§ 12.15 p.m.
§ Read a third time.
§ Clause 6 [Street Trading]:
Lord Dean of Beswick moved Amendment No. 1:
Page 6, line 13, leave out subsection (3) and insert—
("3) In section 30(1) of the Act of 1990 (Part III Appeals), the following paragraph shall be inserted after the words "any person aggrieved"—
(aa) by the refusal of a borough council to grant or renew a licence because they are not satisfied as mentioned in subsection (4)(b) of section 25 (Application for street trading licences)".
(3A) In section 30(1)(d) of the Act of 1990 (Part III Appeals), the words "where that decision is based on any of the grounds mentioned in subsection (1)(d) to (h) of the said section 28;" shall cease to have effect.").
§ The noble Lord said: My Lords, if I appear to spend a disproportionate amount of time on the two amendments that I am moving on Third Reading, it is not in any way an indication of any violent opposition to what the Bill seeks to do. However, because the Bill 1024 was dealt with in Select Committee, it has not had an airing in any way comparable to the Second Reading debate that we have just had on the Private Member's Bill relating to the city of Leeds.
§ I should say at the start that my concern has been engendered by the street traders of London. Although I must make it clear that I am not retained by them, they wanted me to put their case before your Lordships' House. It is a fact that while the Bill was in Committee the promoters went some way towards meeting some of the requests that had been made by the London street traders. Today, I simply want to point out where they could have gone a little further (without any real weakening of the Bill) in establishing rights for people who are a traditional part of the London scene, who ply their trade in all kinds of weather and who in the most part have connections with family businesses that have been handed down over a long period.
I note with pleasure that the noble Lord, Lord Rees-Mogg, is in his place. As recently as Monday, 22nd March, he published an article in The Times, headlined,
Something rotten on the fruit stall".
Its sub-heading was,
Officialdom's treatment of a street trader shows our anti-competitive culture in action".
I shall not quote what the noble Lord said, but the case that he made will surely make him sympathetic to what I am trying to do today on behalf of London's street traders.
§ In moving the first of the amendments, perhaps I should say by way of introduction that Part III of the London Local Authorities Act 1990 introduced a code regulating street trading for adoption by the individual London borough councils. The street traders originally petitioned against the Bill which eventually became the 1990 Act and, in consequence, some amendments were made to the code, although not all of the concerns of the street traders were fully met at that time. It was understood by the promoters and the street traders that the new regulatory code might have teething problems and the street traders were given to understand that the provisions would be amended if difficulties were identified when the new system was brought into force in the various boroughs.
§ The new system operates in the same way as the old one by providing that street trading may be carried out by a trader on a particular pitch only if he is granted a licence to do so by the relevant London borough. The new system has now been brought into force in several London boroughs, including the City of Westminster and the London Borough of Tower Hamlets. Since it has been in operation, street traders have identified several shortcomings in the system. The Bill provides an opportunity to remedy those matters. Clause 6 already makes some amendments to the street trading provisions of the 1990 Act to which I referred earlier.
§ Before the Bill was introduced, on 22nd May 1991 the street traders made written representations to the Bill's promoters explaining their points of concern. They are principally the three points contained in the amendments. They produced a paper of proposed 1025 amendments which would have put right those matters. A meeting was held between the street traders and the promoters and their respective parliamentary agents before the Bill was introduced. At that meeting the promoters undertook to consider the points. However, the three matters in question have not been dealt with in the Bill as prepared by the promoters.
§ A street trader in London cannot operate his pitch without a licence. That requirement is not being challenged. No street trader may be licensed to operate more than one pitch in the same borough, and many pitches have been run by the same family for several generations. As I said, the noble Lord, Lord Rees-Mogg, wrote in an apposite and topical article headed "Something rotten on the fruit stall", which was published on 22nd March in The Times, of one such family, the Bensons, who work a fruit stall in the Horseferry Road. A decision by the licensing council not to grant or renew a licence, or to revoke a licence, is of the utmost importance to a street trader and his family because in most cases the street trading is their sole livelihood and source of income.
