mr Vick) No, not at all because they may well have another lot of stuff to be used the next day. It is only the goods on that trolley or that unit that would be seized on that particular incident. There is nothing stopping them trading somewhere else with other materials.
406. Is there actually anything stopping them coming back and trading in exactly the same place with other goods?
(Mr Vick) No, apart from obviously the risk of having it seized again.
407. Then just another factual question, picking up from Mr Casey’s question. In terms of the geographical extent of the Bill, just to understand the problem and the impact on pedlars; is there any experience from the council’s point of pedlars trading in Herne Bay or Whitstable?
(Mr Vick) None whatsoever.
408. In reality, is peddling limited to the core of Canterbury City Council, as shown on your plan 3?
(Mr Vick) Absolutely. In the time that I have been in Canterbury I have never known of any other pedlars apart from in the core centre shown on the map.
409. Thank you. Then moving onto another topic, I think my Lord, Lord Blair, suggested that what Canterbury was seeking to achieve here was to move pedlars out of Canterbury and effectively shift them off somewhere else, if that is what they chose to do. Can I just pick up two points from that? First of all, do you have the Bill itself? Can you take up the explanatory memorandum to clause 5?
(Mr Vick) Yes.
410. If I just read it out, the first part, "Clause 5 alters the exemption from street trading regime enjoyed by holding a pedlar’s certificate. It limits the exemption to persons trading by house to house visits". We have already covered that. Clearly pedlars can choose to trade house to house. But then it goes on to say, "They will continue to enjoy the protection of the 1982 Act. All other holders of pedlar’s certificates will on the coming into force of the Bill have to be licensed by or have the consent of the Council under schedule 4 if they wish to carry on street trading". In terms of what Canterbury hopes to achieve from this, is it necessarily the case that it is shifting pedlars out of Canterbury, or is there some hope that the pedlars will change into licensed street traders?
(Mr Vick) Certainly, some of the experience has been, as I said before, that some of the pedlars have actually become licensed street traders. Obviously, the fact that we get pedlars coming in from time to time means that they do trade in other areas as well.
411. VISCOUNT ECCLES: I wonder if I could see if I am clear about this. Am I right in concluding that the problem is the overlap between street trading and the activities of pedlars as they have developed over the years, and Canterbury is seeking to remove that overlap and, therefore, make it absolutely clear as to whether somebody is licensed as a street trader or operating as a pedlar, and Canterbury does not want them to be operating in the market area together?
(Mr Vick) In that street area, yes, absolutely.
412. MS LIEVEN: That, if I may say so, is impeccably put. That brings me back to the last question I want to ask, just to try to make it absolutely clear to the Committee what this Bill is doing in Canterbury. Can you take up the photo brochure and the very first image, which Mr Casey cross-examined you on? Let us assume that this chap is acting lawfully as a pedlar, so he has a pedlar’s certificate and he is moving every 15 minutes. The effect of the Bill, am I right, would be to stop him acting lawfully as a pedlar?
(Mr Vick) That is correct, yes.
413. Because it is not just about stopping unlawful peddling. The Committee does need to understand that it is also about stopping, as Viscount Eccles has made clear in his question, and removing pedlars who, at the moment, would be lawful. That brings me to the question, as Mr Casey said, what is the problem with this man? At this particular instance when the photo is taken, he is on a lawful pitch, but we know, to be a pedlar, he has to move on. What is the problem, as far as Canterbury City Council is concerned, with people peddling in this way in the City Council? Just encapsulate it, would you, Mr Vicks.
(Mr Vick) It is effectively because they are moving around the city, we do not have any control over them in terms of where they pitch up, and they do take trade away from the licensed traders who pay a fee, and they do cause obstruction on the streets. I think it is the combination of those three things together particularly that causes the problem. We have very narrow streets. We have a huge number of people coming into the city, and the positions of our licensed street traders have been very carefully selected to allow for free passage and movement and to encourage small businesses to set up. What happens is that these people, pedlars, will come in and basically take trade away from licensed traders, and will also obstruct the street, and will also divert people around in terms of the number of people there. They congregate, basically, in one particular area. They do not go over the whole of the street. Actually, if I can take you back to that map, the majority of the pedlars will concentrate in an area around that central cross area in the middle. (indicating) They will go there because that is where the biggest number of people are. So we will get an area probably 20 metres either side of that can at time to have a lot of pedlars in there. It is not huge numbers in terms of what we used to have, but at certain times of the year, we get maybe five or six in that area, and it is a very small area.
414. CHAIRMAN: Mr Vick, just for clarification, because this is not quite clear in my mind, we completely understand this particular designated area, which is clearly marked on your map. Is it the wish of Canterbury and the intention of this Bill to stop all traders, even the ones outside that area, which, we understand, the pedlars congregate in because that is where the trade is? Is it the whole of the city we are talking about or just this particular area?
(Mr Vick) It is the whole of the city, I believe.
415. CHAIRMAN: It is the whole of the city. I see. Thank you.
416. MS LIEVEN: In terms of the proportionality of that, thinking of it in terms of language, as the service has directed, in reality, are the pedlars operating, other than door to door, outside that central area?
(Mr Vick) Not at all. I have had no reports, in the time I have worked for Canterbury.
417. VISCOUNT ECCLES: Nevertheless, does Canterbury have any reason to suppose that house to house trading will be attractive to pedlars?
(Mr Vick) I think that some possibly goes on, but I really could not say, my Lord, in the sense that it is not something that we have any information about. We get no complaints about house to house trading.
418. So, whatever else, the Council has not been guided that this is a proportionate alternative?
(Mr Vick) In the sense that they can ----
419. In the sense that it would replace one way of trading with another equivalent way of trading.
(Mr Vick) Yes.
420. I hope I am right in coming to the conclusion that the Council does not believe that, once clause 5 came into operation, the house to house option would in effect be an equivalent way for pedlars to ----
(Mr Vick) No. It is very clear that the attractive for people coming in, for pedlars and legal street trade, is that very narrow strip in the city. We have no other reports of anything. The concerned street was brought in to deal with this problem of cars.
421. MS LIEVEN: I think we have to be entirely clear on this, Mr Vick. In terms of the kind of trade that we see on the front page of the brochure, is there any realistic possibility that that person will start trading door to door?
(Mr Vick) No.
422. MS LIEVEN: No. The kind of people who trade door to door are a completely different kind of trader.
(Mr Vick) The merchandise that is being sold will be completely and utterly different.
423. LORD BLAIR OF BOUGHTON: If I can just interject into your rephrasing of the questions between me and Mr Vick, the answer is that, yes, Canterbury can only legislate for what happens in Canterbury, but the effect will be that these people will go somewhere else. The effect will be that that person will go somewhere else because he or she will not convert to a house to house process.
424. MS LIEVEN: I think what I would say to that, my Lord, is that person might convert into a life as a street trader if he or she thinks there is enough money in it, but yes, your Lordship is entirely right. He is not going to start trading door to door, and he may decide there is more money to go to the next town, if there is a next town, but that is very much going to be a question of judgment.
425. CHAIRMAN: Thank you.
426. LORD STRASBURGER: Could I ask a question, please?
427. CHAIRMAN: Yes, of course.
428. LORD STRASBURGER: I am looking for a bit more clarity as to why Canterbury has a particular problem. You have suggested that it has particularly narrow streets.
(Mr Vick) Yes.
429. LORD STRASBURGER: How can you demonstrate that to me?
(Mr Vick) Canterbury is still the old medieval city. It has not really changed much, and I think it is the fact that it is the premier cathedral in the country, and of the number of visitors that come into Canterbury, a majority will go down that area there. It is huge footfall. I have some figures. I do not know if you are really interested, my Lord. Using the Cambridge model of tourism, whatever that is, 6,322,200 day trips into Canterbury. It is a strange little city. It is basically a one-street city. If I could take you back to one of the other plans, if I take you back to map 2, that one there. (indicating) If I can show you, the red ring road there is the old medieval city and the city walls with the cathedral placed in the middle, and that square there translates into the last – it is a small city.
430. The population of Canterbury is 148,000, plus 40,000 students, plus 5 million visitors per year, and the majority will go in that little narrow street. Hence, we have tried to show with the CCTV photographs that it gets very, very crowded. That area is pedestrianised, but down there will come authorised vehicles, which will be armoured cars, as they are called now. The money collector vehicles. They have permits to go down there, so we do get vehicles going down there as well. The conditions on the licensed street traders are that their stalls must be moveable within 10 seconds, apart from that one that was the correct one, the orange one we saw, which is on the pavement outside. That is so our emergency service vehicles or anyone who has a permit with a vehicle can go up and down there as well.
431. MS LIEVEN: Can I just pick up a couple of points out of that? The population of Canterbury city as opposed to the district is, I think, 46,000.
(Mr Vick) 46,000. The population of Canterbury City Council area is 148,000.
432. Can I just try to encapsulate your answer? As I understand it, there are two issues about Canterbury specifically. One is that it is a small medieval city with medieval street patterns, and the other is that it has a massive number of tourists. Is that a fair statement?
(Mr Vick) Absolutely. Yes.
433. LORD STRASBURGER: I have looked through all these CCTV pictures, and the only one in which I can see what I would call congestion is the one that has the placard in the middle of it, and there is a bit of a crush. There seems to be something going on, on the right-hand side, as though there is a pub or something. Do you have any photographs that show us congestion caused by a pedlar?
(Mr Vick) Not really, no, because generally what we have is the general congestion on the street, and because these are long-range cameras, they are showing slightly different aspects. I did try to point out that the majority of pedlars and street traders were given a chance and could pitch wherever they wanted it exactly. It would be right on that junction in the middle of the map we started with. It would be in that area there, and that is where the congestion is. I think what we have tried to show the sort of congestion, because people will also go up and down there for business in these streets like this, and there is a lot of pressure on the highway itself.
434. But would you agree with me that, if you look through these pictures, the only pictures that show congestion – I think there are two – and they both are around that very large placard in the middle of the street. The rest of the photograph it is busy but it is not
(Mr Vick) Yes. Some will show more than others, and I think it is the case that we just tried to show some illustrations that it is a pedestrianised area, but there are a lot of people going through the area.
435. Just to be clear, you do not have any pictures, among all your pictures, that show congestion generated by a pedlar or a street trader.
(Mr Vick) No, because the pedlars, in essence, will move on anyway, so it moves in ebbs and flows.
436. MS LIEVEN: Can I just come back on that, Mr Vick, and ask you to have a look at the central photograph in the brochure, image 10? Of course, what ones calls congestion is quite a subjective issue, but in image 10, in terms of the urban environment that is here, you say, how material are the pedlars that one can see in that photograph? The man or woman with the henna tattoo and the umbrella, and then the pedlars over the shoulder of the licensed street trader.
(Mr Vick) Combined with that placard that we have talked about, that does restrict the street right down. What we also have (it probably is not that clear) is that the County Council licenses tables and chairs on the pavements, so you have pavements effectively quite often not available because they are filled with tables and chairs. It is not necessarily shown in these photographs as such, but just to the left-hand side of this picture, we see the lady pushing a pushchair. Immediately to the left of that there is a Pret a Manger and the whole of the pavement there is completely filled with tables and chairs, so it does actually restrict the whole of the highway down to a very narrow area.
437. LORD BLAIR OF BOUGHTON: Perhaps I can ask you to put this in an order of priority. Is the Bill coming forward because of the unfairness of the financial divisions, i.e. one £12 license versus one, effectively, £10 per day license, and the danger that if you do not something, the street traders will turn into pedlars because of the business model? Is that the priority, or is the congestion the priority?
(Mr Vick) No. Congestion, I think, is the priority.
438. If the congestion is the priority, looking at that photograph 10, it is difficult to argue that the thing that is causing the congestion is pedlars. The thing that is causing the congestion is a man or somebody standing with a big sign, tables and chairs on the pavements, people moving stuff around on a trolley to get to a shop, and the street trader. I am getting concerned that there is a focus on pedlars, which do not necessarily seem to be the problem.
(Mr Vick) I think what we are trying to do is look at the fact that we are trying to as well protect our licensed traders, small businesses ----
439. I just asked you which to prioritise. You said congestion is the priority.
(Mr Vick) Congestion is the priority in terms of the fact that we get more complaints about congestion, but overall it is the combination of both, in fact.
The witness withdrew
440. CHAIRMAN: I think we are very clear on that now. The Promoters do not wish to say anything further at this stage. Members of the Committee, can I ask finally, officially, whether you wish to ask any further question, after which, if you do not, I shall adjourn this Committee for lunch. No? In that case, I adjourn the Committee, which will meet again at precisely 2.30 this afternoon. Thank you very much for the quorum.
The Committee adjourned from 1.31 pm until 2.41 pm
441. CHAIRMAN: Thank you. I do apologise that we kept you waiting. A slightly difficult matter has cropped up in our discussions and our considerations, and it is this. The Department of Business, Innovation and Skills, known as BIS, has some reservations about whether this particular measure, in fact all of the measures before us, are in conflict with a part of something called the Article 9 Services (d)(?). You may or may not be familiar with it. This is very important because, if there is not a compliance that the legislation before us is actually perfectly kosher, as I might say, we cannot, we feel, continue. Therefore, Members of this Committee have asked for evidence as to why this allegation has been made and its doubt has been stirred up, and to ask BIS to talk to us, and we asked for that this morning. I think we have one person so far, Kate from BIS, is that right? We have two now, but we are waiting for a third. Could you please give us an indication of how long that person might take to reach here?
442. MS ONIKOSI: Five minutes.
443. CHAIRMAN: Five minutes. Yes. Well, I can only say that I am sure you will all recognise the difficulty that we are in, because if there is no point in going on with the Bills as they stand, we are in a very difficult position and cannot waste your time, or ours, indeed, in investigating something that might be stopped at a later stage. We want to know precisely what the position is right now, and I am very, very loath to waste the Committee’s time. I wondered if it might be possible. You are the gentleman from BIS? Perhaps you could start. Would you start, perhaps, by telling us your name? I do not know it yet.
444. MR BRANTON: I have a helpful name badge just to assist.
445. MR CAMPBELL-LLOYD: Excuse me; I wonder whether I might ask whether we have an opportunity to examine what is going to be put before the Committee now.
446. CHAIRMAN: It is only permissible that you could ask questions through me. You cannot directly examine this witness.
447. MR CAMPBELL-LLOYD: Okay. I have not come prepared for this moment because this was coming out later and you have brought it forward, so I am not prepared at this moment to lodge those questions, but they are bound to come up. I will do them off the cuff if I can, but it is the most serious point that we are about to put forward in the evidence.
448. CHAIRMAN: I think you will probably find that Members of this Committee will also have their own questions, because it is something that is obviously of great concern to us. May I ask, then, Mr Graham Branton to speak.
449. MR BRANTON: Thank you, my Lady, I am happy to make a start. It is my legal adviser who is not with us yet but she will be with us by the time we have to answer any tricky questions that might arise. So I am happy to start without her.
450. My Lady, my Lords, we understand that Government responsibility in respect of Private Bills such as this is not to give a view on whether the Government supports the Bills or not, it is simply to comment on the adequacy of the assessment that has been made of their compliance with the European Convention on Human Rights and perhaps other legal constraints that may apply, so our comments relate only to that.
451. We have looked at the proposed Bills to judge whether the assessment has been full and apparently correct, and we do have some comments on some of the individual articles, proposed articles, in the Bill. But I would like first just to make some general points on government policy in this whole area, which I think will help people to understand where we are coming from and the broader context in which these bills are being put forward. I will do so very briefly.
452. We understand why local authorities feel the need to bring forward local legislation on this subject. We accept that this is not an ideal use of their resources or the resources of Parliament. Ideally we, as a Government, would like to have in place a national framework that removes the demand for Private Bills on this subject. We are looking, therefore at how best to introduce such a framework to give local authorities the discretion to regulate trading and pedlary effectively but critically within the confines of a reasonable interpretation of the Services Directive.
453. The ideal outcome as far as we are concerned would be a new legal framework which empowers the local authorities and respects the principles of localism but defends, at the same time, the interests of legitimate pedlars and as well as street traders in compliance with the Services Directive. We envisage this working such that local authorities would be required to permit genuine pedlars to operate but the concept of a pedlar would be more clearly defined than it is at present and local authorities would be able to tackle effectively individuals who fell outside the definition or otherwise unlicensed to act as a street trader. So we hope that much of this can be achieved through secondary legislation in order to give effect to the Services Directive we will be bringing forward secondary legislation under the European Communities Act, but it is possible that we will not be able to achieve all that we want to achieve through that route and we are assessing at the moment the legal practicalities of doing everything we need to do under the European Communities Act.
454. You will be familiar that under the European Communities Act you can only make changes which relate directly to the European rule which you are implementing, and we may need to make other consequential changes to the system that we would then only be able to do for primary legislation.
