HL Deb 14 October 1976 vol 375 cc539-49

[No. 3]

After Clause 6, insert the following new clause:

Control of road-side sales.

.—(1) If a highway authority considers that, for the purpose of avoiding danger on or facilitating the passage of traffic over a highway for which it is the highway authority, it is appropriate to make an order under this subsection in respect of the highway, the authority may make an order (hereafter in this section referred to as a "control order") specifying the highway and providing that, subject to subsection (5) of this section—

  1. (a) no person shall sell anything on the highway or offer or expose anything for sale on the highway; and
  2. (b) no person shall, for the purpose of selling anything or offering or exposing anything for sale on the highway or of attracting from users of the highway offers to buy anything, put, keep or use on the highway, or on land within fifteen metres from any part of the highway, any stall or similar structure or any container or vehicle.

(2) The Highway authority for a highway in respect of which a control order is in force may vary or revoke the order by a subsequent order.

(3) Section 84C(1) to (5) and (6) of the Road Traffic Regulation Act 1967 (which relate to the procedure for making orders under the provisions of that Act mentioned in subsections (1) and (5) of that section) shall have effect as if sub sections (1) and (2) of this section were included among those provisions.

(4) If a person contravenes a control order which is in force for a highway, the highway authority for the highway may by a notice served on him require him not to contravene the order after a date specified in the notice (which must not be before the expiration of the period of 7 days beginning with the date of service of the notice); and—

  1. (a) if a person on whom a notice relating to a contravention of a control order is served in pursuance of this subsection contravenes the order after the expiration of that period, or causes, permits or procures another person to contravene it after the expiration of that period, he shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50;
  2. (b) if a contravention in respect of which a person is convicted of an offence in pursuance of the preceding paragraph is continued by him after the expiration of the period of 7 days beginning with the date of the conviction he shall, as respects each day on which the contravention is so continued, be guilty of a further offence and liable on summary convicton to a fine not exceeding £10.

(5) A control order does not apply—

  1. (a) to anything done at premises used as a shop or petrol filling station either—
    1. (i) in pursuance of planning permission granted or deemed to be granted under the Town and Country Planning Act 1971, or
    2. (ii) in a case where the premises are, without such permission, lawfully used as a shop or petrol filling station, or
    3. (iii) without prejudice to the generality of sub-paragraph (ii) above, in a case where by virtue of section 87 of that Act (which relates to enforcement notices) an enforcement notice in respect of that use of the premises cannot be served;
  2. (b) to anything done at a market in respect of which tolls, stallages or rents are payable;
  3. (c) to the sale, offer or exposure for sale of things from or on a vehicle which is used only for the purpose of itinerant trading with the occupiers of premises or which is used only for that purpose and for purposes other than trading;
  4. (d) to such a vehicle as is mentioned in the preceding paragraph or to containers on the vehicle;
  5. (e) to, or to containers used in connection with, the sale, offer or exposure for sale, by or on behalf of the occupier of land used for agriculture and on that land, of agricultural produce produced on that land;
  6. (f) to the provision, in a lay-by situated on a highway, of facilities for the purchase of refreshments by persons travelling on the highway or on another highway near to the highway;
  7. (g) to anything as respects which the control order provides that the order is not to apply to it.

In paragraph (e) of this subsection "agriculture" and "agricultural" have the same meanings as in the Agriculture Act 1947.

(6) References in the preceding provisions of this section to a control order are, in the case of a control order which has been varied in pursuance of subsection (2) of this section, references to the order as so varied.)

[No. 4]

Page 40, line 22, leave out ("6") and insert ("7").

Baroness BIRK

My Lords, I beg to move that the House doth not insist on their Amendment No. 1 to which the Commons have disagreed for the Reason numbered 2 but propose Amendments Nos. 3 and 4 in lieu thereof.

Your Lordships will no doubt remember that when this Bill was before us at Report stage a new clause was added which had as its objective the control of roadside trading in England and Wales. I do not think there is any need for me to detain the House with a detailed explanation of the clause as it was fully debated at that stage, and earlier during Committee, but it may be of some help to the House if I summarise briefly its main aspects.

The clause which was added on Report would, broadly speaking, prohibit the sale of food and articles on the verges and lay-bys of all trunk and principal roads in England and Wales, and enable highway authorities, by order, to prohibit such sales on other roads. Although certain produce and premises would be exempt from control the ban would apply automatically and extend for a distance of 15 yards on either side of the road.

