COMMITTEE FOR SOCIAL DEVELOPMENT

Report on the
Street Trading Bill
(NIA BILL 2/00)

TOGETHER WITH THE MINUTES OF PROCEEDINGS RELATING TO THE REPORT AND THE MINUTES OF EVIDENCE

TABLE OF CONTENTS

1. Report on Street Trading Bill
2. Minutes of Proceedings of the Committee relating to the Report
3. Minutes of Evidence

Appendix
Written submission from Belfast City Council

COMMITTEE FOR SOCIAL DEVELOPMENT:

POWERS AND MEMBERSHIP

The Committee for Social Development is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of Strand One of the Belfast Agreement and under Assembly Standing Order No 46. The Committee has a scrutiny, policy development and consultation role with respect to the Department for Social Development and has a role in the initiation of legislation. The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5.

The Committee has power:

• to consider and advise on Departmental budgets and Annual Plans in the context of the overall budget allocation;
• to approve relevant secondary legislation and take the Committee Stage of relevant primary legislation;
• to call for persons and papers;
• to initiate inquiries and make reports;
• to consider and advise on matters brought to the Committee by the Minister for Social Development.

The membership of the Committee since its establishment on 29 November 1999 has been as follows:

Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr D McClarty
Mr D O'Connor
Mr E ONeill
Mr M Robinson
Mr J Tierney
Mr S Wilson

REPORT 1/00
(COMMITTEE FOR SOCIAL DEVELOPMENT)
Report on the Street Trading Bill
(NIA Bill 2/00)

General

1. The Street Trading Bill was referred to the Committee for consideration in accordance with Standing Order 31(1) of the Northern Ireland Assembly after completing its Second Stage on 16 October 2000.

2. The Committee had before it the Street Trading Bill (NIA Bill 2/00) and the Explanatory and Financial Memorandum to the Bill, as introduced.

3. The Minister for Social Development made the following statement under Section 9 of the Northern Ireland Act 1998:

" In my view the Street Trading Bill would be within the legislative competence of the Northern Ireland Assembly."

4. The prime purpose of the Bill is to enable district councils to control and regulate street trading in their districts in such a way as to prevent undue nuisance, interference and inconvenience to persons and vehicles. The Bill includes more effective measures to allow councils to control the activities of those trading without a licence.

5. The Minister and officials appeared before the Committee on 3 February 2000 to answer questions about the provisions contained in the Bill (a transcript of the evidence is included in this Report).

6. The Committee considered the Street Trading Bill, the accompanying Memorandum and a synopsis of the 'Responses to Consultation Paper on Street Trading' which had been issued by the Department for Social Development at its meeting of 12 October 2000. The Committee then invited representatives of the Belfast City Council, Coleraine Borough Council and Street Traders to attend a meeting of the Committee to give oral evidence. The Belfast City Council representatives were unable to appear before the Committee on the date requested so they provided the Committee with a written submission (see Appendix).

7. Representatives of Coleraine Borough Council and Street Traders appeared before the Committee on 26 October 2000 to give oral evidence and to put their views on the Bill (a transcript of the evidence is included in this Report).

8. Departmental officials from Social Legislation Branch appeared before the Committee on 9 November 2000, 16 November 2000, 23 November 2000 and 30 November 2000 to answer questions about the provisions contained in the Bill (a transcript of the evidence is included in this Report).

Consideration of Bill

9. The Committee commenced a detailed clause by clause scrutiny of the Bill on 9 November 2000 and at subsequent meetings on 16 November 2000, 23 November 2000, 30 November 2000 and 7 December 2000 (transcripts of these meetings are included in this Report). An Assembly Legal Adviser assisted the Committee in its deliberations.

Clauses 1 & 2 - It was agreed that they should stand as part of the Bill.

Clause 3 - It was agreed after discussion, as set out below, that it should stand as part of the Bill.

In Clause 3(1), the Committee raised the question over whether parts of streets may be designated for the purposes of street trading (Belfast's Lisburn Road was cited as an example). The Departmental officials were able to advise that Clause 25(3) provided provision for 'any part of a street' to be included in the definition of a 'street'.

The Committee questioned the 'non-designation' of streets and, in particular expressed concern over the possibility that the refusal of a licence could lead to a judicial review on the basis that a council did not give due consideration to the non-designation of a street. It was pointed out that GB legislation included the proviso 'as it thinks fit' when designating a street, and questioned why this could not be included in Clause 3 of the Northern Ireland legislation. The Assembly Legal Adviser was able to advise that the inclusion of the words 'as it thinks fit' would not remove the possibility of judicial reviews neither would they sit well with Clause 4 or how the Bill is currently drafted.

Clause 4 - It was agreed that it should stand as part of the Bill.

Clause 5 - It was agreed after discussion, as set out below, that it should stand as part of the Bill.

The Committee queried Clause 5(8) and wished consideration be given to inserting a provision requiring district councils to respond to all applications within a specified time. It was felt that there should be some safeguard to prevent a council, or a party within a council, taking umbrage against a trader or traders, which could go on for years and could come down to political bias. The Departmental officials were able to advise that to include such a provision would be unrealistic as it would be difficult to establish a timeframe that was acceptable to all parties and it was not usual to have a timeframe in legislation for the processing of applications.

The Committee also noted that there had been a number of occasions in Belfast where people had tripped because of the way in which goods had been set out in front of stalls. They stated that this was not the responsibility of the Roads Service because the people did not trip because of a faulty footpath, so the individual had no comeback. No one was liable if someone got badly injured by the dangerous placement of goods that were for sale. The Committee asked that, if this is not covered in other legislation, why the requirement to have public liability insurance could not be included in this legislation. The Departmental officials were able to advise that there is no legal requirement on shopkeepers or street traders to have public liability insurance. However, a recommendation in the guide to councils would be included suggesting that when they issue street trading licenses they recommend that street traders take out public liability insurance.

Clauses 6 - 8 - It was agreed that they should stand as part of the Bill.

Clause 9 - The Committee agreed to include in its report to the Assembly the following amendment;

Clause 9, page 6, line 36

• leave out 'or'

Clause 9, page 6, line 40

• at end insert -

'or

(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.'

Clause 10 - It was agreed after discussion, as set out below, that it should stand as part of the Bill.

The Committee asked whether this Clause, or any other, dealt with compensation for revocation of a licence. They felt a council could decide that a trader was no longer suitable for licensing for a reason that may not have anything to do with the trader. It was also pointed out that the grounds for revocation might be sound, but that the trader may not have been at fault. It was felt that there should be some sort of mechanism for compensation. The Departmental officials were able to advise that, for example, the legislation on entertainment licenses has a similar clause on revocation but no mechanism for compensation and therefore there is no legal precedent.

Clause 11 - It was agreed that it should stand as part of the Bill.

Clause 12 - It was agreed after discussion, as set out below, that it should stand as part of the Bill.

The Committee raised the matter of the number of days for representations to be made to the council in respect of applications for licences as it was concerned that this part of the legislation would involve the need for two council meetings and, in effect, elongate the whole application process. The Committee was keen to see this reduced to 14 days from the original 21 days. The Departmental officials were able to advise that a 14 day timescale could be considered as very tight as there would be days lost at both the start and finish of the postal process. The Committee accepted this reasoning.

Clauses 13 - 14 - It was agreed that they should stand as part of the Bill.

Clause 15 - It was agreed after discussion, as set out below, that it should stand as part of the Bill.

The Committee sought clarification on whether court costs would be suitable for inclusion in setting fees when councils can recover reasonable administrative and other costs. The Committee pointed out that costs, in quite a number of instances, could be enormous and this could serve to push up fees to unrealistic levels. Concern was also expressed that costs accrued by illegal traders will be borne by legal traders. The Assembly Legal Adviser was able to advise that a council had discretion as to whether or not the licence fee should be increased to take account of legal costs. Furthermore, should it choose to increase fees for this reason this Clause 15(1) provides a limitation to the extent by which the council can increase the fee to a reasonable amount.

Clause 16 - It was agreed that it should stand as part of the Bill.

Clause 17 - It was agreed after discussion, as set out below, that it should stand as part of the Bill.

Mr S Wilson expressed concern that under Clause 17 a person only commits an offence if he is not the holder of a street trading licence. Anyone who is a holder of a licence and contravenes the condition of a licence, could only be liable for prosecution under Clause 21. Under this Clause the licence holder could not have his goods seized and on conviction would only be liable to a fine not exceeding level 3 on the standard scale.

Clause 18 - It was agreed after discussion, as set out below, that it should stand as part of the Bill.

The Committee expressed its concern about whether or not the Bill allows councils to seize all of an illegal trader's goods when exercising its powers of seizure. The Committee believed that, to make the legislation effective, the power of seizure must be as stringent and as comprehensive as possible as in the Royal Parks Act. The Assembly Legal Adviser was able to advise that provided there are reasonable grounds for suspecting a person has committed an offence, then a constable or authorised officer has the power to seize all articles, receptacles or any equipment under Clause 18 as it is currently written.

Clauses 19 - 30 - It was agreed that they should stand as part of the Bill.

Schedules 1 - 3 - It was agreed that they should stand as part of the Bill.

Recommendation

10. The Committee is not content that in Clause 9 the issue of 'adequacy' was sufficiently covered by the Bill and proposes the following amendment;

Clause 9, page 6, line 36

• leave out 'or'

Clause 9, page 6, line 40

• at end insert -

'or

(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.'

Fred Cobain MLA
Chairperson

Top

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
MINUTES OF PROCEEDINGS
THURSDAY 3 FEBRUARY 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir J Gorman
Mr B Hutchinson
Mr D McClarty
Mr E ONeill
Mr M Robinson
Mr J Tierney
Mr S Wilson

Apologies: Mr G Kelly

In Attendance: Mr G Martin
Mr D Harkin
Mr L Hart Ms V Surplus

Presentation by the Minister on Street Trading

Panel Members:

Mr Nigel Dodds, Minister for Social Development
Dr Jeremy Harbison, Deputy Secretary
Mr Gordon Gibson, Social Legislation
Mr Ivan McMaster, Social Legislation

The Chairman welcomed the Minister and Departmental Officials to the meeting at 3.15 PM after which the Minister gave a brief presentation on the Departmental proposals for Street Trading legislation, followed by a question-and-answer session. Hansard will provide a verbatim transcript of this session.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 12 OCTOBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr D McClarty
Mr M Robinson
Mr J Tierney
Mr S Wilson

Apologies: Mr E ONeill

In Attendance: Mr G Martin
Mrs J McMurray
Mr L Hart
Ms V Surplus
Ms E Regan

Street Trading Bill

The Committee considered the Street Trading Bill, the accompanying Memorandum and a synopsis of the departmental responses so that any difficulties or amendments may be identified prior to Committee stage.

Members raised several points:

i. Definition is required regarding 'Car Boot Sales'. Present legislation dictates that such sales be held at least 10 metres from a public street which may create difficulties for charitable organisations such as Churches.

Members also sought clarification on the difference between charitable and non-charitable organisations holding Car Boot Sales.

ii. Clause 5(8) of the Bill mentions that a council 'shall within a reasonable time give notice in writing to the applicant'

Members queried whether a maximum time limit should be specified.

iii. The Committee considered that it may be necessary to include legislation within Clause 9 where a trader has been found to supply 'unsuitable' goods, for example goods which would be in breach of Health or Trading Standards.

iv. The Committee also considered that it may be necessary to add a Clause to Clause 10 of the Bill which would prevent an applicant from employing underage employees (i.e. youngsters operating stalls) Should this also be included under Clause 5?

Agreed:

The Clerk will consult with the Department for clarification on these points.

General discussion took place as to whether individual organisations should be invited to give oral submissions in relation to the Bill.

Agreed:

The Chairman, Deputy Chairperson and Clerk will discuss further and decide which organisations to invite.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 26 OCTOBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr D McClarty
Mr D O'Connor
Mr E ONeill
Mr M Robinson
Mr J Tierney
Mr S Wilson

In Attendance: Mr G Martin
Mrs J McMurray
Mr L Hart
Ms V Surplus
Ms E Regan

Private Session

The Department's response to the points raised regarding the Street Trading Bill was circulated to the members.

Public Session

Mr Cobain left the meeting at 3.45pm

Ms Gildernew took the Chair.

Presentation in relation to the Street Trading Bill

Panel Members:

Mr Kieran Kerr - Street Trader
Mr John McKeever - Street Trader
Ms Mary McKinney - Enforcement Officer (Coleraine Borough Council)
Mr William Elder - Enforcement Officer (Coleraine Borough Council)

The Deputy Chairperson welcomed the panel to the meeting at 3.50pm. Ms McKinney and Mr McKeever made presentations to the Committee and these were followed by a question-and-answer session. The discussions are recorded separately in verbatim minutes of evidence.

The Deputy Chairperson thanked the panel and they left at 4.35pm

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 9 NOVEMBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr E ONeill
Mr M Robinson
Mr J Tierney
Mr S Wilson

In Attendance: Mr G Martin
Mr K Barker
Mr L Hart
Ms V Surplus
Ms E Regan
Mr M Finnegan

Apologies: Mr D McClarty
Mr D O'Connor

Street Trading Bill - Committee Stage

The Chairman welcomed the officials to the meeting at 3.35 p.m.

DSD Officials:

Mr Gordon Gibson, Mr Ivan McMaster, Mr Tom Bowler

The discussions are recorded separately in verbatim minutes of evidence.

Clauses 1 - 4 - the Committee agreed they should stand as part of the Bill.

Clause 5 - after discussion the Committee agreed to consider this Clause in more depth at the next meeting.

Clause 6 - the Committee agreed that it should stand as part of the Bill.

Clause 7 - after discussions concerning the issue of public liability the Committee agreed it should stand as part of the Bill.

Clause 8 - after discussions concerning the issue of the rights of those employed by street traders the Committee agreed it should stand as part of the Bill.

Clause 9 - after discussions concerning the issue of the use of underage staff the Committee agreed that it should stand as part of the Bill.

Clause 10 - after discussion the Committee agreed to consider this Clause again in more depth at the next meeting.

Clause 11 - the Committee agreed it should stand as part of the Bill.

Clause 12 - after discussions concerning the length of time allowed to make representations relating to council proposals the Committee agreed to include in its Report to the Assembly a suggested amendment.

Clause 13 - after discussion the Committee agreed it should stand as part of the Bill.

The Committee requested that the officials return next week to enable the Committee to consider the remaining Clauses of the Bill and the Chairman thanked the officials and they left at 4.15pm.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 16 NOVEMBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr D McClarty
Mr B Hutchinson
Mr M Robinson
Mr J Tierney
Mr S Wilson

In Attendance: Mr G Martin
Mr K Barker
Mr L Hart
Ms V Surplus

Apologies: Mr G Kelly
Mr E ONeill

Private Session

Street Trading Bill - Committee Stage

Since the last meeting a written submission on the Street Trading Bill from the Belfast City Council had been made available to the Committee and the Department. In the light of this new information the Committee agreed that it should ask the officials for clarification, as necessary, regarding Clauses 1-13 (considered at the previous meeting) before proceeding to consider the remaining Clauses and Schedules.

Public Session

The Chairman welcomed the officials to the meeting at 2.40pm.

DSD Officials:

Mr Gordon Gibson
Mr Ivan McMaster
Mr Tom Bowler

The discussions are recorded separately in verbatim minutes of evidence.

Clause 3 - after discussion the Committee agreed to consider this Clause again in more depth at the next meeting.

Clause 9 - after discussion the Committee agreed to consider this Clause again in more depth at the next meeting.

Clauses 13 - 14 - the Committee agreed that they should stand as part of the Bill.

Clause 15 - after discussion the Committee agreed to consider this Clause again in more depth at the next meeting.

Clauses 16 - 17 - the Committee agreed that they should stand as part of the Bill.

Mr Cobain left the meeting at 3.27pm. and Ms Gildernew took the chair.

Clause 18 - after discussion the Committee agreed to consider this Clause again in more depth at the next meeting.

Clauses 19 - 30 - the Committee agreed that they should stand as part of the Bill.

Schedules 1 - 3 - the Committee agreed that they should stand as part of the Bill.

The Committee requested that the officials consider the issues of concern raised by the Committee and that they return next week to enable the Committee to consider them further. The Chairman thanked the officials and they left at 3.45pm.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 23 NOVEMBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr M Robinson
Mr J Tierney
Mr S Wilson

In Attendance: Mr G Martin
Mr K Barker
Mr L Hart
Ms V Surplus
Ms E Regan

Apologies: Mr G Kelly
Mr D McClarty
Mr D O'Connor
Mr E ONeill

Street Trading Bill - Committee Stage

The Chairman welcomed the officials to the meeting at 2.28 pm.

DSD Officials:

Mr Gordon Gibson
Mr Ivan McMaster

The discussions are recorded separately in verbatim minutes of evidence.

Clause 3 - after discussion the Committee agreed to take legal advice and to consider this Clause again in more depth at the next meeting.

Mr J Tierney left the meeting at 2.52 pm.

Clause 5 - after discussion the Committee could not unanimously agree the Clause so the Chairman called for a vote to be taken. A motion was proposed by Sir J Gorman and seconded by Mr S Wilson that the Committee agrees that Clause 5 should stand as part of the Bill. The motion was carried by 4 votes to 1.

Mr J Tierney returned to the meeting at 3.02 pm.

Clause 9 - after discussion the Committee agreed to take legal advice and to consider this Clause in more depth at the next meeting.

Clause 10 - the Committee agreed that it should stand as part of the Bill.

Clause 12 - the Committee agreed that it should stand as part of the Bill.

Clause 15 - after discussion the Committee agreed to take legal advice and to consider this Clause in more depth at the next meeting.

Clause 18 - after discussion the Committee agreed to take legal advice and to consider this Clause in more depth at the next meeting.

The Chairman requested that the officials consider the issues of concern raised by the Committee and that they return next week to enable the Committee to consider them further. The Chairman thanked the officials and they left at 3.47 pm.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 30 NOVEMBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr D McClarty
Mr J Tierney

In Attendance: Mr G Martin
Mr K Barker
Mr L Hart
Ms V Surplus
Ms E Regan
Mr M Finnegan

Apologies: Mr D O'Connor
Mr E ONeill
Mr M Robinson
Mr S Wilson

Street Trading Bill - Committee Stage

The Chairman welcomed the officials and the Assembly Legal Adviser to the meeting at 2.13 pm.

DSD Officials:

Mr Gordon Gibson
Mr Ivan McMaster

Legal Adviser: Imelda McAuley

The discussions are recorded separately in verbatim minutes of evidence.

Clause 3 - the Committee agreed that it should stand as part of the Bill.

Clause 9 - following receipt of legal advice and after discussions regarding 'adequacy' the Committee agreed to include in its Report to the Assembly a suggested amendment.

Clause 15 - following receipt of legal advice and after discussions the Committee agreed to consider this Clause again in more depth at the next meeting.

Clause 18 - the Committee agreed that it should stand as part of the Bill.