§ As one would expect, the general theme of the 1990 Act suggests that it was intended that an aggrieved person should always have a right of appeal against decisions of a local authority affecting his or her livelihood, to the Secretary of State where the decision raises broad issues of policy, or to the magistrates' court where the decision affects a particular case. There remain a few gaps where, presumably through inadvertence, there is no right of appeal. That is wrong. There should be a right of appeal, especially if the street trader has a case that his livelihood may be threatened or eliminated.
§ A street trading licence can be revoked by the council concerned on any one of the eight grounds set out in the 1990 Act. That Act provides a right of appeal to the magistrates' court if a licence is revoked on five of the eight grounds. It does not confer a right of appeal where the licence is revoked on the remaining three grounds. The grounds are that there is insufficient space in the street; that the trader has traded in prohibited goods; or that the trader has failed personally to avail himself fully of his licence.
§ In discussions between street traders and Westminster City Council, it was recognised on behalf of the promoters that the failure of the 1990 Act to confer rights of appeal on those grounds arose from a drafting error when the 1990 Act was prepared rather than as a deliberate policy. The Bill partly redresses the problem by providing a right of appeal to the magistrates' court for two of the three outstanding grounds. However, the Bill does not confer a right of appeal where a licence is revoked on the ground that, due to circumstances that have arisen since the granting of renewal of a licence, there is insufficient space in the street for the street trader in question. As they have gone seven-eighths of the way, the promoters might consider going a little further. There is no question of me dividing the House today. I am trying to explain the case as seen through the eyes of 1026 the street traders. There is a case for the promoters seriously to consider going a little further to deal with the problem to the satisfaction of the street traders.
§ In addition, the 1990 Act does not confer a right of appeal where the local authority fails to grant or renew a licence because it is not satisfied that there is sufficient space in this street for the trading in question. That is especially odd as there is a right of appeal to a magistrates' court where the licence is refused on similar grounds under Section 25(6) (a) of the 1990 Act. It is anomalous and wrong in principle that a street trader has no right of appeal against a failure to grant or renew his licence, or against the revocation of his licence, in the circumstances that I have mentioned. There may well be disputes in a particular case as to the facts which should be resolved on appeal to the magistrates' court or to the Secretary of State. It may be that a right of appeal would inconvenience some of the bureaucrats we seem to find from time to time in some, but not all, local authorities. For the street trader, it is his livelihood and that of his family which is at stake. On that basis, a case is made out for looking at the amendment with some sympathy. I beg to move.
§ Lord Rees-Mogg
My Lords, I support the amendment. The 1990 Act is heavily regulatory. I am glad that the noble Lord has moved the amendment. It will improve the Act slightly. The amendments tabled fall into two important categories. They remedy a series of anomalies as to where there is or is not a right of appeal. I hope that they will be accepted as the legislation proceeds, merely because in natural justice the right of appeal which is widely granted in the 1990 Act should be granted in the other areas where it happens not to have been. I cannot but think that there was a misunderstanding at the time of the passage of the 1990 Bill about where rights of appeal had been created and where they had not.
The amendments contain another rather broader point to which I should like to draw attention. The amendment to Section 36 removes the need, in certain circumstance, for the personal attendance at the stall. The licensing authorities are anxious that stalls are not sub-let. That is a reasonable anxiety. I do not believe that anyone quarrels with that view. The stall holders do not quarrel with it. They do not want a great many sub-let stalls; but they want to be able to have members of their families operating their stall as though the principal was present and they want the people whom they employ to operate the stall as though the principal were present.