I need not remind the House that the Government found the clause unacceptable. There were two main reasons for this. The clause contained no element of discretion—it would have imposed a blanket ban on roadside trading on all major roads in the country whether or not a problem existed to be dealt with, irrespective of the wishes of the local authority. Secondly, it would have had a detrimental effect on the provision of refreshments for travellers, and particularly for lorry drivers.

The noble Viscount, Lord Amory, and the noble Baroness, Lady Young, described in some detail the sort of trading and their ensuing problems with which the clause was intended to deal and the use made by local authorities of their local Act powers. I agree that certain types of roadside trading need some measure of control. There is the prospect of litter; there is also—and this was stressed during the debate—a danger to road users if trading is completely unfettered on roads which are not suitable for such activities. The roads to the coast in the summer are obvious examples.

Where we differ is in the means by which control is to be achieved. We have, as was promised in the other place, had another look at the matter to see how far the objections I have mentioned can be overcome. When this was pressed in the other place, my honourable friend said that he would look at it during the Recess and that, both as a result of the proceedings in this House and of what was said in the other place at the time, he would consider it very carefully to see whether it would be possible to find some means of meeting what was said by noble Lords opposite and the view that the Government took at the time.

The new Amendments before the House are the result of our consideration of all the facets of this problem. The most notable feature of the proposed new clause is, I think, that it has a much more reasonable application than that moved by noble Lords opposite. Discretion to apply the clause lies with the highway authority. If the authority decide that a trading activity on a particular stretch of road is causing problems, they may make an order prohibiting the sale of goods on a length of road specified in the order. But first they must advertise their proposals and consider representations in the same manner as if the control order had been made under the Road Traffic Regulation Act 1967. A control order may not apply to certain people who we believe have a right to be exempted—the farmer selling produce from his land adjoining the road, the itinerant trader, and people running mobile canteens and similar structures catering for lorry drivers and other road users, provided—and this is very important—that they trade in a layby.

The clause is not perfect: no attempt to regulate so diverse an activity as roadside trading could be. We have to consider the interests of road users, who may legitimately require both refreshment from time to time and safe roads, and those of local people who resent litter deposited by travellers through their area. The clause is an honest attempt to deal with these various requirements, and to prevent the need for each local authority which needs powers to restrict roadside trading from seeking them in local Bills. As such, it is squarely in line with the principles lying behind the whole Bill. I hope the House will agree that the procedure set out in the clause provides the best possible solution to a most difficult problem, and I commend it to the House. In moving the Amendment, I should add that the second Amendment is entirely consequential. I beg to move.

Moved, That the House doth not insist on their Amendment No. 1 to which the Commons have disagreed for the Reason numbered 2.—(Baroness Birk.)

Viscount AMORY

My Lords, we are sorry that the Commons could not agree with the new clause which was inserted at the Report stage. We recognise that the new clause which the noble Baroness has just introduced to us has been put forward as a compromise attempt to meet some of the objections that were found to the clause that was added to the Bill by this House. We appreciate the efforts of the noble Baroness to find a solution which would be acceptable to the Government and to the local authority associations. The Association of County Councils has carefully considered and discussed with officials in the Department of the noble Baroness the proposed new clause, but after doing so the association concludes that its members would feel that the compromise which is now suggested would not work very well.

Three of the reasons for this conclusion are as follows: First, that the clause does not apply automatically to trunk and principal roads, and a doubt is felt whether the Department of Transport, as the highway authority, would be active in applying the provisions to specified trunk roads. Secondly, doubts are felt about the period proposed before notices take effect, which it is felt would be apt to stultify the object because of the relatively itinerant nature of many traders. Thirdly, the exemption for the provision of refreshment in lay-bys is felt to be fairly loosely drawn.

There are other more technical doubts and objections with which I need not trouble your Lordships. We realise that it is too late now to suggest Amendments to the new clause which the noble Baroness has introduced. If therefore the choice is between the proposed compromise clause and no clause, then the Association of County Councils believes that its members would reluctantly prefer no clause, which would leave those authorities which are in a position to do so, to rely on the better drafted—as we think—local Acts until 1984 and it would hope thereafter that such of these local provisions as have been found useful may then be re-enacted.