The Chairman thanked the officials and the Assembly Legal Adviser and they left at 2.48 pm.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 7 DECEMBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr D O'Connor
Mr M Robinson
Mr J Tierney

In Attendance: Mr G Martin
Mr K Barker
Mr L Hart
Ms V Surplus

Apologies: Ms M Gildernew (Deputy Chairperson)
Mr E ONeill
Mr S Wilson

Street Trading Bill - Committee Stage

The Chairman welcomed the Assembly Legal Adviser to the meeting at 3.40 pm.

Legal Adviser: Imelda McAuley

The discussions are recorded separately in verbatim minutes of evidence.

Clause 15 - following receipt of legal advice the Committee agreed that it should stand as part of the Bill.

Clause 9 - following receipt of legal advice the Committee agreed to include in its Report to the Assembly the following amendment;

Clause 9, Page 6, Line 36

leave out 'or'

Clause 9, Page 6, line 40 at the end insert -

'or

(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.'

The Chairman thanked the Assembly Legal Adviser and she left at 3.50 pm.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
THURSDAY 14 DECEMBER 2000
IN ROOM 144, PARLIAMENT BUILDINGS

Present: Mr F Cobain (Chairman)
Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr D McClarty
Mr J Tierney
Mr S Wilson

In Attendance: Mr G Martin
Mr K Barker
Mr L Hart
Ms V Surplus

Apologies: Mr G Kelly
Mr E ONeill
Mr M Robinson

Street Trading Bill - Committee Stage - Consideration of Draft Report

Mr S Wilson stated that he was not content with Clause 3 or the amendment to Clause 9 and wished to propose changes. The Chairman advised Mr S Wilson that the purpose of this meeting was to consider if the draft Report on the Street Trading Bill accurately reflected what the Committee, following legal advice, had already agreed at previous meetings. It was therefore not possible for the Committee to consider these issues again. In these circumstances, Mr S Wilson indicated his intention to table amendments in his own name. Mr S Wilson requested that concerns he had raised with regard to Clause 17 be included in the draft Report and the Committee agreed to meet again on the 19 December to consider the wording of the proposed change which is to be provided by Mr S Wilson. The Committee agreed the draft Report on the Street Trading Bill with the exception of the reference to Clause 17.

[EXTRACT]

MINUTES OF PROCEEDINGS OF THE COMMITTEE
RELATING TO THE REPORT
TUESDAY 19 DECEMBER 2000
IN ROOM 106, PARLIAMENT BUILDINGS

Present: Ms M Gildernew (Deputy Chairperson)
Sir John Gorman
Mr D McClarty
Mr D O'Connor
Mr E ONeill
Mr M Robinson
Mr J Tierney

In Attendance: Mr G Martin
Mr K Barker
Mr L Hart
Ms V Surplus

Apologies: Mr B Hutchinson

In the absence of the Chairman and the Deputy Chairperson it was proposed by Mr J Tierney and seconded by Mr M Robinson that Mr E ONeill take the chair. This was unanimously agreed by the Committee and Mr E ONeill took the chair at 12.40 pm.

Street Trading Bill - Committee Stage - Consideration of Draft Report

Ms M Gildernew (Deputy Chairperson) arrived and took the chair at 12.45pm.

The Committee agreed to amend the draft Report on the Street Trading Bill to include the following comments under Clause 17 which should be recorded as attributable to Mr S Wilson;

" Concern was expressed that under clause 17 a person only commits an offence if he is not the holder of a street trading licence. Anyone who is a holder of a licence and contravenes the condition of a licence, could only be liable for prosecution under clause 21. Under this clause the licence holder could not have his goods seized and on conviction would only be liable to a fine not exceeding level 3 on the standard scale."

[EXTRACT]

Top

MINUTES OF EVIDENCE

THURSDAY 3 FEBRUARY 2000

Briefing

Mr N Dodds (Minister)

Dr J Harbison, Mr G Gibson and Mr I McMaster

Department for Social Development

1.

The Chairman (Mr F Cobain): Good afternoon, Gentlemen, and welcome. We are here to discuss street trading and compacts.

2.

The Minister for Social Development (Mr Dodds): Mr Chairman, do you want me to deal with the street trading legislation first?

3.

The Chairman: Yes, please.

4.

Mr Dodds: Thank you for the opportunity to address the Committee on the Department's plans to revise current legislation on street trading. This is a very important issue, and the problems that have been created by illegal street trading are familiar to most of us. I look forward to the Committee's views on the Department's proposals for the way ahead.

5.

I know that there may be other distractions today, but we will proceed anyway. We will await developments later on.

6.

Mr Chairman and Committee members, it would be helpful if I first spend a few minutes outlining the progress to date. I understand you have received a copy of the consultation paper, the report and responses and a summary of the proposals.

7.

Street trading is currently regulated by legislation, and this has been in operation since 1929. Under that legislation, street trading is controlled by district councils which have the power to issue licences authorising persons to trade in the street. Of course, that legislation was designed to cater for the type of street trading which was prevalent in the early twentieth century. Over the past 70 years there have been significant changes in the manner of trading - such as ice cream vans, roadside sales, car boot sales, moveable stalls, and so on - which were rare or unheard of in 1929.

8.

There has been a marked increase in the level of street trading and market trading. However, the most significant change in recent years is the alarming rise in illegal street trading - in other words, trading without a licence - particularly in the run-up to the Christmas period. While the current legislation provides penalties such as fines and jail sentences for this type of trading, the reality is that district councils have not found these to be an effective deterrent in curbing the levels of illegal trading activity.

9.

I do recognise - as I am sure the Committee does - that street traders who operate within the law, in the properly regulated system, do have a part to play in bringing vibrancy and colour to towns and cities. However, those operating outside the law simply spoil things for everyone, and they present an unsightly image. To shoppers and to legitimate traders they represent a nuisance and an obstruction and, more seriously, to mothers with young children, or people with disabilities - particularly those with a visual impairment - they present a totally unacceptable hazard.

10.

My Department has carried out a review of street trading policy, mainly as a result of pressure from councils and retailers. The main purpose of the review was to develop a system which would enable district councils to regulate street trading in order to prevent undue nuisance, interference and inconvenience to persons or vehicles.

11.

Before public consultation, we undertook an information gathering exercise with interested groups, mainly district councils, the police and shopkeepers. A consultation paper was issued in September 1998 setting out proposals for the way forward from the three-month consultation period. This was distributed to groups and individuals who had expressed an interest in the subject. The responses were helpful and constructive, particularly those from the district councils. Appendix 2 of the consultation paper is a copy of the distribution list.

12.

As a result of the comments that were made, a number of areas had to be re-examined and some new issues were identified. Once these were analysed, a report was issued in May 1999 setting out revised proposals to deal with the relevant areas and to clarify other issues. More than eight weeks were allowed for responses to be made to that report. In addition, we had discussions on a range of issues with council officials, particularly officials from Belfast City Council, with whom a series of meetings was held.

13.

The main proposals to come out of the process were that the legislation should, with certain exemptions, prohibit street trading, except in an area designated by a district council and only under licence from that council. The legislation will also set out the procedures which a district council must follow when designating areas where street trading may take place. Legislation will set out the criteria for applying for a licence to engage in street trading as well as the considerations which a council must take into account when deciding whether to grant such applications. It will further provide a district council with the discretion to attach certain conditions to the granting or renewal of a licence. The legislation will also determine the conditions under which a street trading licence may be revoked and will establish an appropriate appeals procedure. It will provide a district council with the power to set its own fees for a licence and other associated services and to make its own arrangements for the collection of and, where appropriate, the refund of such fees.

14.

Furthermore, the legislation will determine the offences of and penalties for trading without a licence, or trading outside the terms of a licence. Most significantly, it will give councils the power to seize the goods of unlicensed traders and the power, where appropriate, to seek a forfeiture order from the courts. Finally, of course, the legislation will repeal the provisions of the 1929 Act. These proposals have been drawn up to take into account all the responses received on the consultation exercise, the subsequent report and the concerns raised by our district councils, particularly Belfast City Council which has had most problems with this issue.

15.

There has been a significant, and alarming, increase in illegal street trading in recent years. Only a few days ago I received a letter from a Member of the Assembly for the Omagh area complaining about illegal street trading in that district. I know that district councils have been assiduously enforcing the current legislation. However, it has proved a difficult, if not impossible, task. The legislation is totally out of date and completely unsuitable for the regulation of street trading in the twenty-first century.

16.

Furthermore, I believe that the Committee will agree that the legislation has also been proven to be totally ineffective in dealing with disturbing levels of growth in illegal street trading throughout Northern Ireland. This legislation needs to be given a high priority in order to give the councils a more modern and effective means of regulation. It is for that reason that this piece of legislation has been identified for inclusion in the legislative programme. We are on a very tight timescale, and, in order to stand any chance of fulfilling our aim to have the new legislation in place before Christmas, we will need to ensure that the Bill is progressed as quickly as possible.

17.

I realise that we are in uncharted waters as far as progressing any piece of legislation through the Assembly at the moment is concerned. It would be helpful, Mr Chairman, if the Committee could indicate as soon as possible its general approval of the policy underlying this legislation. Irrespective of whatever may happen next week, or whatever may be announced elsewhere, this would allow officials to proceed with necessary work which will have to be undertaken in any case. The detailed legislation, when it is drawn up, will come back to this Committee, as required under the legislation, for approval.

18.

This is an urgent matter but under current circumstances it would be extremely helpful if, instead of being held up, officials were given the opportunity to proceed with necessary work. We can then deal with other circumstances as they arise. In view of the desire to push ahead, and in view of this consultation and Assembly procedures, I have decided not to publish a draft Bill for public consultation. However, I do commend these proposals to the Committee. If members of the Committee have any questions at this point, I will endeavour, along with my officials, to answer them.

19.

The Chairman: Thank you, Minister.

20.

Before we proceed, may I take the opportunity to ask that all pagers and mobile phones be switched off.

21.

Mr S Wilson: I welcome the fact that the Minister has shown urgency with respect to this legislation. In view of his experience in Belfast, he will be well aware of just how essential it is.

22.

I would like to ask a number of questions. First, in relation to the scope of the legislation, I notice that car boot sales are included. Does this include car boot sales which are sometimes run by churches or community groups on private ground, or does it refer only to car boot sales on public ground?

23.

Secondly, especially in the summertime, some cafés place tables outside, and this adds a bit of colour. It is something which is done only on an occasional basis, and is not a regular occurrence. Is it intended that this sort of behaviour will come under the scope of the legislation?

24.

Thirdly, I would like to ask about the proposed level of fines. You have recommended that they should not exceed level 3 - which is £1,000 - whereas the consultation indicated that there should be a maximum level of £50. My council experience has taught me that it often costs the council £600 to £1,000 to take a case to court. Perhaps it would be sensible to have the fines determined by the cost of the licence, which they should previously have purchased, plus any court costs which the council may incur? This ensures that there is some relationship between the fine and what the person would have had to pay to trade legally in the first place.

25.

My last question relates to the forfeiture of goods and the payment of compensation. In relation to the area of planning, I am aware that officials are often prevented from doing anything because of the fear of compensation being claimed by people who have stop notices placed on their developments.

26.

Strict conditions must be attached to any compensation being paid to people. If goods are seized, one expects that there would be good reasons for doing so. Perhaps people have not produced a licence, or refused to say whether they have a licence, or withheld their name. Surely, it is only in those circumstances that officers will take action against street traders.

27.

Mr Dodds: Thank you, Mr Chairman. I am pleased to note the general welcome for this legislation. From the day of my appointment, it has been something I have been keen to see introduced quickly. Over the Christmas period in particular, we witnessed an enormous outcry from people who were simply unable to go about their normal business. In addition to the complaints from traders, there were complaints from pedestrians, mothers of young children, and people with disabilities. They were unable to walk our streets because of illegal street traders who simply parked themselves on the footpaths.

28.

This important piece of legislation will show that something is being done quickly in response to public demand. As far as the detailed questions are concerned, the legislation would not affect things like car boot sales on private property. It deals with street trading on public property. There should be no impact on the type of activity mentioned by Sammy Wilson.

29.

It will be a matter for councils to set licence fees and the fines for breaches of licence conditions. I very much accept the point that fines should reflect the cost of the licence in the first place. As for the matter of forfeiture, I was not entirely sure of the point you were making. What was your concern?

30.

Mr S Wilson: It was said that compensation would be paid in certain circumstances.

31.

Mr Dodds: Legislation will be drawn up so that, provided council officers and police act within its terms, no question of compensation should arise. Clearly, that question will always arise in the case of someone who feels his rights have been infringed, or when someone has acted outside the law. However, this legislation will be drawn up in such a way that it provides council officials and police with the necessary tools they need to enforce it.

32.

At the moment, such enforceability is lacking. As far as compensation is concerned, it will be up to the aggrieved person to take the matter to court. That is presently the case.

33.

Mr S Wilson: Is it still your intention to include displays outside shops? Would that include pavement cafés et cetera?

34.

Mr Dodds: Some difficulties have arisen from court actions on that issue. More recently, the courts have declared such displays to be subject to the legislation. I believe it would fall under the legislation, but we can consider the issue as we go along.

35.

Mr ONeill: Coming from outside Belfast, I agree with the general welcome for the legislation. The Minister's remit, as he well knows, stretches across the Province. I can see many benefits for us in this legislation, particularly since I come from a rural and tourist area with specific problems.

36.

I noted the part about not using by-laws. This is sensible; for, apart from dealing with their cumbersome nature, it gives one a general benchmark across all 26 districts. By the same token, however, by leaving it to district councils to set their own fees, would we not be creating a disparity between council areas? Mr Chairman, we should like to hear the rationale as to why councils would be allowed to set their own fees, in a little more depth. I think it could create difficulties.

37.

Mr Dodds: This is one of the complaints that councils have on a number of issues, whether it be building control, or dog licences, or whatever. They should be able to recoup their administration costs. Clearly there may be differences in the costs from council to council. It is a matter of a council's setting a fee that reflects what it thinks reasonable, given the administration outlay. That would vary perhaps from council to council, but I would not expect it to be a great amount. There would not be a very big discrepancy, but, again, that is a matter for individual councils. It would have been wrong to have prescribed a single figure that might not have taken account of individual circumstances.

38.

Mr ONeill: I accept what the Minister says, and I am not necessarily opposed to it. The real question was whether there is a contradiction between laying down regulations for all councils and then giving each of those councils the right to have different rates. An applicant may say that he could get a berth for his stall in Lisburn for so much, but that Castlereagh is asking for so much more. Is it illegal?

39.

Mr Dodds: No, I do not think so. What we are doing is setting down how councils should go about the business, how they should set the licence fee and all the rest of it. As you well know, being a member of a district council, there are lots of areas where one district council may differ from another in how it applies its regulations - local conditions and everything else. That is something that councils actually would welcome, and I think that they have welcomed it generally for the reasons that I have given. Clearly the job of the legislation, which is the job of the Department, is to ensure that there is a common procedure, that everybody goes about the business of setting and regulating licences in the same way. The actual level of fees will reflect the cost of administration and enforcement as well. I thought that that was a degree of flexibility that councils would welcome.

40.

Ms Gildernew: I also welcome the legislation. Nobody could disagree, 80 years on, that we need to update this. Given the examples that we have, Moore Street in Dublin — that is one of the better examples of street trading — the markets, including St George's Market and the markets in London, like Covent Garden and Camden, street trading can be a bonus. It can provide, as you said Minister, colour and vibrancy to a town. It can even become a tourist attraction in itself.

41.

Will there be any guidelines or way of measuring whether street traders are paying an equivalent sum to the permanent traders who pay rates so there is no ill- feeling among the two communities, as it were? Will consideration be given to making facilities available to traders from which they can trade legally, not necessarily on a permanent basis, and where they would not be creating a nuisance? Special consideration could be given to them at busy times, like Christmas or during the summer. A lot of the street trading that goes on is in crafts and jewellery and things that you might not necessarily get in the shops. We could still make sure that that was available to the public.

42.

Mr Dodds: Mr Chairman, one of the things we have to bear in mind is that some of the reporting of this issue seemed to say that there should not be any street trading and that all street trading is to be clamped down on. I do not agree with that. Even if you wanted to, under European law it would not be possible to say we are not going to have any street trading at all on the grounds of competition. There is no doubt that it does add a bit of colour, when it is properly regulated and we do not have "cowboy" trading going on with rubbish being sold and a nuisance being caused.

43.

Using the licence fee to bring the cost of street trading into line with rent and rates would not be feasible. The licence fee is there to recoup the administrative and enforcement costs. It would not be possible to have a fee equivalent to rent and rates because that is not what the fee is there for. It is there to licence street trading and to recoup costs. Councils complain because at the moment they are not able to recoup those costs. By and large, local councils have broadly welcomed our licence fee proposals, and I think people are reasonably satisfied with that.

44.

Mr McClarty: I also welcome this legislation. Like Eamonn ONeill I come from a tourist area - the premier tourist area in Northern Ireland.

45.

We all agree, Minister, that these street traders can be very inventive. In my own area, some have made arrangements with landowners to take their chip vans a couple of feet off the main road. By doing that, they are not breaking the law. However, the people coming out of bars, or who are passing in their cars, constitute a nuisance and are sometimes a real hazard. Does the legislation cover that?

46.

Mr Dodds: Clearly, it is a different issue if trading is taking place on private property. If trading is taking place on a public highway or a footpath it is covered by legislation.

47.

We considered how best to regulate mobile vans; ice cream vans and chip vans. It was felt that councils should have the power to give a sort of a district-wide permission for that sort of trading, rather than have to designate particular streets. As regards private land, there is the safeguard that the trading prohibition extends 10 metres from public land. You cannot trade from a position just a couple of feet away. However, if trading is carried out on private property and it is not within 10 metres of a public road or footpath then it would not be covered by the legislation.

48.

Mr ONeill: I would like a little more explanation as regards an established market which has been given as a charter, and the market rights which go along with that. In paragraph 5.3, at the second bullet point, it states that the existing provisions will continue, and these include, as I understand it, the provision to remove the market rights. Is the right for a council to buy those market rights still covered in this legislation and, if so, is the procedure the same as exists now?

49.

Mr Dodds: Mr Gibson will advise on that point.

50.

Mr Gibson: The market rights are preserved, if there are market rights in place. If a council wishes to consider buying the market rights, that would not come under the street trading legislation; it would come under existing arrangements - if that were possible.

51.

Mr ONeill: This does not interfere with that then?

52.

Mr Gibson: No, it does not.

53.

The Chairman: Are there any other questions? I take it from the discussions that the Committee is content.

54.

Mr S Wilson: What is the timetable for this? What happens now?

55.

Mr Dodds: Once the matter has been approved in general terms by the Committee, it would have to go to the Executive Committee as a memorandum for approval. However, general approval from the Committee would enable officials to proceed with the necessary work and the detailed drafting of legislation, provided, of course, that it gets through the Executive. It would mean that the issue would not be held up at this stage.

56.

It is intended to introduce the draft Bill to the Assembly by around June and to take it through the early stages before the summer recess, with the final stages being completed after the recess. The intention is to have it in place for Christmas. It is not just a matter of having it in place on 1 December; it needs to be in place before then to allow the councils some time to make their arrangements. To some extent the matter is now out of our hands.