Those stores are very much family entities. It is unreasonable that the daughter, the wife or the grandmother is not able to operate the store as though she were the licence holder. There is no justification for that. The stores are also entrepreneurial. We think of them as being friendly relics of a nice London past, as indeed they are, and as a pleasant part of London's shopping. However, one must also remember that firms as substantial as Tesco and Marks & Spencer began as stores of exactly the same character and were family businesses. Therefore, we are talking about an activity which attracted people who have turned out to have great entrepreneurial capacity and have built, on 1027 a slender basis, most substantial businesses. We should not take action which will tend to make it more difficult to operate the stalls on family terms or entrepreneurial terms. We should want to encourage that.
There is a final point which bears some attention. The people who operate fruit and vegetable stalls, which are an important part of the whole, must begin their day extremely early. They get up often as early as three o'clock in the morning in order to buy the fruit and vegetables. By the time the stall is cleared away in the evening, after it has served fruit and vegetables to people who themselves were going home from work, it may well be eight o'clock at night. That is a 17-hour day. It is obviously unreasonable to expect them to work a 17-hour day and be in continuous personal attendance—after all, the stall holders are not junior hospital doctors.
I hope therefore that the amendment to Section 36 of the Act, which will set right the anomaly in the Act, will in due course be accepted and incorporated into legislation.
§ 12.30 p.m.
§ Baroness Gardner of Parkes
My Lords, I am not sure whether the noble Lord, Lord Dean, wants the House to deal with the first amendment and intends later to speak to the second amendment.
§ Baroness Gardner of Parkes
My Lords, at this stage I shall deal only with the first amendment. I too read the article written by the noble Lord, Lord Rees-Mogg, and found it most entertaining and enjoyable. I thought that a great deal was inaccurate or that he did not understand the situation, but it made good reading. I hope today to correct the few errors in his article. First, the London Local Authorities Act 1990 did not introduce the control of street trading in London. That was governed by the London County Council (General Powers) Act 1947. Under the 1947 Act councils were allowed to control the types of goods sold on the stalls. That control was not introduced by the 1990 Act. The London Local Authorities Act 1990 strengthened the controls in so far as it specifically permitted councils to refuse to grant licences to new applicants on the grounds that a stall would be contiguous with the frontage of a shop; that is, right in front of a shop selling exactly the same goods.
The noble Lord, Lord Rees-Mogg, stated in his article that that should not be a deterrent. However, one must appreciate that the shop owner is paying high non-domestic rates plus rent and has many overheads. It would be unreasonable to allow someone to set up a cut-price operation selling exactly the same goods immediately in front of the shop. Therefore, the council believes that it is fair to have some kind of arrangement whereby the pitch will not be exactly outside—
§ Lord Rees-Mogg
My Lords, I am sorry to interrupt the noble Baroness but I wish to point out that the Westminster City Council regards the streets 1028 adjoining that in which the stall is pitched as being equally concerned in the question of whether goods can be sold. It is not related merely to immediately in front but also right round the corner.
§ Baroness Gardner of Parkes
My Lords, I thank the noble Lord. Of course, every application for a street trading licence is considered carefully by a number of members of the local authority who understand the area and its needs, and there are grounds for appeal. If there really was a case why has an appeal not been brought and why has it not been examined in more detail? I believe that the noble Lord's point is arguable. In his article the noble Lord stated:Shops can create their own trade, and win customers by the quality of their service as well as by the prices they charge".That view overlooks the high rent and rates. However, I do not intend to spend my time dealing with that issue; I merely felt that it should be covered in order to set the record straight.
I turn to the points raised by the noble Lord, Lord Dean, in respect of Amendment No. 1. As it stands, the amendment would have the effect of extending the ground in the 1990 Act on which a street trader could appeal against the decision of a London authority to revoke or to vary a street trading licence. Traders would be granted a right of appeal if the decision were based on the authority's opinion that there was not enough space in the street—that is the particular issue about which we are talking—and that it would be causing undue interference or inconvenience to persons or vehicular traffic using the street. At present there is no right of appeal on those grounds but the noble Lord's amendment seeks to introduce such a right.
