Northern Ireland Assembly
Monday 5 February 2001
The Assembly met at 10.30 am (Mr Speaker in the Chair).
Members observed two minutes’ silence.
As no amendments to clauses 1 to 8 have been tabled, I propose, by leave of the Assembly, to group those clauses.
Clauses 1 to 8 ordered to stand part of the Bill.
Clause 9 (Discretionary grounds for refusing an application)
The Chairperson of the Social Development Committee (Mr Cobain):
I beg to move amendment 1: In page 6, line 36, leave out "or".
The following amendments stood on the Marshalled List:
No 2: In page 6, after line 40 add
(iv) there are sufficient traders trading in the street from shops or otherwise in the articles, things or services in which the applicant desires to trade." — [Mr Cobain]
No 3 (amendment to amendment 2): Leave out from "street" to the end and add
"street, or at premises adjoining it, in the articles, things or services in which the applicant wishes to trade." — [Mr Morrow]
No 4: In page 6, after line 40 insert
"( ) it is believed that the preparation or sale of a specified type of article or thing would adversely affect the general amenity of the area." — [Mr S Wilson]
The Social Development Committee took evidence from a number of sources and considered the Bill in depth. In general, the Bill is welcomed by the Committee, as it provides for a modern and effective framework for the regulation of street trading in our towns and cities.
It is the Committee’s belief that this Bill will have an important and enduring impact on modern trading in towns and cities throughout Northern Ireland. This Bill is a long-overdue response to a rapidly deteriorating situation. Illegal trading on our streets has long been on the increase. There is huge opposition to the spread of unsightly street trading, which operates in flagrant disregard of existing but outdated legislation. This Bill represents a complex piece of legislation that deals with issues that have not been dealt with for well over 70 years.
The Social Development Committee is agreed that it is necessary to modernise legislation and introduce meaningful control over illegal street trading. It also wants to strive to add to the new sense of vitality and vibrancy that is developing in our towns and cities. As a Committee which is concerned with the regeneration of Northern Ireland’s towns and cities, we want to play our role in encouraging ingenuity and new dimensions.
Therefore the Assembly needs to get this legislation right, not only for the health, safety and convenience of the public, but also for the sake of those street traders who bring a welcome blend of colour and character to commercial areas. To further this objective, the Committee is proposing two amendments to clause 9. The Committee feels that if, for example, there are already five people selling flowers in a particular location, or that there is a plethora of burger bars, a council may occasionally want to use this as grounds to refuse an application.
Difficulties with regard to planning legislation have arisen in the past due to a lack of an adequacy clause. These difficulties will also apply to street trading. There could be 10 burger bars or hot-food takeaways on one stretch of the road. Nothing can be done about that under the Bill as it is currently drafted. It may be suitable to have 10 pitches in a street, but it may not be desirable for them all to sell the same thing.
By way of illustration, the Committee believes that 10 burger bars in one street would undoubtedly have an adverse affect on an area’s amenity due to odour, litter, noise and so forth. Adequacy could be used in that scenario. The Committee believes that it is essential for the Bill to have a clause covering the need for adequacy for certain types of street trading.
I ask the Assembly to fully support the Committee’s views on this. I know that the Minister and his Department have subsequently considered the aspects of adequacy and my Committee’s deep concerns. In light of this amendment, they have tabled their own amendment to ensure that this addition to the Bill is an effective and integral part of regulating street trading in our towns and cities. I commend the Minister and his Department for this, and I urge the Assembly’s full support in endorsing these amendments.
Mr S Wilson:
Are we dealing only with amendment 2?
The Assembly is dealing with the first group of amendments — numbers 1 to 4 — including the amendment standing in your own name.
Mr S Wilson:
I welcome the fact that this Bill has finally come before the House. It would be remiss of me if I did not pay tribute to Nigel Dodds, former Minister for Social Development, and to Maurice Morrow for bringing this forward.
During the direct rule period, councils across Northern Ireland waited approximately 5 years for this legislation’s introduction. They highlighted the inadequacy of the existing street trading legislation and the fact that those who chose to trade illegally in town and city streets across Northern Ireland faced little or no sanction. Despite the urgency of the case, especially in Belfast — but in other towns across the Province too — the direct rule Administration showed no haste in bringing forward adequate and proper legislation. The fact that this legislation is before the House today is an indication that matters are responded to when local people are in charge of issues in Northern Ireland.