57.

The Chairman: Is the Committee agreed in principle then?

58.

Members: Yes. Agreed.

59.

Mr Dodds: Thank you very much.

60.

The Chairman: Thank you.

MINUTES OF EVIDENCE

26 OCTOBER 2000

Members present:
Ms Gildernew (Deputy Chairperson)
Sir J Gorman
Mr D McClarty
Mr D O'Connor
Mr M Robinson
Mr J Tierney
Mr S Wilson

Witnesses:

Ms McKinney ) Coleraine Borough Council
Mr Elder )
Mr McKeever ) Street Traders
Mr Kerr )

61.

The Deputy Chairperson: You are welcome to this meeting of the Social Development Committee. We will listen to both of your presentations and then the Committee will ask questions.

62.

Ms McKinney: Firstly, I would like to thank the staff of the Department for the work they have put into this Bill. We are quite pleased with most of the items in it, but have some concerns which we hope can be sorted out. I apologise for the way this presentation has been put together but we were called to this meeting at the last minute.

63.

We have concerns about clause 2(2)(a) and (b), in reference to petrol forecourts. We have had problems with the subletting of petrol forecourts for hot food trading. If the traders are outside the 10 metres limit, even though they are on the petrol station premises, we will not be able to deal with it. The council is concerned about that.

64.

Under clause 4(1)(a), the council have to publish a list of designated streets in the paper. It has not been clarified who can make representations after publication - can anyone? If we go to designate a street in Coleraine, is it realistic for somebody from another town in the district to say he wants to make representations? We feel that only people living inside a particular zone should be able to object; not just anybody. Other street traders could come from another area and object to that.

65.

If councils refuse to designate any areas for street trading in a main town, can their decision be challenged? In the main councils decide not to designate streets in order to keep traders away from retail outlets. Councils feel that they have to protect these outlets as they have much higher overheads, but we know that under unfair competition regulations we cannot really do this.

66.

Councils are also concerned about their duty to consult. We do not have a problem consulting with the RUC and the Department for Regional Development. However, can the Road Service veto a decision? When we discussed this, councillors were very supportive of street traders using lay-bys, where they are providing a service for motorists. We are worried that the DOE will come back and say they do not want anybody in lay-bys. They have said this to me on various occasions, one reason being that the lorries destroy the verges by driving over them. I have said that lorries can still park in lay-bys, even if there are no street traders. They do not want traders in lay-bys but we would like to be able to permit this.

67.

Article 7(2), concerns the conditions relating to street trading licences. It states that,
a council may, when granting or renewing a street trading licence, specify in the licence such further conditions as it considers reasonable.

68.

Is there a definition of what is reasonable?

69.

We ask for clarification on clause 9, on discretionary grounds for refusing and applicant. Of course, if we must consult with the Roads Service and the RUC, they may come back to say that that is already covered, for instance, that there is no space. In clause 9, subsection 1 (a)(i), it states,
The location at which the applicant wishes to trade as a stationary trader is unsuitable.

70.

Can what is termed an unsuitable location be clarified further? Inadequate space and undue interference are also mentioned, but those two areas appear unsuitable in themselves.

71.

Clause 15 deals with the grant of a temporary licence, and states how no more than five temporary licences can be granted. I have met with Sharon Scott of the Coleraine Borough Partnership, and was informed that on several occasions, the organisation has been unable to get temporary licences, although and it often has more than five promotions. Granting up to twelve temporary licences, which is one per month, would be more reasonable. Otherwise, some promoters may be bound rather tightly to those conditions.

72.

Clause 17 deals with unlicensed street trading. Will this apply to a licensed street trader who trades on a pitch that is not designated to trade on? Is he still recognised as a licensed street trader, or will he be dealt a fixed penalty if he moves pitches? Will he be different from an illegal trader who comes in out of the blue?

73.

We would like some clarification on clause 25. Subsections 3 and 4 describe a 'public place' as a place in the open air within 10 metres of the road or footpath. We welcome that definition, but are concerned that some car boot sales may come under it. Has the Department any ideas as to how to distinguish this type of sale?

74.

The Deputy Chairperson: We have listened to your concerns, and we will pass them on. We cannot answer those questions, the Department will have to. You are outlining your concerns so that we can have them clarified. [interruption]

75.

Ms McKinney: The Department has explained how it set out the model conditions, which standardised licence and conditions throughout the Province, and provides each council area with exactly the same licensing procedures.

76.

The Deputy Chairperson: Ok, so those are your main concerns. Let us move as a Committee on to the point of view of the street traders.

77.

Mr McKeever: My name is John McKeever. As a street trader, I hold licences from different councils in Northern Ireland. I thank everybody for the opportunity to come here. I was, however, notified at the last minute.

78.

Having read the Bill I must first point out that paragraph 5 of the Explanatory and Financial Memorandum states that
"The policy objectives of the Bill are to enable district councils to control and regulate street trading".

79.

The legislation is also there to protect the street trader. I do not know whether those who drafted this legislation looked at the parliamentary debate that took place during the passing of the Street Trading (Regulation) Act (Northern Ireland) 1929, but it was stated several times during that debate that the legislation was there to regulate, control and protect the street trader. There is no mention of protecting the street trader in the policy objectives of this Bill. Street trading should not become prohibitive. The Hansard record of the debate in 1929 should be examined closely.

80.

I will move to the Bill itself. There are some points I am uncertain about. Clause 3 relates to the designation of streets and clause 3(3)(a) states that
"only specified articles, things or services, or classes of specified articles, things or services may be sold or supplied from street trading pitches in that street".

81.

If that is to be the case, then there must be some provision to prevent councils establishing what would amount to a blanket ban. Many councils in Northern Ireland operate a blanket ban in town centres and in city centres. Again, according to the debate in 1929, that was not the intention behind the original legislation.

82.

Any provision in the Bill must compete with competition law and free trade. If there is to be a blanket ban on street trading in a particular town or city, it will unfairly prohibit the street trader.

83.

Clause 5(7) states
"An application under this section shall contain such further particulars relevant to street trading, as the council may reasonably require."

This subsection will have to be examined again because of privacy rights under human rights legislation. As it stands, the subsection is too strongly worded.

84.

Clause 7(2) states
"A council may, when granting or renewing a street trading licence, specify in the licence such further conditions as it considers reasonable."

Obviously, there must be specific criteria for that. Again, I feel that the subsection is too strongly worded, as are both paragraphs of clause 8(3).

85.

Clause 9(1)(a) contains the word "unsuitable". What does that word mean? There must be very clear criteria or guidelines. These are essential.

86.

Clause 9(1)(c) and (d) deal with applicants who may be

"unsuitable to hold a street trading licence."

What, however, does this mean? This must be clarified.

87.

9(1)(f) provides for the eventuality that
"the applicant has failed to provide the particulars required by the council to deal with the application."

"Particulars" need to be more closely defined.

88.

10 (3)(b) is open, in my opinion, to abuse, as is 10(1)(e) which provides for revocation if
"the licence holder is, on account of misconduct or for some other reason relating to trading activities.unsuitable"

That is open to abuse by a local authority or district council.

89.

12 (2)(b) states that
"the representation relating to the proposal may be made in writing to the council."

90.

There should also be an opportunity to make an oral submission.

91.

14(5) deals with temporary licences:
"A council shall formulate, and make available to any person on request, criteria with respect to the granting of temporary licences by it under this section."

92.

This is open to abuse by the council as well. This is also the case in 14(6)
"A council may at any time amend or replace the criteria it has formulated under subsection 5."

93.

This could lead to inconsistencies if the local council were to misuse its power.

94.

Clause 15 deals with fees and charges for licences, and subsection (1)(c) states that a council may charge
"such fees as the council may determine and as may be sufficient."

95.

The 1929 Street Trading (Regulation) Act (Northern Ireland) was introduced, as clearly set out in the parliamentary debates, to consider costs and to ensure that street traders were not carrying too heavy a burden of costs; especially if they were trading in a number of different councils. Otherwise they would have had to obtain six, seven or 10 different licences. We must consider the costs for the purposes of this Bill.

96.

Subsection 5 of clause 15 states
"The notice shall specify a period, being less than 28 days from the date of its first publication in accordance with subsection (3)(b), within which written representations concerning the proposed fees or charges may be made to it within the period specified under subsection (5)."

97.

There should be an opportunity to make an oral submission in this case as well.

98.

Let us move on to the powers of seizure from a street trader's point of view. Even if a trader has a licence there is nothing to stop any one else setting up beside him or 20 or 30 feet away. The powers of seizure are essential - provided that the Act is set out in a proper way to protect the licensed street trader.

99.

Moving to sections 18(8), 19 and 20, if powers of seizure are going to be invested in the Magistrate's Court there must be access to appeal against such an order. At the moment, there does not seem to be any appeal mechanism against a Magistrate's order to seize a trader's goods or stall.

100.

I think that has covered my main concerns. I do not have any legal knowledge and I am only aware of what I have had to go through to obtain street trading licences. I feel that the legislation does not comply totally with the European Convention on Human Rights (ECHR). Certain parts of the Bill must be looked at again, as they may be in breach of a street trader's human rights. I only looked over the legislation this week and I have not, as yet, talked to anybody with legal knowledge, but I intend to and I would like to be able to make a written submission at a later stage.

101.

The Deputy Chairperson: OK. May I apologise for the short notice, and add that this is all moving very quickly for us as well. We had to bring you in this week or we would not have had a chance to hear your point of view at all. I think it was useful to hear the points of view of both a council and a street trader.

102.

Any new legislation that is being brought out goes to the Human Rights Commission. If we are concerned about anything we can point it out to them and have them look into the implications of the legislation.

103.

As for the written submission, we are working to a pretty tight deadline and it has to go through Committee stage so we can get it to the Assembly. If you were interested in submitting further comments, we would need to get them as soon as possible.

104.

Mr McKeever: I have one last point to make. This piece of legislation is a Street Trading Bill. It does not affect everyone, like legislation in the education or health arena does. Outside of local government, it will apply only to a minority group. Street traders are few and far between.

105.

I think that this will be rushed through the Assembly, which would be a mistake. No one wants to take up this issue because there are so few street traders, which means that there are not many votes to be won by anyone who speaks up for them. The issue is only of interest to local authorities - the public is not concerned.

106.

The Deputy Chairperson: An element in the Assembly would like to see the matter go through quickly. However, it is not being rushed through; the legislation will not be coming into force until next year. The consultation period started some time ago, so this issue should have come before the Committee long before now - during the last suspension. It has been in the pipeline for quite a long time.

107.

We have limited time in which to deal with all the legislation that we will have to consider. We will only have 30 days to look at it and I agree that it has taken 80 years for it to get to this stage, so we should not be rushing it through. However, we need to get it right for the street traders and for the health, safety and convenience of the public.

108.

I think that I can speak for the Committee in saying that this is a Street Trading Bill, not a No Street Trading Bill. We want to see street trading; but we want to see it regulated for everybody's benefit.

109.

I am concerned at the powers of seizure proposed in the Bill, and I will be raising the matter with departmental officials. One might be a registered street trader licensed to trade in Belfast, but if one leaves that jurisdiction one's goods or van can be seized. How does that affect your work? How does it affect you if you are supposed to be in Belfast on Saturday and your van has been seized? We will be questioning officials in an attempt to clear the matter up for the benefit of the street traders and of the council. Does anyone have a question?

110.

Mr O'Connor: You say that you will seek advice about possible infringements of your human rights. How might these be infringed? There are a lot of hawkers whose illegal trading is clearly to the detriment of licensed street traders. The licence is a form of protection. The power of seizure is essential as well. If we are to protect licence holders, there has to be some punishment for those who break the law. What sort of things might constitute an infringement of your human rights? I am not asking you for legal jargon, just for your point of view.

111.

Mr McKeever: There is a problem in Northern Ireland, and in Belfast in particular, with illegal street trading.

112.

No one can get a licence in Belfast to trade within the city centre because, under the current legislation, there is, in effect, a blanket ban on street trading. No one can get a licence other than for the sale of flowers and newspapers within a pedestrian area or within a city centre. Obviously, that is why there is so much illegal trading in Belfast.

113.

Mr O'Connor: Is it not unfair that shopkeepers who are paying rates have someone with no rates to pay standing outside their shop selling the same product?

114.

Mr McKeever: You need to look at the right to trade - or free trade - under competition laws. Because there is a store situated in Belfast selling one particular item, that does not mean that a licensed street trader cannot trade - I am not talking about directly outside his door, but within a reasonable area. Multinational companies do not have a greater right to trade than the street trader. He has as much right to trade.

115.

Mr O'Connor: I wholly accept your point. There is a lot of successful street trading in many towns.

116.

Mr McKeever: I keep referring back to Hansard, to the parliamentary debate when the Street Trading (Regulation) Act (Northern Ireland) 1929 was set up. There was a lot of concern about how the 1929 Act was going to deal with street trading. It clearly points out that it was not an Act to rid the streets of traders. It said that there was a need for them, and refers to people at that time who were not educated enough to go out and get proper jobs, but could sell their wares.

117.

The new legislation must take that parliamentary debate into consideration when looking at the Bill. I do not believe that it does that. There are a lot of points in it that I have not mentioned as I am unsure of them, but I do not think that the Bill gives enough protection to the street trader. A street trader does not automatically become a legal street trader, but he has to be a street trader before he can become a legal one.

118.

Mr McClarty: I would like the representatives from Coleraine to outline the problems they have with street trading. Coleraine is a particular case in point because of the tourism aspect - events like the North West 200, and the Raft Race. Will you briefly outline some of the problems you have?

119.

Ms McKinney: We have major problems over the periods that Mr McClarty has mentioned. Our problems are not with the registered street traders; our problems are with the illegal street traders. Hundreds of traders arrive for the North West 200. We spend a full day, or even a full week, around the triangle area, noting names and addresses. We then come back, go through all the paperwork, and serve summonses, 99·9 per cent of which come back to us because the traders have given us false names, addresses and number plates.

120.

It is costly for the council, both financially and in terms of officers' time. We welcome this Bill, because it provides us with more powers. At present, when I see an illegal trader, I show them my authorisation card, ask for their details and inform them that they are trading illegally. However, I then have to walk away. Consequently, if they give a false name and address, they can continue to trade, because I have no power of seizure or authority to move them on. There may be a cost to Coleraines' ratepayers in that process if that person persists in trading. I have no problem with legal street traders, but there are major difficulties with illegal traders who descend upon the borough during the Raft Race festival and the North West 200.

121.

Mr McKeever: I want to ask Mrs McKinney how many licences does -

122.

Mr McClarty: Chairman, surely that is entirely out of order? This is a discussion between ourselves and the witnesses only.

123.

The Deputy Chairperson: I am sorry. There has been a long consultation period on this matter. This is not the forum for questions.

124.

Mr McKeever: I will put it differently. I hold a licence from Coleraine Borough Council, which I use at certain times of the year, for example, the North West 200. Many people trade at the North West 200,

125.

because it is one particular day. If councils issued temporary licences for the occasional day, as provided for in the Bill, that would stop illegal trading in Coleraine and other areas. The problem is that many councils only issue licences on the basis of certain criteria, or for one-off events outside town centres. For example, it is not possible to work in Coleraine town centre; the licence does not permit it. Councils make by-laws under The Street Trading (Regulation) Act (Northern Ireland) 1929 to prohibit street trading from designated areas. That is not the way the Act was intended to operate. The Act only refers to certain streets -

126.

The Deputy Chairperson: I take your point, but retailers and ratepayers must be protected too. We need to create the right balance. That is why we invited you, Mrs McKinney and Mr Elder to this session. We want to hear your opinion on which parts of the Bill you believe to be unnecessary or excessive. This Committee will consider that during our final deliberations. We have to ensure that ratepayers are not competing at an unfair disadvantage to those who pay for street-trading licences.

127.

Mr McKeever: The issue of ratepayers versus street traders who pay nothing is always raised. That does not mean that street traders are unwilling to pay. If a procedure existed whereby they could obtain a licence to trade, then few people would abuse the system.

128.

If the system is abused because there is no way to obtain a licence, it is abused by the local council, not the street trader. There is a difference.

129.

Mr O'Connor: You mentioned the 1929 Act, but times have changed and we have moved on since then. You also mentioned temporary and one-day licences but the public has to be protected as well. I want to put this point to the officials from Coleraine Borough Council. Have there been any cases of food poisoning involving illegal traders who sell food from hamburger vans or ice-cream vans? Has that had repercussions for public health?

130.

Ms McKinney: I am not 100 per cent sure whether there are any recorded cases of food poisoning. Mr McClarty might know, but I am not aware of any. During major events, the Environmental Health Department inspects all food traders in general. Over the years, standards have been good because there has been an ongoing inspection programme. One or two traders still have quite poor standards, but about 95% are good. The difference is that the Environmental Health Department inspects only food hygiene; it cannot inspect illegal traders.

131.

I want to make a point about public health. At 2.00 am on the Saturday of the North West 200, I dealt with a trader who was parked outside a bungalow in Portrush. I advised him that the old lady who lived in the house was in a terrible state and could not sleep because the generator was thumping away, but he refused to move. He had no licence from Coleraine Borough Council. We would not licence him to trade at 2.00 am in a built-up area anyway. The police were called but he still refused to move. Neither the police nor the council had the power to move him. He moved when all the trade had gone, which was at about 3.00 am. That old lady had asked a neighbour to contact us, but I could do nothing for her - I felt helpless. That is one instance where street trading needs to be regulated. There would have been a lot of happy people that night if we had had the power to seize even his generator. He was quite prepared to continue disturbing those people. No council would seize items if it was not necessary. However, if we had had the power of seizure, we could have dealt with the problem that night and on others, but I had to walk away because I had no powers.

132.

Mr O'Connor: As regards on hygiene, you said that some traders have clean, well put together catering facilities and others do not. People will always try to make a fast buck unless airtight legislation is in place to protect the public interest.

133.

Ms McKinney: People who trade in food - hot or otherwise - have to register with the local council and their vehicles must be passed by the Health Department.

134.

Sir John Gorman: Two of us have to go to another important meeting. Do the other two witnesses want to give evidence? We can stay for a few minutes.

135.

The Deputy Chairperson: We are almost wrapped up. If you leave there will be no quorum. Thank you for coming to give your evidence. It has been useful to hear both points of view. We will go through the proposal clause by clause and line by line and take into consideration what we have heard today. Thanks very much for your time.

MINUTES OF EVIDENCE

THURSDAY 9 NOVEMBER 2000

Members present:
Mr Cobain (Chairperson)
Ms Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr ONeill
Mr M Robinson
Mr Tierney
Mr S Wilson

Witnesses:
Mr G Gibson )
Mr I McMaster ) Department for Social Development
Mr T Bowler )

136.

The Chairperson: I welcome you to this meeting of the Committee. We intend going through the Bill clause by clause.

137.

Mr G Gibson: We have worked on the Street Trading Bill for some time. We will be happy to answer any questions and try to address any concerns the Committee may have.