As the noble Lord said, there has been considerable movement on the part of the London authorities—the Bill is brought on behalf of all the London authorities, apart from the City Corporation—which have agreed to two of the grounds for appeal. The first is that the holder is trading in the class of articles which the authority has resolved under the Act not to allow to be traded in the street in question. That will be a ground for appeal and it is a point made by the noble Lord, Lord Rees-Mogg, in his article. Therefore, the Bill will correct what he considered to be a previous injustice.
Secondly, there will be ground for appeal if the holder has not fully availed himself of a licence without reasonable excuse; that he has absented himself from the pitch for extended periods of time. I emphasise the phrase "extended periods of time" and apologise for debating the second amendment, which has been mentioned. The individual and personal licence does not mean that the individual must be physically and personally present for every moment. Of course, there are periods of illness or holidays to which every consideration is given. However, as the noble Lord, Lord Dean, said, the licences are personalised and they belong to particular people. In some cases they have been in the family for generations.
When I was a member of Westminster City Council we considered street licences during the latter part of 1978. They related to people in Oxford Street; one 1029 outside Selfridge's and the other outside Bond Street Underground station. To my great disappointment, and after considering the applications carefully, we did not grant the licences although the applicants established that they had been running the businesses for up to 40 years. That appeared to me to be a nonsense and therefore I am pleased to see that now such people are being "legitimised", which perhaps is the only word one can use. I believed that allowing somebody to run a stall for 40 years and then refusing to grant a licence was a nonsense. Now such people are granted licences and that is good.
There is one ground which the London authorities consider they must resist, mainly in the interests of the street traders. There may be a misunderstanding about the matter but it is on the ground of insufficient space. If an authority allowed a stall holder to appeal on that ground there could be a delay in the process of street works. Instead of allowing the trader to continue to trade until the last possible moment before the street works begin the authority might now consider that it must give him immediate notice to cease trading. If the authority allows him to continue to trade until the last moment and then he appeals there will be a delay in the essential street work.
There was a recent example of that on the corner of Carlisle Place and Buckingham Palace Road which required the revocation of the licences. The prospect of the redevelopment was known far in advance but the start date kept being deferred. As there was no right of appeal Westminster City Council was able to delay revoking the licences until the last possible moment. However, if there had been a right of appeal the council would have been forced to revoke the licences much earlier in order to avoid the possibility of public safety being put at risk while the appeal process was pursued.
Therefore, it would not be in the interests of the stall holders if the councils had to give them notice and take away the licences much earlier than necessary.
The councils believe that it is in the traders' interests to be able to carry on their business for the optimum period of time, right up to the moment at which the site is needed for the works, and that the traders should be able to recommence their business almost immediately after the work has been completed. Therefore, I believe that there is a lack of understanding as regards this matter. The London authorities feel, on the grounds of safety, that they cannot agree to that provision. Having heard what I have said, I hope that the noble Lord, Lord Dean, will withdraw the amendment.
§ Viscount Goschen
My Lords, as noble Lords will be aware, the purpose of Clause 6 is to remedy certain deficiencies which have become apparent with experience in the the street trading provisions of the London Local Authorities Act 1990. Much of what is in the clause has been agreed with representatives of the street traders. However, as is apparent from the debate on the amendment moved by the noble Lord, Lord Dean, there are still matters on which the promoters and the street traders are not wholly in accord. The Government hope that the main 1030 differences can be resolved amicably. However, if that does not prove to be possible, the street traders will have the opportunity to have their case considered and to test the promoters' arguments before the appropriate Committee in another place.
§ Lord Dean of Beswick
My Lords, I understand the Minister's noncommittal reply in the circumstances. In moving the amendment, I said that I do not intend to press it. I am merely trying to put to the House the case on behalf of the street traders. I am not totally convinced by the assertion of the noble Baroness, Lady Gardner of Parkes, that the London authorities have it strictly correct. I do not believe that it is impossible for the London local authorities and the street traders to get together to discuss their differences before the Bill proceeds to another place. I believe that legislation could be enacted to meet the situation described by the noble Baroness.