I am sorry to be so unwelcoming to the new clause put forward by the noble Baroness, as I know that she hoped that it might provide a bridge. I rather hope that when the noble Baroness realises that the clause she is putting forward in the hopes of getting agreement will not succeed in that object, she might, as it no longer achieves the aim, perhaps be inclined to withdraw it. But if she feels that she cannot do that, then my noble friends and I must make it clear that with deep regret we cannot welcome the clause which she has put forward.

7.23 p.m.

Baroness YOUNG

My Lords, I should like to support my noble friend Lord Amory in this matter. I do not wish in any way to repeat the arguments he has put so lucidly, nor do I wish in any way to seem ungrateful about the Bill. My first reason for speaking at all is to say that we on this side of the House wish to acknowledge that in our experience of this whole Parliament this is the first Bill which has come back to us having only one Amendment which has not been accepted by another place. We are very grateful for this and we acknowledge it. We acknowledge also that in the case of the one Amendment which they have felt unable to accept the Government have produced a compromise Amendment. I should like to acknowledge our gratitude for that, and we hope that we on this side of the House have been able to make this a better Bill. I want to make that quite clear at the beginning.

With regard to the Amendment which we are now discussing, I should like to ask the noble Baroness, Lady Birk—who I know has taken a great personal interest and considerable trouble in this matter—whether she would consider withdrawing the compromise Amendment and reverting to the status quo before the Bill was amended at all? I believe that this is the wish of the Association of County Councils which first raised this matter and which recognises the difficulty in which the Government have found themselves over this Amendment, but which feels that the problem that it is designed to meet would be better dealt with by the legislation as it is, without the compromise Amendment. I do not know whether this is possible, but I should like to press this suggestion upon the noble Baroness. In doing so I hope that she will realise that this is not done in any critical or carping spirit, because I am most grateful for the acceptance of our Amendments by another place.


My Lords, I should not like my noble friend to feel that she has no support at all in the House for the alternative Amendment which she is commending to your Lordships. Undoubtedly there is a grave danger arising from traders who park alongside and on our main roads. The county council of which I was a member took powers many years ago to deal with this problem. One respect in which I prefer the Amendment now presented to the original Amendment incorporated in the Bill is that it gives more power to the local authorities. We are always talking in your Lordships' House about giving local authorities more power. This proposal gives them an option. They are allowed to decide whether or not they want to introduce these controls.

With regard to the suggested serving of refreshments in lay-bys, I am sorry to see that this was objected to by the noble Viscount, Lord Amory, because there are many people who use the roads by both day and night, long-distance lorry drivers among them, who would welcome the opportunity of having a "hot dog" stall or perhaps something a little more elaborate for a meal in some of the lay-bys, where they are perfectly safe and where the drivers can pull up in the course of a long journey. I notice—and it is well in keeping with the times—that whereas the original Conservative Amendment used the old-fashioned expression "15 yards", we with our more modern outlook have substituted "15 metres" in the alternative Amendment. I hope that the Amendment put forward by my noble friend will be adopted.

Baroness BIRK

My Lords, I am grateful to the noble Viscount and to the noble Baroness for objecting more in sorrow than in anger over this matter, and I am grateful, too, for their appreciative remarks, in particular to the noble Baroness, Lady Young, for her comment on the Bill, with which I entirely agree; it left this House a very much better Bill. I was remarking to myself today that it is perfectly true that all the Amendments which we passed between us were accepted by the other place, except this one about which your Lordships will remember I had various misgivings myself. The noble Viscount mentioned—

Viscount AMORY

My Lords, I should like to intervene only to assure the noble Baroness that I had thought that as I was speaking only on this new clause I perhaps would not be able to say how much I would have agreed with what my noble friend has since said. The labours in this House have greatly improved the Bill which as a whole will be greatly welcomed by the local authorities.

Baroness BIRK

My Lords, I thank the noble Viscount very much for his remark. In fact I had taken it for granted that that was what he intended to say. He raised three points. I was sorry that he found that he had to say that it was a compromise which would not work very well. I do not wish to go through all the points raised in the previous debate, but I felt that in the circumstances it is an extremely good compromise. It has been rather like an occasion where, having managed finally to get both parties to the altar, they now seem to be splitting up even before the marriage has taken place, which is a great pity.

