Other Private Bills before Parliament
Arrangement of Clauses (Contents)
|City of Westminster|
This Bill provides for street trading controls within the City of Westminster ("the City"). It replaces the street trading provisions in the City of Westminster Act 1999 ("the 1999 Act"). The Bill also contains a provision that deals with touting for certain premises in the City.
Clause 1 deals with citation and commencement. It provides that the provisions of the Bill should come into operation two months after Royal Assent.
Clause 2 sets out definitions of certain expressions used in the Bill. It defines Westminster City Council as the council, and that expression will be used in this Explanatory Memorandum. Certain expressions used in the 1999 Act are updated: "authorised officer" is replaced with the definition used in the London Local Authorities Act 2004, "items" replaces "article or thing", "licensable area" replaces "licence street", and "the Police Commissioner" replaces "the Commissioner." The definition of "receptacle" is clarified, and the maximum duration of a "temporary licence" is increased from 6 months to 3 years; a definition of "shop" based on that set out in the Shops Act 1994 is introduced. Other important definitions include "ice cream trading", "itinerant ice cream trading", "receptacle", "street", "street trading", and "temporary licence". Clause 2 also introduces "Specified Company", which is a company authorised to carry out street trading in accordance with clause 40.
Clause 3 defines street trading. Under the 1999 Act, the definition includes the sale, offering for sale, display or exposure for sale of any item (including a living thing) in a street; the supply or offering to supply a service for gain or reward in a street; and the purchase or offer to purchase any ticket for gain or reward in a street. Whether any gain or reward would accrue to the person carrying out the trading is immaterial as to whether the activity is street trading. The 1999 Act also sets out certain matters which are to be disregarded when considering whether an activity amounts to street trading, namely: that the transaction was not completed in a street; that a party to the transaction was not in a street when it was completed; and that the items offered to be sold, or services offered to be supplied, were different from those actually sold or supplied.
Those provisions are re-enacted in clause 3 and the definition of street trading is extended to include the sale or exposure or offer for sale of any motor vehicles on the internet, where the vehicle is kept on the street. It is also extended so as to include the provision of places in the street for the consumption of refreshments supplied from premises, and the provision, to order, of smoking facilities or equipment in a street.
Clause 4 defines activities which are not street trading for the purposes of the Bill. Certain of these are the same as or similar to exemptions contained in the 1999 Act, namely: selling items to occupiers of premises adjoining any street by the regular delivery of perishable goods; trading on private land adjoining the front or side wall of a shop; activities authorised by charities legislation; and trading by a pedlar under the authority of a pedlar's certificate, if the trading is carried out by means of visits from house to house only. The exemptions have been extended to include anything done in a market established under a statutory provision. This is similar to an exemption which applied in the City before the City of Westminster Act 1999 came into force.
Clause 5 provides that trading as a newsvendor is not street trading, provided that the conditions set out in subsections (2) to (5) are satisfied. Those conditions are mainly concerned with the prevention of interference with other users of the highway, for example by regulating the dimensions of receptacles from which papers are sold. Clause 5 modifies the existing newsvendor exemption set out in the 1999 Act by providing that a newsvendor's receptacle is not to be used for any purpose other than the sale of current newspapers or periodicals and it also allows the council to make regulations about the design, type and use of umbrellas, canopies or other forms of shelter used by newsvendors.
In addition, clause 5 introduces a new provision which would enable the council to pass a resolution which would allow it to designate an area as one in which the newsvendors' exemption would not apply. Schedule 1 sets out the procedure to be followed by the council before it can pass, rescind or vary such a resolution. It provides that the council will take reasonable steps to give written notice to affected vendors and publishers and it specifies the contents of the notice. It also provides that written and oral representations should be considered by the council before it passes a resolution, and that the resolution may be passed with any modifications the council considers appropriate. After passing the resolution, the council must notify all those who were given notice of the proposed resolution.
Clause 6 re-enacts provisions of the 1999 Act relating to itinerant ice cream trading, with minor drafting modifications. It provides that itinerant ice cream trading in a street is not street trading for the purposes of the Bill, unless the street is a licensable area (see clause 7), or the street has been designated as a prohibited street under subsection (2). The council may designate a street as a prohibited street provided it is not in a licensable area, and it is necessary to prohibit itinerant ice cream trading in the street in the interests of preventing a safety hazard; obstruction to traffic; or undue interference or inconvenience to persons using the street. Clause 6 introduces Schedule 2, which sets out the procedure for passing resolutions which designate streets as prohibited streets. It re-enacts with minor amendments the provisions of subsections (3) to (8) of section 4 (itinerant ice cream trading) of the 1999 Act. The procedure for designation is similar to that set out in of Schedule 1 (see clause 5 above).