455. Moving on to specifically our concerns with these Bills. Our first concern relates to clause 5 of both the Canterbury City Council Bill and the Nottingham City Council Bill. The effect of clause 5 of these Bills is that pedlars would become subject to the national street trading regime in the relevant areas unless they trade only by means of door to door visits. This would mean the genuine non door to door pedlars wishing to trade in streets that were designated as licensed or consent streets would become subject to the street trading regime, and therefore they would need a street trading licence in order to trade. In our view, it is unlikely that making genuine non door to door pedlars subject to the street trading licensing regime, which is an authorisation scheme for the purposes of the Services Directive, would satisfy the test set out in article 9 of the Services Directive for established traders, or article 16 of the Services Directive for temporary traders. In particular, we doubt that applying the regime to such pedlars is the least restrictive way of achieving any legitimate ambitions that the local authorities might have in relation to pedlars, so we think there objectives could be secured through less restrictive means and, therefore, if that is the case the Services Directive prevents the more restrictive means being used. For example, we think some of the objectives could be achieved by means of a power for local authority officials to require pedlars to move on if their presence is giving rise to a public safety concern. So we think it is unlikely that these provisions are compatible with the Services Directive.
456. Clause 5 of the Leeds City Council Bill and Reading Borough Council Bill are more flexible. They would continue to exempt from the national street trading regime two types of genuine pedlar rather than one. Firstly, door to door pedlars and, secondly, pedlars who carried without any other means of support all items used for any purpose connected with the trading. In other words, people who carry all their goods about their person without the use of a trolley or other accessory. So our understanding of that provision in these Bills would be that a non door to door pedlar wanting to trade in a licensed consent street would be able to do so if they did not use a trolley but would not be able to do so if they did use a trolley, and they would of course be able to trade door to door as well.
457. Again, we have doubts about whether the extension of the street trading regime to pedlars using small trolleys to trade in the streets is compatible with articles 9 and 16 of the Services Directive, but we do admit that this is a more marginal case. However, we have concerns that this would introduce distinctions between able-bodied pedlars and less able-bodied pedlars, which may give rise to concerns. So we ask the Committee to consider that issue as well.
458. Finally, clause 4 of each of the four Bills extends the national street trading regime to cover the supply of services. Now, at the moment pedlars are exempt from the national street trading regime but the definition of pedlars in the 1871 Act as amended only covers persons who sell goods and this amendment was made to the definition of pedlar by regulation 45 of the Provision of Services Regulations 2009. Now, this means that the effect of clause 4 in these Bills is that all persons who sell services in the street will become subject to the street trading regime with no exemptions whatsoever because the only exemption relates to pedlars and the pedlars are only people who sell goods. So we are not sure, firstly, that this is intended but, secondly, that it is compatible with the Services Directive because it constitutes a blanket prohibition on any person providing services in the street from operating outside the street trading regime, even if they are behaving like a pedlar, but of course they would not be a pedlar with the definition as it is.
459. So those are our concerns with the Bills. We do not have concerns with compatibility of the rest of the legislation with the Services Directive, and I should stress we have not studied the policy background and the evidence in relation that is in the hands of the local authorities in each of these cities and towns. So it is not our intention to give a definitive ruling about the justifications they may or may not have for restricting street trading. Our comments are based on our interpretation of the Services Directive and what we think is a reasonable probability of their application to the Bills in question, but we do not have the expertise - and I have not sought to gather the expertise - to second guess the councils about their local conditions and the numbers of people who are in their streets and so on. So that is why our legal opinion is somewhat bound to be tentative, and we are offering it as a concern that the implications of the Services Directive may not have been fully taken into account by the Promoters of the Bills. Thank you. We are happy to answer questions, of course.
460. CHAIRMAN: Thank you. I am not awfully clear whether the first impression that you had very strong concerns, or perhaps I am putting it too strongly, but concerns indeed about the Nottingham and Canterbury Bills and you were not so worried about Leeds and Reading. Then at the end nearly you seem to imply that it was all of the Bills and to tie it all up clearly, when you said it is for us to decide when we have heard what the Promoters and the Petitioners and everyone else says. How can we – who are not expert in rules such as BIS are bringing into the question – say whether or not? It is a totally different burden to put on the Committee because of the regulations you have brought up, and might it not be reasonable for us to say, "Look, you are the experts in this field, are these Bills compatible or are they not?"?
461. MR BRANTON: My Lady, this entered into parliamentary protocol between Government and legislature as to what the role of the Government is in relation to Private Bills. Our understanding is that in relation to Private Bills the Government is not called to give an opinion on compliance, it is merely called in order to ensure that legal questions are being considered and it is for the Promoters of the Bills to reassure your Lordships that they have taken into account the legal issues.
462. Now, we are here in the spirit of wanting to assist your Lordships of course in getting the right answer here. We will therefore do what is necessary to help you reach the right decision, so we are not being hesitant or reluctant in any way, we are just conscious of the protocol that it is not for Government to dictate Private Bills and how they progress.
463. CHAIRMAN: Just before I call Lord Strasburger, could I say that nobody would expect you to say whether the Government approved or whether they did not, which is one of the points you addressed at the beginning. We are not bothered to ask you that. We were not even near that because the Government has given us the responsibility of judging this whole matter, it is the whole question of the legality or otherwise of what is proposed in the Bill that we are bothered about.
464. LORD STRASBURGER: I think I might be able to help clarify for yourself, Lord Chairman. I think what you said was on clause 5 you are more clear that the Nottingham and Canterbury Bills may not comply whereas I think you said it was more marginal in the case of the other two and then you went on to talk about clause 4 where you had concerns about all four Bills, is that right?
465. MR BRANTON: That is correct.
466. CHAIRMAN: So there is a different slant between the first two and second?
467. LORD STRASBURGER: But for clause 4 it is all four of them.
468. CHAIRMAN: Could we at this stage, or would it be perhaps wise to call on Ms Collins to try and help us here and in doing so I welcome you on behalf of the Committee. I am sorry we have put you to a breathless rush from your office but we are pleased to see you.
469. MS COLLINS: I think the reason we have difficulty here giving you a definitive answer, whether these clauses are compatible or not with the Services Directive, is that the test that has to be applied under the Directive, which is a three stage test, requires you to show an appropriate and legitimate justification for your policy and that you cannot achieve your policy through less restrictive means. The justification, it seems to us, has to come from the Promoters of the Bill and one legitimate representation that is recognised under the Services Directive is, for example, public safety, where congestion causing public safety issues. That would be a legitimate justification for having a licensing regime. What may not be so legitimate is wanting to protect a particular category of economic operator, to protect their business in relation to another category of economic operator. That is something which I believe the case law under the European law does not recognise legitimately.
470. So the first question there is what is the legitimate justification for the promoting of the Bill to satisfy you that there is one that is recognised by the Directive. Then the second issue which is restrictive measures that are taken to achieve that objective. Again, I think that is for the Promoter to explain why they feel they need to impose a licensing regime in particular categories of pedlar or person, and that is the only way of achieving that, they could not do it in a less restrictive way, for example coming back to the public safety point. Why could you not have enforcement officers perhaps from the local authority monitoring the streets and if there was congestion arising on a particular day telling pedlars to move on? Is it really necessary to impose a licensing regime, because the effect of imposing this licensing regime on the street pedlars is effectively a ban because the mode of trade – and they call it genuine pedlars – as I understand it is that they make a decision on a daily basis of what to sell, where to go and sell and so it requires them to submit to a licensing regime where they have to decide quite a way in advance which street they want to apply for, what items they want to sell and pay for a different licence for each street. That does not necessarily seem to be an appropriate regime to apply to that particular mode of trading.
471. So effectively applying the licensing regime to them amounts to a ban and I think that would, save any evidence this morning, likely to be the effect. Does that help?
472. VISCOUNT ECCLES: My Lord Chairman, there is another aspect of this on which I would welcome the Department’s advice. The Department has also, I think, given evidence that it is possible that the present regime is also non-compliant; particularly the matter of the qualifications to get the pedlar’s licence may be non-compliant. These Bills seek to amend existing legislation. If the existing legislation is non-compliant then that surely raises a second issue about what is the Committee’s position in approving what might on the face of it look very sensible if it is actually amending non-compliant legislation?
473. MR BRANTON: Yes, the intention of the Government is to bring forward regulations to amend the national legislation that is potentially non-compliant, which would include ----
474. VISCOUNT ECCLES: Could I just be ever so sure, in 1871 there was not a lot of secondary legislation; however it is the Department’s opinion that you can alter the qualification tests for obtaining a pedlar’s licence by way of secondary legislation?
475. MR BRANTON: Yes, we can.
476. MS COLLINS: The intention is to repeal the Act because we do not think that the certification regime under that Act complies with the Services Directive.
477. VISCOUNT ECCLES: Does the Department intend to do that?
478. MR BRANTON: Yes.
479. VISCOUNT ECCLES: When?
480. MR BRANTON: We are working on draft regulations at the moment on which we will, of course, consult when they are complete. We are looking to publish them as early as we can, it will probably be early in the New Year.
481. VISCOUNT ECCLES: If I might just pursue this. The point has been put to us this morning, if I could express it this way, that there is not a lot of objective in waiting for change tomorrow and therefore if what is going to be changed is going to be changed in a timely fashion it might lead the Committee to one conclusion. If there is no likelihood that it will happen in a timely fashion, it might lead the Committee to another conclusion. So I do think the matter of time is of the essence to the deliberations of this Committee.
482. MS COLLINS: Could I just make the point, please, that in terms of what we need to do to the national legislation to ensure Services Directive compliance, that can be done under direct regulation but that was necessarily everything that the Promoters want to achieve. I think the comments in their Bill are not necessarily compliant with the Service Directive.
483. VISCOUNT ECCLES: The perfect is the enemy of the good. There is a thing called a national framework and legislation which might cover absolutely everything. There is this different thing that is getting into compliance with the Services Directive, which would not be such a complicated matter, it would not need the same amount of consultation and the rest and so I think it is very important for us to know what is the Department’s intention at the present time.
484. MR BRANTON: The Department’s intention is to bring forward regulations to secure compliance with the Services Directive as fast as possible because we are conscious that we have a potentially non-compliant regime at the moment which means we are exposed in terms of our compliance with European law. So it is the matter of some urgency for the Department to get the country into full compliance with what we now understand to be the way the European law works in this area. So, as I say, we are looking to do this as fast as possible and we will be trying to bring forward regulations as early as we can in the New Year.
485. VISCOUNT ECCLES: Thank you, I find that answer very helpful.
486. LORD GLASMAN: It reminds me of my Dad’s advice to me, which was always hire a one-armed lawyer because they cannot say, "One the one hand this, and on the other hand that". I am very slightly concerned that we are going to waste our time on this ambiguity. What I am trying to tease out here is we have to make a political judgment, that is what we have to do and what we are pushing you to say is, Mr Branton, in your advice on the one hand you said that you thought this will not satisfy compliance, and on the other hand you said but it is unlikely to satisfy it. Now, between "will not satisfy" and "unlikely to satisfy" is I think is the meat in the sandwich for us. We just do not want to waste your time, we do not want to waste the time of this Committee on a Bill that is non-complaint and will be knocked down. I think Viscount Eccles made a good point, and we take the point, but you have to move as fast as possible, although we have all seen enough of Yes, Minister to know that as fast as possible is itself a very ambiguous concept.
487. So what I would like to know from you is, in your judgment, does this satisfy or not satisfy the Directive. Sorry, but we have to make a judgment on this.
488. MR BRANTON: That is a question for me and it is a legal issue.
489. LORD GLASMAN: It is not about whether you support the Bill or not support the Bill; it is about the compliance issue.
490. MR BRANTON: I have to say in relation to what I have been told by my legal advisors, as far as we understand the objectives of the Bill and the situation in these local authorities, which, as I said earlier, we do not have perfect knowledge of, the way this law works is that you can justify restriction if it is legitimate and proportionate. It is impossible for me to make easy judgments about what is proportionate in Leeds or in Nottingham or in Canterbury or in any of those places.
491. From what I heard this morning I can give the example of the Canterbury Bill, which I know more about than the others simply because I was sitting here this morning. The prohibition that extends over the entire city in relation to a problem that seems to exist only mainly in one street, might appear to me to be disproportionate in terms of resolving an issue. We could argue about whether the restrictions on the Main Street might be justified or not, it would depend on how serious we think the congestion issues are. We accept that there is justification under the Services Directive for a system of licensed street trading, we accept that that is justifiable generally because of the desire in busy streets to decide where street trading pitches go, to look at the number of street trading pitches in order to make sure that traffic can still flow though, we accept that as a matter of principle. We might argue about this, in fact we do argue about this, about whether that would then mean that you could have a limitation on pedlars in those streets where you have street traders and whether that would be justifiable under the directive as a measure to secure the objectives that the street trading regime itself is designed to secure, but we cannot easily see restrictions on pedlars in areas where there are no street traders and where there is no obvious basis in terms of evidence that there is a problem for restricting their activity. Now, there may be reasons in places where there is a lot of traffic going past and the pavement is very narrow, you can justify restricting pedlars from those places as well. There is a range of preventative justifications a local authority can have.
492. On the face of what we have heard about Canterbury, I have my doubts - serious doubts perhaps - about whether the blanket restriction across the whole city is a proportionate response to a problem which seems to be relatively small but you would force me to make a judgment call. I am equipped to make that judgment call so I express a view as a personal view and very reluctantly. I cannot speak as the Department on an issue like this.
493. LORD STRASBURGER: We have been speaking so far about the possibility of the Department making changes that will make the existing legislation compliant with the Services Directive. I also understand that there is a long-standing intention in the Department to obviate a necessity for this series of Private Bills brought by individual local authorities to incorporate some or all of the objectives of these Bills that we are discussing today, is that the case?
494. MR BRANTON: Yes, that is certainly our intention. But, as I said, we are looking at to what extent we can achieve that under the European Communities Act when we give pause to the Service Directive. If it cannot be done under the European Communities Act then it has to wait for primary legislation in order for us to achieve the second part of your proposal. In the meantime, of course, we are expending our energy on the secondary legislation to secure compliance with the Services Directive. So we do not have a clear time frame, I am afraid, at this stage we can commit to for moving forward on the second part of the workload that we see in front of us. We would like to get to that position but that depends on the parliamentary timetable for the passage of new Bills and finding a Bill to which we can attach this work and having the resource within the Department to take that work forward. So as you will appreciate there are a number of issues around taking forward the primary legislation and the timetable, which we have not resolved at this point.
495. CHAIRMAN: I am going to call Lord Blair next, except that I want just to put a little full stop or comma, or whatever you might like to call it. Am I not right in thinking from certainly what I have read, that it is many years now that Governments of all kinds have been pressed to have a Government Bill on this issue broadly and that is many years - could you possibly tell us how many years - the Government have been talking about making this move?
496. MR BRANTON: I am afraid I do not know how many years the Government has been talking about this. I have not been in my current post for the length of time that that has been going on. What I can say is that we issued a consultation on this in 2008, and so already at that stage we were considering the future reform of the whole regime. By the time the responses to that consultation came through we then had to take account of the Services Directive that had not been taken into account when that consultation was framed, or not in the correct way, because at that time we had been led to understand from Europe that the Services Directive would not apply to retailers of goods or sellers of goods, but that was not a service. After that we clarified with the European authorities that the Services Directive would apply to retailing of goods and, therefore, the street trading regime and the pedlar regime had to be brought into compliance with the Services Directive.
497. That required us then to add a new work stream to what we had already started. As you will appreciate it is a very complicated issue, how the Service Directive applies in this area, so we have been trying to understand it and trying to fuse that in to our pre-existing plans for reform of the whole regime. Our original intention was to do both together but we are caught by the urgency that the noble Viscount Eccles mentioned there of seeking compliance first of all with the Service Directive. So we have to do that first and the rest has to wait for a suitable legislative vehicle to arrive. But it does not mean we are not committed to do it.
498. LORD BLAIR OF BOUGHTON: Graham, you signed a letter in the last 10 days to this Committee and I take it that you have that letter. The stamp on mine is 20 October so it is very recent. You are even stronger, if I may say so, in this letter than you have been in your evidence today. You say in the third paragraph of the first page, "This has concerns about the compatibility of certain provisions in the Bills of the European Services Directive. We set these out below and we would ask that consideration be given to the issues raised. It is important that legislation is not enacted, which would be in breach of the SD. Various consequences may follow from such a breach, including the risk of infraction proceedings being brought against the UK by the Commission." You have concerns in paragraph one about the compatibility of the SD with clause 5 of each Bill - of each Bill - and you are stronger in relation, you say, to Nottingham and Canterbury but you also have a concern about the compatibility of the SD of clause 4 of each Bill. I am reading that out because I just want a little bit of history and then a prediction.
499. The history is, is the first set of Private Bills in this long stream of which we have heard - I think the last few were Manchester and somewhere else, Liverpool, perhaps - that have gone through without you raising that objection? Has that objection ever been raised in front of one of these opposed general committees?
500. MS LIEVEN: My Lord, we know the answer to that is no, because my parliamentary agents have promoted all these Bills.
501. MR BRANTON: We did raise concerns in the House, however, on the City of London Bill in April of this year.
502. LORD BLAIR OF BOUGHTON: Yes, but in terms of the legislation in front of Opposed Bill Committees, it has never been raised by BIS before, or any of its predecessors, to your knowledge?