I want to make it clear that this legislation is not about stopping street trading. In many cases, street trading can add to the colour and vibrancy of a town and a city. It provides a different type of shopping experience, which many of us have viewed as an asset in other cities. However, the situation in Northern Ireland was that street trading was not an asset in many town centres; it had become a detriment to them. Indeed, the number of complaints and letters I have had would indicate that.
This piece of legislation is welcome, as there will now be effective sanctions for councils to use against those who choose to trade in our streets illegally. However, as with all pieces of legislation, and especially those drawn up by people who are not the actual practitioners of the law, there can be gaps.
One such gap will be dealt with by amendment 4, which is being moved in my name. It deals with the nuisance that can be caused by some activities, especially those that do not sit easily with the trading activities located beside them. For example, in a number of places across Belfast outdoor burger bars are located at the doors of shops selling clothes. Inevitably, food preparation creates a smell, which in many cases wafts into the premises and clings to the clothes. Those traders — who are paying substantial rates and who have a substantial investment in their business — find that their business is being affected detrimentally.
Although it may be a huge nuisance for the clothes shops in question, it would not constitute a nuisance as defined in the Public Health Act, because it does not lead to rodent infestation, or whatever. Therefore there needs to be a clause to give councils discretionary powers to look at that type of situation.
There may be a number of objections to this, and I want to deal with some of them quickly. When the Committee discussed the matter the first objection was that an amendment such as this would be so general that it could be interpreted too widely and, therefore, would not make for good legislation. I suppose that suggestion also applies to the amendment that has been moved by the Chairperson of the Social Development Committee.
Looking at the Street Trading Bill, one can see that this argument is not unique to amendment 4. Indeed, the very nature of this type of legislation requires that you cannot be too descriptive — otherwise many types of activities could fall outside the legislation. For example, in clause 9 the first provision that a council may use to refuse an application is that the location at which the applicant wishes to trade as a stationary trader is unsuitable. It could be argued that that provision is fairly wide. Another provision is that it the trading would cause "undue interference or inconvenience". Others provide for the revocation of a licence if someone "has persistently failed" to do something or other. None of those terms are defined.
Therefore anyone who says that this amendment will widen the legislation too much or will make it too vague fails to understand the very nature of the type of legislation we are dealing with. It cannot be prescriptive. If it were, it would not work because there would always be loopholes.
Another argument that has been made is that the amendment would discriminate against a particular kind of trader. For example, I have mentioned hot-food bars. The defence against that is bizarre. Those who say that this is not necessary argue that a council could stop all hot-food bars if it so wished. Indeed, it was suggested that a council should have the power to say that an activity is not permitted. A clause that gives a council some discretion and allows an activity in a suitable place is a better alternative to using the legislation as a sledgehammer and banning all activities that might cause the difficulties I referred to earlier.
Another argument suggested that if there were clothes shops on a street, that street should not be designated as being suitable for street trading. That is more all-embracing than the discretionary power suggested in the amendment.
It was also argued — and I found this bizarre — that since the Bill deals with public health matters there should be changes made to the public health legislation. However, the House is not dealing with the kind of nuisance that that is designed to deal with. The Bill is dealing with specific reasons for considering if a location is suitable or unsuitable for street trading. When the Social Development Committee discussed the Bill it was repeatedly stated that if there was already legislation in place to deal with an activity then one should go back to the primary legislation. In the Bill there are references to street trading interfering with car parking. One may therefore argue that the matter should be dealt with under traffic legislation. There are also references to traders who use under-age people on their stalls, so it could be argued that it should be dealt with under child protection legislation.
There will be a certain amount of crossover in the legislation. The amendment gives councils the discretionary power to look at situations where they have to justify their reasons for making a decision if an appeal is made against that decision. That will be a problem. Therefore it is important that it is dealt with now and that effective legislation is introduced. In six months’ time the Assembly will not want councils deciding that changes have to be made in health legislation or some other legislation. Those changes could take a year or two to get through.