In my opening remarks, I said that the promoters have gone a long way towards meeting the requests of the street traders. I hope that the door is not closed to further discussions.
§ Baroness Gardner of Parkes
My Lords, I thank the noble Lord for giving way. The point which I failed to make, which is quite important, is that all the other grounds for appeal are related to the individual so that it is a case of an individual having a right of appeal against something affecting the individual. I do not know whether this argument applies more to the next amendment; but if it is a case of appealing against someone else having a right, that would be a different basis.
§ Lord Dean of Beswick
My Lords, I realise that the border has become rather blurred as regards both the amendments. I believe that to some extent the noble Lord, Lord Rees-Mogg, has shot my fox as regards the second amendment. However, I hope that the street traders and local authorities take note of the points raised in the debate. I have no doubt that the points that I have raised will be raised again in another place on behalf of the street traders. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 12.45 p.m.
Lord Dean of Beswick moved Amendment No. 2:
Page 7, line 8, at end insert—
("(6A) The following subsection shall be inserted after subsection (7) of section 32 of the Act of 1990 (Fees and charges)—
(7A) A notice under subsection(7)(a) above shall be accompanied by a statement showing how the charges have been computed; and any licence holder or body representative of licence holders may request the borough council to supply such further information or explanation with regard to the proposed charges as the licence holder or body may reasonably require in order to ascertain whether the proposed charges are reasonable and have been computed in accordance with the provisions of this section.
(6B) In section 32(9) of the Act of 1990 (Fees and charges), at the end, there shall be inserted the words "and to comply with any request made under subsection (7A) above".
(6C) The following section shall be inserted under section 36 of the Act of 1990 (Employment of Assistants)—
§ "Meaning of trading personally
§ 36A.—(1) For the purposes of this Act a person holding a street trading licence shall not be taken to have personally failed fully to avail himself of his licence by reason only of the fact that the street trading authorised by the licence is conducted in his absence if it is conducted on his behalf, and under his supervision and control, by a relative of his or an assistant employed by him in accordance with section 36 (Employment of assistants) of this Act.
§ (2) In this section a person is a relative of a licence holder if that person is treated as being related to the licence holder for the purposes of section 26 (Succession) of this Act."")
§ The noble Lord said: My Lords, as I said in my closing remarks on the previous amendment, the noble Baroness, Lady Gardner of Parkes, and the noble Lord, Lord Rees-Mogg, have somewhat covered the ground of this amendment; but that is understandable because they are interdependent.
§ The second amendment relates to fees and charges. The 1990 Act enables each London borough council to recover from licensed street traders fees and charges to cover the costs incurred by the council in connection with street trading. Licensed street traders and bodies representing them have a right under the Act to appeal to the Secretary of State if they are aggrieved by the amount of fees charged or levied. However, the Act does not give them the right to obtain from a local authority particulars of the way in which the fees have been calculated. Without that power, the right of appeal is ineffective. The street traders should be entitled to satisfy themselves that the fees and charges are being levied fairly.
§ It is in the interests of both parties—the local authorities as well as the street traders—that proper information should be provided on fees and charges in order to prevent unnecessary appeals. However, the street traders have found that some London boroughs —and I repeat some but not all London boroughs —are reluctant to provide them with proper information about fees and charges.
§ The noble Baroness, Lady Gardner of Parkes, and the noble Lord, Lord Rees-Mogg, referred briefly to the requirement on street traders to trade personally. Before the 1990 Act was passed, there had been a few cases of persons obtaining a licence for a pitch or sometimes several pitches which they did not operate personally but sub-let to others. That practice was opposed by local authorities and by the bona fide street traders, and it is the agreed policy of the 1990 Act that a street trader can only hold only one licence for one pitch in a borough and that the pitch must be operated by him.