138.

The overall purpose of the legislation, which we had to come back to frequently during our deliberation, is to permit and support a licensing system to avoid undue nuisance, interference and inconvenience to persons and vehicles. The aim is to have legislation that is open and fair, for example, introducing designation procedures, providing interested parties with an opportunity to make representations, enhancing appeal procedures and introducing time limits for administrative procedures.

139.

The legislation provides district councils with a high degree of flexibility. This includes setting their own fees, imposing local conditions and licences, and determining the duration of licences. In addition, it provides district councils with more effective powers for dealing with illegal trading.

140.

Finally, we intend to produce a guide to the legislation, which will be available to everyone who wishes to make use of it, the councils and the public, street traders and anybody else.

141.

Mr G Kelly: I realise that you have to produce the guide after the legislation. I am worried that we will end up with a guide as complicated as the legislation. May the Committee see the guide before it is published?

142.

Mr G Gibson: We have started on a draft and can arrange for you to see it.

143.

The Chairperson: Are Members content with clause 1?

Members indicated assent.

144.

We move to clause 2.

145.

Sir John Gorman: My understanding is that district councils have studied this carefully. Almost invariably, where they have made an adverse comment, they have been unaware that the problem has already been included in the Bill. Need we discuss this at length?

146.

The Chairperson: It is important that we get through it, and this is how it must be done.

147.

Are Members content with clauses 2 to 4?

Members indicated assent.

148.

We will move to clause 5.

149.

Sir John Gorman: I was puzzled that Belfast City Council's suggestion that legislation should allow council to seek the views of those directly affected by an application was not accepted. Why not?

150.

Mr Gibson: Because those involved could be from inside or outside a council area. We would not expect anyone outside a council's area, and who does not have an interest, to become involved.

151.

The Chairperson: This suggestion is simply a reflection of what happens in planning. Neighbourhood notification means that the Planning Service will notify those directly affected by a planning application. This suggestion would echo that process, enabling a council to seek the views of people directly affected by street trading in a particular area.

152.

Mr McMaster: When streets are being considered for designation, those directly affected are asked to make representations to the council on why the area should not be designated. The council then decides whether to designate the area, having taken account of those views. Consultation would not be carried out at individual application stage.

153.

Ms Gildernew: I have a number of concerns. Is there any scope for street traders to buy and sell licences? Does clause 5 deal with that? I am concerned that people could buy several licences and then sub-let them, so to speak. I understand that that is happening at the moment. I would like details on how licences would be obtained and how they would be reissued after 12 months. Do licences cost the same across all district council areas?

154.

Mr Gibson: People must apply to a council for a street trading licence. After considering where the person wants to trade and what goods he wants to trade in the council decides whether to issue a trading licence.

155.

A licence is personal to an individual. There is nothing in the legislation to allow a licence to be sub-let or sold. It will be up to each council to set its own fees to recoup the administration costs. The fees may differ from one council area to another depending on the administrative charges.

156.

Ms Gildernew: Will there be a comparative rate for someone who trades in one of the best pitches in the Belfast City Council area, where the rates are high?

157.

Mr G Gibson: The fees are set purely on the councils' administrative costs. Everyone trading in the council area will pay the same fee, but it may vary from one council area to another. For example, a trader in Belfast could be paying a different fee to someone trading in Armagh.

158.

The Chairperson: Each individual council will set its own fees.

159.

Mr G Kelly: Will there be multiple licences for different parts of the council area?

160.

Mr G Gibson: One person can obtain multiple licences. He can apply to any council, or to every council.

161.

Mr G Kelly: Is there no limit on the applications? Can someone take up the whole street if he wants?

162.

Mr G Gibson: Yes, the licence is for a pitch. If someone wants to trade in different pitches in a council area throughout the week, he will need a licence for each pitch, but there is no limit to the number of pitches.

163.

Mr S Wilson: The size of the pitch has to be defined.

164.

Mr G Gibson: The size of the pitch is decided by the council.

165.

Mr G Kelly: Can a trader have 10 pitches with 10 assistants working on them?

166.

Mr G Gibson: Yes.

167.

Mr G Kelly: What clause is that under?

168.

Mr McMaster: It is allowed simply by its absence from the Bill.

169.

Mr G Kelly: With regard to clause 5(8), the Minister stated that consideration was given to inserting a provision requiring district councils to respond to all applications within a specified time. However, it was decided that that would place impractical administrative burdens on the council. So it was decided not to do it. If we cannot agree to reinsert this subsection today because we will not get through the whole Bill today, we should look at the matter again.

170.

Having listened to the arguments, I think that there has to be some safeguard to prevent a council, or a party in a council, taking umbrage against a trader or traders. There should be a sensible timescale, because there are problems with these matters. They could go on for years and could come down to political bias. I would like to come back to that.

171.

Mr S Wilson: In light of recent stories about dangerous goods being sold, why was the requirement for an applicant to show that he had public liability insurance not accepted as a condition?

172.

Mr G Gibson: The purpose of the legislation is to provide street trading licences and to permit street trading in a regulated system. Anything that is covered by other legislation such as litter, parking, et cetera is dealt with in other legislation. We did not bring other legislation into this. Anything to do with public liability or any requirement for registering under other legislation will have to be dealt with by that legislation.

173.

Mr S Wilson: What legislation would cover the requirement for a street trader to have public liability?

174.

Mr G Gibson: I do not know.

175.

Mr S Wilson: Is there any legislation? My understanding is that there is not, and cannot, be a requirement for street traders to have this legislation.

176.

A number of people in Belfast have tripped over goods which had been set out in front of stalls. It was not the responsibility of the Roads Service, because they did not trip on the footpath. The individual had no comeback. No one is liable if someone is badly injured by dangerous goods that are on sale. If that is not covered in other legislation, why can it not be included in this legislation? It is a requirement that ought to exist, judging by the number of street traders who have been contacted and their response.

177.

Mr G Gibson: At present, we have a problem with illegal street trading. This means that some traders do not have a licence. When looking at licences, the council considers where the street traders do business and where it is safe to trade; but control is more difficult. Under the Bill, traders would not be allowed to trade in areas where they would cause an inconvenience or an obstruction. This might go some way to solving the problem.

178.

Mr S Wilson: Trading on a footpath will cause disruption. There is always the danger of obstruction or of someone tripping over the goods - flowers, for example. It is strange that that provision was not included and was not a requirement for a street trader. It should have been automatically included for the protection of the public, the street trader and the council.

179.

The Chairperson: We can return to this issue.

180.

Mr S Wilson: Will you let us know in due course if it is covered by other legislation?

181.

Ms Gildernew: Does that mean that somebody trading from a hamburger stand, for example, would be subject to regulation by the council's environmental health committee?

182.

Mr G Gibson: Yes.

183.

Ms Gildernew: When granting street trading licences, does the council take into consideration a trader who may want to sell compact discs at the door of HMV? Does the council take account of the goods that the street trader is selling and where he wants to sell them? Does it check that the trader would not be competing directly with retailers who pay thousands of pounds in rates?

184.

Mr G Gibson: Councils can take account of what sort of goods are being sold and can decide what sort of goods it is prepared to allow on certain pitches. I think that you are referring to unfair competition. Our legal advisors told us that councils cannot impose conditions in relation to unfair trading due to European Union rules governing free trade.

185.

Ms Gildernew: In other words, somebody can sell goods on the pavement for half the price that they would be in shops.

186.

Mr G Gibson: Yes, if the council gave him a licence. I am not sure that the council would grant a licence to sell compact discs outside a record store, for example. That would be unreasonable.

187.

Mr McMaster: The difficulty arises when the onus is put on the council to make subjective decisions about the quality of the goods - are the goods similar; is the clothing the same; is it of better or worse quality? European legislation must also be complied with.

188.

We are legislating to try to control street trading. If one did not issue the licence to one person, one would issue it to someone else. That is making decisions on the goods that the trader is selling rather than on the street trading. It becomes a subjective judgement when one licenses one trader but not another. That is the principal difficulty.

189.

Mr Tierney: Are we getting contradictory advice? Can the council refuse a licence for trading outside a shop that sells similar goods?

190.

Mr G Gibson: The council has the power to refuse a licence provided that it is reasonable to do so, but it would be subject to a challenge.

191.

Mr Tierney: However, you are also saying that it would not be reasonable to do so under European law.

192.

Mr G Gibson: It would not be reasonable if the trader was offering unfair competition, because the council would be liable to be challenged. However, there may be other reasons why a council does not want to issue a licence.

193.

Mr McMaster: The council may not want particular types of trading in certain parts of the city, in pedestrian precincts, for instance.

194.

If those grounds are reasonable, that is fine. Simply to say, "I do not want you to trade there because it is unfair on a trader who is selling the same goods as you" is treading on dangerous ground.

195.

The Chairperson: We will leave clause 5 and revisit it later, taking on board the comments made.

196.

We will now consider clause 6. Are members content with clause 6?

Members indicated assent

197.

We will now consider clause 7. Are members content with clause 7?

198.

Mr S Wilson: If there was a requirement to provide public liability insurance would clause 7 be the appropriate clause for it to come under, rather than clause 5?

199.

Mr G Gibson: That might be a condition if the council decided that such a requirement might apply to a licence.

200.

Mr S Wilson: Would the legislation have to specify the need for public liability insurance or might a council impose that without the legislation detailing it specifically - would that be an additional condition? I am not clear whether on that matter the council has discretion over and above the reasons that are given here.

201.

Mr G Gibson: The council can impose conditions which it considers reasonable. The main point is to allow councils to cope with local variations. Anything which the council imposes must be seen as reasonable as it might be subject to challenge. If public liability insurance were a requirement it would have to go in as a condition.

202.

The Chairperson: I assume that some of these matters will be challenged in court anyway?

203.

Mr G Gibson: Possibly.

204.

The Chairperson: Members, are we agreed on clause 7?

Members indicated assent.

205.

The Chairperson: We now consider clause 8. Are members content with clause 8?

206.

Ms Gildernew: Clause 8(1)(b) says that a council shall refuse an application if the applicant
"has not reached the upper limit of compulsory school age, within the meaning of Article 46 of the Education and Libraries (Northern Ireland) Order 1986 (NI 3)".

Could we put in to that clause that the applicant for the street trading licence has to pay the minimum wage? We should ensure that the Bill protects assistants who work for a street trader.

207.

Mr G Gibson: The Street Trading Bill would not be the appropriate legislation for that. There is legislation on the minimum wage and I would assume that that matter would fall under that legislation. This Bill is solely about licensing individuals to trade.

208.

The Chairperson: Are Members content with clause 8?

Members indicated assent.

209.

The Chairperson: We now consider clause 9.

210.

Mr S Wilson: I have several questions, to which I might receive a response similar to that given to the previous query.

211.

In Belfast, there is considerable concern about people who might apply for a licence for a number of stalls, and then leave others, who are clearly under age, to run them. Could such conduct by a license not be included in the Bill as a discretionary ground for refusing an application? Perhaps, it comes under some other legislation. In Belfast on any day of the week, we can see hamburger stalls being run by wee lads and wee girls who can not be more than 13 or 14 years of age.

212.

Mr G Gibson: Stallholders are not allowed to employ anyone who is under age. If they do so, they will be in breach of the conditions of their licence.

213.

Traders who apply for a licence may not know at that stage who their assistants will be, and, even if they did know, the assistants can change frequently. The council might get details about the assistants, but the assistants could change every week or every month. However, if traders employ people who are under age, they are breaching their conditions and the council could revoke their licence.

214.

Mr S Wilson: Which condition would they breach?

215.

Mr McMaster: They would be in breach of the provisions of clause 24.

216.

Mr G Kelly: We went through all this before. Clause 24 was the answer. The matter is covered by the Children Order.

217.

Mr McMaster: It would be a breach of the Children (Northern Ireland) Order 1995, which says that no one under school leaving age can be employed in street trading.

218.

The Chairperson: Are Members content with clause 9?

Members indicated assent.

219.

The Chairperson: We move on to clause 10. Are there any objections to clause 10?

220.

Mr G Kelly: There is one thing that I would like to raise. Is there a clause that deals with compensation for revocation of a licence? A council could decide that a trader is no longer suitable for licensing, for a reason that may not have anything to do with the trader. Is there a compensation clause?

221.

Mr G Gibson: There is no compensation for revocation. However, if a council decides to revoke a licence, the licence holder has the right to appeal to a Magistrate's Court.

222.

Mr G Kelly: The grounds for revocation might be sound, but the trader may not be at fault. There should be some sort of mechanism for compensation.

223.

Mr G Gibson: The licences are issued on the basis that they can be changed. A council will look, first, at whether it can accommodate a licence holder elsewhere. The council might allow him to trade on a different pitch or, if the problem is with the goods, it might vary the conditions of the licence.

224.

Mr G Kelly: I appreciate that. You are saying that the mechanism does not exist, and you are giving the reasons for that, but there should be such a mechanism. There are all sorts of things that the council can do, instead of compensation-it can give a trader another pitch, for instance-but if the circumstances are not the trader's fault and, yet, he will lose earnings, there should be compensation.

225.

Mr McMaster: There are provisions in clause 15 relating to fees and charges. A council will have the power to offer a partial refund of the licence fee, but not to offer compensation for the loss of trade.

226.

Mr G Kelly: It would be remiss of a council not to give some sort of refund of the licence fee. However, the licence fee is one thing, loss of earnings is another thing entirely. I would like the Committee to come back to that.

227.

The Chairperson: OK.

228.

We move on to clause 11. Are Members content with clause 11?

Members indicated assent.

229.

The Chairperson: We move on to clause 12.

230.

Mr S Wilson: I understand the difficulties that councils have. We spoke about what would be a reasonable time, and wanted it tightened up. Given the way in which council meetings work, it is hard to be specific on that. However, if we want to speed up the consideration of applications, we could look at the number of days allowed for representation to be made to the council. For planning, a period of 14 days is regarded as sufficient for people to respond to a planning application. Why was 21 days chosen for an application for a street trading licence?

231.

Mr G Gibson: We thought that a period of 21 days was reasonable.

232.

Mr McMaster: It also correlates closely to most of the social security provisions on appeals and responses to decisions. We are trying to create as fair a system as possible and allow people time to respond.

233.

Mr S Wilson: I know from my council experience that it can be a fairly protracted period before an application is considered. Given the way dates of committees and the council itself might fall, it can be two and half months. If 14 days is a reasonable period for making representations on something as major as a planning application for something that will be a permanent fixture at the end of somebody's garden, we could apply the same standard in this case and, thus, shorten the period. The traders said that, and I thought that it was a reasonable point. Anybody who is concerned about a street trading application will respond fairly quickly; it is unnecessary to lengthen the period to 21 days.

234.

Mr G Gibson: If the Committee feels that 14 days is more reasonable, we would not have any objection.

235.

Sir John Gorman: My constituents in North Down and the street trader, Mr McKeever, suggested that.

236.

Mr McMaster: What about times when people are on holidays? If someone is off for a couple of weeks, 14 days might not be sufficient. It is a matter of balance and we would welcome any views on it.

237.

The Chairperson: Does that disadvantage anybody?

238.

Mr S Wilson: If somebody makes an application, it should be dealt with as quickly as possible. Some concern was expressed about that, and I have some sympathy with that. Given the way that councils work, there will always be a period of delay, probably of about six weeks. If we can find ways to shorten that period, we ought to do it. That part of the process could be shortened.

239.

Mr G Gibson: We are not aware that anyone raised that issue during the consultation. That is not to say that it should not be looked at now, but the responses that we got did not suggest that anyone who responded was unhappy with it.

240.

Mr S Wilson: Did Mr McKeever not raise it during the consultation period?

241.

Sir John Gorman: Yes, Mr McKeever raised it, as did North Down.

242.

Mr S Wilson: He certainly raised it with us last week. I disagreed with him on many points, but I felt that he had a reasonable point on that.

243.

Mr McMaster: If the Committee feels that 14 days is right, we are happy with that.

244.

The Chairperson: Will the Department put forward an amendment to this now, or should the Committee deal with it?

245.

Mr S Wilson: I hope that all the other matters about which the Committee has concerns will be considered as well. How will that be done?

246.

The Chairperson: What mechanism will we use?

247.

The Clerk: It is a Bill, so we have to amend it.

248.

The Chairperson: Will it be amended by the Committee or the Department?

249.

Mr G Gibson: The Committee will prepare a report that would include all the issues. We would have a look at it and respond. The Minister might have to make some decisions at that stage.

250.

The Clerk: Can I consult a second?

251.

Mr S Wilson: Do you want to phone a friend, George?

252.

The Chairperson: Ask the audience.

253.

Mr S Wilson: Will the officials come back to the Committee?

254.

The Chairperson: Yes. We will run right through until all the clauses are done. We will produce a report and put the amendments. We move on to clause 13.

255.

Mr S Wilson: Belfast City Council has decided that there should be no right of appeal in relation to a street that has not been designated for trading, and that an appeal ought to be allowed only in the case of a refusal for a designated area. Otherwise, the number of appeals would increase, and they would no longer be simply about whether the person who had applied or his activity was suitable. Traders could now call the whole policy and the definition of what constitutes an acceptable street into question. If a council has given due consideration to the question of where street trading is appropriate, the system should not get clogged up with appeals against its decision. Why was that recommendation not included in the Bill?

256.

Mr Gibson: There are three areas in which there is no right of appeal; one is designation. There is no right of appeal against designation of an area. When the designation is being considered, people have the opportunity to put forward representations, as we discussed earlier. That gives people the opportunity to make their views known. Once the council's decision is made and the resolution passed, there is no right of appeal against it.

257.

In addition, there is no right of appeal against a mandatory refusal of a licence or against fees and charges. Those are the three areas. It is probable that people could challenge that by way of judicial review.

258.

The Chairperson: We cannot stop that.

259.

Mr Gibson: No.

260.

Mr S Wilson: According to our notes, that recommendation has not been included in the Bill.

261.

Mr McMaster: Clause 8 states that an application must be refused if the area is not designated.

262.

Mr S Wilson: So, it is covered in the Bill.

263.

Mr McMaster: It must be refused; there is no way out of it. Clause 13 refers to persons aggrieved by a decision to refuse
"other than on any of the grounds specified in section 8".

So, decisions made under the terms of section 8 are excluded. There is no right of appeal against a decision made on any of those grounds. That includes areas that have not been designated. Clause 8 lists the areas where there can be no question about it. Applications must be disallowed, and there is no ground for appeal in such cases. Clause 13 (1) refers to
"a person aggrieved by a decision of a Council"

and paragraph (b) refers to a specific decision to refuse an application
"other than on any of the grounds specified in section 8".

264.

Mr S Wilson: So, it is covered in the Bill.

265.

Mr McMaster: You can appeal a discretionary decision, but not a mandatory decision.

266.

Sir John Gorman: As there has been no street trading act in Northern Ireland since the 1920s, you must have consulted other countries such as Scotland, England, and the Republic. Is there any major difference between what we are reading about here and the generality of street trading circumstances?

267.