Many street traders want to go into city centres to offer a different shopping experience and to add colour to them. However, there are others who seek to abuse the system and to use every available loophole. It is important that the Assembly introduce effective, watertight legislation that will enable councils to properly control the activities that go on in towns and cities.
Mr A Maginness:
I support the amendments that have been presented by the Chairperson of the Social Development Committee and by Mr Sammy Wilson. The Assembly is aiming for controlled and regulated street trading. The amendments will assist in that and make effective control of street trading possible.
Members do not want to put anyone off the streets. We want to see people on the streets, trading in a regulated, controlled fashion. We do not want to see any illegal street trading, and this legislation will deal effectively with that.
Mr Wilson’s amendment is a very valuable contribution. There is a problem. It may not be the most serious problem, but ordinary retailers in the centre of Belfast, Derry or other towns could have their trade adversely affected by the smells from burger stands, which will inevitably contaminate clothing and other items in their shops. It is a very effective amendment, but there may be other problems relating to the general amenity of the area. The legislation should also include a weapon to deal with that.
The argument is that clause 9(1)(a)(i) could deal with it. That is being put forward as an effective means for dealing with that problem or series of problems. That may well be, but Mr Wilson’s amendment will deal with this problem. It will bring certainty to the legislation, and that is very important. It should also be remembered that this will be a discretionary power given to the council, and not something that will act as a total block or prohibition on the type of activity that could lead to a nuisance for ordinary retailers.
Amendment 4, together with clause 9(1)(a)(i), is a belt-and-braces exercise. If it cannot be dealt with under clause 9(1)(a)(i), then it can be dealt with under Mr Wilson’s amendment. It has particular value in strengthening the legislation, and Members should seek to strengthen it rather than allow some sort of vagueness or escape that would not deal with the problem of street trading.
Therefore I am happy to support amendment 4 and also amendments 1, 2 and 3.
We welcome the Consideration Stage of the Bill. When I was Minister, the Department for Social Development gave high priority to this Bill because we believed, and still believe, that illegal street trading is a major problem, particularly in Belfast city centre. It has been around for a long time and Belfast City Council, as well as other local authorities and councillors, has been anxious to see progress on reforming the law, which is totally inadequate as it currently stands.
Therefore we welcome the fact that we have reached this important stage in getting the legislation through the Assembly. I believe it will make a real difference. As Members will be aware, the current position is regulated by legislation, passed in 1929, that was designed for a situation totally different from that which currently prevails on our streets.
Every year, particularly in the run-up to Christmas, we see a flourishing illegal market. We can even see it in the city centre at the moment. I have received numerous complaints, as have others, about the way in which these stalls are operated, the total lack of regulation and of any proper health or hygiene standards appropriate to the selling of food, and the obstruction caused to users of the footpaths, particularly disabled people, mothers with prams and young children and the elderly. There is very little redress, in many cases, where goods of a shoddy or unfit nature are sold. There is very little comeback for those who purchase goods at those illegal stalls.
The centre of Belfast has been turned into some sort of shabby street market. In some of our prime retail areas, traders and shopkeepers paying very high rents and rates are being grossly disadvantaged by this sort of illegal activity. I want to stress, as others have stressed, that we are not against properly regulated street trading — it can add vibrancy and colour to our streets. But what is happening at present is simply unacceptable on a number of fronts and it has to be dealt with. I know from my own experience that Belfast City Council has tried and tried to enforce the old legislation, which has proved totally inadequate. At the same time, it has been looking at ways to encourage legal street trading and to encourage something that will add to our city centre and bring people in, rather than turning people off as the current situation does.
I welcome these proposals. I am glad that the Minister has listened carefully to the arguments that have been put forward by Members. I thank him for taking the time to meet with a number of us. I know that he has also spoken to the Committee about these issues. I believe that the legislation as presented, which I hope will go through this House, will go a long way to ensuring that we do not have to endure another Christmas like those we have previously endured, particularly on the streets of Belfast city centre. I believe that this will make a real difference to illegal street trading.