Clause 7 provides that the council may pass a resolution, known as a designating resolution, in order to establish a licensable area. Subsection (2) provides that a street trading licence may not be granted for an area that is not a licensable area. Clause 7 introduces Schedule 3 which sets out the procedure that the council must follow before passing or varying a designating resolution. Schedule 3 re-enacts with minor amendments the provisions of subsections (1) to (7) of section 6 (designating resolutions) of the 1999 Act. The procedure is similar to that set out in Schedule 1 (see clause 5)
Clause 8 provides that the council may, on certain grounds, pass a resolution to rescind a designating resolution. As well as having the effect of rescinding the designation of the area in question as a licensable area, the resolution would also have the effect of revoking any street trading licences that operate in the licensable area.
Subsection (3) provides that instead of rescinding a designating resolution, the council may pass a resolution designating an alternative licensable area. If an alternative area is designated, any street trading licence that operates in the original licensable area may be transferred to apply to the new area, with any necessary modifications (subsection (4)).
When the council is considering rescinding a designating resolution, and there is a street trading licence in force in respect of the original licensable area, the council must consider whether there is an alternative licensable area in the vicinity of the original licensable area (subsection (5)).
Paragraphs (f) and (g) of clause 29(1) provide a right of appeal against a resolution to rescind a designating resolution and a resolution to designate an alternative licensable area.
Clause 8 also introduces Schedule 4 which sets out the procedure for rescinding a designating resolution or providing an alternative licensable area. The procedure is similar to that set out in Schedule 1 (see clause 5 above).
Clause 9 provides that the council may pass a resolution to vary a designating resolution by altering the licensable area. Clause 9 provides that the licensable area can be varied at the request of the licence holder, and the council can charge a fee for the administrative work in dealing with the request. The procedure for the variation of a designating resolution is set out in Schedule 3 (see clause 7 above).
Clause 10 provides that the council may suspend a designating resolution and temporarily designate an alternative location for a licensable area if the licensable area becomes temporarily unsuitable for street trading purposes.
Clause 10 also introduces Schedule 5 which sets out the procedure in relation to, and the maximum duration of, the temporary variation and suspension of a designating resolution under clause 10. A designation or suspension under clause 10 may remain in force for a maximum period of 5 years, and any street trading licence that operates in the licensable area may be transferred, with modifications if necessary, to the temporary designated licensed area. The council must consult the licence holder, the Commissioner of Police and the highway authority before designating an alternative location. In cases of urgency, or when works are being carried out in the street, or during special events, no consultation will be necessary. For special events, however, the council will, if practicable, have to notify the licence holder of any temporary designation or suspension. A temporary designation or temporary suspension for a special event shall not begin before the day on which the event begins and it shall not remain in force any later than the day after the day on which the event ends, unless the police require otherwise.
Clause 11 deals with specifying resolutions. It explains that a specifying resolution is a resolution which specifies the types of items or services which may or may not be traded in a licensable area. Clause 11 introduces Schedule 6 which sets out the procedure for passing, rescinding or varying a specifying resolution. It re-enacts with minor amendments the provisions of section 7 (specifying resolution) of the 1999 Act. Under Schedule 6 the council must give notice of the proposed resolution to all licence holders whom the council could reasonably expect would be affected by the proposed resolution and to any body which appears to the council to represent such licence holders. The notice must also give details of the proposed resolution, explain the reasons for the proposal, and state that representations may be made to the council within no fewer than 28 days of the date of the notice. The procedure that must be followed before a specifying resolution is passed, rescinded or varied is similar to the procedure set out under Schedule 1 (see clause 5 above).
Clause 12 deals with the granting of street trading licences. It authorises the council to grant street trading licences on such reasonable terms and conditions relevant to street trading as the council may specify. A street trading licence must identify the licence holder and the area in which he may engage in street trading; it will remain in force until cancelled or revoked by the council; and it must bear the photograph of the licence holder, if he or she is an individual. Clause 12 provides that the licence will only become effective once the applicant gives the council proof that he has adequate third party insurance cover. The licence will be extinguished if no such proof has been provided within 28 days of the council's decision to grant.