503. MR BRANTON: To my knowledge, we have ----
504. MR CAMPBELL-LLOYD: I would like to suggest that is not altogether the truth. In 2009 BIS advised the Committee that introduced the Provision of Services Regulation Act 2009 that service providers would cause problems for them and they struck out two categories of descriptions for pedlars, but in fact in 2006 this was already put before BLAS that the service provider, which I think is very unclear there today, is any economic activity. So it cannot be said that this has not been brought to the attention of BIS.
505. MR BRANTON: With respect, that was not the question. The question was have we brought it forward in relation to any of the Private Bill applications, and to my knowledge is that is correct.
506. LORD BLAIR OF BOUGHTON: And the answer is: no, that has not happened?
507. MR BRANTON: No.
508. LORD BLAIR OF BOUGHTON: My prediction question is this, if we passed this Bill back for a third reading, which I think would be these Bills, they would be enacted about the New Year and you are telling us that your department will be bringing forward secondary legislation which, as they are currently written, these Bills would not be legal any longer. So we are in a position where we are looking at something that according to your timetable is going to be made - unlawful is too strong a word, but the flaws in the legislation will be clear in three months’ time, if they are not clear now.
509. MS COLLINS: If I could just clarify, the regulations we are proposing to make are intended to firstly repeal the Pedlars Act but, secondly, to make amendments to the Local Government Miscellaneous Provisions Act, which sets out the street trading regime nationally. Each Bill will piggyback on that Act. So we are not proposing to make amendments to local authorities Bills unless the local authority has asked us to do that. We have them to assess their own local Act for compliance.
510. LORD BLAIR OF BOUGHTON: Again, I understand it is only an opinion, but you are saying that the provisions in these Bills themselves, you have concern that they are incompatible with the Services Directorate, which will be the centrepiece of the regulatory regime to which these are going to be attached. If that is the case, with respect, Lord Chairman, I am not sure we need to go any further.
511. MR BRANTON: No, let us be clear. If they are incompatible with the Services Directive they are already illegal. They are unenforceable in the courts. So regardless of our implementing measures they are already illegal if they are incompatible with the Service Directive. But our implementation is designed to bring our national law into compliance with the Services Directives so that there can be no misunderstanding by anybody in the country about seeing a national law that says one thing and an European law that says the other. So we will be clarifying what the law means by implementing the directive.
512. MR CAMPBELL-LLOYD: There is one point so far, it is not a national law, it is an adopted law, and it is taken on by some jurisdictions but not all. So you are introducing a national law and we would challenge a pedlar under route through Europe whether you have the right to repeal the Pedlars Act, which is a civil matter and turn that precedent into what will become a criminal matter for pedlars who are in breach of the new Bill. It is a very complex area, we have spent a lot of time researching that, and I do not think the question will go away quickly.
513. CHAIRMAN: I was wondering, listening to what you said, whether it is the opinion of either of you that those amendments, which are always possible, could be made to the present Bills, which would meet the point which concerns you, or do you feel that amendments would not be possible and the whole thing is going too far.
514. MS COLLINS: I think we know it is going to be possible because the real issue is whether those people who are going to be subjected to the licensing regimes are people who are justifiable to object to that regime under the Directive. So if the effect of Bill is that certain persons will be made subject to it, who should not be, you could amend the Bill to make sure that does not happen. If I can take the example of the Bill that will effectively restrict pedlary to only door to door trading in licence or consent streets, as I say, we have difficulty in seeing why all other pedlars should be subject to the licensing regimes and effectively to the ban but it may be that certain categories of them or in certain circumstances we just question whether it is really the case that taking the extreme example of a pedlar who just walks around with a bag of goods on his shoulder, whether he really needs to be banned from peddling in those streets.
515. So if it is felt that the provisions of the Bill go too far and restrict persons who should not restrict, they could be amended to deal with them.
516. LORD GLASMAN: I have difficulty in seeing how these amendments are anything other than the opposite direction to the ones that you would want. This is more restrictive, you are talking about less restrictive, so I can see that technically on a principle you could amend it but this particular proposal seems to me to be in the other direction, would that be right?
517. MR BRANTON: We are only objecting to two clauses, clauses 4 and 5. I know those are important in the Bill but if clause 5 were amended to only introduce possible restrictions on pedlar’s activities in two cases where the local authority had good evidence that there was a problem then the Services Directive objection would fall away. If clause 4 was amended so it did not have the effect of bringing all service providers into the scope of a street trading regime but only those service providers who did not move around and who had fixed stalls or who had trolleys that were much bigger than the trolleys that would normally be allowed to a pedlar. So if you re-imported back into clause 4 the definition of a pedlar then our objection to clause 4 would disappear as well. So it would be possible to amend the two clauses but I fear it would risk no longer meeting the objectives of the Promoters if those amendments were to be made. But there is a lot of judgment about how the Services Directive applies in individual circumstances. It is for the Promoters to exercise that judgment in a sensible measured way.
518. MS COLLINS: Could I clarify one point, which is we are going to appeal the Pedlar Act, as I said, and in doing so the exemption for 35 pedlars from the street trading regime will no longer make sense, there will not be any 35 pedlars. So our intention is therefore to come up with a definition of pedlar for people who are exempt from that regime and in doing so will have to come up with what we think is a fair and appropriate definition of who should be caught by that regime and who does not get caught. So that was the intention, to come up with a definition that is workable, reflects the model well and that will enable people to be much clearer about what the position is and so that will make enforcement easier.
519. MR CAMPBELL-LLOYD: But that is a Catch-22 because ----
520. CHAIRMAN: Just a moment.
521. MR CAMPBELL-LLOYD: I beg your pardon. I beg your pardon.
522. CHAIRMAN: I did warn you right at the beginning that if you wanted to question them the rules say it must be done through me. I am sorry, Viscount Eccles.
523. VISCOUNT ECCLES: Could I just follow up immediately. The position right now consistent with the Department not giving a definitive opinion on the legislation in front of this Committee is nevertheless that your position is, is it not, that the Promoters need to be asked whether they have screened the Bills for compliance with the Services Directive and that this Committee would have to take that into very serious consideration as to the opinion of the Promoters when they screened the whole Bill but obviously with some concentration on clause 4 and 5 as to where they are.
524. Now, I was tempted this morning to ask, and I never got around to it, whether Canterbury had, in fact, in the council considered compliance with the Services Directive and, of course, Counsel, you did raise the whole question this morning and indeed you have included in your written submissions the relevant extract out of the Service Directive and I wonder, my Lord Chairman, if this is the moment at which it might be helpful to hear from counsel what she thinks as a result of the discussion we have been holding.
525. CHAIRMAN: Let me officially call you, because, having given my colleagues the opportunities they needed to question, it seemed to be obvious that exactly what Viscount Eccles has said that you have heard what has been said so what comments do you have to us. If you wish to address those who have just spoken to us, you may of course do so but through me, please.
526. MS LIEVEN: Of course, my Lady. I am not sure this is a situation where it will help for me to try and question the Department through you, I think what might help would be for me to try to clarify the position in relation to the Services Directive so that the Committee understand at least what the Promoter’s position is.
527. The starting point, in my submission, is that the Department are not arguing in any terms that the whole Bill does not meet the Services Directive. We are only arguing about clauses 4 and 5, that is the only issue. So in terms of seizure and fixed penalty notices those are satisfactory, there is no Services Directive point raised.
528. VISCOUNT ECCLES: But also is it not quite important that the Department also considers the existing the regime, which is to be amended by your Bills, is also non-compliant, albeit they have said they would be able, they think, to put that right fairly rapidly by secondary legislation?
529. MS LIEVEN: My Lord, in my submission, and I think that it accords with what Ms Collins was saying, the issue of potential non-compliance - let us just put it like that - of the primary legislation is not a matter for this Committee. That is a matter for the Government. So you do not need to be concerned with that part of BIS’ wider concerns. So if I park that for the moment.
530. In respect of clauses 4 and 5 it is very important to understand that the reason, I think to be fair to Mr Branton and Ms Collins, why they are very slow to want to answer a question about are the Bills non-compliant, is that that has to be a matter of judgment on the evidence for the Committee. It is not a matter for BIS before you because the issue under article 9, as I tried to explain in opening, is effectively one of is there a justification in the local circumstances for the provisions being put forward in the Bill. That is not a matter for BIS. As Mr Branton tried to say, he is not an expert on these local areas. That is a matter for my clients to give evidence and for the Committee to make a judgment.
531. Now, in respect of that issue, in my submission the critical point is that if the Committee reach the conclusion that these Bills go too far so they are not meeting article 9(1)(c) as is this something that could be met by a less restricted measure, it is open to the Committee, either on its own volition or at the invitation of the Promoters, to amend the Bill as long as the amendments are restrictive rather than extending the powers. So the three obvious points for the Committee to consider, which I think Mr Lewis would very much like to have the opportunity to come back on overnight, are first of all whether or not it would be appropriate in Canterbury and Nottingham for the Bills to be amended so they are in the same form as Leeds and Reading. In other words, there remains the restriction on pedlars but so long as pedlars are peddling just by carrying their goods, would that be justified under the terms of article 9. The Committee will hear further evidence about the very specific problems caused, as was clear from the Canterbury photograph, by trolleys. Big large trolleys blocking up the highway. So that is one potential amendment.
532. The second potential amendment is a geographical restriction under the Bill so the way the Bills work at the moment is that they apply to all consent streets and, as you have heard, in Canterbury consent streets are very wide. It would be perfectly possible to amend the Bill so that the areas were restricted to the areas where there is specific evidence of specific problems.
533. In my submission there is absolutely nothing that should lead a committee to conclude that, on the face of those restrictions, the Bills were not wholly justified in the interests of protecting the urban environment, which the Committee will remember is one of the public interests specifically referred to in recital 40 of the directive, quite apart from prevention of unfair competition and public safety. So that is one potential amendment the Committee could ask for.
534. The third one is in relation to clause 4, which is the provision of services. To put it absolutely frankly my clients will not go to the wall on maintaining the provision of services being within the definition of pedlars that are exempt. We think it would be useful, we think it is justified, but if the Committee do not think it is justified then that is an amendment we would certainly be prepared – I should say, having taken instructions overnight, because barristers should always say that – to consider.
535. So I do want to stress to the Committee that it is very important not to throw the baby out with the bath water. This is a situation where the Committee could reach the conclusion that, in terms of justification under article 9, everything we ask for in these Bills in clauses 4 and 5 is not justified, but with some appropriate amendments I think we would certainly say it is quite plain that the Bills would be justified and I do not hear the Department, BIS, saying that that would necessarily not be their view. But this is all a question of judgment. There is no legal black and white, what is called ‘no bright line’, here. I am afraid the Committee cannot get away from the fact that it is for you to judge whether the evidence in the light of the provisions that you are minded to consider appropriate, whether that evidences is justified under article 9.
536. LORD GLASMAN: Let me assure you, this is part of our evidence. We are not taking legal counsel; we are just getting evidence from them that inform our judgment.
537. MS LIEVEN: I completely understand that, my Lord. So I think those are the principle points I would wish to make at this point. Can I just stress that, clearly like Mr Campbell-Lloyd, we were not expecting to deal with these issues at this stage and I would need to take formal instructions overnight on what amendments to propose. In particular, in terms of geographic restrictions, Mr Lewis of Sharpe Pritchard will have to do some drafting overnight to see precisely how to term it. But it does seem to me, in my submission, one could come up with an amendment that might meet some of the concern with that.
538. CHAIRMAN: Have you finished?
539. MS LIEVEN: I have, my Lady, yes, I am sorry.
540. LORD BLAIR OF BOUGHTON: Again, I am not even quite sure I can ask counsel a question or whether I have to ask it through you. I will ask it through you. I hear what you say and I think from my point that makes a lot of sense but I will obviously wait for my colleagues to have views different or whatever. The oddity is about your first amendment, the bit about the bags, you can carry it with you, as it were, but you cannot have a trolley. It did seem to me that in the Canterbury example and what I have read, it is not about a trolley, it is about the size of the trolley and I think if we are looking at legislation which is meant to fit with equalities one would hate to say that you have to be able to carry it, because that is in terms of your physical ability to carry it.
541. If I can put it this way, if the low cost airlines can determine what size of bag you can take onto the plane and you can buy those with wheels on in all directions, I think the idea that you can carry it would not certainly meet my concern. If you said that there is a physical restriction about the size of the trolley that you used, or some of the pedlars I knew used to use bicycles with lots of onions on them. In a sense what we are looking for is something sensible. I certainly agree that a trolley the size of a small car does not fit within the case law that I have seen about pedlars. But the idea that somebody had something like a small rolling bag – so I just put to you that I am not sure if you are going down that line – sticking with the fact you have to carry it is necessarily right. If the issue is obstruction then I have seen bags big enough that people can carry that would be much more obstructive than a small trolley. So I just raise that one.
542. MS LIEVEN: If I can just perhaps make two points on that. One is we can certainly come up overnight with what I would describe as a ‘pick and mix’ version of amendments so the Committee can consider what amendments it feels would be appropriate, and size of bags could be part of that.
543. The second point – and I hope I am right on behalf of client to say this – is that a primary concern is the trading from the trolley. So a certain size bag carrying a number of goods would, in all probability, be acceptable to the Promoters but we would have to consider that clearly overnight. But it is useful for you to express these concerns because then we can try to come up with some amendments that might meet certainly BIS and the Committee’s concerns.
544. VISCOUNT ECCLES: Could I just ask a question about article 9(1)(b)? (1)(b) seems to me to be a fairly stern test. Am I right that five in the Reading Bill is legally an authorisation scheme, and does it not then have to be justified by an overriding reason relating to the public interest? I wonder whether we have heard an overriding reason, it is a pretty stern test.
545. MS LIEVEN: Two points about that. I think we are all agreed that it is an authorisation scheme. I think that is universal view. As far as an overriding reason, that is very much Eurospeak. In the field of European Communities law one quite often comes across overriding reasons of public importance. I will have a look overnight at case law on what that would cover or the approach to that, but I think what I would say from my wider knowledge of European law is that it may not be quite as high effect as it sounds to be when it comes out in the English like that. It does not mean that national security is jeopardised if you do not bring the provision into force. One can very much see that from the kind of things in recital 40 of the directive that meet the masses of public interest.
546. MR ECCLES: Does that take us into any consideration of what is happening in other member states? I think this review, the report, was made in December 2009, so there has been time for member states to consider where they were in relation to the directive.
547. MS LIEVEN: My Lord, I cannot answer that question in respect of the issues in these Bills but what I can say is that I am involved in a High Court challenge on a quite different issue under the Services Directive, and we have not found any European Court of Justice decisions yet about the directive. What I would suggest would not be particularly helpful is trying to work out what street trading law in Italy or Romania is. This morning when I was hearing the evidence I was remembering back to the Ponte Vecchio in Florence, where there a vast quantities of pedlars who are consistently chased away by the Italian police. Whether that complies with the Services Directive or not, I do not know, and I think it might be a bit of a false trail to try and find out. I suspect every member state does these things in slightly different ways but I am pretty certain, because we checked very carefully for my other case, that there is not any ECJ authority on the approach to this directive yet.
548. CHAIRMAN: Does any other Member wish to ask any further questions? I do not want to question you, that is fine. I will be asking you something in a moment but that is not to do with what you said. What I think is worrying me most about this is that it is presumed by the production of some EU rule that all cities in all countries of the EU are exactly the same, whereas we have heard a great deal about the specific difficulties in one of our smaller cities, Canterbury, this morning. If that is the case, it has to be a ‘one size fits all’. Then I think you are all in difficulty and I felt it was right to put that on record. Having said that, I think we are all extremely grateful for what has been said about the possibility of producing amendments, and I believe there would be more than one necessary over the course of this evening and tonight because, clearly, there is a lot to be done in order to complete that promise.
549. If you feel that you are able to do this, and if the Committee agree with me, I think we would very much like to have something that we could perhaps work with.
550. MS LIEVEN: Certainly, my Lady. Mr Lewis and myself will work on that overnight. We will need the time overnight because obviously we want to make sure we get it right. But, yes, we will produce for tomorrow morning some amendments, not necessarily being promoted by the Promoters but for the Committee to consider.
551. Could I just mention one other thing, which is Superintendent Francis, who is the lead police officer, is only available today? So I appreciate it falls somewhat out of order but I would be extremely grateful for the opportunity for him to give short evidence today because otherwise the Committee will not be able to hear his evidence.
552. CHAIRMAN: Yes, of course. I am sure there will be no dissension on that.
553. MS LIEVEN: I am very grateful.
554. CHAIRMAN: We have reached a very interesting point, and we can see our way ahead even though rather foggily and not perhaps for very far, but we have now something to work on. I think that we must ask you to do that with despatch.
555. MS LIEVEN: Certainly.
556. CHAIRMAN: Whether it is necessary, and I would understand for you to leave the Committee at this stage and set to work, which I rather suspect may be the case.