Mr Gibson: The most recent street trading legislation is that for London, both the city of Westminster and London itself. Many of the provisions in this Bill are similar to those for London and Westminster.

268.

Sir John Gorman: In your consultation, did you get any suggestion that there might be considerable difficulties or about anything that we should avoid?

269.

Mr Gibson: As far as we are aware, nothing in the Bill should cause a problem. I wanted to make that clear. I did not want to put in anything that had been found problematic by somebody else.

270.

The Chairperson: Thank you very much. We will try to finish next week.

Committee rose at 4.14 pm

MINUTES OF EVIDENCE

THURSDAY 16 NOVEMBER 2000

Members present:
Mr Cobain (Chairperson)
Ms Gildernew (Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr McClarty
Mr M Robinson
Mr Tierney Mr S Wilson

Witnesses:
Mr G Gibson ) Department for
Mr I McMaster ) Social Development

271.

The Chairperson: Good afternoon, Gentlemen. You are all very welcome to this Committee session.

Clause 13 agreed to.

272.

Mr S Wilson: Last week we went through the first part of the Bill quite rapidly, and some matters were raised. However, having spoken to council officials about some of the wording, I have identified a number of clauses that I would like to go over again - as agreed by the Chairperson - in order to get the views of the departmental officials.

Clause 3 (Designated streets)

273.

I have two concerns about clause 3(1). It states
"A council may pass a resolution designating a street in its district".

The council may designate that traders are allowed to sell newspapers on the Lisburn Road, for example. The Lisburn Road is therefore "the street", but there are many parts of that street where trading would not be permitted.

274.

According to the present wording of the Bill, the council has to name the street but cannot make any qualifications. Is there a difficulty in amending that subsection to state that a council may designate a street or a part of a street to make allowances for the fact that "the street" may be very long? This seems reasonable and would not give carte blanche to a road that, for example, has a shopping area at one end and a quiet residential area at the other.

275.

Mr Gibson: Under the heading "General Interpretations" Clause 25(3) (c) states
"In this Act "street" includes -

(c) any part of a street."

276.

That allows a council to designate all or part of the street as it thinks fit. That is not immediately clear from subsection (3), but it is applicable through the correct interpretation. Depending on what the council wants, it may designate a part or all of the street as being suitable for street trading.

277.

Mr S Wilson: A trader may be unhappy if a street that he wants to trade on is not regarded as designated. Therefore when a council designates a street, the unhappy trader may go for a judicial review and ask why he is not allowed to trade in the street that he initially wished to trade on.

278.

A council could find itself in court nearly every other week; its designation could be challenged, or its refusing to grant a licence could be challenged on the grounds that the person who was refused a licence did not like the designation. I am not a lawyer - that is why this was not raised last week - but our legal people say that, as it stands, a judicial review would probably be granted.

279.

However, if the Bill were to indicate that the council it might pass a resolution "as it sees fit" - with that exact wording - then the only basis on which a person could seek a judicial review would be whether the council had gone through the proper procedure. If a council could show that it had consulted in the proper manner, asked all the right people, and laid down robust criteria, then judicial review could be sought only in respect of designations where the procedure had not been properly followed.

280.

Maybe that is covered in some other part of the Bill, but there is real concern that the process could be gummed up if that is left as it is, because it does not actually refer to the procedure by which the council makes its designation.

281.

Mr Gibson: Our view was that if a council goes through the procedure to designate a resolution, takes representations from anybody who wants to put forward representations and follows the procedure, it would probably be difficult to obtain a judicial review. That is not to say that it would not happen, but I would be surprised if a council were to be faced frequently with judicial reviews. The challengers would have to be very sure of their grounds. If a council has gone through the procedure and has good reasons for not designating a street, that would have to be taken into account.

282.

I am not sure that adding the phrase "as it sees fit" would make a difference. In our view, that is more or less implicit in that it is up to a council to designate as it sees fit. The decision lies solely with the council -

283.

Mr S Wilson: I do not know either, but I have taken advice on the sort of legal language that is required. The town solicitor in Belfast feels that that kind of wording is required, and I have to bow to his knowledge - although I do not bow to his knowledge on many things. There is a real fear that the system could be gummed up by judicial reviews, not to mention the possible delays and cost to the council. If that kind of wording reduced the likelihood of that's happening, why can an amendment of that nature not be made?

284.

Mr McMaster: As I understand it, there are two issues at stake here. One is the procedure that the council follows in making its resolution. That is set out in clause 4. If the council is in breach of that, anyone has every right to go back and challenge them on not having followed the proper procedure.

285.

The issue that is causing concern is that a council could be challenged on how it arrived at designating this street and not that one - its thinking process, if you like. Right from the beginning, I think there was never any intention to provide any sort of guidance as to what criteria a council should take into account, because they could differ from council to council, or even from street to street.

286.

It was also considered that in order for the system to be as open and fair as possible, councils should, in fact, be open to challenge. They should be sure enough of their grounds to say "Yes, I have grounds; I have set them out; this is what they are, these are the criteria we use; this is why we do not want trading in that street."

287.

I am not sure that we considered at any stage that the system could be bunged up. It may well be at any stage, but no one can guard against that. If by taking that out, or if by preventing the bunging up of the system we remove what we regard as a reasonable right for an individual to at least challenge the council's decision, perhaps we would be defeating some of the aims that we set out with, in other words, making an open, fair and accountable system.

288.

Mr S Wilson: There is no strict guidance in the Bill as to what criteria might be laid down for the designation or non-designation of streets. You have given your reasons for that, and I understand those reasons. However, in the absence of any clear criteria in the Bill, council decisions are much more open to the possibility of judicial review.

289.

The inclusion of the words "the council, as it sees fit, may pass" in the clause would enable councils to set down the criteria by which they will make their judgement. Councils would then have a safeguard as long as they have set out the grounds on which they will make decisions to designate or not designate streets. If councils abide by their criteria there should be no grounds for a judicial review on a decision not to designate a particular street.

290.

As things stand, that safeguard is not in the Bill, and you have not - for the reasons you have given - provided any other safeguards for councils. For that reason, it is felt that the inclusion of the phrase might give councils some safeguard.

291.

Mr McMaster: We would never set out to give councils a total safeguard. That would defeat the purpose of the openness perspective. I accept your point, but I do not feel that the words "as it sees fit" would add anything. The word "may" implies that a council has to have some ground rules and that it cannot just decide what it is going to do from one day to the next.

292.

The Chairperson: What we are trying to say is that we do not expect councils to be immune from challenge. However, you cannot expect them to be challenged on every issue.

293.

Mr S Wilson: The inclusion of the phrase would show that it is the Bill's intention to give councils some discretion. A council could then refer to that point if taken to court.

294.

Mr McMaster: The present wording of the clause - that a council "may pass a resolution" - was intended to give councils discretion. Councils do not have to designate, and we are not compelling them to designate. We are saying that the only way councils can issue a licence and charge a fee under this Bill is if they have considered that a particular street is suitable for street trading and have designated that area as such.

295.

The Chairperson: Or any part of the street?

296.

Mr McMaster: Yes.

297.

Mr S Wilson: The phrase "as it sees fit" is being suggested because it was used in paragraph 2(8) of schedule 4 of the Local Government (Miscellaneous Provisions) Act 1982 in England. Whoever drafted that law decided that that gave councils some additional safeguard, although I do not know if that has been the case. However, as the wording has been used in other legislation, I cannot understand why there should be any resistance to including it in this Bill.

298.

The Chairperson: Would you have another look at this matter for us?

299.

Mr Gibson: As things stand, councils can set out criteria. Inserting the words you are suggesting would not mean that councils could set criteria that they cannot already set. Councils can decide the criteria they want to apply to the designation process.

300.

Another aspect that we found helpful is that the purpose of the Bill is to prevent undue nuisance. It does not set out to stop street trading. It is to ensure that street trading does not cause a nuisance. We have tried to be as open and fair as we can to traders and councils, but, invariably, council decisions will be challenged. We will consider your suggestion.

301.

The Chairperson: Can you give us some background information as to why the phrase was included in the legislation across the water and why legislators there thought it was important to include it?

302.

Mr Gibson: Yes.

Clause 9 (Discretionary grounds for refusing an application)

303.

Mr S Wilson: There is no mention of adequacy as being grounds for refusing an application in clause 9. This could be an important reason why some councils refuse further licenses in a particular area. Was there a reason why the Department did not include an adequacy clause?

304.

Mr Gibson: What do you mean by "adequacy"?

305.

Mr S Wilson: If, for example, there are already five people selling flowers in a particular location, or there are already a plethora of burger bars, or whatever, a council may occasionally want to use this as grounds for refusing an application. I have seen the difficulty of this in planning legislation when there is no adequacy clause. There can be ten burger bars or hot food takeaways in one stretch of road, and nothing can be done about it. Street trading creates the same situation. It would be important to include an adequacy clause to cover those circumstances. Under this legislation, councils do not have the ability to refuse applications.

306.

Mr McMaster: Clause 9 has a provision stating that an application can be refused if there is insufficient space. This refers to space in general, that there are enough traders. I take it that you are referring to a particular type of trader. We talked about unfair competition at the Committee meeting last week, but if you were to say to a person "It is not that we are not issuing you a licence; we are simply not issuing you a licence to trade in a particular form of goods", you would be in danger of breaching rights. That would be attempting to control what people sell. "If you were selling something else I would give you the licence." Is that the scenario you are thinking of?

307.

Mr S Wilson: Yes. This can be done in England under the Local Government (Miscellaneous Provisions) Act. If it can be done there, why is there a difficulty in Northern Ireland?

308.

Mr McMaster: The Local Government (Miscellaneous Provisions) Act is several years old. Human rights and European law were a big consideration when this legislation was being drafted. If there was unfair competition, then there was a disallowance, as was suggested last week. The advice we have from solicitors is that the legislation may be open to challenge in that by suggesting a person cannot trade in a particular area, you would be restricting the free movement of goods.

309.

Mr S Wilson: I realise it is early days, but it has not been challenged in England. Instead of anticipating challenges we should be focusing on the difficulties concentration like this could cause. If possible, a clause like this should be inserted. If it is challenged at a later date, so be it. We will bridge that gap when we come to it.

310.

Mr McClarty: I agree. Unfair competition works in favour of the street trader. If he is selling burgers, he does not have the same overheads as the man who has a shop and staff, rates and rent to pay. I agree with Mr Wilson that there should be some sort of clause there.

311.

Mr Gibson: We keep returning to this. The main purpose of the Bill is to prevent undue nuisance, not unfair competition.

312.

Mr S Wilson: That is my point. One burger bar or one hot food bar in a street might not cause any difficulty. Ten of them would be a darn nuisance.

313.

Mr Gibson: I do not think that the council would allow ten.

314.

Mr S Wilson: The law does not stop them, because adequacy is not a requirement. That is the whole point.

315.

Mr Gibson: If the location was unsuitable the council could decide to designate a limited number of pitches only. It could decide that five pitches in one street is the maximum it will allow and that any more than that would cause a nuisance, so anybody who applies after that will be deemed unsuitable.

316.

Mr S Wilson: It might be suitable to have 10 pitches in a street, but it might not be desirable to have people selling the same thing from each of those 10 pitches. That is where adequacy comes in.

317.

Mr McMaster: A designating resolution may also determine that only specified articles or services may be supplied from pitches in that street. Could councils not use that power to limit the types of goods that can be sold on a particular street? That might, of course, vary from street to street.

318.

Mr S Wilson: How would we do that? If a council says that it will allow someone to sell burgers in a particular street, it cannot then say that another person cannot sell burgers in the same street. If such a trade is suitable for that street, it is suitable for anyone to conduct it - if it is suitable for Davy McClarty, it is suitable for me. The only way round that is for the council to say that it does not want any more spaces being used for that activity, even if there are 20 unused spaces. It cannot say that the activity itself is unsuitable or say that there is no space.

319.

Mr McMaster: I take your point.

320.

The Chairperson: Could we go through our queries and you can come back to us on them?

Clause 8 (Mandatory grounds for refusing an application)

321.

Mr S Wilson: I have one point, which is, perhaps, particular to Belfast. Clause 8 states
"A council shall refuse an application under section 5 if the applicant.is not an individual".

322.

The 'Belfast Telegraph' has pitches for selling the paper. I am not advocating the selling of the 'Belfast Telegraph' - in fact, sometimes I think it should be banned, given some of the stories that it runs and some of the editorials it produces. What would happen in a situation where a corporate organisation such as a newspaper had pitches? Must the licence be in the name of an individual from that organisation? Would that create legal difficulties for an organisation? There is a problem with that.

323.

Mr Gibson: Anyone selling a paper who does not use a receptacle does not need a licence. So the paperboys do not need a licence.

324.

Mr S Wilson: They all have stands.

325.

Mr Gibson: If they have a stand, they need a licence. There is nothing to stop a corporate body from getting a licence, provided that it is in the name of an individual. We went down that road for reasons of accountability. If a licence is in the name of the 'Belfast Telegraph' and the council wants to enforce a particular aspect, will the director say "Well, it is not me; it is Mr So-and-So"? Does Mr So-and-So say "Well, it is not really me"? I know that some people were concerned about that, and that is why we decided to specify "an individual". We see no difficulty with the 'Belfast Telegraph's getting a licence in the name of an individual, although the licence is, in essence, for the organisation.

326.

Sir John Gorman: Belfast City Council, important as it is, is one of 26.

327.

The Chairperson: It is the only one.

328.

Sir John Gorman: I have a dreadful feeling that when Craigavon, Armagh, Newry and Mourne, and so on, get their solicitors on to this - they all employ solicitors - we may find that we need a longer extension on the Bill than we have already had.

329.

Mr S Wilson: Many of the measures relating to adequacy and judicial reviews in respect of designated streets will apply to every council. I am using the case of the city council only because officers there pointed the issue out to me.

330.

Sir John Gorman: I would like to feel that we will not have to have meeting after meeting with all the councils.

Clause 12 (Notice and Representation) Mr S Wilson: I have one last point on clause 12.

331.

The Chairperson: You will be Clarence Darrow before this is over.

332.

Mr S Wilson: With regard to clause 12(2)(b), 21 days is quite a long time to allow for this process. There could be two council meetings during that time when the council could look over the application, and if it is going to be refused, the council has to put it in writing. People who are unhappy with that are, of course, given time to respond, and the 21 days is the period between when the applicant can deliver his submission. Do you feel it was necessary to have such a long-drawn-out process? We were told by a trader that they were unhappy that licence applications can take forever. In the context of my own council, that could result in a three-month period, given the requirements laid out in clause 12.

333.

Mr Gibson: It is up to each council to decide how it wants to administer the scheme. It will decide how to clear street trading applications. We are looking at an open and fair system. To allow people sufficient time, it is necessary to go through this process. Not all councils process applications in the same way. Some do have meetings of the council, and others do not.

334.

Mr S Wilson: If you simply processed applications by reference, or designated the responsibility to an officer, that is where you would find trouble.

335.

Mr B Hutchinson: Accountability should lie with the Members, not the offices.

336.

Mr S Wilson: I appreciate that when somebody applies for a licence it can take up to three or four months before he gets it, but I do not know of any council which does not refer licence applications to the council itself. This has such a high public profile and is the cause of much public debate that no council would want to leave this responsibility to an officer, and, in turn, many officers would not want to be left without some cover from the council.

337.

Mr Gibson: Some councils suggest that they can process applications in about six weeks. Perhaps these councils have different ways of tackling it. I agree, however. Three months is a long time.

338.

The Chairperson: Because this is a licence issue, councils would have to agree to that.

339.

Mr McMaster: Any complaints from traders are likely to be about the delay in the system or about the fact that their licence application has been refused. In practice they will not wait 21 days before making a representation, because it will be in their interests to get that in quickly. If the decision were to go against the applicant, surely he would put his submission in before 21 days. This was considered an adequate time, and it mirrors the corresponding legislation in London.

Clause 14 (Temporary licences)

340.

Mr S Wilson: Is it intended that the same criterion that would apply to full applications should apply to temporary licences?

341.

Mr Gibson: The council can set its own criteria for temporary licences. We deliberately left that flexibility.

342.

Mr McMaster: The criteria that apply across the board are the mandatory grounds for disallowance. The only exception is the one that specifies that a temporary licence can authorise you to trade in a designated area because of the special nature of events for which it is catering. Under-age traders do not get this, but otherwise the same mandatory rules apply.

343.

Mr S Wilson: Clause 14(5) states that a council should formulate and make available to any person on request, criteria with respect to the granting of temporary licences. This allows the council to set its own criteria.

344.

Mr Gibson: The council sets its own criteria.

345.

Mr S Wilson: There is no need -

346.

Mr Gibson: This was intended to give councils the flexibility to suit their own needs.

Clause 14 agreed to.

Clause 15 (Fees and Charges)

347.

Mr S Wilson: Clause 15 states that the fees charged by the council
"may be sufficient in the aggregate, taking one year with another, to cover any reasonable administrative or other costs".

348.

Does that include court costs?

349.

Mr Gibson: I think it would. It covers any cost to do with either the administration or enforcement of the legislation.

350.

Mr S Wilson: That worries me because I know that Belfast City Council's court costs are enormous. Many people who are taken to court never pay up. Are you saying that the costs caused by illegal traders should be borne by legal traders? That is very unfair. The problem is that the wording of the Bill means that that is exactly what will happen.

351.

Mr Gibson: Where else would the council get the money from?

352.

Mr S Wilson: The council may decide to take it from the rates, but this clause requires us to pass it on to legal traders. We do not have any discretion in this respect. Given the wording of that clause, I imagine that if we do not cover the costs, the local government auditor will say "What did street trading cost last year - £1 million pounds? How much did you recover in fees - £100,000? You have not recovered your costs." Costs have to be recovered somehow. However, it is unfair to expect all of them to fall on legal traders. I tried to get a figure from our officers in Belfast City Council, and they told me that we are not talking about thousands of pounds. Every year the unrecovered costs of taking people to court runs into hundreds of thousands of pounds.

353.

Mr Gibson: Do you think that councils would be happier passing it on to ratepayers?

354.

Mr S Wilson: I do not know that they would be happier, but I think that they should have the discretion not to take it from legal traders.

355.

Mr Gibson: I hope that there will not be the same legal costs.

356.

Mr S Wilson: That is right. I hope so too.

357.

Mr McMaster: The only limitation is that the costs have to be reasonable. I am not saying that that solves your problem, or the issue, but the Bill does say "reasonable administration or other costs".

358.

Mr S Wilson: It is to cover reasonable administration costs.

359.

Mr McMaster: It is to cover reasonable administration or other costs.

360.

Mr Gibson: May we take that point away and look at it?

361.

The Chairperson: The other issue is that many of them are small traders.

362.

Mr Gibson: If you are in that position then you will have greater cause to appreciate it. We will look at that again to see if "reasonable" covers it.

363.

The Chairperson: OK. We will park clause 15.

364.

Mr S Wilson: If the legal costs were taken out of it, that might take care of it.

365.

The Chairperson: We will park clause 15 until next week and wait for a response.

Clause 16 agreed to.

Clause 17 (Unlicensed street trading)

366.