Clause 13 provides for the variation of street trading licences. Subsection (1) enables the council to vary street trading licences of its own accord. Under the 1999 Act, it is only allowed to do so on 1st January in any year. That restriction is removed. The 1999 Act also provides that the council may vary a street trading licence on application by the licence holder in accordance with the application. The Bill extends this power to enable the council to grant an application in whole or in part.
In addition to the powers set out in the 1999 Act, clause 13 also allows the council to impose conditions on a licence where it has granted a variation to a licence on application by the licence holder. Clause 13 prevents the council, unless it has the applicant's agreement, from imposing conditions that are unrelated to the application or which are more onerous than those sought in the application. Unless agreed by the Council, no application to vary the condition of a licence may be made within 6 months from the date on which the council imposed the condition, varied it or declined to vary it, or during any period where the imposition of the condition is subject to an appeal to the magistrates' court.
Clause 13 introduces Schedule 7, which sets out the procedure for varying a street trading licence. The procedure is similar to that set out in Schedule 1 (see clause 5 above).
Clause 14 describes the conditions that may be imposed on a street trading licence, and follows, with modifications, section 9 (street trading licences) of the 1999 Act. The types of condition described in subsections (1)(d) (requiring that the licence holder use receptacles provided under clause 37(1) (receptacles and containers) and (1)(k) (providing for the separation of the area in which activities authorised by the licence are carried on from other parts of the street) of clause 14 were not in the 1999 Act.
Clause 15 provides that the council may prescribe standard conditions applicable to all street trading licences. It re-enacts section 10 (standard conditions) of the 1999 Act, and in addition provides that the council may prescribe conditions which are to apply to classes of street trading licences.
Clause 16 re-enacts, with minor modifications, the provisions of subsections (5) to (9) of section 9 (street trading licences) of the 1999 Act in respect of photographs which must be provided by licence applicants.
Clause 17 deals with the requirements for the making of applications for the grant or variation of a street trading licence. All applications must describe the proposed licensable area (or part of the licensable area) and the proposed trading days and trading times during which the applicant intends to trade. Other information must be provided, depending on whether the applicant is an individual or a company or partnership applying for a licence to carry on ice-cream trading. Clause 17 re-enacts, with minor modifications the provisions of section 11 (applications) of the 1999 Act. Clause 17 provides that the council may make regulations prescribing the procedure for determining applications.
Clause 18 sets out a number of grounds which if applicable, require the council to refuse an application for a licence under clause 17. In addition to the mandatory grounds for refusal set out in section 12 (mandatory grounds of refusal) in the 1999 Act, which are re-enacted with drafting amendments, clause 18 introduces a new ground, enabling the council to refuse an application for a licence in the case where a licence for any part of a licensable area has been granted to another applicant and where, the trading times on the two licences would overlap if the application were granted.
Under section 12(1)(c) of the 1999 Act, the council must refuse an application made by a person who holds a street trading licence under the London Local Authorities Act 1990 and which enables him to trade elsewhere in London at the same time as the time requested in the application. Paragraph (d) of clause 18 extends that to cover the street trading regimes operating in the City of London and outside London.
Clause 19 is a new provision that provides general discretionary grounds for refusal of an application for a licence made under clause 17. The grounds include the convenience or safety of people using the street; the prevention of crime or disorder; the amenity of the area; the applicant's suitability to hold a licence; the diversity of items on sale and services provided by street traders and other retailers in the area, and the prevention of public nuisance.
Clause 20 provides specific discretionary grounds for refusal of an application for a new licence made under clause 17. Clause 20 re-enacts, with modification, subsections (1)(a)(f) and (i) to (k) of section 13 (discretionary grounds of refusal) of the 1999 Act.
Clause 21 provides that if an application is made for a variation of a standard condition of a street trading licence the council may refuse the application.
Clause 22 provides further grounds on which the council may refuse an application for the grant of a new licence or for the variation of a licence. It re-enacts, with modification, the provisions of paragraphs (g) to (i) of section 13(1) (discretionary grounds of refusal) of the 1999 Act. It also provides that an application may be refused because the arrangements for the collection and disposal of refuse are inadequate, or that the application, if granted, would be in contravention of the council's written guidelines. Clause 22 proves that the procedure set out in Schedule 6 (see clause 11 above) applies in respect of issuing and varying guidelines.
The council may refuse an application if it is in relation to a market (see clause 28), the application would authorise trading in a specified area or part of the market, and the council considers that only trading in the market generally should be authorised.