557. MS LIEVEN: No, my lady, from the promoted point of view what we would like to do now is to be able to call Superintendent Francis and at least get his evidence before the Committee, and then it is a matter for the Committee whether you wish to adjourn then or go on to Ms Follin’s evidence.
558. CHAIRMAN: In that case, what you are asking us, I think, is we go on to the next point of the agenda, which would be a Leeds Bill?
559. MS LIEVEN: Yes, that is right, my Lady.
560. CHAIRMAN: Can we because we must press on as far as we can, and would you like to call then your second witness who I believe is Cath Follin, Head of City Centre and Markets, Leeds.
561. MS LIEVEN: My Lady, what I would rather do, because Ms Follin can come tomorrow but Superintendent Francis cannot. It is going to be a little odd because the Committee is not going to have the benefit of knowing anything about Leeds because Ms Follin would have given the evidence first, but the danger is that Ms Follin’s evidence will go on longer this afternoon, and then we will not be able to call Superintendent Francis, so if I can call him directly.
562. CHAIRMAN: Then please do.
SUPERINTENDENT INSPECTOR VERNON FRANCIS, called
Examined by MS LIEVEN
563. MS LIEVEN: Can you just explain to the Committee, Superintendent, what your position is and your knowledge of Leeds City Centre?
(Superintendent Inspector Francis) My knowledge of Leeds City Centre is vast over the last sort of 29 years. I have spent stints in every rank here up to superintendent, going to other places but always coming back to the division that covers Leeds City Centre. I cover an area in the south of Leeds, which houses about 180,000 people. In that area there is the Leeds United football ground, which is a Championship football club, which does cause us some difficulty. We also have the City Centre of Leeds, which because of its economic profile is quite significant, so I control the policing resources and the policing style for Leeds City Centre and the south of Leeds.
564. You are obviously aware that Leeds City Council, together with other councils, are promoting Private Bills to deal with pedlars and street traders, is that right?
(Superintendent Inspector Francis) Yes, I am aware of that and in my capacity as the policing commander for Leeds City Centre I would support it.
565. Your evidence was planned to come after Ms Follin but I am going to use some of Ms Follin’s exhibits for these purposes. If the Committee take up the black exhibits bundle and go to tab 6 you will find a series of plans of Leeds City Centre and just orientate ourselves, for those who are not familiar with Leeds. It is the area in the middle of the plan between the hedgerow to the north, Albion Street to the west and Vicar Lane to the east, which is the core of Leeds retail area, is that right?
(Superintendent Inspector Francis) That is correct, yes.
566. Can you just tell the Committee what parts of Leeds do pedlars and unlawful street traders most impact upon?
(Superintendent Inspector Francis) Well, they can impact on any street but the major streets are Commercial Street and Briggate, which are the busiest streets in the city centre.
567. Briggate runs north south, absolutely down the middle of the plan, is that right?
(Superintendent Inspector Francis) That is correct.
568. In terms of your experience, how busy do those streets get and are there particular times of year where there is a particular problem with street trading?
(Superintendent Inspector Francis) There are particular times of year, but also on weekends in particular they get extremely busy. In the current climate we do get a number of protests. Because of Leeds being Leeds people want to protest, make their point and Leeds is the place they will come to if it is within West Yorkshire. So we have all sorts of things going on, in particular on weekends, but when we are coming up to things like Christmas and New Year then they get even busier, as you might expect.
569. You may want to refer to Ms Follin’s photographs or you might just want to speak to it, but what are the kinds of problems that arise in respect of peddling and unlawful street trading?
(Superintendent Inspector Francis) The difficulties we have with peddling, in particular, is it is not regulated, so we have no idea who is going to turn up and when. That is the difficulty and at peak times, which obviously are the times that they want to sell their goods we can end up with large amounts of pedlars with trolleys, big trolleys. I know small cars have been referred to and that is the case. We have a number of, in effect, small cars parked up anywhere they can get some space in the precinct areas of Leeds City Centre.
570. It might be useful just to flick up the photographs if you would, Superintendent. After the plans there is a page that says Leeds City Council photographic evidence and if one just flicks through there you see photos of trolleys.
(Superintendent Inspector Francis) Yes, these are the types of trolleys that you will see, and obviously this morning we saw the Canterbury trolleys, and I think you would agree that these put those to shame. Really they are only limited to the trolley pusher’s imagination and strength and physical ability.
571. One I think we have to refer to, if you go on to exhibit 5, that photograph of Briggate, it says, and about five into that there is a photograph of two Christmas trading trolleys from pedlars who happened to meet in Briggate one day. It is Briggate December 2009, do you have that one?
(Superintendent Inspector Francis)Yes, I think I can see three on that picture actually.
572. In terms of the size and the nature of the trolleys and the kinds of blockages they are causing on these streets, is that the kind of situation that you have come across from your own experience?
(Superintendent Inspector Francis) Yes, this is the kind of thing that I am used to seeing in Leeds City Centre. What this causes, because these streets are certainly not designed to just plonk a small car anywhere. Yes, there are other obstructions. We talked about telephone kiosks and things like that, but those are well thought out and people who are, in effect, experts would say where things are going to be placed and they work out on footfall and flow and decide where to put obstructions, legal obstructions that is. But when you have this sort of situation it funnels people. It slows them down and if you can imagine, when you are doing your Christmas shopping you are coming out of a shop while people are funnelling straight past the edge of the perimeter of the shop, it causes difficulty and potentially causes danger as well.
573. LORD GLASMAN: Are these pedlars’ stuff or is this just illegal trading? I mean is this definitely pedlars ––––
574. MS LIEVEN: That is the problem with not having Ms Follin first. I will give the evidence and then Ms Follin can confirm I am right. In terms of Leeds City Centre all the street licences, so all the lawful traders are food purveyors and that is because there have not been any bids for the selling of goods, and Ms Follin will explain why she thinks that is. So these are people who are trading under pedlars’ certificates who may or may not be lawful pedlars because that depends on whether they are moving. But they are not licensed street traders.
575. LORD GLASMAN: But are they licensed pedlars?
(Superintendent Inspector Francis) Probably.
576. MS LIEVEN: They are probably pedlars trading under pedlars’ certificates.
577. LORD GLASMAN: I have a far greater point here but this just smells to me of straightforward illegal street peddling.
(Superintendent Inspector Francis) Call it what you will, my Lord.
578. MS LIEVEN: I think it is difficult to grasp but important to understand. If these people are moving every 15 minutes and they have a pedlars’ certificate then they are lawful under the existing law. Even if their trolley is massive and it is blocking the entire street, as long as they move every 15 minutes, whatever moving means, then they are acting as lawful pedlars under the law as it stands.
(Superintendent Inspector Francis) That is quite correct.
579. What they are not, are licensed street traders. Superintendent, you talked about funnelling people, in terms of policing what kinds of problems does this form of trading cause you in Leeds City Centre?
(Superintendent Inspector Francis) It causes a problem of: (1), officers trying to get from A to B swiftly, which they have to do on a number of occasions throughout a busy city centre. So it causes a problem with the people funnelling, they cannot get through the crowds. It also causes a problem with crime in terms of pick–pocketing, that sort of thing, where they mingle with the crowds in close proximity, so they are able to do their work a lot easier as well.
580. Thank you. The photos focus on daytime issues in the city centre. Are there any issues about night–time trading?
(Superintendent Inspector Francis) Yes. Obviously the legislation does not cover the sale of food and the majority of establishments and stalls are to do with food on a night–time. However, we are getting more and more events and things like that on an evening into the hours of darkness. What we are seeing now are pedlars selling their wares at events, which would have many events in the darkness hours, we have many events of that nature and we get pedlars who turn up and block streets, and that sort of thing.
581. LORD STRASBURGER: Are these bona fide pedlars?
(Superintendent Inspector Francis) Some of them have pedlar certificates.
582. CHAIRMAN: You mean to tell me that some of them do not have any certificates of any kind?
(Superintendent Inspector Francis) Some do not have certificates, no. Some do trade without certificates.
583. And are they asked to stop?
(Superintendent Inspector Francis) They are moved on by the liaison officers.
584. They are moved on?
(Superintendent Inspector Francis) If they will move. If they do not move then that is when my staff become involved. What I would rather is my staff do not become involved because the enforcement officers have the powers in which to move them in any case.
585. Are the ones operating at night things like burger stands where people are eating the food by the stall or what?
(Superintendent Inspector Francis) The ones operating at night are what we see in here. They are turning up at night now because it is a lucrative market at night as well. So we sort of have a round robin now where they are turning up day and night and they are starting to cause a problem. We do have the Leeds Arena on its way and it is currently being built, and that is to compete with things like the Manchester Arena and certain arenas in Sheffield.
586. MS LIEVEN: That is a music venue, which is slightly to the south of the area of the plan, is that right?
(Superintendent Inspector Francis) That is correct. Well, I have seen ––––
587. North, sorry.
(Superintendent Inspector Francis) North, yes. I have certainly seen firsthand what non–regulation of pedlars selling their wares can cause in, say, Manchester because I do attend the Arena at Manchester and I have seen how there can be up to 40 just scattered anywhere in fire exits, that sort of thing, so I think it is also an attempt to future proof that for Leeds as well because that does cause significant issues and obviously causes the police and the British Transport Police, who are right next door, great issues.
588. Just to be entirely clear, the Leeds Arena has not actually opened yet but following from what you have seen used to be problems in Manchester before the Manchester Bill around the Manchester Arena you are saying you can see similar things happening here, is that right?
(Superintendent Inspector Francis) I can see that coming down the track, yes.
589. VISCOUNT ECCLES: Perhaps I should just start by saying I am a frequent visitor to just outside the area that you have hatched, because I come to the opera and the theatre, but I do not frequent Briggate itself but I do know where it is. What would you say about the creation of pedestrian areas? It seems to me that it is almost inevitable that if you create a pedestrian area one of the purposes is to attract more trade, and certainly that will be attractive to street traders and to pedlars. How is the problem of congestion connected to the creation of pedestrian areas or is there no real connection?
(Superintendent Inspector Francis) The idea of making it a pedestrian area obviously competes with certain cities in Europe because most of their areas are precinct areas. If they are regulated, and I think certainly the Leeds’ stance, in my view, is reasonable because they are not suggesting that pedlars should not trade their wares in Leeds. I like the sound of that because they should be allowed to. It is the size of the things that they are bringing along with them and it is those that are causing the problems. There are regulated pitches where people are allowed legally to sell and they have been carefully considered by the Fire Service, the Highways, street liaison have come together. I have been part of the group that have gone round and decided on foot flow and what is safe so that everybody can go about their business but when you plonk something else, a small car, or a number of small cars, just anywhere, that then causes the problem and that is where the flow slows down.
590. MS LIEVEN: Just to remind the Committee again, Leeds has accepted the amendment, so the traders who just carry their goods can trade in Leeds, so it is very much the trolleys that are the issue in the Leeds Bill.
591. Just taking you on, Superintendent, do you want to just explain how the police and the council work together in respect of street trading in Leeds and how far that can go?
(Superintendent Inspector Francis) The police and the council and other partners work very closely in relation to trading and the workings of Leeds City Centre. We have a very close working relationship. However, pedlars are not a priority for the police as you might expect, so I have a finite number of resources, which try to keep people safe within Leeds City Centre, so you can see how peddling does not come high on this scale in terms of policing. We have other things to be getting on with. The difficulty we have is, yes, we do work closely with the Council. Yes, we will try to attend if there is an issue with a pedlar who for whatever reason will not give their name and address or they will not move on or they are causing such an obstruction that we do have to move them out for safety. We cannot always get there, that is the problem. That is becoming fewer and further between. I talked about the Leeds United football ground. For those of you that do know it, it is a problematic team. Most of their games this season are of the highest category. Each football match is graded as to what resources we put into them.
592. Can I just stop you there? That does not mean the highest category in footballing terms. It means the highest category in policing terms, is that right?
(Superintendent Inspector Francis) It is definitely not the highest category in footballing terms; definitely not now. So the highest category in policing terms, so that is what dictates the number of resources that I will apply to each game. Every other week we have a football match and sometimes two in a week. Plus we have other events. We talked about the profile of Leeds City Centre and why people want to come and protest there. So on a weekend, a few weekends ago we had an English defence league operation running, we had a category C football match, which is the high category of football match, and then we had some students who decided they wanted to have a run around the city and running to Vodafone shops and Boots and the like. So, the police resources are moving to that sort of thing, so you can see how we do not generally get the time to assist our partners with pedlars.
593. In terms of the local authority enforcement, what is your view on the degree to which the ability of the local authority to enforce at the moment acts as a deterrent to the kind of street trading problems you have been describing?
(Superintendent Inspector Francis) I have viewed the schedule of people who have been summoned to court and it is clear that the local authority have been quite busy. But in terms of a deterrent, looking at the names on the list, I see the same names time and time again, which tells me that the deterrent is not as severe – it sort of does not frighten them away, basically, because it would appear that the benefits gained from staying, once you have been told to go away, certainly outweigh what the fine is going to be at the end of the day.
594. LORD BLAIR OF BOUGHTON: No, Chair, I do not have anything to say except perhaps to say what a great pleasure it is appearing on the Lords Committee when the police are giving evidence and I am on this side of the table.
(Superintendent Inspector Francis) You can imagine, sir, whenever you were here it is not very appealing to me, I might say.
595. MS LIEVEN: Just finally, Superintendent, if the police see a trader in the city centre and you have concerns about where they are located, where they stop their trolley and the implications for public safety, what do you do about it? What do the police do?
(Superintendent Inspector Francis) If it is causing an unnecessary obstruction – I think that is the term we need to look for here – then a constable can move the person on and, indeed, can arrest if they do not move on. What we would first of all try to do is get the local enforcement officers to try and do that for us, because it would generally be picked up by CCTV and the like, and we try to get them to deal with it. It is only when they cannot or the person will not do we get involved.
596. Thank you, those are all my questions.
597. CHAIRMAN: Thank you, that is extremely helpful. I think we need – you have one question, I beg your pardon.
Examined by THE COMMITTEE
598. LORD STRASBURGER: What powers do you have to deal with these traders? I do not know if they are pedlars or illegal traders, or whatever. What powers do you have to prevent them causing an obstruction?
(Superintendent Inspector Francis) There is legislation, which says if you cause an unnecessary obstruction then the police can approach and move you along. So they can use those powers. There are a number of different powers at play, that is, whether we think it is counterfeit because Trading Standards may get involved. The street liaison officers may get involved. There are a number of bits of legislation but pretty much all of them require the police to be part of it in order to give it any gravitas at all.
599. So the attraction of this Bill to you is to move that responsibility from you with your scarce resources to the local authority, presumably they have resources.
(Superintendent Inspector Francis) It would sit better there.
600. From your point of view, yes. Thank you.
601. LORD GLASMAN: Obviously, I would think that Leeds getting promoted would probably lead to safer ––––
(Superintendent Inspector Francis) Potentially.
602. Yes, that would be an interesting thing.
(Superintendent Inspector Francis) It depends who comes up with them. That is the problem.
603. Just a straight job from you as a policeman, two things. First of all, within the existing law could there be far greater clearing up the streets if you enforced vigorously and, secondly, how serious is this, in your view?
(Superintendent Inspector Francis) With the existing law if, let us say, we did not have all the other priorities we had and we put all our efforts into this we could clear the streets no problem at all. The second question, in my view, it is how dangerous is what is happening sometimes. Sometimes we have had up to 30 of these small cars parked up in the streets of Leeds City Centre. It is a matter of regulation for me. Most of the things that we know and love are regulated. Hackney carriages for one, we would not just allow Hackney carriages to tip up in Leeds and have as many as you like. There are a certain number and that is because it is safer to have a certain number. If you just allowed them to pull in and park where they wanted that would cause a problem. So regulation is the absolute key here in terms of monitoring numbers.
604. Is it a matter of illegality that is going on or an inappropriate law?
(Superintendent Inspector Francis) A bit of both.
605. CHAIRMAN: My Lords, have you finished your own questions on this? Please, we can now invite Mr Campbell–Lloyd but it has to be, may I remind you, that only points covering the Leeds Bill will be permitted because no mention has been made of the Reading Bill. Thank you, Superintendent. If you would answer these questions.
Cross-examined by MR CAMPBELL-LLOYD
606. MR CAMPBELL–LLOYD: Thank you, Superintendent Francis. Do you have statistics about how many pedlars are door–to–door traders in Leeds?
(Superintendent Inspector Francis) On the latest statistics that I have seen, there were in this last year 31 certificates issued.
607. So they are not actually trading at doors? Is it 31 street traders acting as pedlars? The question was a slightly different one. How many door–to–door traders are there in Leeds?
(Superintendent Inspector Francis) We are talking one and the same thing, are we not?
608. No, we are talking specifically this legislation is aiming to exclusively restrict pedlars to be only door–to–door sellers.
(Superintendent Inspector Francis) I do not know how to answer your question, I am sorry.