The noble Viscount mentioned, first, the problems of the roads—that this would not apply automatically. It will be for the Secretary of State for Transport to make orders in respect of trunk roads, and this is unavoidable since the orders are for the purpose of "avoiding danger or facilitating the passage of traffic" on highways, which is their whole purpose. Therefore they must be made by the highway authorities, and the highway authority for trunk roads is, as we all know, the Secretary of State. Nevertheless it will be for county councils which face the problem of roadside trading to persuade the regional controllers of the Department of Transport that an order should be made. I do not think that there is any great difficulty about this.

The regional controllers are extremely concerned about road safety, about the unobstructed passage of traffic and about the avoidance of nuisance on trunk roads. If a county can demonstrate their problem—and I think they are all agreed that there is a need to bring in this sort of banning and orders—and intend to make control orders covering their principal roads, it is difficult to imagine them holding out against making an order for trunk roads. I believe that is so, and the power in these matters, the pressure from a county council, can be extremely strong. I appreciate the point made by the noble Viscount that in this context there is a great deal to do.

On his second point, concerning the seven days' notice that there must be, I think we are all agreed that some notice has to be given to somebody who contravenes the control order, because unless one has an enormous number of notices all over the place there will be no way of knowing that a control is in operation, and festooning the roads with signs would bring us up against further problems and we should probably need another Act in order to do away with that. This really is in the nature of being a red herring. The powers are needed to give authorities the ability to tell traders to move on, and if they do not do so they will be prosecuted. It is not, therefore, a question of whether they trade on one day or seven days. One must be just in this and give people the opportunity. The ability to do this is provided by either form of legislation. The really determined offenders, those who are prepared to receive a notice, will, seven days later, become liable to a £50 fine and, seven days after that, to a daily fine of £10; and if they still want to continue to trade, I do not think these provisions will deter them.

Incidentally, in the clause moved by the noble Viscount, if I remember, the daily fine did not exceed £5. We have in fact increased it so it is not so lucrative to do this. His third point I think was the definition of the word "refreshments". It is true that it is difficult to define it more closely, but I think that it simply means things to eat and drink. I do not think that selling clothes in a layby would pass under the definition of "refreshments". I think it must be pointed out that this exemption applies to facilities for the purchase of refreshments in laybys only, and if this cannot be used for that then one could ask well what are the uses for laybys apart from cars stopping there, where they often stop, and enjoy their own refreshments. It is an opportunity for a rest, for stretching one's legs and occasional car repairs, but also for the purchase of drinks or snacks.

It would be quite wrong to ignore the needs of lorry drivers or to think that their case is overstated, and noble Lords will remember that when we discussed this in the earlier passage of the Bill, that was one of the points I kept stressing, because there has been a reduction in the number of roadside cafes and a tendency for former cafes to move more "up market" to cater primarily for the more profitable trade provided by motorists. By making this exemption it would ensure that mobile stalls in laybys could continue to provide this service which lorry drivers and other travellers need and which it seems unreasonable to deny.

Even so, taking the noble Viscount's argument to the ultimate, it would in the last analysis be for the courts to decide if there were to be a particularly doubtful interpretation. When the noble Viscount says that it would be better to leave this to local Acts, I believe we are all agreed that the purpose of drawing these together in this Miscellaneous Provisions Bill was in order to prevent the necessity of doing that, which is not only time-consuming for Parliament, but is also an extremely expensive and very lengthy and elaborate process for local authorities, and I do not think that this is the way to tackle this particular problem.

I do not think that it would answer the question. I entirely agree with my noble friend Lord Leatherland who pointed out that people stress the need and the right of local authorities to demand autonomy. The right way to do it and to give them the power that he described is by giving them the discretion which is covered in this clause. That is preferable on those grounds alone to the clause which was originally moved by the noble Viscount. While I appreciate that the noble Viscount and the noble Baroness who are moving their original clause have not got exactly what they want and the Association of County Councils is not entirely happy with it, I should have thought, frankly, that a piece of cake of this size was better than no cake at all. If I may say so, I think they would be very misguided to want to return to the previous position when we have taken such trouble and were indeed so convinced by so many of their arguments, by the wide desire in various parts of the country for some form of control, that we have now brought forward this Amendment in order to provide what I believe is exactly what was being asked for both at Committee and Report stage in this House. Therefore, I tell the Committee that I must continue to commend the Amendment to the House and I hope that the House will accept it.