I particularly welcome the clauses that ensure that councils will have real powers to seize goods that are being traded illegally. That will give councils an opportunity to put a speedy end to illegal street trading. After taking people to court, and in many cases trying to find out who they are, what their real names are and what their proper addresses are, you discover that at the end of the day all they receive is a rather small fine. It has proved totally inadequate.
I support the amendments tabled by the Committee and by Mr Wilson. I believe that he outlined very succinctly the reasons behind the addition of his amendment. It is important that there should be in this legislation the sort of provision that he has tabled to take account of the impact that the preparation and sale of certain types of articles, particularly burgers and hot food, have on the general amenity of the area. It is important that that is included in the legislation as one of the factors that can be taken into account. I hope that the House will support that amendment.
We have an opportunity, through this legislation, to make a real difference. It will be warmly welcomed and applauded by local authority and council officials who have to enforce action against illegal street trading. This will give them the ammunition and power to carry out that work for the benefit of our town and city centres and for our residents.
The Minister for Social Development (Mr Morrow):
I want to acknowledge an important point that a number of Members have made, which is that this Bill cannot be interpreted as anti-street trading legislation. It is anything but that. It is an attempt to tidy up the situation.
I thank the Chairman of the Social Development Committee, Mr Cobain, for outlining why the Committee is bringing this amendment before the House. I understand the Committee’s desire to allow district councils to have control over the proliferation of particular types of goods, and I am happy, therefore, to accept the amendment in principle.
However, the Department’s legislative draftsman has advised that the wording of the proposed amendment is flawed as the definition of "street" in the Bill specifically excludes any area in enclosed premises. Therefore the wording "trading in the street from shops" would not be technically correct. The opportunity has been taken to replace the word "desires" with the word "wishes" since this would be consistent with similar provisions within the Bill such as in clause 5 (4)(b) and clause 9(1)(a). I hope Members will accept the amendments. The changes will not, in any way, affect the content of the amendment — they are very much technical changes.
I thank Mr Wilson for explaining the reasons behind his proposed amendment to clause 9. The provisions of the Public Health (Ireland) Act 1878 deal with the issue of odours in a general way. However, they are totally ineffective in dealing with the problem of people selling burgers in the street — a concept that was unheard of when the legislation was introduced.
I understand the concern that odours from those traders could permeate shops, particularly clothing shops. This provision will provide councils with powers to deal with a very specific problem. Therefore I propose to accept the amendment. However, I have some reservations about the precise wording of the amendment. I want to consider that in greater detail, and I may bring forward refinements at the Further Consideration Stage. I do not think there are any other points that need to be dealt with at this particular point.
The Committee welcomes the Minister’s comments — especially the intentions to strengthen and improve the quality and clarity of the legislation. I thank the Minister for his time and for his response the Committee. I think everyone in the House will be pleased if the legislation, as it stands, goes through.
Amendment 1 agreed to.
Amendment (No 2) proposed: In page 6, after line 40, insert
(iv) there are sufficient traders trading in the street from shops or otherwise in the articles, things on services in which the applicant desires to trade". — [Mr Cobain]
Because amendment 3 is an amendment to amendment 2, we will take amendment 3 — if moved — and vote on that and then vote on the amendment as amended, if it is amended.
Amendment (No 3)(amendment to amendment 2) made: Leave out from "street" to the end and add
"street, or at premises adjoining it, in the articles, things or services in which the applicant wishes to trade". — [Mr Morrow]
Amendment 2, as amended, made: In page 6, after line 40 insert
(iv) there are sufficient traders trading in the street, or at premises adjoining it, in the articles, things or services in which the applicant wishes to trade. — [Mr Cobain]
Amendment (No 4) made: In page 6, after line 40 insert
" ( ) it is believed that the preparation or sale of a specified type of article or thing would adversely affect the general amenity of the area". — [Mr S Wilson]
Clause 9, as amended, ordered to stand part of the Bill.
Clause 10 (Revocation, etc. of street trading licences)
I beg to move amendment 5: In page 7, line 32, leave out ‘applicant’ and insert "licence holder".
The following amendments stood on the Marshalled List:
No 6: In page 7, line 33, leave out "applicant" and insert "licence holder". — [Mr Morrow]
No 7: In page 7, line, 40, leave out "applicant" and insert "licence holder". — [Mr Morrow]
These amendments set out the circumstances in which a district council may revoke an existing street trading licence. As a licence will already be in existence, the provisions will only be relevant to licence holders. However, at three places in the clause, reference is being made to the "applicant". The amendments correct those errors.