609. You have answered one question, which is that there were 31 possibly illegal traders operating in Leeds. What I am finding difficult is whether there are any statistics about what you might regard to be a genuine pedlar who does not come out and operate on the street but goes door–to–door. Do you have any information about door–to–door trading activity?
(Superintendent Inspector Francis) I do not recall suggesting that we had 31 illegal pedlars operating in Leeds.
610. But there are traders in the street numbering 31 that are confirmed.
(Superintendent Inspector Francis) These may not be one and the same people as the certificates that have been issued in Leeds.
611. The point is that we do not have any statistics about how many people trade at the doors of houses in Leeds. That was what I was aiming at. Is that right?
(Superintendent Inspector Francis) I would agree with you, yes.
612. Do you know what the footfall is per annum on Leeds through the central streets?
(Superintendent Inspector Francis) I do not know about the centre. I believe in the latest statistics the footfall for Leeds in a week is approximately 1.1 million people in the city centre.
613. 1.5 million?
(Superintendent Inspector Francis) 1.1 million.
614. So the streets can get quite busy in terms of people. What is the busiest time of the year, perhaps one or two events that bring the most people to town?
(Superintendent Inspector Francis) It is always the Christmas period and we get high footfalls at weekends, in particular on a Saturday.
615. That is not a particular event. I think events bring more people perhaps than weekends.
(Superintendent Inspector Francis) Yes, we have the Christmas light switch–on. We have a number of events now taking place most weeks in Leeds, which attract a high footfall.
616. Any ideas on the numbers of people that come to those events; say the Christmas turn on?
(Superintendent Inspector Francis) It is difficult. We can have 15,000 to 20,000 people turning up for a light switch–on and more.
617. But it is a management problem that falls on the shoulders of you as a police officer?
(Superintendent Inspector Francis) Indeed, yes.
618. So it is a management situation.
(Superintendent Inspector Francis) Yes.
619. I think I heard you correctly, you said that pedlars are not regulated.
(Superintendent Inspector Francis) That is what I said, indeed, yes.
620. But you are aware that a Pedlars Act exists, it does have several sections that are to do with specifically regulation of how pedlars should act.
(Superintendent Inspector Francis) I specifically meant they are not regulated into where they can go and sell.
621. That is not the terms of the Pedlars Act. The terms of the Pedlars Act is that it gives a pedlar the right to go anywhere so basically there is no restriction on how he can operate.
(Superintendent Inspector Francis) Therein lies the problem.
622. But therein also lies the law. What these pedlars are doing is simply fulfilling what is lawful. So we then move on to the next situation, so these people could all be quite lawful that we are seeing through this set of photographs, but the problem arises for you particularly, and it seems to be consistent throughout, that size, scale and proportion of these particular apparatus is the biggest problem.
(Superintendent Inspector Francis) That is the biggest problem, yes.
623. Okay. I think you said that you have either had experience of or know about other boroughs where legislation has come in. For example, did I hear you mention Manchester; you know something about Manchester?
(Superintendent Inspector Francis) Well, what I said was I do attend events at Manchester Arena because there is not one in Leeds as yet. I have seen at firsthand what issues can be caused when you get a large number of sellers turning up at the venue or at the entrance when people are going in or at the exit when people are coming out.
624. In fact, you could also say that it is not specific to traders. You could also say that that would be very specific to the numbers of pedestrians?
(Superintendent Inspector Francis) I am sorry. I do not understand the question.
625. There seems to be an accusation in the room that pedlars are causing problems, but what I would put to you is that at the entrance to any particular event it is pedestrians themselves that could be the largest obstruction, regardless of whether there are any pedlars there or not with their cumbersome equipment. Is that a management problem for the police?
(Superintendent Inspector Francis) Obviously, pedestrians by their very nature being in the street are an obstruction in themselves, but then you plonk a small car in the way of them, then you cause even more problems, do you not?
627. LORD GLASMAN: In terms of the law, just to clarify this for our benefit as much as anybody, it is not the case according to the 1871 law which says that it is a hawker, pedlar, whatever, "who travels and trades on foot and goes from town to town or to other men’s houses, carrying to sell or exposing for sale any goods". It is about being able to move and that being human skill. Now, what we have been looking at in these photos are very big ––––
628. MR CAMPBELL–LLOYD: Indeed, I am coming to that point.
629. LORD GLASMAN: I am just saying it is not quite right to say that that is the law. It would be reasonable to assume that Superintendent Inspector Francis is raising a legitimate point about obstruction that would not apply to the 1871 pedlars. I am just trying to get that in.
630. MR CAMPBELL–LLOYD: Thank you. Obstruction does come up from just a pedestrian point of view.
631. LORD GLASMAN: Obstruction comes up, as we know, obstruction comes from all sources.
632. MR CAMPBELL–LLOYD: Manchester introduced a Bill – as we all know – a Manchester City Council Bill and I guess the question is did that resolve the problem in Manchester?
(Superintendent Inspector Francis) Are you asking me if that resolved it?
(Superintendent Inspector Francis) Well, I am not a police officer in Manchester so I do not know.
634. So you are not aware of whether or not that was a successfully introduced Bill that dealt with the problems in one blow and everybody is happy?
(Superintendent Inspector Francis) I have not discussed it with them.
635. Okay. One thing that I can inform you is that they introduced a scale and proportion clause into the Manchester Bill, same as Bournemouth, where they limited the scale of that which could be regarded to be a pedlar. I think all these photographs are considerably larger in scale and proportion to what was resolved to be one cubic metre by volume. I cannot really say that I can see anything here that sets any sort of limitation put on scale and proportion. If we go over to I think it is page 11 – the Briggate aerial shot – you can see a very wide street. It seems to have plenty of space, plenty of people. It probably could absorb the 1.5 million people quite happily. If a couple of pedlars come into town, it seems to me that there is plenty of space in all of that space there for them to operate. Sorry, this is an image that says "Briggate aerial shot". On my numbering it is page 11 from that particular bundle. Could you identify in that shot where there is any sort of problem that might be of interest to the police?
(Superintendent Inspector Francis) I am not seeing a problem there.
636. Good. If 1.5 million people decide to walk down this street, and sometimes it is busier than others, it is big enough to cope with it?
(Superintendent Inspector Francis) In that context, yes, but if you turn the page it is the same street ––––
637. I am actually not turning the page. If you want me to I will.
(Superintendent Inspector Francis) I would love you to, yes, because that is the same street in more or less the same position with the trolleys there. Now, what does 1.1 million do to that?
638. So the consideration before the Committee is whether or not the scale and proportion in that photograph is more than it should be. What they found in the Select Committee on Bournemouth and Manchester was that it needs to be scaled down. That brings it down to a proportion that is probably light pedestrians with prams and any other equipment that pedestrians use in a street, because we know by case law that a pedlar may actually use small means of carrying his goods. Now, if all those obstacles that you say are here in this picture 12 were reduced in scale to be something more like a pedestrian with a trolley, a buggy or some other piece of equipment, would that satisfy the concerns that you currently have?
(Superintendent Inspector Francis) It would satisfy the concerns, and I think that is what police are asking for, are they not?
639. No, they are not. It is not in the Bill, but it is a proposal and we would be quite happy to bring that forward with the text for an amendment.
640. I will move on then to I think you mentioned the funnelling problems and the possibility of pedlars causing problems when it comes to funnelling. You threw in there words like "pickpockets", and I wondered why that actually was thrown in because it seems like a bit of a red herring when we are actually trying to talk about pedlars who may or may not be lawful. Why did you mention pickpockets?
(Superintendent Inspector Francis) Because I cannot quite remember the question, but it was what kinds of issues can be caused by pedlars being static in one area? That is causing an obstruction in any case. Causing people to funnel, what kind of other issues can that cause. I also referred to police officers not being able to get from A to B quickly and pickpocket was part of that.
641. So if the street had no pedlars, it was extremely busy on a carnival day, you would still have the same strategic problems to deal with to get to a pickpocket?
(Superintendent Inspector Francis) I am sorry, can you repeat the question?
642. If there were no pedlars on the street, it is a very busy event, wall to wall, shoulder to shoulder, the pickpockets are still operating and you still have the same problem getting to deal with the issues that arise out of that?
(Superintendent Inspector Francis) Indeed.
643. Okay. There is surely no regulation on how many people are allowed to come into Leeds?
(Superintendent Inspector Francis) Not that I am aware of, no.
644. Good. It is a popular location, I am sure, so it will draw as many as Leeds Council and the shops there can possibly promote. I think you referred to statistics in Leeds. You said that you ran through some of the statistics and I think you said some of the same people turn up. I do not have a copy of those statistics. Is that in the bundle?
(Superintendent Inspector Francis) It is not in the bundle but I have certainly seen whilst reading lists of who has been prosecuted.
645. Okay. You did refer to it and I thought it was in the bundle. So, primarily you are trying to shift responsibility, I think as the Committee identified, from the police on to the councils in all matters of street trading? You would rather not deal with it as police officers?
(Superintendent Inspector Francis) Well, it is more difficult for us to deal with.
646. In precisely what way?
(Superintendent Inspector Francis) As I alluded to when I answered the question, it is extremely difficult given all the other priorities we have to deal with as a police service to deal with pedlars as well when our partners – and we work in a partnership approach and very closely – could deal with it themselves given the correct powers.
647. But you could deal with it?
(Superintendent Inspector Francis) We could deal with it, yes.
648. The issue of obstruction keeps coming up and you are aware of the Highways Act, presumably, as a police officer, that deals with the issue of obstruction?
(Superintendent Inspector Francis) Yes.
649. You are aware that an obstruction can be moved unless there is lawful authority for that obstruction to remain there?
(Superintendent Inspector Francis) Yes.
650. So there are adequate laws to move an obstruction?
(Superintendent Inspector Francis) Yes, and I think I said there were adequate laws. There are a number of adequate laws to deal with all of this, but invariably it requires the police to be part of it. Given that I have said we do not have the resources to come to this sort of thing all the time, it makes us a bit impotent, really.
651. Sure. Are you aware that the Pedlars Act is an Act of civil law with no criminal penalty?
(Superintendent Inspector Francis) I am aware of that, yes.
652. You are aware that the Local Government (Miscellaneous Provisions) Act provides criminal law where you can obtain for an offence a criminal record?
(Superintendent Inspector Francis) Yes.
653. Do you think it is fair that somebody with a civil right should be criminalised?
(Superintendent Inspector Francis) I do not think that is for me to answer, really.
654. Okay. It was a moral question.
(Superintendent Inspector Francis) I know.
655. I thought perhaps morally you might agree that it is not quite right. You are not aware of how the Services Directive impacts on that particular issue?
(Superintendent Inspector Francis) No.
656. I will just read, if I may, just to inform you, Article 1 of the Services Directive, "This directive does not affect member states’ rules of criminal law. However, member states may not restrict the freedom to provide services by applying criminal law provisions which specifically regulate or affect access to or exercise of a service activity in circumvention of the rules laid down in this directive". Service, and we have now covered this from BIS in 2006, is any self–employed economic activity. That comes out of Article 4.1 of the Services Directive. I just put these to you because there are very overlapping and complex issues that come out of the police standing down on their responsibilities and endeavouring to hand them over to local authorities. This concerns the pedlars and I just wondered whether you were aware of how that impacts on lawful people acting in the street.
(Superintendent Inspector Francis) It is not necessarily a matter of the police standing down. That may well be, but it is also to give other people the power to deal with this issue.
657. You are aware of the Pedlars Act in which it says a pedlar may go from town to town or to other men’s houses?
(Superintendent Inspector Francis) Yes.
658. Yes, you are. So in that expression "town to town or to other men’s houses" does that mean that a pedlar has to go to houses when he comes to a town?
(Superintendent Inspector Francis) Well, I think it is a subjective question, is it not?
659. It is a judgment that a police officer may have to make.
(Superintendent Inspector Francis) Well, and I have to make the judgment obviously because I sign the certificates and that has been delegated by the Chief Constable to me. So I do interview pedlars. I do speak with them and ask them what it is they wish to do; why do they want a pedlar’s certificate. Once they have explained it, I decide whether or not I will sign a certificate for them or not.
660. So there is no provision in law that means that you have to know what the goods are that a pedlar wants to provide? There is no provision within the Pedlars Act that would lead you to ask that question?
(Superintendent Inspector Francis) No.
661. That is a judgment of your own on the day?
(Superintendent Inspector Francis) Yes.
662. If they said that they want to sell something that you did not concur with, would you still be obliged to issue a pedlar’s certificate?
(Superintendent Inspector Francis) Yes.
663. CHAIRMAN: Excuse me; I must just interrupt here because I do not think this is relevant, really, in the question of asking the superintendent about police rules with a provision of the pedlar’s licence. What really we were hoping to hear from you were reasons why there was a serious problem as far as your clients are concerned with the Bill, not with the police’s right and their specific powers to grant a licence or not. Could you try and contain yourself to what really would be perhaps more relevant to what we need to hear from you?
664. MR CAMPBELL–LLOYD: Yes, I will. Running through these photographs once again, you have agreed that if we scaled it down or if Leeds Borough Council scaled down the size, scale and proportion of these people, then it would resolve probably most of the problems?
(Superintendent Inspector Francis) It would resolve some of them, yes.
665. Yes. There is no suggestion whether any of these people have certificates or licences or are just rogues?
(Superintendent Inspector Francis) No.
666. Do you know whether the police or the councils have been enforcing street trading regulations over the last couple of years with a will to drive unlawful rogues out of town?
(Superintendent Inspector Francis) Well, I do not know about forcing rogues out of town, but there have certainly been joint expeditions between the police, Trading Standards and the council. I could think of at least three in this current year.
667. So three in the current year, but there is also the possibility that it is just too much work and that we are better off just letting it be until this new legislation is introduced?
(Superintendent Inspector Francis) That is not the case at all. As I said, most of any initiative like this involves the police. To get those three bodies together in any numbers is a difficult task, so it takes the time.
668. I have a photograph here that does not appear in my bundle, but it is a dance event on Briggate. Is that in your bundle?
(Superintendent Inspector Francis) I do not know where you are looking, I am sorry.
669. I do not have it in my bundle but there is an event for Coca–Cola going on in town, a dance event on Briggate.
(Superintendent Inspector Francis) Yes, I have it now, yes.
670. That is not a small event. It actually blocks the whole street. Is that an obstruction?
(Superintendent Inspector Francis) Yes.
671. What did you do about it or what could be done about it?
(Superintendent Inspector Francis) Well, it is whether or not we feel it is an unnecessary obstruction, and clearly for something like this to be happening it will have been regulated. They would have had to get permission from the council and then we decide where to funnel other people.
672. How could you funnel them around such an obstacle? Did they have to take a back street?
(Superintendent Inspector Francis) No, from what I can see there, there is still space down the sides and that is in a position where there are not that many shops, doorways that is.
673. So some obstacles are okay, but other obstacles are judged to be not?
(Superintendent Inspector Francis) Well thought through and risk–assessed obstructions are fine.
674. Is it fair to say that pedlars have a lot of common sense about obstruction, that they actually move when they are asked to or if they see a problem? Have you ever witnessed a pedlar quite happily moving when he has been asked to move?
(Superintendent Inspector Francis) Yes.
675. It seems like a big sponsor like Coca–Cola coming to town has privileges that pedlars perhaps do not have?
(Superintendent Inspector Francis) That is not something I wish to get into.
676. Okay. There seem to be some other cultural events in the street. All do much the same thing. I have no further questions, so I thank you very much for your help.
677. CHAIRMAN: Thank you, Mr Campbell–Lloyd. I am afraid Mr Casey cannot really examine this witness because of the question about how the Canterbury document has actually been reverted, but then he will know that already, I am quite sure. Ms Lieven, you have the right to ----
678. MS LIEVEN: I do not have any re–examination, my Lady.
679. CHAIRMAN: Have any members of the Committee any questions which they wish to ask the superintendent before a welcome stand down can be allowed? No. Then we thank you very much, superintendent, for your evidence and you may stand down.
(Superintendent Inspector Francis) Thank you, my Lady.
The witness withdrew
680. CHAIRMAN: We must press on. We omitted a point which was enabled to change because of the superintendent’s problem, so are we now at ––––
681. MS LIEVEN: We are now at Ms Follin, my Lady. I do not know whether you are happy for me to call Ms Follin now?
682. CHAIRMAN: Yes, please.
683. MS LIEVEN: Certainly.
684. CHAIRMAN: She is Head of City Centre and Markets for Leeds?
685. MS LIEVEN: Yes. That is right, my Lady.
686. CHAIRMAN: Can I just say, while she is taking her place, we are not happy about the position of the witnesses and the questioners and we recognise that you certainly have some difficulty hearing. The problem is that we do not have the microphones all the way round, but we are going to try and do something about it tonight and make it better for tomorrow. But we do apologise and recognise that it is not ideal.
MS CATH FOLLIN, called
Examined by MS LIEVEN
687. MS LIEVEN: Ms Follin, your name is Cath Follin, is that right?
(Ms Follin) Yes.
688. You are employed by Leeds City Council as the Head of the City Centre and Markets, is that right?
(Ms Follin) That is correct, yes.