The Chairperson: Is everyone happy with clause 17?

367.

Mr S Wilson: What is a level 3 penalty?

368.

Mr Gibson: A maximum of £1,000.

369.

Mr S Wilson: I take it that the maximum is rarely imposed.

370.

Mr Gibson: I do not know.

371.

Mr McMaster: It is rarely imposed.

372.

Mr S Wilson: What is the highest level of penalty?

373.

Mr Gibson: Level 5.

374.

Mr S Wilson: The courts do not, in my experience and from all the reports we used to get to our Committee, impose maximum fines. The cost of taking someone to court used to cost us about four times more than the fine they were given. We know that the courts do not impose the maximum fine. Where there is persistent illegal or unlicensed trading should we not allow the courts to give the maximum fine? Even if they went halfway they could give fines that are deterrents.

375.

Mr Gibson: If courts were giving an insufficient fine of £1,000 it might be something to look at. However, if courts are not using the maximum, I am not sure it would be right to increase the level in legislation so we can increase the amount of the fine. It is an issue that should be taken up with the Court Service.

376.

Another aspect is that at the minute they can only fine unlicensed traders, and under this they will also be able to take their goods away. A council might decide to take their goods and not give a fine. Perhaps they will do both, or a court may decide. The seizure of goods along with a penalty is very different to what we have at the minute.

377.

The Chairperson: One of the things that concerns the council is that a trader who has been in court and fined on a number of occasions can decide to go to jail for three days, after which time he is clear and back out again.

378.

Mr McMaster: With the increase in fine, who knows what is going to happen?

379.

The Chairperson: Yes, but you are fined £250, that builds up to £1,000, and you do three days in jail. If the fines are higher we can encourage the Court Service. There are supposed to be deterrents. At the moment there are none. The council is spending tens of thousands of pounds taking these people to court. They are in breach of the regulations as it is, we take them to court, and they are fined. These people are regular court attendees. They may have been fined 20 times for doing this, and they do not pay anything. The council cannot recover its costs, these people go to jail for three of four days, their records are clear, and they continue to do it again. We, as a council, are out thousands taking these people to court.

380.

Mr Gibson: That is one of the aspects we looked at, as part of the overall Bill, as an option to not introducing seizure. We realised that councils had a problem with non-payment of fines. I do not think you are going to have the same difficulty with the seizure provisions because it is more punitive than fines.

381.

The Chairperson: Provided that they are foolproof.

382.

Mr Gibson: The other thing we have to bear in mind is that the level of fines is set depending on the action. Level 3 is what we have used throughout this Bill. I know it caused a problem, but perhaps unlicensed trading is not as big an offence as others which might attract a level 4 or level 5 fine.

383.

Mr S Wilson: The person committing the offence is a person who engages in street trading in a district and is not the holder of a street trading licence, or temporary licence granted by the Council. What if I were the holder of a licence for selling burgers on the Boucher Road, and an event such as turning on the Christmas tree lights next week in Belfast City Centre occurred, and I decided to go down there and sell burgers? I still hold a licence, but I am not operating in the pitch that I should be operating in. Would I still be guilty of an offence?

384.

Mr Gibson: Yes. You would be guilty of an offence because you would be breaching the conditions of your licence, but you would not be liable to seizure. This was considered at quite some length during the consultation phase. The view taken was that people who have a licence have at least given some commitment to the scheme and would be better dealt with through the procedures for breaches of licence. You would warn them rather than take action against them or fine them. For persistent breaches of the licence you can revoke the licence. If they continue after that then they are trading without a licence and would fall under the seizure provisions. We felt that in view of their commitment to the scheme, in just getting a licence in the first place, that was a more appropriate way of dealing with them.

385.

Mr Gibson: There was another aspect that we looked at. In some towns there is a difficulty knowing where one street starts and another stops, and if somebody by mistake happened to be a yard in the wrong direction they could be vulnerable to seizure.

386.

Mr S Wilson: According to my reading of the wording in clause 17(1)(a) and (b), it is only the temporary licence person who is guilty of the offence, not the holder of a full licence.

387.

Mr Gibson: As a licence holder, if you trade in an area within the district where you are not entitled to trade, you stand the chance of losing your licence. Because you are a permanent trader we did not feel that it was right that licensed traders should be subject to seizure provisions.

388.

Mr McMaster: If you are the holder of a full-term licence, it will state where you should be trading. That is one of the conditions that must be specified. Clause 21 says any person who without reasonable excuse contravenes any condition of a street trading licence is guilty of an offence. Those particular offences are listed under clause 17. They are the only offences that would attract a seizure of goods. There will be other offences, but for drafting purposes they were put in here. Because you seize the goods does not mean that you cannot take in an offence as well.

389.

Mr Gibson: Clause 17 is linked to clause 18.

390.

Mr McMaster: Under clause 21, a person with a licence who trades in the wrong place will have committed an offence and can be fined. His licence can be revoked for repeated breaches, and he will find himself as an unlicensed trader. If he continues, he is in the same situation as the person who is unlicensed. It takes a couple of steps to get there, but we are saying his commitment to the licensing scheme is considered to at least merit some -

391.

Mr S Wilson: He has got to be doing this persistently. What does "persistently" mean?

392.

Mr McMaster: Certainly at least more than once.

393.

Mr S Wilson: It is not defined?

394.

Mr McMaster: In the legislation we require any person to get at least one written warning. That does not stop a council giving them as many other warnings as they like, but we do say that they should have one written warning. "Persistently" is a hard word to define.

395.

Mr S Wilson: So that I can be clear in my mind, if you are a temporary licence holder and you commit an offence, your goods can be seized?

396.

Mr McMaster: Yes, if you are holding a temporary licence and trading in the wrong place.

397.

Mr S Wilson: A full licence holder can get off with it?

398.

Mr McMaster: I am not saying you can get off with it, but your goods will not be seized immediately.

399.

Mr S Wilson: The only sanction is a fine in the court?

400.

Ms Gildernew: On seizure of goods if you are trading in the wrong place, will the trader be given a chance to rectify the situation? Will he/she be warned that they are in the wrong place, if, for example, they have set up inadvertently that yard too far?

401.

Mr Gibson: For a temporary licensed trader it would be a matter for the council, but I expect that it would do that.

402.

Mr McMaster: There is no requirement built in to give a warning in that case.

403.

Mr Gibson: It is unlikely that a council, if it were simply a mistake, would seize the goods.

404.

The Chairperson: They need to use a bit of common sense in these situations. Are Members happy with clause 17?

Clause 17 agreed to.

Clause 18 (Powers of seizure).

405.

Mr S Wilson: The crux of the matter is that without clause 18 being effective, we may as well not have this legislation. We have talked about the level of fines - how low they are and the non-payment - and how some people just put it down as one of the hazards of trading and go to jail for a couple of days. Really, only the loss of stock is likely to have an effect. Looking at the way the clause is worded it seems that the reason for seizing the stock is that it might be used as evidence in any proceedings.

406.

Is it not reasonable, and would a court not judge it as reasonable, for one of our officers to approach an illegal trader selling, say, socks, and take a pair of socks as evidence? He would not need to bring a whole bunch of socks to show that the trader was trading. That seems to be a glaring loophole. If that is the wording, we could be in big trouble with the powers of seizure. I would like to hear your thinking on it. Why does the phrase "used as evidence" have to be included there?

407.

Mr Gibson: In one way, it is for the protection of the trader, to ensure that a council does not seize goods and hold onto them and that is the end of the story. It may only seize goods with the intention of taking legal proceedings. There is nothing to stop it taking a pair of socks - you are right - but, equally, there is nothing in the legislation to stop it seizing everything. It does not have to produce everything in court. It simply seizes goods that it considers may be required as evidence. When the case goes to court, only part of that might be used. There is nothing to stop the council seizing the stall, the vehicle and everything on the stall. Is that what you are asking?

408.

Mr S Wilson: There is nothing to stop it doing that, but the legislation we are contemplating here almost points towards the officer simply taking one specimen item. If you were representing somebody who had had everything taken by a council officer because he was trading illegally, it would not be hard to argue that it was pure maliciousness, that it was not necessary to take all that stuff when one pair of socks would have been sufficient. When it comes to court he would have to admit that they were to be sold from a stall owned by him. Furthermore, the Bill - or the Act, as it will be then - says it. All that was needed was sufficient evidence to produce in court.

409.

In London, apparently, they had a problem with people trading and selling burgers, and so on in the royal parks. The law there seems to have worked. It makes it quite clear - and this is the wording that might be used - that if an officer reasonably believes that certain things have been used in the commission of an offence, he can seize them.

410.

That seems more foolproof. You are not gathering evidence. You are simply saying that all of what you have here - the stall and all the stuff on the stall - has been used in the committing of an offence, and the law entitles you to take them. If it were worded in that way, there might be a better chance of the seizure powers actually being effective.

411.

Mr McMaster: Under the Royal Parks (Trading) Act 2000, there is a general power to seize and hold property for 28 days, but at the end of 28 days, unless an action has been commenced, the goods have to be given back to the trader. So in point of fact, we are not so far away from that in any case. There is a requirement to take an action, or to hand the goods back to the trader. While you are right in saying that they are not required to seize it for evidence purposes, to all intents and purposes that is why they are doing it. If after 28 days they have not commenced proceedings, they have to hand the goods back.

412.

Mr S Wilson: My worry is that the first time this goes to court and a council officer marches in with all this stuff that has been seized, the judge will ask why everything was taken when one thing would have been enough to bring as evidence. Once that happens, nobody from any council is ever going to seize everything again because of the fear of having to pay compensation.

413.

At least the way the Royal Parks (Trading) Act 2000 is worded - even if it is only for 28 days, which is a deterrent in itself - you are permitted to seize it because it has been used, or you reasonably believe it to have been used, in committing the offence. An offence has been committed by using these goods. However, the case will stand up better in court if you can say that the stall and goods were seized because they were being used to commit the offence.

414.

Mr McMaster: There are two considerations in the provisions. The powers of seizure are almost identical to those in the London boroughs legislation - the street trading legislation operating in the City of Westminster.

415.

Mr S Wilson: The 2000 Act was introduced because of what were deemed to be the inadequacies of the legislation.

416.

Mr McMaster: I am not aware of inadequacies. We have discussed it with Members of Westminster City Council, and they have not mentioned any difficulties about seizing it for evidence purposes. Any article for evidence purposes can include every article. We have been told by the Court Service that not everything has to be produced in court - a sample is sufficient. This provision also goes on to say that you may seize any article or thing which may be the subject of - (tape inaudible) - most of his goods, if not all the goods the trader has. That would certainly be covered under that.

417.

Our legal advice is that any article for evidence purposes covers everything.

418.

Mr S Wilson: The reason for taking it for forfeiture is the belief that costs will not be paid. You are saying that you will have to take the goods to pay for costs and so on because you believe that the trader is unlikely to pay up even when taken to court. That is fairly weak and defending that in court would be difficult for a council to do. That is not a replacement for the strength that you have under the 2000 Act where it is made clear that it is permissible to lift those goods that were used as part of an offence being committed.

419.

Mr McMaster: The provision for evidence purposes was designed to prevent indiscriminate councils, as allowed under the 2000 Act, seizing property for 28 days, taking no action, simply returning the goods and doing that on a continuing basis. There is nothing to stop their doing that on a continuing basis under the 2000 Act. It was designed to offer at least some protection for the trader - we are seizing these goods, we are taking action, and you will have your opportunity to put your case. The thing is being processed, legally, right through the system. That was certainly the intention behind it.

420.

Mr S Wilson: Your response confirms my belief about this most important part of the legislation, and, so far as I am concerned, the uncertainty that is implied raises alarm bells. The most crucial part of this legislation could very quickly prove to be meaningless. First, a court could say that you do not need all this stuff. Secondly, if you seize it because it might be subject to an application for forfeiture, you have provided absolutely no proof that you are likely to need these goods to pay costs which this person has not paid.

421.

As there are likely to be difficulties there, as in other parts of the United Kingdom, stronger powers have been introduced because of persistent problems. I do not understand why we can not strengthen this legislation to ensure that those difficulties are not encountered.

422.

Mr Gibson: It rests on the word "may", for it says that the council official can seize goods not which will be required but which may be required, and that leaves him discretion. There may be times when he wishes to confiscate part or all of the goods. I am not sure a court would query the matter if a council official said he was of the opinion that the goods might be required in a court case when he confiscated them.

423.

Mr S Wilson: However, the first time the judge threw it out, saying that the goods were not required and that he only needed a sample, the official could never use that argument again. "Well, Mr Wilson, you were here last week representing Belfast City Council. I told you then to bring a pair of socks from this man's stall. You cannot say you thought you needed everything, for I told you last week." The argument you have put forward to me can be used on one occasion only. Thereafter, a council officer does not have a leg to stand on. I must emphasise - for in Belfast we have the biggest problem with illegal street trading - that without that sanction we shall never stamp it out. I do not believe we can do so with the present wording, and I cannot understand your resistance to an alternative version which would make the Bill more effective.

424.

Mr McMaster: We are not resisting it - I am merely explaining why it is currently so. Any change to it is a matter for the Committee.

Mr Cobain left the meeting at 3.27 pm and Ms Gildernew took the chair.

425.

The Deputy Chairperson: Does the Committee wish to park that clause and return to it later? Before we do so, perhaps I might have a point clarified. In subsection (1)(c), does "any receptacle or equipment being used by that person" include a vehicle that may have been used to transport the person or goods to the stall, and is not actually in use, but parked nearby?

426.

Mr Gibson: I do not believe that something merely used for the trading could be taken - for example, a vehicle from which things are brought, with the individuals not going back to it until they leave again. However, if they were supplying goods from the vehicle, it could be seized.

427.

The Deputy Chairperson: Clause 18 is parked.

Clause 19 (Fortfeiture)

428.

The Deputy Chairperson: Would subsection 19(5) have liability implications for district councils if goods were unsafe, counterfeit or stolen?

429.

Mr McMaster: If a council were aware that goods were stolen or otherwise unacceptable, it would be unwise for it to sell them on, and it should probably not do so. There are certainly implications for the council if it is aware that they are stolen.

430.

The Deputy Chairperson: Under clause 18(6)(b), what happens to seized goods if the owner cannot be traced?

431.

Mr McMaster: Subsection (7) says that if the owner cannot be traced, a council may go to court for an order seeking to dispose of the goods. It has the power to go back to court, and the court can give an order as to how goods should be disposed of. However, the council must first take adequate steps to trace the person.

432.

The Deputy Chairperson: Mr Wilson, have you anything to add to that?

433.

Mr S Wilson: No.

Clause 19 agreed to.

Clause 20 agreed to.

Clause 21 (Other offences)

434.

Mr S Wilson: Why does it say "Any person who - (a) without reasonable excuse contravenes any condition of the street trading licence"?

435.

Mr Gibson: It is to allow a little flexibility, since there might be cases where there is an excuse. It would be up to the council to decide whether it is reasonable or not.

Clause 21 agreed to.

Clause 22 agreed to.

Clause 23 (Power to remove receptacles)

436.

The Deputy Chairperson: With regard to Clause 23, can you comment on the proposal of prosecuting the stall owner in line with European law?

437.

Mr Gibson: The provisions for seizure and the compensation are balanced, providing rights to both the council and the trader. If goods are seized, they are seized on the basis that there will be court proceedings, otherwise they must be returned. If there are court proceedings and the goods are proven to having been seized illegally, then the trader has the right to apply for compensation for the loss, simply on the basis that the seizure made was illegal. This protects the rights of the trader from illegal seizure. This is the advice given by our solicitors.

438.

Mr McMaster: This comment has been made in the consultation document. There were concerns that the owner of the stall would not be prosecuted. It must be that person standing at the stall selling the goods. It was intended that we would make provisions for the owner of the stall to be prosecuted as well. However, under a magistrate's court order, any person who procures, aids, abets or commissions in an offence can be tried and is equally guilty of that same offence. Therefore there was no need to include a specific provision for the owner. Any person found aiding and abetting in an offence can be prosecuted for the same offence.

Clause 23 agreed to.

Clause 24 agreed to.

Schedule 1 to 3 agreed to.

MINUTES OF EVIDENCE

THURSDAY 23 NOVEMBER 2000

Members present:
Mr Cobain (Chairperson)
Ms Gildernew (Deputy Chairperson)
Sir J Gorman
Mr M Robinson
Mr Tierney
Mr S Wilson

Witnesses:
Mr G Gibson ) Department for
Mr I McMaster ) Social Development

439.

The Chairperson: We have your paper containing responses to some of the queries we had raised. Would you like to take us through it?

440.

Mr Gibson: We do not have anything to add to what is in the paper. On public liability, however, If it would be of help to the Committee, we could offer to suggest in the guidance notes that councils may wish to recommend to traders that they take out public liability insurance.

441.

The Chairperson: We only received the paper at 2 pm and have not had sufficient time to read it. It would be useful if you could run through it.

442.

Mr Gibson: That is fine. I can do that.

443.

The Chairperson: Can you do it clause by clause, starting at clause 3?

Clause 3 (Designated streets)

444.

Mr Gibson: This was the issue about the designation of streets and the insertion of the words "as it thinks fit". There are two issues that we would like to highlight. The first is that we have received advice from the draftsman that he does not think that the addition of those words to clause 3 would make a difference in relation to judicial review. Our other point is that, as there is no right of appeal, we do not wish the option of judicial review to be removed from an individual. The Minister also wishes to see it retained.

445.

The Chairperson: These matters are always open to judicial review.

446.

Mr Gibson: That is right, but it was suggested that the words "as it thinks fit" or "as it may think fit" could remove that possibility.

447.

The Chairperson: I do not think that that is legally possible. Everyone is entitled to a judicial review of any part of legislation.

448.

Mr S Wilson: The record will show that the point was that where a street had not been designated, you could have appeals or applications for judicial review from everyone who wished to trade in non-designated streets. This then becomes costly and gums up the system. The inclusion of the words 'as it sees fit', assures that a council, providing it had abided by its procedures, which were clearly laid down and understood by the public, could then defend any application for judicial review on the basis that the procedures had been fully followed.

449.

All it has to do is to designate streets as it sees fit - in other words, on the basis of clearly laid down criteria. I asked for it to be included in the Northern Ireland legislation because it was included in the Great Britain legislation. Obviously it does have some additional meaning, otherwise it would not be there.

450.

Mr McMaster: Our legislation is on all fours with the Local Government (Miscellaneous Provisions) Act 1982. The legislation in Great Britain states, as ours does, that a council may pass a resolution. Our clause 4(6) is equivalent to their schedule 4, paragraph 2(8). It says that
"After the council has considered those representations, it may if it thinks fit ."

451.

That is really on all fours with what is provided in the 1982 Act. That is after it has published its notice. That is exactly the same as it is in Great Britain. After it has published its intention to designate, invited representations and then considered them, it may if it thinks fit pass the designating resolution. That is equivalent to the 1982 Act.

452.