Amendment 5 agreed to.
Amendment (No 6) made: In page 7, line 33, leave out "applicant" and insert "licence holder". — [Mr Morrow]
Amendment (No 7) made: In page 7, line 40, leave out "applicant" and insert "licence holder". — [Mr Morrow]
Clause 10, as amended, ordered to stand part of the Bill.
Clauses 11 to 16 ordered to stand part of the Bill.
Clause 17 (Unlicensed street trading)
I beg to move amendment 8: In page 13, line 8, insert
"( ) is the holder of a street trading licence and contravenes a condition of a kind specified in paragraph (a) or (c) of section 7(1);".
The following amendment stood on the Marshalled List:
No 9 (clause 21): In page 16, line 11, leave out "(a) to (g)" and insert "(b), (d), (e), (f) or (g)". — [Mr Morrow]
Amendment 8 will make it an offence to engage in street trading without a full-term licence, or contrary to the terms of a temporary licence. Anyone doing so will be liable to have his or her goods and equipment seized by a district council.
The Bill, as currently drafted, makes it an offence for a licensed trader to trade in a location, or on a day, or at a time, not specified on the licence. However, it does not permit a council to seize the goods of the offender. That could leave the door open for unscrupulous traders to apply for a licence for one street, with the sole intention of trading in a more lucrative street. It could take several months to have the licence revoked, during which time the person could continue to trade illegally without the threat of seizure.
The most appropriate solution to the problem is my amendment to clause 17. This will make it an offence — under clause 17 — for a street trading licence holder to trade in a different place, on a different day, or at a different time, to that specified in the licence. Persons reasonably suspected of committing an offence under clause 17 may have their goods seized. Licensed traders will therefore be brought under this sanction. A consequential amendment will be required in clause 21(a) to remove the reference there to paragraph (a) and (c) of clause 7 and bring it into line with clause 17.
I welcome the amendment. Clearly, there was clearly a gap in which those who obtained a licence for one location could move to another location. There would still be penalties under the original drafting of the legislation, taking the form of fines if prosecution were to result.
Clearly, one of the problems with the original legislation we are now reforming is that there are penalties in the form of fines but, by the time that people are taken through the courts and fined, the damage is already done and the illegal activity has been allowed to continue. This amendment will close that gap. It will ensure that powers of seizure will apply on the part of the local authority to those who have a licence to trade in one location but attempt to move to another. The amendment is to be warmly welcomed because that was clearly going to be a problem for councils. I commend the Minister for recognising that and for moving to close the gap. I trust that it will have the support of the House.
Mr S Wilson:
I also welcome the fact that a considerable gap in the legislation has been closed by the inclusion of this amendment. As clause 17 stood, all that could have happened had someone obtained a licence, as Mr Dodds has said, is that he could have been taken to court and the maximum level 3 fine imposed. This shows the importance of being able to scrutinise legislation more closely in the House. In Belfast, we have often found that some of the unscrupulous traders are quite happy to go to court and to have a fine imposed — sometimes a number of fines. Then, when trading is a bit slack, they go to jail for a week or so instead of paying the fines, and that is the end of the story. This change will prevent that. Anyone with a licence who traded in the wrong place — perhaps used the licence to get the door open and then waltzed all around a town or city — will now no longer be able to do so, because the seizure powers will apply.
When we looked at this, the argument was that a council could revoke a licence. However, clause 10 states that a licence can be revoked only if a person persistently trades in the wrong place or breaks the terms of the licence. As Mr Dodds has said, someone who wished to abuse his licence by trading in a more lucrative patch than that originally designated for him has been able to keep on doing so for a considerable time before the council could revoke the licence. Fines have not been effective, and the revocation of a licence cannot be done immediately. In proposing this amendment, therefore, the Minister has recognised that the legislation fell far short of what was required to deal with those traders who abused the conditions of their licences, and that is to be welcomed.
I do not wish to add anything to what I have already said. I understand that the two Members who spoke support the amendment enthusiastically, and I commend it to the House.