§ The 1990 Act requires a licensed street trader to trade "personally" and "to avail himself fully of his licence". Failure to do so is a ground for revocation of the licence. The purpose of this requirement is to prevent street traders sub-letting or forming cartels. It was never intended that a street trader should have to perform all the tasks connected with his business on his own. Indeed, the 1990 Act permits him to employ an assistant. Unfortunately, there is confusion about what is meant by the requirement to trade "personally". London boroughs are now suggesting that street traders will be in breach of this requirement if they fail to attend at their stall in person for most (if not all) of each trading day. The noble Lord, Lord 1032 Rees-Mogg, referred to the possibility of a 17-hour day. That could be a reality and is not necessarily a figment of anybody's imagination. Some boroughs have instructed inspectors to make spot checks at stalls and if they find that the licensed trader is not there, but only a member of his family in his place, revocation of the licence is threatened and may well be carried out.
§ That is oppressive and unreasonable and is not within the spirit of what was intended by the requirement in the 1990 Act that traders should trade personally. Many important and time consuming aspects of a trader's business—for example, purchasing goods and attending to book-keeping—necessitate the licence holder being absent from his stall for considerable periods of time. In practice a responsible trader will make provision during his absence by leaving his wife or other member of his family or an employee in charge of the stall. The noble Lord, Lord Rees-Mogg, made the point that a stall holder may make a start at 3 o'clock in the morning and not finish his work until early evening. That is an extremely long day. We ask that some of those practices should be discouraged by the insertion of the amendment.
§ It is of very great importance to licence holders that there should be no further doubt as to the meaning of the requirement to trade "personally" since breach of that requirement renders them liable to have their licence revoked. This amendment would make it clear that a licence holder should not be taken to be in breach of the requirement to trade personally by reason only of the fact that the street trading authorised by the licence is conducted in his absence if it is conducted on his behalf, and under his supervision and control, by a relative of his or by an assistant employed by him in accordance with the 1990 Act.
§ It is another case where we think that the London boroughs may well wish to take another look at the matter. As I said when speaking to the previous amendment, and before the noble Baroness speaks on behalf of the promoters, I should stress that I have no intention of dividing the House: I am just making the case that we think is reasonable and one that it may well be worth the promoters considering. I am sure that the case will be argued much more strongly, and may well force a Division, in the other place. I beg to move.
§ Baroness Gardner of Parkes
My Lords, the amendment falls within the two categories that I mentioned. The first bit is about information as regards charges. Under Section 32 of the 1990 Act, authorities are given the power to charge fees for the grant or renewal of street trading licences at a level sufficient to cover the reasonable administrative and other costs incurred in the discharge of their functions in relation to street trading.
The amendments would impose a statutory duty on authorities to provide a breakdown of the expenses taken into account in setting the level of fees and,to supply such further information or explanation with regard to the proposed charges as the licence holder or body [representative of licence holders] may reasonably require in order to ascertain whether the proposed charges are reasonable".1033 I am assured that the boroughs do not object to the principle of providing a statement of how charges are computed. In fact, boroughs mostly do that as a matter of course. Further, when the street traders or their associations ask for additional information, no reasonable request would or should be refused. But the difficulty with the amendments is that they would impose a widely-drawn statutory duty on councils to provide information on the breakdown of fees charged. The worry is that if councils were put under such a duty, they might be swamped with requests for information, not only from associations representing street traders but also from hundreds of individual licence holders. That would make for administrative chaos and the cost would ultimately fall on the traders through higher licence fees.
Clearly a balance needs to be struck between the traders' right to information and the administrative efficiency of the system. I am sure that the traders would not want to produce such a powerful, bureaucratic assessment procedure that would greatly increase their costs. The boroughs submit that the present arrangements satisfy the balance, because the boroughs provide street traders with a breakdown of costs and accede to reasonable requests for further information. The imposition of a statutory duty would add an extra layer of bureaucracy and could be administratively chaotic and expensive. For that reason, the promoters seek to resist the amendment. However, it is a matter upon which there could be further discussion and there might be some mutually acceptable resolution; for example, a code of practice for the boroughs might be a way round the issue.