Mr S Wilson: No, it is not the same. The way they have worded it in GB, after the council has gone through the procedure, it may, as it thinks fit, pass a designating resolution. Clause 3(1) puts that at the start of the process: the council, as it sees fit, may pass a resolution designating a street. In other words, the council lays down criteria, and those are the criteria on which it judges whether or not a street should be designated. Then, after having gone through that, it may, as it sees fit, decide to pass a designating resolution.

453.

There is a difference there. If you put the phrase "as it sees fit" into clause 3(1), that would cover the council, providing it has laid down clear criteria before it even starts the designation. Clause 4(6) says that after it has gone through all that process, it may then see fit. I think that there is a lack of cover there.

454.

The legal advisers tell me that the English legislation does give councils some cover. It is not total cover; it does not take away people's rights where a council has not abided by its own rules, and I am happy with that. It does not take away their right to seek a judicial review at that stage, but it stops spurious ones, where people simply say "that street has not been designated. Let us get a judicial review regardless of whether the council has followed through set criteria or not."

455.

Mr McMaster: I take your point about putting the words you are seeking into clause 3(1). The point I was making was that the words "if they think fit" only appear in the 1982 Act after the council has announced its intention to designate and seek representations, as we have done here.

456.

Mr S Wilson: If the Bill does not make a provision as to how the council should designate streets, councils will be wide open to judicial reviews. I take the points that were made by the officials at the last meeting. You cannot say that the council must address criteria a, b, c, d and e. That would be nonsense, because there are different circumstances in each locality. Criteria a, b, c, d and e might not apply in Coleraine as they apply in Belfast. The only general way you can give councils the ability to set their own criteria is to include the term "as it sees fit." That gives the council cover, because the council lays down the criteria.

457.

The council lays down that criterion. Providing that criterion is reasonable and has been followed, a court will find it difficult to accede to any requests for a judicial review, and it will stop spurious ones. This could have implications for councils. If courts allow judicial reviews on the basis that the legislation, in the first place, has not given councils the cover required, then councils could find themselves in court almost on a weekly basis. As well as being expensive, as we know, it gums up the whole works.

458.

I do not know if it penalises street traders any in including that phrase but it would certainly give a lot of cover. I must say to the two officials that they will not be the people having to implement this legislation. Councils will have to implement it and the practitioners, the people who have years of experience and who have scratched their heads wondering how to protect areas of towns against illegal trading, are saying that this is a safeguard that they need. The Department ought to be listening to the people who will be down on the street implementing this, and to the councils who will bear the cost, rather than hiding behind the notion that we have got to be generally fair to everybody. I am not so sure that you are being fair to ratepayers and to councils if you do not include this.

459.

Mr Tierney: Was it just a case that the officials considered that the legislation was the same as in Britain and did not consider this argument? If you only considered that it was the same legislation as Britain, then perhaps you should take it back and consider the arguments. We accept that you are saying that the legislation is the same.

460.

Mr S Wilson: No, it is not the same and that is the important thing. Without the inclusion of "as the council sees fit", the legislation does not make it clear that the designation, or non-designation, of a street lies absolutely within the discretion of the council. That is the implication of the meaning of that phrase "as it sees fit". It is at the total discretion of the council to designate or not to designate.

461.

Mr Tierney: I accept your argument, but the officials opened up by saying that the legislation was the same.

462.

Mr McMaster: No. We opened up by saying that we sought advice on this following last week's meeting. The draftsman does not think that it will make any difference to the fact that anyone could bring a judicial review in any case.

463.

The Chairperson: Then he could put it in.

464.

Mr McMaster: The line that officials were taking was in case he did. There is no way that we want to prevent anyone having a judicial review.

465.

The Chairperson: I understand that.

466.

Mr McMaster: The point was raised that we were not on all fours with GB legislation - that is a separate issue altogether. That is not the sole reason for our coming to this decision.

467.

The Chairperson: Nobody here wants to stop anyone from using the law if they think their rights are being infringed. That is important. But it is also important, as Mr Sammy Wilson has said, that there be a balance between councils and traders - councils also need protection. We are saying that including "as it thinks fit" gives additional cover to councils, according to the arguments that Mr Wilson has gone through.

468.

If you are saying that the Department is not going to accept "as it sees fit" in the context that Sammy Wilson is putting it, then the Committee may agree that we just amend the legislation. We do not want to get into that because it is important that we go through the Committee stages, and if this is a scrutiny Committee, the Department should take our views on board. We do not want to head- butt our way through the legislation, but the Committee's views have to be taken on board, and "as it sees fit" should be in the legislation. If the Department ignores that view, then perhaps we need to run to an amendment, but I do not want to do that. We feel very strongly about that and want you to look at it again.

469.

Mr Tierney: It is important that we say that we are not taking away the right. If we do not say that, we could be accused of trying to do that.

470.

Mr S Wilson: It is my understanding that if there were an element of doubt as far as the judge is concerned, he would look at the discussion that took place on the public record - either in the Committee or in the Assembly - so that he could understand the thought process behind a clause in the legislation. Therefore, it is on the record here that no one wishes to curtail people's ability to have that appeal if they have a genuine grievance. But there also needs to be some mechanism in place to ensure that there are no spurious appeals. Given the ingenuity of some street traders, I believe that some will be determined to trade illegally.

471.

Mr Gibson: I find it difficult to accept that there would be spurious appeals. A judicial review is not something that most people take lightly. Our legal opinion is perhaps different from that of Mr Wilson. I accept that we should be working together, and that is what we are trying to do. We have consulted extensively on this.

472.

The Chairperson: Your legal opinion is saying that "as it sees fit" will not stop a judicial review.

473.

Mr Gibson: The legal opinion is that it may not make a difference, but our concern is in case it does make a difference.

474.

The Chairperson: All this legislation is open to be tested in court. What we pass here is not sacrosanct. All this can be judicially reviewed. You have told us that your legal opinion is that "as it thinks fit" would not stop the council from being judicially reviewed. If that is the case, we would like that inserted so that we are all of one mind.

475.

Mr G Gibson: I am not sure that it is as strong as that. The opinion was that it was not thought that it would make a difference.

476.

The Chairperson: I am not a lawyer, but we all understand that all legislation is open to judicial review.

477.

Sir John Gorman: That is my understanding. This discussion will be made public. We must remember the opening words, which were to the effect that unless "if it thinks fit" are included there would be the chance of a judicial review. We ought not to be on the side of preventing judicial review - forget the word "spurious" - any judicial review.

478.

The Chairperson: The point I am making is that all legislation that is passed in the House is open to judicial review. It does not matter what is written into the law, it is all judicially reviewed and if we find it is ultra vires then it will be changed. Will you take that on board and have another look at that for us?

Clause 5 (Applications for the grant, renewal or variation of street trading licences)

479.

There are some queries on clause 5. Perhaps you could respond to Mr Gerry Kelly's first point about having a specific time frame in place for responding to applications.

480.

Mr Gibson: We understood that was something that the Committee wanted to discuss, but our initial view was that it would be difficult to put a time frame on it for councils. We did not want to establish a time frame and limit councils to a certain period for an application process. It was not realistic. It is unusual to have a timeframe in legislation for the processing of applications.

481.

Ms Gildernew: The point that Mr Gerry Kelly was making was that if a council is trying to withhold a licence, it can keep rolling it back and putting it on the long finger. It is important to have a time limit in there -31 days or whatever - for the council to say whether that person was getting a licence.

482.

Mr Gibson: Councils do it differently, and it may be difficult to get a time limit that all councils would find acceptable. It takes longer in Belfast than in some other councils. The difficulty with setting a time limit is that you could be creating a stranglehold. I am open to the views of the Committee on this.

483.

Mr Tierney: It is not a case of a stranglehold. We are not saying that the length of time should be shortened. If you put a time on it, that stops the council from stalling somebody, hoping that he will go away. If Belfast takes the longest time, then that is the time limit that we could use.

484.

Mr S Wilson: I am concerned about the length of time that Belfast takes, and I spoke to some of the officers about it, because I knew this had been raised previously. They were able to give me some statistics, and I do not know how you get round this. What happens if a trader with a dodgy application knows that if he strings matters out for some period the council will then be under pressure to make a quick decision? If he does not give the required information, or if you have to consult the police or the Roads Service? We all know from planning applications the delays in the Road Service. What happens if some other agency is responsible for the delay? How do you build that into the legislation? What do you do when something beyond the council's control, which might hold up an application, takes it up to the deadline? Do you take a decision on the basis of inadequate information? That is the problem if you set physical deadlines.

485.

Mr Tierney: I accept that, but if the only argument is that the application is a "dodgy one", to use your words, then the council has the right, if it does not have the full information, to turn it down.

486.

Mr S Wilson: If it is a genuine application, what impact will this have?

487.

Ms Gildernew: You could have an extension on it. If the council is concerned about somebody's application and do not say so or withhold the licence, then it could drag on for years if it is not willing or obliged to make a decision within a given time frame. A time limit would encourage other agencies to get their part done and returned to the council as quickly as possible.

488.

The Chairperson: It says "a reasonable time" in the legislation. We must remember that all council committees meetings are open to public scrutiny, and I cannot see a council being able to hold up an application from a trader for years. This legislation is open to challenge in court, so it would be a judge's interpretation, not the council's of "a reasonable time" that would count. Is that right?

489.

Mr Gibson: Yes, I think so.

490.

The Chairperson: I take Mr Sammy Wilson's point that there are difficulties in processing these matters.

491.

Mr Tierney: I accept that.

492.

The Chairperson: Are we happy enough with that?

493.

Ms Gildernew: No, I do not agree. I still think that there must be some sort of specified time frame. A council could hold back for one reason or another. I do not believe that public scrutiny will necessarily hurry a council up. It might come to court or a judicial review if the application is turned down, but how can a pending decision be judicially reviewed?

494.

The Chairperson: It can, because the council has to act "within a reasonable time". The argument is not about whether the application should be granted, it is about whether councils should make a decision within a reasonable time.

495.

Mr Tierney: The person could argue that the time taken was not reasonable

496.

The Chairperson: Yes, if he had waited 18 months without a decision.

497.

Mr Tierney: Yes, that is unreasonable.

498.

Mr Gibson: There may be another point. It might be difficult to put an exact time in the legislation. If something is included it may not leave room for flexibility, and there may be situations where it will tie the council down.

499.

Mr S Wilson: You are trying to say that the legislation is vague, and if you can make it even vaguer, you will.

[Laughter]

500.

The Chairperson: I want to take you back to the point about personal liability claims. Can you run through that matter again for us?

501.

Mr Gibson: This is a matter that we were not sure about when Mr Sammy Wilson raised it. At the moment there is no legal requirement for any business or shop to take out insurance. It might be considered unfair to insist that street traders take it out if it is not a legal requirement for other businesses. The cost for public liability cover is likely to be approximately £200 plus per annum. It depends on the articles being sold - different articles can result in higher premiums.

502.

The Chairperson: Do shop owners in the city centre not have public liability insurance?

503.

Mr S Wilson: They are not obliged.

504.

Mr Gibson: No. I am not saying that they do not have it, but there is no legal requirement for them to have it. However, I expect that most of them do.

505.

The Chairperson: I think it would be very foolish not to have it.

506.

Mr Gibson: It gives them added protection.

507.

Mr S Wilson: Do you not accept that although shopkeepers are not obliged to have it, there is a slight difference between a transitory street trader and somebody who has a fixed physical location? It is easier to claim physical assets from someone who owns physical premises or has things in premises than it is to do so from a street trader.

508.

It is the nature of some these stalls that stuff is spread out all over the place, and there have been a number of cases where people have been injured as a result. I take the point in your letter that it will not stop people also coming after the council, because they are more likely to get money from the council than they are from a trader. However, a requirement to have some public liability would mean that there was a degree of cover for claims resulting from traders' activities.

509.

Mr Gibson: I understand that. To a certain extent we share your view that everyone trading should have insurance, whether a street trader or shop keeper. I agree that street traders will probably have more difficulties, because of the issue of pedestrian access in the street.

510.

The Chairperson: Is there no way to legislate for that?

511.

Mr Gibson: There is nothing to make it a legislative requirement. I proposed earlier that we could put a part in the guide for councils suggesting that when they issue street trading licenses they recommend that the street traders take out public liability insurance. Some street traders may already have it - we do not know.

512.

The Chairperson: OK. Is everybody happy?

513.

Mr S Wilson: I am not happy, but I accept that if one group were treated differently to another it could leave the way open for a judicial review.

514.

The Chairperson: OK. Are we all happy with clause 5? Ms Gildernew, are you happy with clause 5, subsection (8)?

515.

Ms Gildernew: No, I am not.

516.

The Chairperson: We need to take a vote to try and clear this clause up. OK. Clause 5, including subsection (8).

517.

Mr S Wilson: Are we going to include something in the Bill to encourage the use of public liability insurance?

518.

The Chairperson: No. It will be in the guidelines.

519.

Mr Gibson: It will be in the guide on the legislation. If the Committee wishes, we will insert a paragraph about public liability insurance suggesting that councils should recommend it to each trader when a trading license is issued.

Question put That the clause be agreed to.

The Committee divided: Ayes 4; Noes 1.

Ayes

Fred Cobain, John Gorman, Mark Robinson, Sammy Wilson.

Noes

Michelle Gildernew.

Question accordingly agreed to.

Clause 5 agreed to.

Clause 9 (Discretionary grounds for refusing an application)

520.

Mr S Wilson: I am still of the view that we need to have some safeguard. There should be an adequacy provision in the legislation. The arguments given last week for not having such a provision were not very convincing. Limits on space or the number of stalls do not cover that. There could be 10 metres of stalls in a street, and the stalls could be all of the same nature. The legislation does not allow a council to prevent that kind of concentration. I feel that that adequacy condition ought to be available as a ground for discretionary refusal.

521.

Mr Gibson: I understand your point. As you know, councils have a right to decide the number of pitches and the types of articles and goods. Our legal advice is that to prohibit some traders from operating on the basis of adequacy could leave the council open to a challenge. It is very hard for us to go against that. It could be unfair competition, infringing European Union requirements on the free movement of goods. That is our legal advice.

522.

Mr S Wilson: Clearly that is not the case in planning law. We are all familiar with planning policy documents in our own council areas. The planners will draw a line. They are doing this at present in conservation areas in relation to the development of apartment blocks. Where there is such a concentration of apartment blocks in an area that it changes the nature of the area, any further applications are deemed unacceptable.

523.

Hot food bars are another issue. In Ballyhackamore, in my own area, the planners have a policy document saying that they will not look favourably on any further applications for hot food bars because of the existing concentration of them there. Parts of the Lisburn Road are exactly the same. If that stands up under planning legislation, why should there be a legal difficulty in applying it to street trading? I do not understand why one Department can be affected by adequacy, and another one not.

524.

Mr Gibson: I am not familiar with that. I am not a legal expert, and I can only go by what I am told. That is the legal advice that we have been given.

525.

Mr S Wilson: I noticed that you were fairly careful in the way that you worded your response. You said that it may cause a difficult situation.

526.

Mr Gibson: Yes. There can be no guarantee.

527.

Mr S Wilson: That is right. No one can guarantee it. I think that if we had the provision in clause 9, councils could at least defend it on the basis that it is the law. A court might well say later that the law was unreasonable. That happens with some planning policy guidance notes. Significantly, nobody who has been turned down to date on the basis of those guidance notes, which do not even have the force of law behind them - and some of them have been in place for 10 years - has ever sought a judicial review against the divisional planning office in Belfast. It might well happen, but a council would have more chance of defending a decision on the grounds of adequacy if the Bill actually gave them that authority.

528.

Mr Gibson: I agree it would. The purpose of the Bill is to prevent undue nuisance and inconvenience. The council can determine through its designation process if undue nuisance and inconvenience have been caused, but cannot decide on the basis of unfair competition.

529.

Mr S Wilson: In view of how the law currently stands, you must bow to the views of the practitioners. Undue nuisance is an environmental issue, or part of some other legislation already in place. In Belfast there are stores which sell clothes and have burger stalls outside. The clothes are impregnated with smells from the burger stall and nothing can be done about it under nuisance legislation. That argument cannot be relied upon as it has already been lost. Council public health officers say those laws are inadequate to deal with nuisance caused by a concentration of certain activities.

530.

Adequacy should be included for this reason, and if there is a legal challenge, let the council, not the Department, deal with it.

531.

Mr Gibson: The main purpose of the Bill, including this clause, is to prevent undue nuisance and inconvenience. It is not to prevent street trading - it is to allow it to be controlled in such a way that it does not cause undue nuisance and inconvenience.

532.

Our solicitor advises that it is possible to allow a council to decide not to grant a street trader a licence on the grounds of unfair competition. This would leave it vulnerable to challenge. The Minister for Social Development feels he could not support that.

533.

Sir John Gorman: What harm would it cause to include adequacy? Is it not sensible? I cannot see what disadvantage it would cause. Mr Sammy Wilson believes that a similar measure has been included in Great Britain legislation. Have you been able to check that?

534.

Mr S Wilson: If that is the case, and if there is a quibble about the use of the word "adequacy", can a clause about adverse effects on the amenity of an area not be included?

535.

Mr Gibson: Could you repeat that, please?

536.

Mr S Wilson: Adverse effects on the amenity of an area caused by odour, litter, noise, and so forth. The word "adequacy" is not used, but a council can interpret it as that. Two or three of those nuisances will have an adverse impact on the amenity and, therefore, no further permission will be granted for it. It is a roundabout way of addressing the matter, but it gives wider grounds than the term "adequacy" does.

537.

Mr McMaster: Clause 9(1)(a)(i) states
"the location at which the applicant wishes to trade as a stationary trader is unsuitable".

538.

This was included for almost the reasons you are giving - for it to be sufficiently wide to allow councils to use any sort of site-specific issue.

539.

Mr S Wilson: This was discussed last week. If the site is unsuitable, none of those activities should be allowed. Take a case where it might be acceptable to say, "This street is suitable for one burger stall, but unsuitable for five." The unsuitability ground does not cover that. The council could deem it suitable for Mark Robinson to sell burgers on this street, but decide that it is not suitable for me. Immediately we are being treated differently, and I would be in a strong position to challenge that.

540.

Mr M Robinson: I am doing cheese and relishes, though.

541.

Mr McMaster: You are suggesting that something be included in the Bill to deal with any effect on the amenity of an area. Would the same difficulty not arise? One stall might fit in, while another one might not.

542.

Mr S Wilson: I am concerned about possible adverse effects on the amenity of an area. I am trying to think of an example: let us take Royal Avenue. It might well be that it is suitable to have a hot food stall at Castle junction, well away from the entrance to any shops. However, it might not be suitable to allow a burger bar on every pitch on Royal Avenue; the concentration of smell and nuisance would make it a nightmare. That is not covered in the legislation, but we could include a clause about adequacy - I do not have exact wording for it - or a clause about the adverse effects of concentration.

543.

Mr Gibson: We could consider Mr Sammy Wilson's suggestion and try to find a way round that problem.

544.

Ms Gildernew: Clause 9(1)(c) refers to
"misconduct or some other reason relating to trading activities".

545.