Clause 23 makes general provision about the refusal of licences under clauses 19, 20, 21 and 22. In addition to the provisions of subsection (2) of section 13 (refusal of applications: general) of the 1999 Act, which allowed the council to grant an application for a variation in part and which are re-enacted with modifications under subsection (3), clause 23 gives the council a wider discretion to grant an application in part and allows the council to impose such conditions on the licence as it thinks fit. In the case of a variation, the council may not impose any conditions which are unrelated to the application or which are more onerous on the applicant than those that exist on the current licence.
Clause 24 permits the holder of a street trading licence or a temporary licence to request the cancellation of the licence. The cancellation shall take effect when the request is received by the council. It re-enacts, with slight modification, section 14 (cancellation of licences) of the 1999 Act and no longer requires the physical surrender of the licence.
Clause 25 authorises the council to revoke a street trading licence or temporary licence in any of the circumstances listed in subsection (1), all of which concern misconduct on the part of the licence holder. Subsection (1) re-enacts the provisions (apart from paragraph (a)) of subsection (1) of section 15 (revocation of licences) of the 1999 Act. It also introduces a new power which allows the council, when it revokes a licence under clause 25, to revoke any other street trading licence held in the area of the council by the licence holder.
Clause 25 also re-enacts the provisions of section 15(2) of the 1999 Act which allows the council to vary the conditions of a licence instead of revoking it. Section 15(2) is modified so as to enable the council to vary the conditions on any of the grounds set out in subsection (1). In addition, under paragraph (b) of subsection (3), the council may, as an alternative to revoking the licence, suspend its operation for no more than 3 months.
Clause 25 also empowers the council to revoke the street trading licence of a Specified Company when the council is satisfied that certain of the circumstances set out in subsection (1) apply.
Clause 26 makes general provision about refusals, revocations and variations of licences. Subsections (1) and (2) provide that the council must give an applicant for a licence or a licence holder 21 days' notice if it intends to refuse an application on grounds other than the mandatory grounds of refusal, if it proposes to revoke a street trading licence or temporary licence, it proposes to vary a street trading licence (other than by varying a standard condition) or if it intends to suspend a licence for a period not exceeding three months. Notice need not be given if the council intends to revoke a licence or temporary licence which is valid for a period of 28 days or less. These requirements re-enact, with minor modifications, the provisions of subsection (1) of section 17 (further provisions relating to refusal, revocation or variation of street trading licences) of the 1999 Act.
Subsections (3) to (6) of clause 26 introduce new powers which allow the council to suspend a licence immediately if there has been a breach of the licence's conditions because of dangerous, abusive or violent behaviour, and the council thinks immediate suspension is necessary for the protection of persons. If the council decides to suspend a licence immediately, it has 14 days from the date the suspension takes effect to hold a hearing to decide whether the licence should be revoked. The decision to suspend will cease to have effect if at the hearing the council decides not to revoke the licence or a magistrates' court allows an appeal against the decision to suspend the licence, or the council decides the suspension should no longer have effect.
Subsection (8) of clause 26 provides that the council shall inform the applicant in writing if an application is refused or a licence is revoked or varied (except where the licence is varied following an application by the licence holder). The notice will set out the grounds and reasons for the decision and any rights of appeal against the decision. This subsection re-enacts subsection (3) of 17 of the 1999 Act.
Clause 27 re-enacts the provisions of section 17A (lapsing of licence in certain cases) of the 1999 Act with minor drafting changes. It provides that where a street trading licence authorises street trading on land which is not a road or footway, and is not permanently enclosed premises, but is within 7 metres of any road or footway, and the public can obtain access to it without payment, (whether or not they need the consent of the owner or occupier and if they do need such consent, whether or not they have obtained it), then the licence will lapse if consent is discontinued, and the council is provided with written notice of the discontinuation by the person who has discontinued it. The licence will also lapse when the licence holder is no longer the owner of the land in question.
Clause 28 provides that a street trading licence that authorises street trading in a market may authorise street trading at a specified licensable area (or part of a licensable area) or in the general area of the market. It also allows the council (or others) to give directions and make arrangements about the place from which the licence holder should trade.
A "market" for the purposes of clause 28 is an area consisting of a licensable area (or areas) that is or are designated by council resolution as such. Clause 28 introduces Schedule 8 which sets out the procedure for passing, rescinding or varying a resolution designating a market area. The procedure is similar to that set out in Schedule 1 (see clause 5 above).