I find the second part of the amendment rather surprising as it comes from the noble Lord, Lord Dean of Beswick. I say that because he has told us how very personal it is for someone to have a stall. The whole heart of street trading provisions in the capital relies on the personal trading element. Under the 1990 Act a street trader may have his licence revoked if he:has without reasonable excuse personally failed fully to avail himself of his licence".That is the concern of the noble Lord, Lord Dean of Beswick. Further, an applicant may have his application for a street trading licence turned down for failure to fully avail himself of a previous street trading licence. In practice, that means that a street trader is expected to trade personally from his or her pitch, except in the case of unavoidable temporary absences—for example, sickness, holidays or purchasing stock. Indeed, there would be many reasons why someone would not have to be there. It is a very fair case to state that no one could be there for the number of hours that we have had quoted. I believe that that is a subject for discussion. After all, in most forms of employment now, people are only expected to work for a limited number of hours. However, the concept ensures that when a breach of the terms of the licence occurs, the person responsible is readily identifiable. That is another reason why it is especially important to have one particular trader and to have him be responsible.
1034 I would be concerned if it became too easy to run multiple stalls. That is the way that the illegal umbrella trade now operates in Oxford Street—under one entrepreneur. That is not to the advantage of any of those people. I understand that street traders value the personal element of the licence and the fact that they have a right to pass it on to a nominated relative. That is a little like the New York taxi drivers: once you have the licence, it can stay in the same line forever.
The amendment would insert a watered-down definition of trading personally into the 1990 Act. It would allow the holder of a licence to be absent for an indefinite period. In effect, it would allow a licence holder to sublet his or her pitch. That is a practice that the concept of personal trading was introduced to eradicate. The promoters are determined to resist the amendment because it would undermine the whole basis of the street trading provisions of the 1990 Act.
Many of the street trading provisions of the 1990 Act would be rendered superfluous if the concept of personal trading were removed. As I understand, the street traders themselves do not wish to remove the element of personal trading; indeed, that is something they value highly. For example, there is no point in having the applicant supply photographs if he is never going to be there. The photograph is to make him identifiable as the licence holder. If the licence holder does not have to be on a pitch, there is no need for the prohibition in the 1990 Act on limited companies or partnerships holding licences.
Finally, if the amendment were passed, there would be no need for the prohibition on holding pitches in different licensed streets. The thinking behind the prohibition is that the licence holder could not personally work pitches in two different markets or two different licensed streets at the same time. However, that is not to say that a member of his family could not have his or her own licence in his or her own right. As regards the earlier debate, and as I would have said in my summing up, this is where the promoters believe that it is right for local authorities to determine who should have the licences. If rights of appeal became standard practice for anyone who did not get a licence because someone else was granted the licence, it could hold up the whole licensing system and keep pitches empty. Ultimately, it would be the magistrates' court rather than the local authority that would determine who should have the licence. Clearly, that is something to be avoided.
Licence holders have a statutory right to pass the pitches on to a nominated relative. The inheritance provisions were widened in the 1990 Act at the request of the traders to permit retirement on age or health grounds rather than only on death, as was the case previously. One of the intentions behind that was to strengthen the personal trading aspect by allowing a sick licence holder to retire and pass on his or her licence rather than being forced to continue working when he or she was unfit to do so.
Section 36 of the 1990 Act makes the position clear. A licence holder can employ someone to assist him but not to replace him. The intention of the Act is abundantly plain in that it refers to the "temporary absence" of the licence holder. The street trading 1035 provisions of the 1990 Act are founded on the concept of personal trading. Therefore, the promoters feel it most important to resist the amendment which would undermine the whole concept of street trading.
§ 1 p.m.