689. I think you have worked for the council since 1990?
(Ms Follin) That is right, yes.
690. Do you want to just explain what that responsibility means?
(Ms Follin) Yes. I am responsible for the operation of the whole of the council’s market service both in the city centre – we have a very large market, one of the largest in Europe – and out in district centres as well. I am responsible for all the street trading. In addition, I am also responsible for city centre management, so it is the management to ensure that basically the city centre is as attractive as it possibly can be in every possible sense of the word to visitors, shoppers, investors, businesses, residents as well.
691. Thank you. Can you just give the Committee a very brief overview of Leeds as a city centre, particularly perhaps the differences from Canterbury?
(Ms Follin) Yes. Leeds is the second largest metropolitan district in the country. It has very good access because the intersection of both the M1 and the M62 make it very accessible. It is the regional capital so we get a very wide catchment area of people coming into it from really quite a wide area over the north of England. It currently has nearly 1,000 retail units. There are two new shopping developments that are going to take place, one is being built and the other is at the development stage. That will add significantly to the number of retail units in the city centre.
692. Thank you. In terms of footfall how would you judge it?
(Ms Follin) Yes, in terms of footfall we have quite significant levels of footfall at any one time. In certain streets we would have – maybe on Briggate we would have about 20,000 to 25,000 people on a Saturday; about 20,000 people on a Sunday. That will increase obviously significantly around Christmastime. But on other days in other streets there would be round 15,000 to 20,000 people on a street at any one point in time.
693. I had to give evidence earlier because of this point. Can you now explain properly how is street trading currently regulated in Leeds?
(Ms Follin) Yes. Street trading is controlled by the city council using the powers contained within the Local Government Act 1982. With the exception of just one street in the city centre, which is owned by British Rail, all streets in the city centre are consent streets. More recently, actually in 2007, we made all the streets in the whole of the Leeds Metropolitan District consent streets. We have allocated up to 16 sites for street trading within the city centre. We currently have 10 sites which are actually occupied by street traders.
694. I think those are shown in your exhibit 2, is that right?
(Ms Follin) They are indeed, yes.
695. They are the green dots on exhibit 2.
(Ms Follin) Yes, in section 6.
696. What do those licensed street traders in broad terms sell and what is your understanding, how is the decision made as to what they sell?
(Ms Follin) Basically, potential street traders can apply to the council to sell any goods that they like for a period of three months to six to 12 months. Most apply for a period of 12 months. We just judge it on the price that they offer, that they tender, and the quality of the goods and the offer that they provide. At the moment, all of them sell food. We have had some traders in the past who sold other goods such as flowers and unfortunately found that it is only food that is viable because some of the traders found that in selling other goods they were simply undercut by the pedlars so it was not really worth their while actually operating within the city centre and paying for a street trading pitch.
697. Just tell us in broad terms what you perceive to be the main problem caused by pedlars/unlawful traders in Leeds?
(Ms Follin) I think the main problems are the congestion, which has already been touched on. In addition, they cause problems I think in undermining some of our more independent traders. We are very proud in Leeds that we have about a third of our retailers in the city centre are independent traders. On top of that, at Kirkgate Market there will be nearly 200 traders operating on our outdoor market every day. They can just get a stall for one day for between £13 to £20 and in addition there are over 400 stalls in the indoor market with about 250 traders operating from them. Many of them take more than one stall. It is those independent businesses that we are seeing particularly being sort of disproportionately affected by the sort of pedlars that we see in Leeds.
698. Can you just explain in the time that you have known Leeds City Centre or you have had some responsibility for it, how has the number of pedlars/unlawful traders changed?
(Ms Follin) Well, over the last seven to 10 years we have seen a significant increase in the number of pedlars in the city centre. On occasions running up towards Christmas we can have about 30 pedlars operating primarily in about two streets. They sometimes operate in other streets as well. So you have a map in front of you. They are primarily on Briggate and on Commercial Street. However, there was, for example, at one time a particular pedlar that was located primarily on Albion Street, on the lower part of Albion Street, the area surrounded by white, outside a florist shop. They stayed there selling flowers. The florist eventually moved to an indoor shopping centre.
699. LORD STRASBURGER: Excuse me. These are certified pedlars?
(Ms Follin) About 30 pedlars we would see.
700. Certified pedlars?
(Ms Follin) Thirty pedlars normally.
701. You checked that they were certified?
(Ms Follin) Oh, sorry, certified.
702. They are not rogues?
(Ms Follin) When we get a lot in obviously we try and check certificates as frequently as we can. That is very time consuming when you have 30 pedlars, so some of them would have proper certificates. It is sometimes quite difficult for us to check because we might go and approach them, we might be slightly suspicious about the certificate, we might phone the issuing police office, police station, which will obviously be in other parts of the country, to verify whether that was a legitimate pedlar’s certificate or not, and quite often the police would not actually be able to tell us then and there whether it was because perhaps the relevant officer was not on duty. It is difficult to always tell. In addition, when we get that number in, it is difficult for us to monitor them and to see whether they are actually moving around in that way. So some may be complying, some may not.
703. So my understanding of what you have just said is there are 30 people selling who you know are not licensed street traders but you do not know much more about them?
(Ms Follin) That is correct, yes.
704. So they might be certified pedlars or they might not?
(Ms Follin) That is correct, yes.
705. MS LIEVEN: We have not really gone into this issue, Ms Follin, because I am not sure legally how much it matters, but perhaps we should just touch on it now. In terms of the certification process for pedlars, the Committee already know that you can get a certificate anywhere in the country from the police and trade anywhere else in the country, setting aside Scotland. But what are the problems that arise with certificates? How much do they tell you and how much can you rely on them?
(Ms Follin) Well, certificates can vary quite considerably. Some will have photographs on, some will not. There is no standard certificate, so it is very difficult to tell whether it is a forgery, for example, or not because there is no standardisation. It would be very, very easy to reproduce a certificate.
706. Just to be clear, have you yourself sought to verify certificates by phoning up other police authorities to find out further details?
(Ms Follin) I have not done it personally. I have been with my officers, members of my team, whilst they have attempted to verify a certificate. As I said, sometimes they have problems in being able to do that.
707. LORD STRASBURGER: How many licensed street traders will be on the streets of Leeds at any one time?
(Ms Follin) Licensed street traders, we would normally have 10 licensed street traders.
708. As we have already established, you cannot tell me how many certified pedlars there are?
(Ms Follin) It would be difficult. I mean ––––
709. Okay. You have made that clear.
710. CHAIRMAN: You did earlier make the point that you have permitted the space or made available the space for 10. I think that was correct?
(Ms Follin) Yes, that is correct.
711. Suppose that goes on. Is there a waiting list?
(Ms Follin) No, not really. We just tender it for a period. We sometimes get more tenders in at certain times, busy times, than we have allocated spaces, but we do not put people on a waiting list. They would just have to tender again when the pitch became available.
712. LORD STRASBURGER: Can you tell us what the cost is?
(Ms Follin) It varies because we do not set a cost. We just put it out to tender so that they can offer what they like.
713. Can you just give us a feel?
(Ms Follin) On the busiest street, on Briggate, they might offer as much as £20,000 to have a pitch for a year. In other areas it might be about £10,000 that they would offer, £10,000 to £13,000 for the year. However, I think it is important to put in the context of the fact that I have 200 stalls that people can have on a daily basis for a charge of between £13 to £20 in the city centre. You can see Kirkgate Market is marked on the map.
714. That is in the market, not in the street?
(Ms Follin) Yes, it is in the market.
715. MS LIEVEN: Can we just take up exhibit 2, Ms Follin, just for those of us who are not particularly familiar with Leeds? The green dots on exhibit 2 are locations of street licensed traders?
(Ms Follin) That is correct.
716. Is it right the council designates the location and then it opens to tender when each licence expires annually for people to bid to get that spot?
(Ms Follin) That is correct.
717. I think you are saying the most valuable one is the one on Briggate?
(Ms Follin) That is true, yes.
718. To what degree do the council choose those spots taking into account matters such as the free movement of pedestrians in retail streets?
(Ms Follin) That is very important. We consult with all the emergency services, with colleagues in Highways as well, to ensure that the location of that is something that will not cause obstruction and problems to pedestrians.
719. Just for the Committee’s purposes, if you look on the right–hand side of that plan, on the east side of Vicar Lane is the Kirkgate Market’s location, is that right?
(Ms Follin) That is right, yes.
720. Now, just referring to the photograph – I do not think one needs to look at them specifically – Leeds has accepted an amendment that would allow pedlars to continue to trade generally so long as they are carrying their goods?
(Ms Follin) That is correct, yes.
721. By reference to the photographs – as I say, you do not have to point to them specifically – how common is it in Leeds that pedlars choose to trade at the moment with a trolley?
(Ms Follin) Oh, all our pedlars trade with trolleys. Well, with the slight exception of buskers who would sometimes just have a small display, as you saw with the evidence from Canterbury. But the majority, all the other pedlars, would use the large trolleys. They are normally about two metres or more high. They are very wide and a simile of a small car has been used. Yes, that is what most of them look like.
722. LORD STRASBURGER: I am sorry to keep going on about this, but you are now using the word "pedlar" to describe certified pedlars and uncertified pedlars. Is that correct?
723. MS LIEVEN: My Lord, I am happy to assume that all the people in the photographs are pedlars with certificates.
724. LORD STRASBURGER: Well, I am not happy for you to do that.
725. MS LIEVEN: They may or may not be, we do not know because we have not done that analysis, but the ----
726. LORD STRASBURGER: Could I suggest you stop using the collective noun "pedlars" and talk about traders, pedlars and illegal traders, or whatever you like? They are not the same thing, are they?
727. MS LIEVEN: They are not the same thing, my Lord, but the critical point for this Bill is it will impact on people who it is proper to describe as lawful pedlars. Mr Campbell–Lloyd, Mr Casey and I are all at one on that. This will stop people who have a pedlar’s certificate and who move in accordance with the law. That is why I am calling them pedlars because what I am trying to do is tender in their favour. I am trying to make it clear to the Committee that we are not just talking about unlawful street traders.
728. LORD GLASMAN: We understand that and we need to make a judgment about whether there needs to be a change in the law or whether the law needs to be enforced.
729. MS LIEVEN: Indeed.
730. LORD GLASMAN: That is why the distinction between people who are breaking the law and not breaking the law is quite fundamental.
731. MS LIEVEN: Yes, but the difficulty we are in is – forget the licensed street traders because they are easy, we know who they are and they are parked – there are two ways in which other people who are trading on the streets could be unlawful. One is they could not have genuine pedlar certificates. Ms Follin has dealt with that. The other is they could not be moving every 15 minutes, which we just do not know from these photographs. I can ask Ms Follin a question in her experience how many move and how many do not, but it can be nothing more than a fairly subjective anecdotal experience from the days Ms Follin has been in the city centre. That is why I am trying to be as accurate as I can when I ask the questions and tend in favour of the assumption that these people are lawfully trading.
732. Ms Follin, let me ask you the question. Just in general terms, as a generalisation from your experience, the people who are not the lawful street traders, that is they are not the ones with the licence, to what degree do they move or not move within the law of peddling? What view would you take on the proportion between the lawful pedlars, the ones who are meeting the law, and the ones who are not? Can you answer that question?
(Ms Follin) It is a very difficult question to answer, I am afraid. Some would not necessarily be lawful but they would not want to draw attention to themselves so they keep moving. Others will be more stationary. I am afraid it is very difficult to really give an accurate answer to that.
733. VISCOUNT ECCLES: Could I just ask a question about if clause 5 became part of the Bill and the trolleys were effectively illegal, have you worked out at all what you think the reaction of the pedlars would be? Would they continue trading in pairs one carrying things for a while and the other one in some quiet corner with the backup supplies? How would it work? What would happen?
(Ms Follin) We would be keen to provide all pedlars with information about how they could operate a stall at one of our markets, or our fun day car boot markets and things like that as well. We would be keen to provide them with all of that information, and also information about markets elsewhere outside of Leeds that might be cheaper than the Leeds markets for them. But I am not quite sure really what impact it would have upon them.
734. Do you think that the fact that you only have 10 street trading sites has any influence on the number of pedlars that come to Leeds?
(Ms Follin) You mean if we had more sites we would have fewer pedlars perhaps? We feel that we can only really accommodate the numbers of pitches that we have in the streets because they are busy and going to get busier as well with the other retail developments, so we would not really want to see more street trading pitches.
735. LORD BLAIR OF BOUGHTON: Could you just contrast that for a moment with Canterbury? I counted that as having 30 in a space which was an awful lot smaller than yours. One of the things we have to look at here is the restriction on trade bit. You have markets which are off street, but clearly the attraction of on street, if people are prepared to pay £10,000 and £20,000 that is an indication that if they are successful and pay that then these are pretty lucrative pitches. One of the things that concerns me is that there are obviously a lot of people, almost 30 doing this, and you are just going to sweep away their ability to do it without providing any more street pitches. Is that right?
(Ms Follin) Well, if we felt that once a pedlar has been removed from operating with these large trolleys we would be able to reassess the space that was available in the street and we may be able to come to the conclusion that we could cope with additional street trading pitches. We would just have to take that assessment, but at the moment we are doing it on the basis of the current levels of congestion.
736. While I have the floor, can I just ask a second question, which you may be coming to later but I would like to just ask it now. In the same way as the discussion we had earlier about Canterbury, you are really only talking about a relatively small area of Leeds, but your Bill, as I understand it, is all of Leeds, all of metropolitan Leeds. Again, going back to the directive, are you prepared to think tonight about whether or not this blanket ban across the entire city is appropriate and reasonable?
(Ms Follin) I certainly will consider that. I think one of my concerns, if it was just, for example, in the main core of the city centre, the map you have in front of you, when the arena is built, which is to the north, it would start to move out there and inroad, increasing problems there. I would also be concerned about it perhaps moving to some of other areas, Headingley where there a lot of students and where they might be ––––
737. But it would not be impossible for you to pen some process that allows you just to give a schedule every six months of where the stands were rather than having, again, ideas where you block off a complete city centre?
(Ms Follin) I would certainly like us to look at that and for me to take legal advice on some of the implications and how easy it would be for us to be flexible for their needs.
738. LORD GLASMAN: Just one clarification and one reflection I would like from you. It is just on my mind so it is my prerogative. The first is it is still not clarified to my satisfaction the distinction between legal pedlars, illegal pedlars and rogue traders and I still would insist that we make that distinction.
739. The second reflection is it is the most famous story to come out of Leeds, the most important, the only premiership team really to come out, is Marks & Spencer. Marks began as a pedlar. This is the origin. He actually got the initial capital by working as a pedlar, going to Manchester, coming back, going all round the north. That enabled him to raise the initial capital that enabled him to go into partnership with Spencer so he could become a legal street trader.
740. So this is the point, is that what attention are you paying to the link between that initial – often in immigrant communities – economic dynamism when paths are blocked due to language, due to lots of other things, and then the pathway to become a street trader? It just seems to me that there is a certain rigidity in your position as regards the energy that can come from that and the very important role that pedlars have actually played in the history of Leeds. I am unaware in relation to Canterbury of an equivalent story, but I know that that is the case in Leeds. It seems to me that you are talking about corporate sort of clean spaces, and you talk about where Marks & Spencer is now, rather than looking at the conditions that could create another dynasty or generation or something.
(Ms Follin) I would hope not, because we provide a huge amount of support to independent traders through the markets and through other services.
741. But that is the specific thing about people–wide in the country, in the woods, that initial start up when you do not even know what the law is, you just have the choice between getting out there and doing something or not.
(Ms Follin) Yes. I was going on to say we have a large number where we provide a great deal of support to new immigrants into the city to be able to trade at the market because it is very, very important to us. They service a lot of local people in Leeds, so it is really important that we provide them with the assistance that they require. However, we are in the Leeds Bill allowing pedlars to still operate. They can still carry their goods with them. I do not have any evidence, but I do not believe that Mr Marks actually had a trolley the size of a small car. So if that ––––
742. I have seen his briefcase in a museum. We could use it a model for the ––––
(Ms Follin) That would be very acceptable to us, if somebody traded from a small case like that. That is why we had the amendment in the Bill.
743. MS LIEVEN: Ms Follin, I was just going to follow up Lord Glasman’s thoughts by going to the photograph and asking a question about the exhibit 8 photograph, City Centre Events, because the point was put by Mr Campbell–Lloyd to Superintendent Francis, well, the council has allowed a number of events – and I think the point is being put specifically in terms of Coca–Cola and multi–national companies – events which are causing an obstruction in, I think, Reg 8. Yes, Reg 8. Can you just explain the council’s thinking on this, and how it relates to the desire to be able to regulate more effectively pedlars’ activities in the city centre?
(Ms Follin) Yes. Basically, the events that we have are extremely popular with a lot of people that come into the city centre. We are very careful about the location and the nature of those events and the timing of them, so that we do not cause obstructions. Obviously, for a lot of people who were there they would like to be – it draws more people in; it draws more customers in for the pedlars. So, providing the pedlars are not on large trolleys and causing additional congestion we do not have a problem with that. We think that events enhance the city centre. I know it states the point about the corporate sponsorship, but in many cases they are actually helping local groups to perform as is the case, I believe, with this example here. They provide sponsorship to enable local community groups to be able to access the city centre and perform within it.