Clause 29 deals with appeals. The Bill differs from the 1999 Act in that it does not provide any rights of appeal to the Crown Court or Secretary of State. All appeals under clause 29 would be made to the magistrates' court. The decisions which can be the subject of an appeal are the refusal of an application on grounds other than mandatory grounds; the grant of a street trading licence on terms other than those sought; the revocation of a street trading licence; the variation of a street trading licence in certain circumstances; the attachment of additional conditions (other than standard conditions or condition to which the licence had hitherto been subject) to a street trading licence; the designation of an alternative licensable area and the variation of rescission of a designating resolution; the passing or varying of a specifying resolution and the designation of a street as a prohibited street for the purposes of itinerant ice cream trading.
Clause 29 also sets out the procedure for making an appeal to the magistrates' court. It provides that in relation to certain decisions of the council, the decisions will not take effect until the time for bringing an appeal to the magistrates' court has expired, or where an appeal is brought, until the determination or abandonment of the appeal, provided that the licence holder continues to pay fees and charges due to the council under the licence.
This right to continue trading pending an appeal does not apply where a designating resolution has been rescinded and the council believes that street trading in the licensable area should stop immediately if continuing it would present a safety hazard to users of the street, or in cases where the licence has been suspended because of violent, dangerous or abusive behavior.
The clause also provides that where a street trading licence is revoked for non-payment of fees and charges, the licence holder is only able to trade pending the decision of an appeal if all fees and charges due to the council have been paid and the licence holder continues to pay to the council the fees and charges due under the licence.
Clause 30 re-enacts with modifications the provisions of section 20 (succession) of the 1999 Act. It would allow the holder of a street trading licence to specify the name and address of a relative or employee to whom he would like the licence to be granted in the event of (i) his death (ii) his retirement or (iii) his notification to the council of his decision, owing to ill-health, to cease street trading.
Where the street trader has nominated a relative and one of the events outlined above occurs, the council is prohibited from granting a licence for the relevant licensable area for 28 days, during which time the nominated relative or employee may apply to the council for that licence. Unless certain grounds apply, the council must grant the licence to the nominated relative or employee.
Clause 30 would provide a "once only" right to exercise succession rights. The opening words of subsection (1) provide that the clause would only apply to street traders who have a licence at the time of the Bill's enactment; their successors would not benefit from the provisions. The clause effectively contains a sunset provision for succession rights.
Clause 31 makes provision for temporary licences, re-enacting with minor drafting amendments the provisions of section 21 (temporary licences) of the 1999 Act. It provides that a temporary licence will be in a form similar to that of a street trading licence and it will contain such terms and conditions as the council may specify. It also provides that the council may establish a register of persons to whom it would be prepared to grant temporary licences. In addition to the provisions of the 1999 Act, clause 31 provides that the council may revoke or suspend the operation of a temporary licence on the grounds that undue interference, inconvenience or a safety hazard is caused to people using the street, or the temporary licence holder has failed to pay fees or has failed to comply with the conditions of the licence.
Under the 1999 Act, section 22 sets out provisions in respect of fees and charges. Under the Bill, fees and charges are dealt with in clauses 32 to 36.
Clause 32 authorises the council to charge fees to recover the costs of dealing with applications for the grant or variation of street trading licences, the variation of a designating resolution or specifying resolution.
Clause 33 introduces new provisions in respect of the payment of fees for a temporary licence granted for one year or more. The licence holder may be required to pay an annual fee to the council within a period determined by the council after the issue of a licence, and, where applicable, a further annual fee before each anniversary of the grant of the licence. Clause 33 provides that the council may extinguish the licence if an annual fee is not paid by the date on which it falls due.
Clause 34 also authorises the council to make charges in order to recover certain reasonable costs in respect of street trading licences. These re-enact the provisions of subsections (2), (3) and (6) of section 22 (fees and charges) of the 1999 Act. The costs are in respect of refuse collection, street cleansing, reasonable administrative costs and other costs of enforcing the provisions of the Bill. Clause 34 allows the council to make a lower charge to licence holders who pay charges in full in advance or in full by other means approved by the council. In addition to the provisions of the 1999 Act, clause 34 provides that the costs incurred by the council in relation to the sale or exposure or offer for sale of any motor vehicle on the internet where the vehicle is kept on the street, will not be included in the calculation of the fees.