§ Lord Dean of Beswick
My Lords, I know that the noble Baroness has replied at length on behalf of the promoters. However, I think that she reacted excessively when she more or less intimated that if the amendment were accepted, it would open the floodgates to a multiplicity of traders on sites in London. My points did not concern that issue in particular. I do not think the issue the noble Baroness referred to is a widespread practice. Some local authorities possibly deal with this issue in a different way to others. I am a Mancunian and I know a lot about the markets in Manchester. I have also become familiar with markets in other areas where I have lived throughout my political career. I have shopped on dozens of occasions in the large indoor market in Leeds where the first Mr. Marks of the Marks & Spencer chain pitched his first stall, which was a penny bazaar. The spot is now commemorated by a miniature Big Ben.
I am fully aware that some racketeers have obtained a multiplicity of sites in markets in the inner areas of cities such as Manchester and Leeds and in parts of London. I know of no registered trader who would support such racketeering. The registered traders want individual sites. I am an ex-local government man myself and I am of the opinion that the proper licensing authority in this matter is the local authority.
I have sought through the amendments to allow for further discussions to resolve some points which are capable of being resolved where there is perhaps unnecessary friction at present. There may be excessive officialdom in some areas that does not exist in other areas. The noble Baroness, Lady Gardner of Parkes, referred to the point that some traders may be forced out of particular streets earlier than is necessary. I do not think that is on the cards because most of the areas of dispute we have mentioned are not unresolvable. I believe those matters can be reconsidered.
The registered market traders I have known are a credit to the community. They are a longstanding feature of their areas and they add character to their communities. I hope that with the aid of the noble Lord, Lord Rees-Mogg, I have at least shown there may be room for further thought on this subject. I hope the local authorities which have sponsored the Bill will not turn their backs on further discussions with the street traders of London. I repeat I am talking about the bona fide street traders of London. I express my appreciation once again to the noble Lord, Lord Rees-Mogg, for his help in this matter. I also thank those noble Lords who have stayed to listen to this debate. Some may consider this is a small point, but it has great implications for cities such as London, as no one wants street traders to be dumped all over the place with garbage being left all around. Most bona fide street traders obey the law and are a credit to their 1036 areas. I believe the noble Baroness has indicated that the door is not closed to further talks. On that basis I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Gardner of Parkes
My Lords, I beg to move that the Bill do now pass.
I believe it is important to clarify a couple of points and place them on the record for the benefit of anyone in the other place who wishes to consider this matter further. The promoters of the Bill do not have closed minds but they consider that on some points they have unbeatable arguments. The street traders would be well advised to look carefully at those arguments and that is why I have referred to them in such detail. In particular, it is important that the street traders themselves distinguish between appeals that an individual makes as regards his own rights and appeals that other individuals could make simply because they are trying to jump the queue and take someone else's place.
The street traders would be unwise to allow any measure to be passed into law which could slow the whole process down and which could mean that in the end a less suitable trader obtains a licence after a considerable delay. In the meantime no one has a licence. I am thinking particularly of someone who lodges an appeal against a licence that was refused on safety grounds because there were already too many stalls in a particular spot. The person who is refused the licence could appeal against that refusal on the grounds that he thought he should have the licence rather than the person who obtained it. That could throw the whole licensing process into disarray.
I know that the personal trading element is very important to the promoters of the Bill. My personal view is that the noble Lord made a valid point as regards the hours and conditions of market traders. It would be interesting if the promoters discussed with the boroughs some kind of code of practice. No doubt in some cases no one is being unreasonable but there may be other cases where people are acting unreasonably. A code of practice might be a good measure to establish.
A distinction needs to be made between a complete market and an isolated pitch. The street traders and the promoters are well aware of that distinction. We do not have such street markets in Australia and I think highly of the British street markets. I often visit the street market that is situated near my surgery. The individual traders that I know do a good job and are greatly appreciated by the public. I thank the noble Lord for withdrawing his amendments.
Moved, That the Bill do now pass.—(Baroness Gardner of Parkes.)
§ On Question, Bill passed, and sent to the Commons.