744. Thank you. Can I just finally take you on to a slightly different topic, which is enforcement. I think the point being put to Superintendent Francis is that this is a problem that you could actually deal with with your existing enforcement powers. So can you just explain, Ms Follin, what enforcement action the council takes and what you see the difficulties with enforcement being, whether against illegal pedlars and/or rogue pedlars, to the degree one can differentiate?
(Ms Follin) The difficulty that we have is that if we question a pedlar about their certificate, it is difficult to find out whether it is a counterfeit pedlar certificate or a genuine pedlar certificate. That is the first point. It is difficult to verify names and addresses. If people refuse to give us information there is really nothing that any of my officers can do. We have to wait and get a police constable to attend. Obviously they are not always available. In fact, quite frequently, they would not be available to attend for what they would understandably consider to be a relatively minor matter, when they have more serious matters. So, we cannot seize the goods. We cannot forfeit the goods in any way. We would just have to go through a fairly lengthy legal process. Typically, the kind of fine that might be imposed by the Magistrates Court would be about £300. A number of traders, illegal traders, when we have been approaching them and explained that if they do not move on or leave, or whatever, we are going to be taking legal action against them, have said, "Well that is okay. Take me to court. I will pay the fine. It is not a problem". They just consider it to be an occupational hazard or a fixed cost, but every so often we will take them to court and they might have to pay a fine. In a number of cases they have not appeared in court and we have found that we cannot actually get hold of them at the name and address that they gave us.
745. Thank you. Now, the suggestion was made by Mr Campbell–Lloyd ––––
746. VISCOUNT ECCLES: I wonder if I could just ask, because we are talking about enforcement and other forms of sanction I think come into the same picture. If clause 5 became section 5 of a Bill and that restricted pedlars in the way that the clause envisages, why do you need the seizure clauses that were mentioned before that?
(Ms Follin) It just provides an excellent deterrent for traders operating illegally outside the law.
747. The beginning of seizure says, for example, "Any article in relation to which he suspects such an offence to have been committed." In what circumstances would the article fall under that clause, because in the licences and in the pedlars’ certificates they are not specific about articles, in fact the Bill wants to widen them to include services.
(Ms Follin) The point about being able to seize the goods is if they are operating illegally we can stop them then and there from continuing to trade illegally, otherwise we might just move them on and they would start trading illegally somewhere else. We could just displace the problem, which we are reluctant to do. So, by being able to seize the goods we can prevent them from continuing to trade illegally. I hope that answers your question.
748. So this would then obviate the problem about whether the certificate is-no, why would it obviate that? I am not quite sure. I am really just being silly about it, but I would welcome a fuller explanation – perhaps from Counsel – as to why all these seizure powers are needed to solve the problems with which we have been presented today.
749. MS LIEVEN: I will have a go, my Lord, and Ms Follin can tell me if I have this right. At the moment if the council thinks that a person is trading on the street not in accordance with the law, then the council can ask that person to move but, ultimately, all the council can do in enforcement terms is serve a summons and proceed with a prosecution. Ms Follin has just given evidence that such a prosecution is very little deterrent because usually the fines are such that the trader will just view that as being part of the costs of trade, whereas if clause 6 is satisfied, so that the officer has reasonable grounds for suspecting that a person has committed a relevant offence, the officer can seize the goods then: (1) that will stop the trader just moving along the street and continuing to trade, because he or she will not have the goods any longer; but (2) it will act as a powerful deterrent from the trader just coming back the next day and doing the same thing again because the trader would have to be completely restocked. Is that ––––
750. VISCOUNT ECCLES: What would be your attitude to an amendment which changed "suspecting" into "believing"?
751. MS LIEVEN: I would not be able to answer that on my feet, my Lord, not being a criminal lawyer. Probably Lord Blair would be better to answer that question than I. We will consider that, my Lord. I do not know what the legal ––––
752. VISCOUNT ECCLES: I make the point because there has been a great deal of discussion in Parliament, and particularly in this House, about the difference between "suspecting" and "believing", and "suspecting" is a pretty low test; "believing" is a somewhat higher test. I am not a lawyer but it did seem to me, reading these seizure clauses, that the hurdle was quite low and also – as the clause says – you are extending the authority to authorised officers of the council as well as to the police, and so it is a pretty wide power, this seizure power, as I read it, and I wondered if perhaps it should be considered a bit more carefully.
753. MS LIEVEN: It is precisely because I am conscious that there is a difference but not conscious, as leading counsel, of precisely what the difference is that I would need to go and check over night. We also want to check the Bournemouth and Manchester Acts to see precisely what they have. So, my Lord, can I take that away as one of our lists of possible thoughts for amendment?
754. LORD STRASBURGER: Could I raise another question on enforcement. If we assume for the moment that this trader you are concerned about is an illegal trader not a certified pedlar, if you detect them trading illegally and you decide to issue them with a summons and they then go around the corner and start trading again, what is to stop you issuing them with another summons and if they go around the corner again issuing another summons, until it does become an unbearable cost of trade. Why do you need to have these seizure rights and seem to also sweep up certified traders with illegal traders?
(Ms Follin) We do often issue summonses repeatedly. However, quite frequently Magistrates have often just amalgamated it into one offence.
755. MS LIEVEN: Can I go back to Viscount Eccles’ point very briefly. I have just been passed a full copy of the Bournemouth and Manchester Acts, and there the word was indeed amended from "suspecting" to "believing". So I am sure that that will be an amendment that we can bring back tomorrow.
756. VISCOUNT ECCLES: Thank you. Just for clarification, clause 6 is really aimed at street traders as a whole, is it not? It is not aimed at pedlars as such?
757. MS LIEVEN: Absolutely. It is aimed at any unlawful street trading. Anybody who does not meet Schedule 4 of the Miscellaneous Provisions Act.
759. MS LIEVEN: Ms Follin, just very briefly, I think there are two other things I want to cover. One is the suggestion from Mr Campbell–Lloyd to the Superintendent that Leeds had effectively been soft pedalling on enforcement waiting for these provisions to come into force. Is that correct as a matter of fact?
(Ms Follin) No. We have a number of cases that are currently being pursued through the courts.
760. Thank you. The other is just to present to the Committee, we have a series of additional photographs not to show congestion but to make absolutely clear the size of the trolleys in Leeds that appear to be standard. The Committee have them, sorry. I am not sure whether more photographs will help but it just makes the point absolutely clear.
761. Ms Follin, we have taken your evidence in rather different order but does that cover the main points you want to make in–chief?
(Ms Follin) Yes, thank you.
762. LORD STRASBURGER: I do have one more question while you are here. One of your photos has a very large Mr Whippy – is it a van, I suppose it is – in the background?
(Ms Follin) Yes.
763. Is that a licensed street trader?
(Ms Follin) Yes, it is indeed.
764. Is the council the landlord for many of the shops in the city centre?
(Ms Follin) No, we are not.
765. Do you have any pressure from shops to restrict the amount of street trading?
(Ms Follin) I think that a number of shops would prefer us not to have any street trading at all. Not because it is directly competition because, as I have said, most of the street traders are food outlets. They just believe that it creates a less pleasant environment; obstructs their shop frontages, and so on, and a less pleasant environment for shoppers to operate in. If you look at any area where retailers and landlords have control, for example within a shopping centre, or where they have control over streets, which happens in some places like Liverpool, they do not allow any form of street trading of that nature because they do not feel it actually benefits the environment. However, we take a different view in the council and we feel that it is appropriate to have a limited number of street trader pitches within the city centre to provide goods and services to shoppers.
766. Have you done any research on the attitude of the people of Leeds to street trading?
(Ms Follin) Not specifically. A lot of people do not of course understand whether it is a street trader that we have licensed or a pedlar. They tend to assume that all the pedlars have been licensed by the council. So we occasionally get complaints about it. It is mentioned more sort of anecdotally at other events and other Focus groups that we do when we have been consulting on other things, like when we consulted on the production of the maps. People will mention that in passing, but it is not something that people often raise with us. I think that is partly because they do not feel there is any particular point in complaining.
767. Clearly, some citizens vote with their feet by actually doing business with them.
(Ms Follin) Absolutely, they are popular with some citizens. Indeed they are, and that is one of the reasons for keeping them.
769. MS LIEVEN: I am sorry, Ms Follin, my Lord, Lord Strasburger’s question raises a point that I may just come back to from evidence on Canterbury. If people are shopping in Leeds City centre and they feel slightly annoyed by the presence of lots of large trolleys scattered around the place, is that something you would expect people to complain about to the council?
(Ms Follin) No. People do not tend to complain about things of that nature. They do not think there is much point or they would not necessarily always know how or where to complain. They would just not come back to the city centre and find somewhere else that they considered more pleasant to shop, so an out of town shopping centre. We have one called The White Rose Shopping Centre, for example, where people will not face that kind of congestion or if they find it a nuisance in any way they will just go to an indoor shopping centre out of town.
770. Perhaps it is asking the blindingly obvious, but how important is it for Leeds City Council to create a pleasant urban environment for people to shop in the city centre?
(Ms Follin) It is really important. We have held a number of conferences focusing on the city centre and what our vision for the city centre should be, and one of the things that constantly comes up is creating a pleasant environment, an excellent public realm, accessible for people who are disabled, for example for people with wheelchairs and buggies, and so on. It is really important to them, the quality of the environment that we have.
771. Thank you, those are all my questions.
772. CHAIRMAN: Thank you. I propose to do one other thing to try and get to a clear point in our agenda today. So, in a moment I am going to call Mr Campbell–Lloyd who can cross–examine the witness on what has been said again about Leeds. But before I do that, I felt it right just to ask a question, in fact, of both of you.
773. We have read very carefully the written submission in the petitions, and I would like to ask what both of you feel, one as a council manager (Ms Follin) and then, of course, Ms Lieven as the Promoter. I see that one of the points being made against this Bill is that the Petitioner says, "It is surely good business for agents to promote because of canapés and wine parties for council managers in support of those who seek to repeal the Act." I really do want to ask because if any of us allowed our submissions to be activated by anything of this kind, which we had received, we would receive very short shrift indeed. So may I ask you both if you have any comment on that allegation?
774. MS LIEVEN: Can I define the allegation, Madam. I do not know whether you have noticed the paragraph in ––––
775. CHAIRMAN: Yes, page 8, paragraph D. It is quite clear. I have shortened it slightly but I kept precisely to the meaning of it.
776. MS LIEVEN: Sorry, which section, my Lady? The petition against the Bill.
777. CHAIRMAN: It is the petition against the Bill, page 8 of that.
778. MS LIEVEN: Yes, my Lady, I think I can deal with it. This I think is an allegation primarily against Sharpe Pritchard as parliamentary agent. That is the agent in question, as I understand it, and it seems a fairly outrageous allegation. I think what is being said is that Sharpe Pritchard sought to tout for work because when they had a seminar on street trading they provided some drinks and canapés to people who had come to that. So I understand that to be the factual background to this allegation.
779. CHAIRMAN: Was the seminar – as most seminars are – dealing with the subject as a whole or was it simply, as is suggested, touting what is virtually the abolition of pedlars?
780. MS LIEVEN: No, my Lady, it was a seminar on the subject as a whole and I am instructed there was a Member of Parliament, among others, speaking at the seminar. It was a fairly standard kind of legal seminar where issues, which are relevant to this Bill as well as other Bills, and this area of law, was discussed. There was absolutely nothing inappropriate about the conduct of the parliamentary agents or the local authorities in question.
781. CHAIRMAN: It seemed to me rather important to get these allegations on the record, and I do not know if you have anything to add to that because it does say specifically "council managers". Whether you have been having a high old time with canapés and wine, I would be very interested to know, and whether had you been doing so was that paid for by those who wish to change the law?
(Ms Follin) No. I have not been in receipt of hospitality. We have extremely strict rules. We take them very seriously indeed in Leeds. I do not accept hospitality from private companies, from the agents or anybody like that. It would be wholly inappropriate for me to do so.
782. CHAIRMAN: Thank you. Then could I call Mr Campbell–Lloyd, please.
783. MR CAMPBELL–LLOYD: As you have raised it, my Lady, I would like to address that particular point that was just covered. That particular piece of evidence was raised in the form of the Manchester Bill and was raised again with the petition, because there was that meeting published on the internet inviting town centre managers, the LGA, anybody interested in town centre management. It was put forward by Sharpe Pritchard together with the association of the APPG, I believe. Also to do with town centre management. The "canapés and a glass of wine" was an illustration of how enticing it could be to come to a meeting about how to get rid of pedlars. Now, I am not accusing Leeds Council of doing such a thing, but the omission from that invitation list was pedlars. Pedlar s never had a voice in that meeting where they were the central issue being discussed. So it is a general comment, it is not something specific that I am making an allegation or the Petitioner is making this allegation against Leeds Council or of the Reading Council, but such activities are deemed in business to be suspect.
784. CHAIRMAN: I am sorry, I am not quite clear. Are you alleging that the occasion, which is made reference to here, was one which was being organised by those who were seeking to get rid of the Act?
785. MR CAMPBELL–LLOYD: Yes, I am making that allegation.
786. CHAIRMAN: So your allegation is – and we must look further into it – because you are saying that this happened, people were given wine apparently, just once or three or four times or ––––
787. MR CAMPBELL–LLOYD: That I do not know, but it was an open invitation and the enticement below the invitation, "To discuss pedlary and the introduction of private Bills to remove pedlars" was specifically subtitled, "Wine and canapés will be provided". Now, that was a public notice by Sharpe Pritchard that I do not have evidence of in this bundle because it was from a previous occasion, and if you need that I can source it. It is in the bundle that the Private Bill Office has on Bournemouth and Manchester, and it can be extracted from that.
788. CHAIRMAN: I think it would be wise in future if you are not sure and you have said ----
789. MR CAMPBELL–LLOYD: I am sure.
790. CHAIRMAN: Yes, but you said at one point, "I am not sure how many there were or how many parties there were" or ----
791. MR CAMPBELL–LLOYD: Well, of course, because pedlars were not invited. It was a close meeting for people who feel ----
792. CHAIRMAN: But I think it is wise if you are not sure, possibly, not to make such an allegation because it is a very serious allegation and it would reverberate round this House if such things were said here, and I really could not allow it to pass without giving an opportunity to both our manager here and the Promoter to have their comments. They say it was a perfectly ordinary seminar where the pros and cons, as I understand it, were discussed. You say, "No, it was no such thing". Members of the Committee have heard what has been said and they will make their judgments.
793. MR CAMPBELL–LLOYD: Right.
794. CHAIRMAN: Thank you. Would you like to continue and you can put some questions to Ms Follin.
Cross-examined by MR CAMPBELL-LLOYD
795. MR CAMPBELL–LLOYD: I have to declare that I am a businessman and, as a businessman, I would like to corner the market for my benefit only and exclude all others. Can you see that what is occurring here is that you are acting pretty much like a commercial operator, endeavouring to corner the market for what you regard to be your right to issue licences?
796. CHAIRMAN: Are you referring, when you use the word "you" to me or ----
797. MR CAMPBELL–LLOYD: No, to Ms Follin.
798. CHAIRMAN: Yes. Well, it would be parliamentary practice to say, "And through you, Madam Chairman, could I ask the manager whether –" instead of "you" because I am the only "you" that you can speak to, actually. It has to be through me to her.
799. MR CAMPBELL–LLOYD: You can tell I do not have great skills in this. Thank you for that direction.
800. CHAIRMAN: I think the question, perhaps, with the change is clear. Would you like to answer it?
(Ms Follin) We are seeking to encourage independent trade within the city centre. We would like it to be equitable. We would like all traders to be starting from a level playing field, and we will allow, or continue to allow, pedlars as part of that as we have said. We are not seeking to ban all pedlars from the city centre. We wish them to continue to operate. We simply do not wish them to operate using such large vehicles but rather from goods on their person.
801. CHAIRMAN: Thank you. Please go on.
802. MR CAMPBELL–LLOYD: You can see from the Petitioner’s point of view that there is no level playing field in this, that it is actually a ban, prohibition – there have been lots of terms used for it –to exclude them from access to that particular economic market, apart from a very rigid, controlled regulatory route that you are providing for them.
(Ms Follin) Sorry, what is your question?
803. The question is: are you not just providing such restrictions through your Bill that it is very difficult for a pedlar to access that particular economic market?
(Ms Follin) No, we would provide a great deal of assistance in helping pedlars if they wished to take a stall at the market to continue to trade and operate.
804. You have cited the Local Government Miscellaneous Provisions Act, Schedule 4, Street Trading, have you?
(Ms Follin) Pardon?
805. Is that a wrongly phrased question? Have I used "you" again?
(Ms Follin) No, I just misheard you; misheard which Act you are referring to, sorry.