Amendment 8 agreed to.
Clause 17, as amended, ordered to stand part of the Bill.
No amendments have been tabled to clauses 18 to 20. I therefore propose, by leave, to put the question on those clauses en bloc.
Clauses 18 to 20 ordered to stand part of the Bill.
Clause 21 (Other offences)
Amendment (No 9) made: In page 16, line 11, leave out "(a) to (g)" and insert "(b), (d), (e), (f) or (g)". — [Mr Morrow]
Clause 21, as amended, ordered to stand part of the Bill.
Clauses 22 to 30 ordered to stand part of the Bill.
Schedules 1 to 3 agreed to.
Long title agreed to.
That concludes the Consideration Stage of the Street Trading Bill, which now stands referred to the Speaker.
I want to draw the attention of the House to the fact that three questions to the Minister of the Environment for this afternoon have been redirected. It was only at 9 o’clock this morning that the Business Office was advised that these questions — number 4, from Mr John Fee; number 9, in the name of Mr P J Bradley; and number 10, in the name of Mr Jim Wilson — had been transferred to the Department for Regional Development.
Advice was received earlier that question 5, in the name of Mr Kieran McCarthy, would be answered by the Minister of Finance and Personnel.
I draw this matter to the attention of the House because it was a very late call, and Members who tabled other questions will need to know the facts. I have also asked that the matter be shown on the annunicator. It is not helpful to the House when calls of this kind are made at such a late stage.
Mr P Robinson:
This seems to be occurring regularly. The Table Office in the House of Commons would not accept a question not properly directed. It is not the job of the Speaker to waste his time and, indeed, ours in going through this procedure regularly. Surely we can get a system in the Assembly and the Departments to ensure that every question on the Paper is directed to the appropriate Minister.
In fairness to the Business Office, I should say that the dilemma is that there is not always complete clarity on the part of Departments as to the boundaries for certain questions. On occasions, when the Business Office advises a Member that it believes his question to be outside the remit of one Department and within that of another, the Member is insistent that this is not the case. Usually, though not invariably, it turns out that the Business Office is correct.
Frequently, in the first instance, there is a lack of clarity on the part of Departments as to who precisely should take responsibility. I accept entirely that this does not make good use of the time of the Speaker or of the House. I trust that, as these issues are clarified, we will be able to set sound precedents.
Is it not true that when a Member is denied the opportunity of putting his question on the day for which it is tabled, he gets a written reply, disadvantaging him in that he is not able to ask a supplementary?
The Member is entirely correct. It is also a disadvantage to the House, in that other Members too are unable to ask supplementary questions. When there is such a late call — as has happened on three questions — Members may have sought to be present to ask supplementary questions. This creates considerable inconvenience for the House and is not satisfactory, which is why I have conveyed the matter to the Civil Service authorities.
Mr J Wilson:
Further to that point of order, Mr Speaker. When I framed my question — you will obviously not permit me to go into detail about it — I was clearly drawing attention to a road safety matter in connection with reckless driving on the outside lane of the M2 in rush-hour traffic. It was clearly framed so as to be referred to Minister Sam Foster, as he is responsible for road safety. Somewhere along the way — and I have yet to discover where — the wording in my question was changed to "traffic-calming measures". I can understand why someone might have wanted to change it, but it has resulted in the question being redirected to another Minister. It was a late call, and I was disappointed to be told about it only this morning.
It would be wrong to take up the House’s time to go into the detail of the matter, but if the Member looks at the three questions he will find that the common factor is road safety. That is why they were directed to the Department of the Environment. The response was that responsibility might lie with the Department of the Environment but that since all the questions sought action and the only Department that could actually do anything about them was the one with responsibility for the roads in question, the matter was being transferred. It is an interesting dilemma, but it is a decision of the Executive, and one upon which the House voted at an early stage.
Further to that point of order —
This is not an opportunity for those whose questions were not put to find a way of getting them on the record. However, if it strictly a point of order, I will take it.
It is a correction. I was only seeking information — not asking for anything to be done. Is it unreasonable to expect the Minister for Regional Development to take my supplementary question today and give me an immediate written reply?