Clause 34 introduces Schedule 9, which makes provision about the procedure for the determination and variation of charges under clause 34. Before determining (or varying) a charge, notification of the proposal must be given by the council to all licence holders who would be affected and any body which appears to the council to represent licence holders. The notice must detail the proposed charges, state that representations may be made within a certain time, and provide a statement explaining how the charges have been calculated. As soon as practicable after the time for representations, the council must consider all representations received and those that make representations will have the opportunity to make oral representations. After making its decision, the council will give notice of the decision to all licence holders affected by the decision. The fees and charges as determined or varied will not come into force until at least 28 days from the decision date.
Clause 35 re-enacts the provisions of subsection (4) of section 22 (fees and charges) of the 1999 Act, which authorises the council to charge an annual fee in respect of administering the register of people to whom the council would be prepared to grant temporary licences.
Clause 36 re-enacts the provisions of subsection (5) of section 22 (fees and charges), which authorises the council to charge for providing additional services which have been requested by a majority of licence holders in a particular market or area. In addition, clause 36 authorises the council to charge an individual licence holder for providing additional services to the licence holder.
Clause 37 re-enacts, with modifications, the provisions of section 23 (receptacles and containers) of the 1999 Act, which allows the council, for a reasonable amount, to provide street trading receptacles for the use of licence holders and to provide and maintain accommodation for the storage of receptacles and containers.
Clause 38 authorises the council to install and remove receptacles, and allows the council to charge for doing so. It expands on the power set out in section 25 (power to remove receptacles) of the 1999 Act. While it re-enacts the provision of subsection (1) of section 25, which allows the council to remove a receptacle to a place of storage when the receptacle has not been stored on the cessation of a trading day, clause 38 also permits the removal and storage of a receptacle when certain conditions apply, namely when it is placed on a street in breach of the conditions of a street trading or temporary licence; when an authorised officer considers that it is an urgent case and that for the good or safe management of the street it should be removed; and when it is placed on the street at the time of a special event or when works are being carried out to the street and an authorised officer considers that for the good or safe management of the street, it should be removed. Clause 38 provides that any items on the receptacle may also be removed and placed in storage.
Clause 39 makes provision for the employment of assistants, re-enacting with minor modifications the provisions of section 26 (employment of assistants) contained in the 1999 Act. Clause 39 provides that an assistant may be employed by the holder of either a street trading licence or a temporary licence. If an assistant fails to comply with the conditions of the licence, that failure will be deemed to be a failure of the licence holder.
Clause 40 empowers the council to give permission to a licence holder who is an individual for a company to carry on street trading in accordance with the individual trader's licence. For permission to be granted the licence holder must be a director of the company and he must hold a majority shareholding in it. The licence holder must remain a director and majority shareholder of the company in order for the company to continue street trading in accordance with the terms and conditions of the licence. If a company fails to comply with the licence's conditions, both the company and the individual licence holder will be deemed responsible for the failure and the licence holder may be charged with an offence (and convicted of it) whether or not proceedings for the offence are taken against any other person. Clause 40 is new.
Clause 41 sets out offences of unlicensed street trading. It re-enacts with modifications, the provisions of subsections (1) to (4) of section 27 (unlicensed street trading) of the 1999 Act, which prohibits street trading by a person without a street trading or temporary licence. In addition to the provisions of the 1999 Act, clause 41 also makes it an offence for a person who is not a Specified Company to engage in street trading. It also prohibits street trading by a holder of a street trading or temporary licence on a day or place not specified in the licence without the council's permission or when the licence is suspended. The maximum penalty for an offence under clause 41 is on summary conviction a fine not exceeding level 3 on the standard scale. By virtue of amendments made by clause 56 to Schedule 2 to the London Local Authorities Act 2004, the offences would be fixed penalty offences for the purposes of Part 4 of that Act.
Clause 42 sets out other offences under the Bill, re-enacting and adding to section 24 (offences) of the 1999 Act. Paragraph (a) provides that contravening the conditions of a street trading or a temporary licence is an offence. Paragraph (b) provides for an offence of knowingly making a false statement in connection with an application for a street trading licence or temporary licence, and re-enacts the provisions of section 24(6) of the 1999 Act. It also provides that making a false statement when completing a seizure notice under subsection (5) of clause 44 (seizure notices: receptacles for refreshments) is an offence. Resisting or intentionally obstructing an authorised officer in the execution of his or her duties is an offence under paragraph (c) and paragraph (d)(i) provides that it is an offence for an individual licence holder to fail to produce an approved form of identification when requested to do so by an authorised officer or constable. Paragraph (d)(ii) is new and provides that failure by a licence holder to provide proof of third party insurance on request is an offence. Paragraph (e) makes it an offence for an itinerant ice-cream trader to fail to produce a photograph if required to do so.