806. MR CAMPBELL–LLOYD: My Lady, am I asking the wrong form of question?
807. CHAIRMAN: Well, in Parliament the Speaker or the Chairman is "you" and this is the point I was trying to make, and to keep in order because, certainly in the House of Commons, you would be pulled up at once by the Speaker if you used the word "you" speaking to someone else in Parliament. The correct way to deal with it is to say, "Through you, my Lord Chairman, would our witness say whether –" or however you want to phrase your question from then on. Is that helpful?
808. That may take me 20 years to understand but I will do the best I can as a commoner.
809. CHAIRMAN: I am really saying that this is the general rule here in this House and as we are here perhaps we should keep to it.
810. MR CAMPBELL–LLOYD: No offence meant
811. Lady Chairman, could I ask whether Ms Follin has read the Local Government (Miscellaneous Provisions) Act Street Cleaning schedule 4?
(Ms Follin) I have. I am not familiar with it verbatim.
812. But you are aware that it is quite a substantial document.
(Ms Follin) Yes.
813. Some 27 sections, 38 sub sections. It is an enormous document. Perhaps you could try and recall how many provisions there are in there for pedlars.
(Ms Follin) I am sorry. I could not recall that, no.
814. I can assist you there. There is one provision, provision 2 and it is the following are not street trading. There are about eight different types of trading that are not street trading for the purposes of the schedule.
815. VISCOUNT ECCLES: You have lost me entirely. What document are you referring to?
816. MR CAMPBELL–LLOYD: The Local Government (Miscellaneous Provisions) Act which the Bill is seeing to amend.
817. VISCOUNT ECCLES: All right. Which paragraph?
818. MR CAMPBELL–LLOYD: Paragraph 2.
819. VISCOUNT ECCLES: Your point was? I am having some difficulty, if I might be excused, hearing what you say because you drop your voice every now and again and I am not as good at hearing as I used to be. We did suggest earlier on that you sat nearer the microphone instead of standing up but there you go; it is your choice, but at the moment I do not follow the question that you are asking. They are for the Committee. They are not about private dialogue. If we do not hear the question and the answer, we can rely I suppose on the written record but it is much better if we can understand what it is you are driving at.
820. CHAIRMAN: And where the relevance of your point is compatible with the petition; this is the point as well so if you could do that. By the way, we do realise it is not you are there and we are sorry about that and we are going to try and give you a better position, nearer to a microphone, if you are speaking to us tomorrow so that all of us can hear clearly. Please go on.
821. MR CAMPBELL–LLOYD: The question to Ms Follin as head of City Centre and Markets is she aware of one small provision within the street trading regime had anything to do with pedlars. I can suggest to you what it is. It is the exemption for pedlars from the street trading regime. Are you aware of that?
(Ms Follin) I am not an expert in the Act and I rely on my colleagues in legal services to advise me on legal aspects of it.
822. Are you aware of what the definition of a pedlar is
(Ms Follin) I have been told in the past what the definition of pedlar is. Again, I could not quote it verbatim for you, I am afraid.
823. Lady Chairman, am I able to extract from Ms Follin how a pedlar should act?
824. CHAIRMAN: I think it is very important that you put together the points you are making because you are speaking for the Petitioner and what you are asking her is really not in that group of points. Could you stick to the question of the petition and why it is important to make the case. It is not a question of Ms Follin’s judgment about a certain point. If you could confine yourself to why the Bill is thought to be so essential or how it will affect petitioners badly, then she can answer.
825. MR CAMPBELL–LLOYD: We have a set of photographs before us – I think I am probably missing something out of the bundle here – but did you take these photographs?
(Ms Follin) No, I did not. My officers took these photographs.
826. Could you run through those photographs for us and show us an example of a rogue trader?
(Ms Follin) I think we have already covered a number of times that it is difficult to identify from the photographs here whether somebody is a rogue trader or a legitimate pedlar. I can distinguish between the people who have a licensed street - trading pitch and those who do not, if that helps. So the first photograph I have, exhibit 3, typical unit, that is not a licensed street trader. It is a pedlar.
827. Not necessarily. Excuse me. That is a judgment. A pedlar is a lawful person by certificate. So the presumption is that because it is not a licensed trader therefore it is something else. But let us not call that a pedlar.
(Ms Follin) I stand corrected. I shall simply say whether they are or are not licensed street traders. Will that help?
828. You could generally say that none of these are licensed street traders.
(Ms Follin) Generally speaking. There are one or two that are on one or two pictures. So I can go through.
829. We have covered those. Mr Whippy was one.
(Ms Follin) Yes. He is one. So the typical trolley on Commercial Street is not a licensed street trader. The next one, somebody selling sunglasses; I cannot see a licensed street trader there. Perfume; not a licensed street trader. The woman in the red jacket pushing a trolley; not a licensed street trader. The trolley with scarves, "Buy one, get one free"; not a licensed street trader. Then we have Mr Whippy, as you say, who is a licensed street trader ; i n front of him, selling jewellery, is not a licensed street trader.
830. I think you have made the point. I do not think there is much variation in the rest of the photographs. Thank you. So because these are not licensed street traders, perhaps they fall under the offence of trading without a licence. Is that not correct?
(Ms Follin) I am sorry. I am not technically aware of the legal definitions and the niceties of that.
831. It is not a nicety. It is quite simple. It is a person who engages in street trading without a licence. They are guilty of an offence.
832. CHAIRMAN: The witness has already said she is not able to answer that. She has not said she is not an expert but in this particular field she cannot answer.
833. MR CAMPBELL–LLOYD: Have any of those photographed, those traders, been prosecuted?
(Ms Follin) I am not aware of which ones have and have not. I am sorry. I do not have that information with me. As I have said, we do periodically prosecute. I cannot, hand on heart, say exactly which ones of these have and have not had some legal sanctions made against them.
834. LORD STRASBURGER: Could you tell us how many attempted prosecutions you have a year and how many are successful?
(Ms Follin) Yes. I did have a list here. In 2010 we had about 30.
835. LORD STRASBURGER: Were 30 successful?
(Ms Follin) Not necessarily. In some of them the case was withdrawn because the defendant could not be traced, for example. But of that 30 there were about 25 where there was a fine. In some cases it was a second offence and there was no separate penalty for example.
836. LORD BLAIR OF BOUGHTON: And these are for illegal street trading; they are not for being a pedlar without a certificate.
(Ms Follin) They could be for a mixture of things from being a pedlar without a certificate – that would come under illegal street trading – or they could be somebody without a certificate at all.
837. LORD STRASBURGER: We can certainly assume that none of them were pedlars with a certificate because they would not have committed an offence.
(Ms Follin) They may have been some – I am not sure, forgive me, whether there were some that were not operating correctly. In other words they were not moving along.
838. CHAIRMAN: I am not really sure, Mr Campbell-Lloyd, what point you are trying to make here. I do not know if it is possible to clarify, but there is no point in going over and over and over again whether or not people were charged or whether anything came of it, in that it does not help us that I can see in reaching a sensible conclusion and a fair one about the major point, whether this Bill should go through or not.
839. MR CAMPBELL–LLOYD: I can only say I am scrutinising the evidence put before us, and it raises a lot of questions and concerns about whether there is a general dislike for a perfectly legitimate activity on the street and is that reasonable. That has to be a judgment on your part.
840. VISCOUNT ECCLES: I wonder if I could ask you a question. You asked a question, "What is a pedlar?" Is it not true that there has been a very big change in how you would describe a pedlar from 1871 until today? For example in 1871 there were no revo(?) castings so there was no wheel that would go conveniently round on a large aluminium trolley. There was no aluminium structure at that time and in the 1871 Act it did not contemplate trolleys. They were not contemplated under the definition of pedlar. Now, I am not going into the rights and wrongs of the pedlars being intelligent enough to accept modern technology and accept wheels that go round comfortably on the bottom of large trolleys made of aluminium. In a sense why should they not, which could be your point and maybe it is my point. But nevertheless, the circumstances have dramatically altered from the original legislation which you were directing a question about to the witness. Would you agree with that?
841. MR CAMPBELL–LLOYD: No, I would not. I am very pleased that you have raised that point. The Pedlars Act began in 1697. It was called the Pedlars and Hawkers Act 1697. The history goes back before 1871. But here we are in 1871 and you are suggesting must have changed. Frankly, nothing has changed. If you want to look for the definition of a pedlar, which does not exist in section 3 of the Pedlars Act, it exists in the Act as an entirety. What we have here is mere descriptions of some the types of activity that were then in 1871 regarded to be that of pedlary. But it has a very special element to it. It includes, after all those descriptions, "or other person". So frankly that is the same terminology that we would use today for a pedlar; any person, other person, not a particular tinker from the old days, somebody mending chairs from the old days. Pedlars have had this anachronistic language argument thrown at them for many years now but it is only valid if you do not understand the Pedlars Act.
842. VISCOUNT ECCLES: So your contention would be that pedlars arrive in Leeds on foot. They have no kind of motorised transport.
843. MR CAMPBELL–LLOYD: This is where the problem in the 1982 Act lies. When that Local Government (Miscellaneous Provisions) Act was introduced it was introduced with a loophole. Hawkers used to be licensed. In 1966 the licence no longer continued.
844. VISCOUNT ECCLES: Let me get straight. Pedlars are licensed under an Act.
845. MR CAMPBELL–LLOYD: They are certified.
846. VISCOUNT ECCLES: They are licensed under an Act which contemplates that they travel and trade on foot. There were not any vans in those days. I simply want to make the point, and I hope you could accept it, that the way of life of pedlars is different in 2011 to the way of life that existed in 1871.
847. MR CAMPBELL–LLOYD: Not at all. The means by which they operate maybe aluminium today, but whether it was a basket or piece of wood in the past is irrelevant. The fact that they are pedestrian and have a means to carry their equipment has been found in case law to be as valid as a pedlar who carries about the means of his existence.
848. CHAIRMAN: Perhaps we could get back to Bill now.
849. MR CAMPBELL–LLOYD: What revenue does the Leeds City Council bring in per year through licences?
(Ms Follin) Through licensed street trading? I am not sure of the exact figure but it would be around £200,000 to £250,000 a year.
850. That is quite a fair income. The aim of the Bill is to protect traders who are licensed and you would also include other shopkeepers in the town. Is that correct?
(Ms Follin) No. The aim of the Bill is to prevent obstruction and to help to ensure that legitimate independent traders at the markets are not undermined by pedlars. It is primarily about obstruction and safety.
851. But you did say that you were endeavouring to protect local traders.
(Ms Follin) The local independent traders at the market.
852. An independent trader is also a pedlar, is it not?
(Ms Follin) Yes and that is why we would welcome them at the market.
853. But only through street trading terms.
(Ms Follin) Not just through street trading terms but also through getting a daily licence at the market which would cost about £13.
854. Which is still under the street trading regime.
(Ms Follin) It is under our Markets Charter not the street trading regime.
855. But it is not under the Pedlars Act.
(Ms Follin) Not under the Pedlars Act, no.
856. So what is the general policy of Leeds City Council towards pedlars? Do you have a policy statement?
(Ms Follin) I am not aware of a policy statement, no. My officers just obviously seek to ensure that they operate within the legislation and they acted lawfully.
857. LORD STRASBURGER: How does this undermine the market traders? You used the word "undermine"?
(Ms Follin) Just in terms of the fact that they can undercut. They sell very similar products and because their fixed costs are a lot lower they sell goods very, very cheaply.
858. You were referring to £13.
(Ms Follin) Pedlars only have to pay £12 for a licence for a year as opposed to our traders who have to pay £13 a day.
859. MR CAMPBELL–LLOYD: So undercutting local traders is something that the council is endeavouring to deal with. Is that right?
(Ms Follin) It is one of the aspects but as I have said it is also about the obstruction; concerns about safety in the street as well
860. But if a shop undercuts another shop would you attempt to make some interference there?
(Ms Follin) It would not be appropriate to do so. Those are retailers. We are dealing with trying to ensure that independent traders who often move around from one area to another are operating from a level playing field whether they are pedlars or market traders.
861. The overhead cost of a pedlar and his operation is quite small. Would you agree?
(Ms Follin) Yes, I would agree.
862. In comparison to a licensed street trader?
(Ms Follin) I would assume so.
863. And so to maintain a level playing field, you would like them to be regulated in such a way that you could control pretty much their trading activity.
(Ms Follin) I would like to reduce the size of the units that they trade from.
864. We have agreed that. Do you have control over the goods that licensed traders sell?
(Ms Follin) Licensed traders apply when they want to have a stall. They would apply and let us know what sort of goods they wanted to sell. We have markets that can encompass sales of all goods, really, so we would not particularly restrict it. We are obviously extremely careful in making sure that we do not allow any of our traders in our market to sell counterfeit goods or goods that do not meet trading standards.
865. But you do have the last say on whether a licence is issued, depending on the goods that are being proposed to be sold.
(Ms Follin) Yes, we do.
866. Do you also control precisely the hours that a trader is allowed to trade?
(Ms Follin) Up to a point. However, we do facilitate traders to operate for longer hours if they wish to do so. That is quite easy on the open market. Typically different trades will operate for different hours. Our fruit and veg traders would normally get there for about 7.0 in the morning, sometimes a bit earlier, and they frequently wish to pack up by about 4.0 in the afternoon. However we have other trades on other days, particularly an Asian market that caters particularly for local Asian communities; they sell a wide range of goods and they tend to like to start operating at 10.00 in the morning and carry on until 6.00 or 7.00 at night and of course we accommodate that.
867. Again it is down to the discretion of the council as to what is acceptable and what is not.
(Ms Follin) We do our best to facilitate the hours that those traders wish to trade.
868. It seems to me that there is absolute control over pretty much everything that you would like to be going on in regard to street trading.
(Ms Follin) We would like greater control over street trading, yes.
869. Would that not be total control?
(Ms Follin) No. It is like greater control.
870. Greater control. But it is quite strong, is it not. It reduces the freedom that a pedlar currently has which you wish to fall within your regime.
(Ms Follin) With respect, if we wanted total control we would just have sought not to have any pedlars at all in the city centre and that is not what we are seeking to do.
871. Are you aware that that attempt had been made on such private bills?
(Ms Follin) We have amended it because we have listened to concerns and decided it was reasonable to amend the Bill.
872. Is there a particular clause in the Bill anywhere that assists pedlars?
(Ms Follin) I must admit I had not thought of it from that perspective, how it might assist pedlars. Clearly pedlars who are less able bodied would be able to compete more easily if all pedlars were only able to operate from smaller units than trying to compete with a pedlar selling something like Pashminas or jewellery from a very, very large vehicle. Other than that I have not really thought about it from the pedlars’ perspective in that sense. My aim would be that if this became legislation we would work with the pedlars to assist them to continue to operate in some form, preferably at the market in Leeds.
873. I asked the question of the officer here earlier. Are you aware of how Bournemouth and Manchester dealt with this scale and proportion problem?
(Ms Follin) I am not particularly aware of it. It was before I became Head of Markets I think that they got their Bill. I know that they have seen some improvement, some reduction in certainly street peddling. I know that allowed an amendment to allow 1 cubic metre – is that right? – to have a trolley of that size.
874. Would that be acceptable in Leeds?
(Ms Follin) We would prefer not to. We would prefer the people to be able to have something like a means of which to carry their goods around but not to trade from that unit.
875. If Leeds were to get rid of all the traders that are in these sets of photographs, would the consumers in Leeds be better off?
(Ms Follin) We believe overall that the public generally would be better off, yes, because there would be less obstruction. We heard the evidence from Superintendent Bernard Francis about some of the issues in obstructions and the difficulties created for them in detecting and preventing crime. I think overall that, yes, visitors to Leeds would be better off if we did not have such large trolleys operating in the city centre.
876. CHAIRMAN: Mr Campbell-Lloyd, we are anxious that we have gone well over the time when we should have finish. I intend to close this Committee at 6.00pm. I should be grateful if you could finish.
877. MR CAMPBELL–LLOYD: That is about right for me. Thank you very much.
878. I know that the Bill has been introduced through Leeds Council supposedly to assist the people of Leeds but have they been consulted directly? Has there been a poll taken on who would like to get rid of pedlars and who would not?
(Ms Follin) We do not carry out regular polls of citizens in Leeds. The democratic process exists for people to make known their views through elected members. Elected members have obviously made the decision to support this Bill and that is our consultation, in many ways, through that process.
879. Would it surprise you that the public survey that was carried out in Bournemouth and Manchester found that the public supported pedlars 100%?
(Ms Follin) I have no view on that. Those cities are very different from Leeds.
880. I think that draws my questions to a conclusion. Thank you.
881. CHAIRMAN: Thank you. I am then able to ask finally if Ms Lieven wants to say anything further.
882. MS LIEVEN: My Lady, I do not have any re-examination, no.
The witness withdrew
883. CHAIRMAN: Thank you very much. In that case I shall close the meeting now. Thank you for your attendance. This Committee will start at 10.30 tomorrow morning. Colleagues, please be here by 10.20. We shall welcome the rest of you at 10.30. Thank you. The meeting is closed.
The Committee adjourned at 5.57 pm until 10.30 am the following day