A new offence is introduced under paragraph (f), namely using a receptacle in contravention of a requirement imposed by a condition under clause 14(1)(d) (which requires that the licence holder uses receptacles provided under clause 37(1)).
A new offence is introduced under paragraph (g), namely the failure of the holder of a street trading licence to inform the council that the licence holder no longer holds a majority shareholding in a company, or is no longer a director of a company, in respect of which a permission was given under clause 40.
The offences are all summary offences punishable by a fine. In all cases except the offence under paragraph (b) of making false statements, etc. the maximum punishment it a level 3 fine. For offences under paragraph (b) the level of fine is level 5. By virtue of amendments made by clause 56 to Schedule 2 to the London Local Authorities Act 2004, the offences would be fixed penalty offences for the purposes of Part 4 of that Act. Unlike under the 1999 Act, clause 42 allows the council to bring proceedings in respect of a offence under paragraph (b) within 6 months of the date on which sufficient evidence to warrant commencing proceedings came to the knowledge of the prosecutor. No proceedings can be brought more than 3 years after the committal of a paragraph (b) offence.
Clause 43 deals with seizure of items. Subsection (1) empowers an authorised officer of the council or a constable to seize items, receptacles or equipment in cases where a person is reasonably suspected of committing a street trading offence. Seizure under subsection (1) is only permitted where the article may be required to be used in evidence in any proceedings in respect of the suspected offence or where it may be subject of forfeiture by the court under clause 47. Subsection (3) enables an authorised office or constable to seize an item for examination purposes where there is reasonable cause to suspect the item is prohibited by a specifying resolution and subsection (4) enables seizure of receptacles or equipment (but not a motor vehicle) which the authorised officer or constable has reasonable cause to suspect is intended to be used in connection with an offence under the Bill relating to the sale of refreshments.
Clause 44 introduces a new procedure for dealing with receptacles used in unlawful street trading of refreshments, when they have been seized. Currently, where the council seize items under section 27 (unlicensed street traders) of the 1999 Act, they must either return them to the person from whom they were seized, if certain circumstances arise, or they can be disposed of if there is a conviction and the court orders the items to be forfeited. The council can also apply to the magistrates' court for a disposal order if the court is satisfied that the council have made reasonable efforts to ascertain the identity of the owner of the objects seized but failed.
The council seize large numbers of hot dog and other food trolleys in the West End and because of the procedures that they have to go through, they have to store the trolleys for long periods at considerable expense. In nearly all cases, the trolleys are eventually disposed of by the council because either the person from whom the trolley was seized does not contest the criminal proceedings, or the council is unable to find out who the owner of the trolley is.
The effect of clause 44 will be to enable the council to dispose of hot dog trolleys and other receptacles for the sale of refreshments without the need to go to court either to secure a prosecution or obtain a disposal order. Safeguards are included in the clause to ensure that if the person from whom the receptacle is seized wishes there to be a court hearing, then he can secure it. This is achieved by including a requirement on the officer who seizes the item to give the person from whom it was seized a notice. The notice can be completed by the recipient and returned to the council, and if it is done within the time stated on the notice and it contains all the necessary information (including the name and address of the person from whom the item was seized) and states that the recipient requires the council to seek a disposal order from the magistrates' court, then the council would be under an obligation to seek such an order. At the magistrates' court hearing, the recipient of the notice would have the opportunity to contest the proceedings.
Clause 45 provides for the return or disposal of items seized under clause 43. Items must be returned to the person from whom they were seized following the conclusion of proceedings in respect of a suspected offence, unless the court orders them to be forfeited under clause 47, or any award of costs to the council by the court has not been paid within 28 days of the making of the order.
Seized items must be returned after 28 days beginning with the date of seizure if no proceedings have been instituted; where proceedings have been instituted and then discontinued, seized items would have to be returned on the discontinuance of the proceedings.
Seized items do not have to be returned where it is not possible to identify or ascertain the person from whom they were seized or that person's address. In such a case the council must apply to the magistrates' court for an order as to the manner in which the items should be dealt with.
Clause 46 makes provision about the disposal of "relevant receptacles", namely hot dog trolleys and other receptacles for refreshments which have been seized under clause 43. It provides that if a notice given under clause 44 is not completed and returned to the council in the correct manner and within the specified time, then the council will be able to dispose of the receptacle in question and recover its costs of doing so from the recipient, if it is able to identify and find him. The powers of summary disposal would also be available to the council if when seizing the item they served a fixed penalty notice on the person from whom the item was seized. If the fixed penalty is paid within the required timescale, then the council would be able to dispose of the item.
Clause 47 re-enacts, with modifications, the provisions of section 27(9) to (10) of the 1999 Act. It permits a court before which a person is convicted of a street trading offence to order forfeiture of items. Items may only be forfeited if shown to the satisfaction of the court to relate to a street trading offence. Also, the court may not order the forfeiture of an item where a person claiming to be the owner of the item or to have an interest in it applies to be heard by the court, unless he has been given an opportunity to show cause why the order should not be made. In considering whether to make an order for forfeiture, the court must consider the value of the item and the likely financial and other effects on the offender of forfeiting the item.
Clause 48 re-enacts, with modifications, the provisions of section 27 (11) to (12) of the 1999 Act. It provides for compensation to be paid to anyone who at the time of seizure had a legal interest in the item, where the seizure was unlawful. Compensation is also payable where not less than six months have passed since the date of seizure and no proceedings have been brought against the person from whom the item was seized, or where proceedings have been brought but the person has been acquitted, or where the proceedings have been withdrawn or failed for want of prosecution. Compensation shall not be included in the computation for calculating charges under clause 34 (charges: street trading licences).
Clause 49 re-enacts, with modifications, the provisions of section 27A (seizure of perishable items) of the 1999 Act. It makes special provision about what should happen when perishable items are seized. It provides for the giving of a certificate to the person from whom the items were seized and that perishable items which are seized may be disposed of within 48 hours of seizure. Clause 49 applies, with modifications, the compensation provisions of clause 48.
Clause 50 re-enacts the provisions set out in section 27B (motor vehicles) of the 1999 Act. First, the clause extends the time within which summary proceedings for a street trading offence may be instituted, if the offence relates to a motor vehicle. The extension of time limit applies where the council have requested details of ownership of a vehicle from the Secretary of State (through the DVLA) and those particulars have not been provided by the time the usual six month period for the commencement of summary proceedings has expired. Secondly, the clause makes provision for cases where the council have seized a vehicle, and wish to return the vehicle to its owner, but the owner of the vehicle cannot be found or disclaims or refuses to accept the vehicle. In such circumstances, the council would be able to make a complaint for a disposal order under clause 51.
Clause 51 re-enacts with modifications the provisions set out in section 27C (disposal orders) of the 1999 Act, making provision for disposal orders. It sets out a procedure for an application to be made to a magistrates' court for a disposal order in certain cases. The council may make a complaint to the magistrates' court for a disposal order and the magistrates' court is empowered to make a disposal order if satisfied that the council have made reasonable efforts to identify the person from whom the item was seized (or its owner) or have made reasonable efforts to return it. A disposal order may authorise the council to dispose of the item and keep the balance of any proceeds. The court may also order that the recipient of a complaint may also be required to pay any deficit from the proceeds of the disposal, taking into account storage and disposal costs.
Clause 52 is unrelated to the street trading provisions and deals with touting for hotels, places of refreshment, shops, places of entertainment or recreation and other places and forms of transport. It empowers the council to designate parts of the city as areas where touting shall not be permitted. It would be a summary offence to tout in a designated area, punishable with a maximum level 3 fine. By virtue of amendments made by clause 56 to Schedule 2 to the London Local Authorities Act 2004, the offence would be a fixed penalty offence for the purposes of Part 4 of that Act. The clause sets out the procedural steps that the council must take before designating an area as a place to which the clause apples.
Clause 53 provides savings for transport undertakers and clause 54 provides that no provision in the Bill shall provide a defence to a charge in respect of a common law offence, or to an offence committed under any other enactment.
Clauses 55 and 56 are procedural provisions about the service of notices and proof of council resolutions and re-enact the provisions set out in sections 29 (provisions as to notices) and 30 (proof of resolution) of the 1999 Act.
Clause 57 provides that the powers of the council under the Bill may be exercised by a committee, a sub-committee, an officer or a panel of officers.
Clause 58 introduces Schedule 10 and provides that the amendments to other legislation set out in the Schedule shall have effect.
Clause 59 makes provision for the repeal of the enactments listed in Schedule 11.
Clause 60 makes transitional provisions.
EUROPEAN CONVENTION ON HUMAN RIGHTS
In the view of Westminster City Council the provisions of the City of Westminster Bill are compatible with the Convention Rights.
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