That is slightly confusing. First of all, are the misconduct and the other reasons disjunctive? Should we treat them separately? Can we have some clarification?

546.

Mr Gibson: They are separate. The Bill says

"on account of misconduct or some other reason".

547.

The reasons must relate to street trading activities, so speeding would not count as misconduct in that context.

548.

The Chairperson: It would be misconduct in relation to the terms of his licence. We shall return to clause 9 and have a look at that.

Clause 10 (Revolution, et cetera of street trading licences)

549.

Clause 10 deals with revocation of a licence. You said that there was no precedent for that.

550.

Mr Gibson: We checked that out. There is no legal precedent. The legislation on entertainment licences has a similar clause on revocation, and there is no compensation for that either.

551.

The Chairperson: OK. Shall we raise that issue?

552.

Ms Gildernew: What does the word "persistently" in clause 10(1)(h) mean? How many times must a trader fail to comply? Will the decision be at the council's discretion?

553.

Mr Gibson: "Persistently" means more than once; after that, it is at the council's discretion. We would expect that a council would give someone a written or oral warning.

554.

Mr McMaster: There is a statutory requirement to give at least one written warning. That does not stop a council giving as many warnings as it wants. "Persistently" can mean more than once or any number of times.

Clause 10 agreed to.

Clause 12 (Notice and representations)

555.

Mr Gibson: We considered the clause again, and we are still of the opinion that 21 days is a reasonable period. Mr Wilson spoke about planning, but I think he was referring to a process that includes the placing of a notice in the paper giving people 14 days' notice from the date on which it is published. In this process, the notice will go out in the post, so we lose a couple of days at the beginning, while the council posts it out, and a couple of days at the end for somebody to send it in. So, they will not have 21 days - they will have less than that. We feel that 14 days is just a bit tight.

556.

Mr S Wilson: I come back to the point that was made earlier about the delay in processing. There are a number of processes under clause 12: the council receives the application and deals with it; people have the right to make representations; after receiving the representations, the council has to consider it again. That could be a fairly lengthy process. In theory, it could be as long as four or five months, depending on the timing within a council's cycle of meetings.

557.

In some smaller councils where everything can go through the main council, the monthly council meeting can deal with it. In proper councils, where there are subcommittees because of the volume of work, it can be fairly long. I wanted to try and shorten the whole thing. People should be aware that the requirements of the legislation now could mean that they could be looking at a five-month cycle to deal with an application that the council has initially refused.

558.

Ms Gildernew: Can you clarify that?

559.

Mr S Wilson: Under clause 12, the council has first of all to consider the application. Depending on when an application is received, when committees meet and whether a subcommittee deals with it, that could take up to two months. Then there are 21 days for people to make representations, and then the council has to go through that process again. I am not saying it is always going to happen, but in theory that could add up to a five-month cycle.

560.

Depending on when the application is actually received, there might be a week or two before the committee meets. Then the committee meets, deliberates on it, and makes a decision, which goes to the council. After it is turned down, people have 21 days to make representations, and then it goes through the council cycle again. That could be a very long-drawn-out process. Providing people are happy that in order to ensure proper consideration of an application, that is what must be done, then fair enough. I am just spelling out the implications of that for dealing with an application that has been refused.

561.

The Chairperson: I do not think there is any shortcut.

562.

Ms Gildernew: In the meantime, somebody's livelihood could be badly affected.

563.

The Chairperson: Yes, but there is no shortcut.

564.

Mr McMaster: I would suggest that if it were a question of affecting someone's livelihood, I do not think they would be likely to wait 21 days. They would be likely to have their representations in sooner than that.

565.

The Chairperson: Irrespective of when the representations are received, you would still need the cycle for the committees to meet again.

566.

Mr McMaster: I fully accept that.

567.

Mr Tierney: We are arguing over seven days; whether there are 21 days or 14 days to make a representation.

568.

Mr S Wilson: I take your point that they might respond quicker than that, but if 21 days is the period set down, then even if representations are received within 21 days, the council cannot do anything with them until the 21 days are up. Even if I respond within a day, I still have to wait another 20 days before the council will look at it again.

Clause 12 agreed to.

Clause 15 (Fees and charges)

569.

Mr G Gibson: The advice we got from the solicitor is that as it is presently worded, it allows councils to allocate the costs either to the licence holders or elsewhere, because it mentions reasonable costs. If a council decides that court costs are not reasonable, then it does not have to take those.

570.

Mr S Wilson: No, with respect it does not say that, it says "reasonable administrative or other costs." I am not sure that your reading of it is correct. All you have to show is that the costs that have been levied for administration within the council are reasonable.

571.

The court costs themselves are reasonable, because the council has to bear them. It would be unreasonable to allocate court costs, plus a 20% surcharge. That would be unreasonable, because the court cost has only been £100 or whatever. The council cannot charge £120. The way that is worded, if there were hugely inflated administrative costs in the council and those were passed on to a trader, then it would be unreasonable. But all court costs are reasonable. The council has to bear them. The council cannot escape.

572.

I made the point to you last week that it is unfair that legal traders ought to have to bear the court costs which a council incurs as a result of the activities of illegal traders. And yet, councils always have to look over their shoulders for the local government auditor. He could say "You got £100,000 from street traders in fees, and it cost you £600,000 to run street trading last year. You have not recovered £500,000 of your costs. The council has not dealt with this properly". I do not know if, in that case, he would surcharge. He may well warn the council that he does not want to see this deficit next time, because the law says that all reasonable administrative costs and other costs should be recovered.

573.

I know that last week it was asked if a rate-payer should bear it. The one group which I do not think should bear it are the traders who abide by the law. In some councils, for example, Belfast City Council, court costs are horrendous, and very often they are not recovered from illegal traders. It may well be that court costs will decrease as a result of better street trading legislation. It depends on clause 18, by the way.

574.

Nevertheless, I can foresee a situation where a local government auditor would be saying "the law requires you to be doing something and you are not doing it. You are not passing those costs on, and I want you to stop that."

575.

Mr Gibson: The legal advice we have from the draftsmen does not say that. It gives the discretion to the councils. The councils can decide it is not reasonable for administrative costs to go against the trader. It is their decision.

576.

Mr S Wilson: It says you have to cover any reasonable administrative costs. As it sits, there it is a requirement to cover reasonable costs.

577.

Mr McGrath: It says a council may charge
"such fees as the council may determine and may be sufficient"

There is a level of discretion.

578.

Mr S Wilson: What is sufficient to cover any reasonable administrative costs?

579.

The Chairperson: There are only two sources of revenue - those of the legal trader and the council. We have seen that, irrespective of the money needed to take people who are illegally trading to court, costs are not going to be recovered. It is fair that legal traders should not be burdened with additional moneys.

580.

Whether we like it or not, that burden should be carried by the ratepayer. It should be the council or the trader, and I think it should be the council. That does not stop the council from charging a fee for administration, some parts of which may cover its costs. It is hard to know at the beginning of any financial year how much court costs are going to be. It will be a retrospective thing, so I would assume that licences will reflect whatever the costs are.

581.

Mr McMaster: Or an estimate will be made and readjusted.

582.

Mr S Wilson: Given the fact that court costs - at least at present - are a high proportion of the costs of running street trading, and given the way in which that is worded, I do not see any other interpretation other than that the fees have to include any administrative costs which are reasonable, and other costs. If a court says that the costs of a case are £700, you do not argue that it is unreasonable, because the court has passed that as the amount.

583.

Mr McMaster: We would not argue that. However, what this provision sets the maximum amount that a council can charge. It cannot go above that level. In court, for example, costs may amount to £3,000 a licence. A council may claim that that is totally unreasonable and, instead, it may decide to set that figure at between £50,000 to £100,000. The provision merely sets a maximum amount that a council can charge for a licence fee, and it cannot exceed that amount.

584.

Mr S Wilson: Mr Buchanan, the local government auditor, would go through council expenditure with a fine toothcomb. He would look at it and say that it is necessary to cover any reasonable administrative costs and other costs. He would say "That is what you are required to do by law and you did not do it. In future, do it".

585.

Mr McMaster: It does give you the power to do that.

586.

Mr S Wilson: That is a likely interpretation. This must be considered when drafting the legislation. It could be argued that this ought to pass on to the traders. However, at present, the provision does not give councils the cover to do that. Whether or not this excludes court costs, that might be a possibility.

587.

Mr Gibson: In the past, we had not considered the amount of court costs. It is now being suggested that this be changed in some way to ensure that councils do not have to consider such things.

588.

The Chairperson: Last year, as a council, our costs amounted to £100,000. This included court costs so as to administer the Street Trading Bill. Some of that can be passed on to the legal street trader's through licences, as well as bearing some costs ourselves.

589.

Mr Gibson: The worry is that an auditor might be unclear about that.

590.

The Chairperson: We will have our legal people take another look at this.

591.

Ms Gildernew: It is possible that, after being advised by an auditor one year, the council could then raise the street trading licences up from, say, £100 one year to between £500 to £1,000 the next year. There needs to be something in here to protect the legal street traders.

592.

Mr Gibson: If the licences have been too low in the first year, surely this indicates that everybody has got off lightly.

593.

Ms Gildernew: The costs of licences have not been too low. They have been at the correct amount for covering administrative costs, which reflects the cost of the licence. If court charges are to be taken into account as well, that is not reasonable. That simply adds money on to the price of the legal licence.

594.

Mr Gibson: We are proposing that the council should not be in the position where it has to take court costs.

595.

The Chairperson: This is a Street Trading Bill, and the council is the administrator. The ratepayers should not have to pay for street trading. It is the street traders who are to pay for street trading and the administrative costs that come with that. Some of the administrative costs will include some court fees. Therefore, it is a matter for the council to strike a balance on such matters. Neither the councils nor the ratepayer should be expected to pay for every single penny of administrative costs.

596.

Ms Gildernew: If street trading were properly regulated, if there is a market where shoppers can come to, and there is a spin-off for the traders, surely the street trading will be of benefit to the retailers. To say that the street traders are the ratepayers is simply too black and white. Street trading can also add value to the ratepayers' property.

597.

The Chairperson: I do not doubt that. However, I am referring to the ratepayers who are not street traders. The vast majority of ratepayers are those who live in Housing Executive homes or own their own homes. The Council is an administrator to the Street Trading Bill. It should not bear that burden. It may bear some of the burden but people who are street trading should bear the burden, too. We will have our people look at that issue and revisit it next week.

Clause 18 (powers of seizure)

598.

The Chairperson: We go on to clause 18 "Powers of Seizure". Mr Gibson, this is the most important issue for councils in all of this. If there are not sufficient powers for seizure, then we might as well rip this up.

599.

Mr Gibson: The point was made last week about the Royal Parks (Trading) Act 2000, by which they could lift, without having to take for evidence. The legal advice we have been given is that if we were to change this and take out those words "which may be required to be used as evidence" and allow authorised officers to go in and seize and give back in 28 days, that would be akin to the council official actually giving the punishment and acting as judge and jury. Believe it or not, it would be likely to attract a legal challenge. That is what we have been told. The purpose of having those words "may be required as evidence" is that there is the intention that the person is taken to court. If those words are taken out, the goods are taken, and the council official is then making a judgement and that person has no right to a trial. Those goods are taken away and perhaps given back in 27 days again.

600.

The Chairperson: Does that relate to illegal trading without a licence?

601.

Mr G Gibson: Yes - only illegal trading.

602.

Mr S Wilson: If an officer seizes goods from an illegal street trader, given that the reason that councils send an officer out in the first place is to find the illegal street trader, it is 99·9% unlikely that the council does not intend to follow that through to a court case. I cannot think of a reason why an official would not be intending to follow that through with a court case. So it is not simply a punitive thing. It is to ensure, first of all, that someone has committed an offence. These goods have been used in the commission of that offence. You wish to make sure that that offence can not be perpetuated until the court case is heard. You also want to make sure that if and when the court case goes against the illegal trader and he refuses to pay the court costs, then you have something that you can take as a forfeit.

603.

I do not see that there is any legal difficulty in defending the seizing of all of the goods. The wording in the Royal Parks (Trading) Act 2000 about the constable seizing goods which he believes have been used to commit an offence, covers all of the matter.

604.

I have a letter from the Minister in which he indicates that it is not a requirement by the officer. In it, he states
"The extent of seizure will therefore be a matter for the officer or the council concerned".

605.

Once the Minister puts something like that in writing, and it is a matter of public record in the Assembly and the law says that all you need are these articles as evidence in court, after the first time it goes to court any solicitor or barrister worth his salt, will be saying to the judge that there is no reason for all goods to be seized in future. You already have all the evidence you need which an officer can confirm he took from a particular stall on a particular date. The teeth of this legislation will then be gone.

606.

I have spoken to concerned officers in Belfast who have said that this is the one change that must be achieved, otherwise we have a piece of legislation that leaves us unable to enforce as we can at present. This comes from people who have to deal with this on a day-to-day basis. I repeat: you will not be dealing with this - environmental health officers will have to deal with this. These people, who go to court week in, week out, say that the courts will drive a horse and cart through the clause.

607.

Mr Gibson: How do they know that if the legislation is not in place?

608.

Mr S Wilson: They know by the wording.

609.

Mr Gibson: Are they not making an assumption that the magistrate will say "No"?

610.

Mr S Wilson: I can make assumptions. If I look outside and it is raining, then I know I will get wet. My experience tells me that if I go outside in the rain, I will get wet.

611.

Mr Gibson: You have walked in the rain before, but we have not seized goods before.

612.

Mr S Wilson: No, you have not, but officers who deal with these issues are aware of the liberal interpretations that the courts have given in the past. Last week we discussed the £5 fine of the past. The courts will look for the most liberal interpretation. Leaving that aside, even if the courts do look for the most liberal interpretation, a barrister could say, "Why does this man need everything that was in my client's stall?" If he needed evidence - and the law said that he was required to collect evidence - he needed one item alone and, therefore, it was unreasonable for the officer to seize all the goods. The barrister would add "and in the meantime, my Lord, my poor client has not been able to trade because this officer seized unnecessary goods".

613.

The Chairperson: I think we should get you to court, Sam. You are in the wrong profession.

614.

Sir John Gorman: Mr Wilson said earlier that this could apply to vehicles used in illegal trading - that puts a whole new dimension on the issue. The vehicles that are used in most markets in France, are ones where you can let the sides down, sell quickly and then move on. Mr Wilson has a good point when he says that if we could not seize a vehicle, we would have to take the ice cream, the cornets, the whole shebang, whereas if you take the vehicle away, that will stop illegal trading.

615.

The Chairperson: Mr Gibson, this is possibly the most important clause in the Bill.

616.

Mr Gibson: I accept that fact, and our legal opinion is strong. To include the clause in the way that the Committee has suggested would make it open to legal challenges. A solicitor has said that we could face a legal challenge because goods would be taken without giving a person rights. I accept your point that taking goods on the basis -

617.

The Chairperson: But the point is, that the goods are being traded illegally.

618.

Mr McMaster: I also fully accept the point you are making. The person seizing the goods that are being traded illegally makes a decision. The goods are taken, and the judge, jury and executioner are there on the spot. Our solicitor has said that you are removing the human right to a fair hearing if you take goods on the spot. I fully accept the points that you are making -

619.

The Chairperson: Just to get this absolutely clear, the argument is that an authorised officer has reasonable grounds for suspecting that a person has committed an offence.

620.

Mr Gibson: That applies to a person trading without a licence. An officer may seize any article.

621.

The Chairperson: You are saying that an officer has reasonable grounds for suspecting illegal trading if he takes one article.

622.

Mr Gibson: He can take everything - the stall, the vehicle, everything. He can take whatever he thinks may be required to be used as evidence. If an officer finds someone trading illegally he can take every single thing that the illegal trader has.

623.

Mr S Wilson: If Mr Cobain were the officer and I were the judge, I could ask him in court, "Mr Cobain, why did you seize everything in this stall?"

624.

The Chairperson: Mr Cobain would say "Because Sammy Wilson told me to".

625.

Mr S Wilson: All the officer needs to do is bring one item as evidence and verify that he had seized it.

626.

Ms Gildernew: This causes me concern - far be it from me to defend the Minister - for if there are human rights implications in this, we cannot insist on changing it.

627.

The Chairperson: We can. We are arguing about its interpretation.

628.

Mr Gibson: No, we are not, Mr Chairman; we are arguing about taking out the words of clause 18(1)(c)
"may be required to be used as evidence".

We are arguing about changing the clause.

629.

The Chairperson: Therefore, if an officer thinks that it is reasonable to take every single item, including the car, he can. Does that breach that individual's human rights?

630.

Mr McMaster: Not at all, because the officer is taking it for evidential purposes.

631.

Mr Gibson: That is what protects the officer - that the goods are being taken to be used as evidence. I accept the point that Mr Wilson made earlier that 99.9% of all cases will go to court. We are considering legislation which gives a council another option. It would mean that it would not necessarily have go to court.

632.

Mr McMaster: That is my point. If one takes out the "for evidential purposes", one provides legislation which allows a council powers of seizure but does not oblige it to do anything more.

633.

The Chairperson: Take another example. If an illegal trader were selling socks and an officer took a pair as evidence, the trader could merely wait for half an hour and set up his stall to start trading again. Another officer might take another pair of socks, but the illegal trader could work on for another six weeks before being brought to court to face a paltry fine. Where is the disincentive for illegal traders?

634.

Mr Gibson: There are a number of possibilities. The first is to seize a pair of socks and go to court, and then take another pair when the trader is found to be trading illegally again. Another is to seize everything for the first offence before going to court. Or, one can seize some of the goods when the first offence has been committed and everything when the second is committed, as the illegal trader will already have been given a warning that if he continues to trade illegally all his goods will be seized.

635.

Mr S Wilson: That is not in the legislation. There is nothing about progressive seizure for repeated offences.

636.

Mr Gibson: There is nothing to stop it.

637.

Mr S Wilson: There is, because it means that all an officer needs to have when he goes to court is something to be used as evidence. You have actually specified the reasons.

638.

Mr Gibson: It is "may be required" as evidence and not " must be required".

639.

Mr McMaster: It is at the discretion of the person who seizes it, or perhaps subject to a forfeit order.

640.

Mr S Wilson: Let me deal with your first point. There is nothing in the legislation, despite your best attempts to twist it into such, which allows one to seize more goods because someone has committed a further offence. No clause covers that.

641.

Mr Gibson: Legislation does not always say what you can do. It is what is not in it that allows one some freedom.

642.

Mr McMaster: Clause 18(1) states that

"if an authorised officer or constable has reasonable grounds for suspecting that a person has committed an offence under section 17, he may seize."

That is, one who commits the offence of trading without a street trading licence. That permits an officer to turn up at 9 am while an illegal trader is operating to seize his goods. If the officer comes along at 9.30 am and the trader is still trading without a licence, the trader is committing a separate offence in the same way that one would have committed separate speeding offences if one were caught speeding at different times of the day. The officer can seize the goods again if the illegal trader is still trading with other goods.

643.

Mr S Wilson: Yes, that is right, but what Mr Gibson said was that if you see him committing a second offence, then you can say "We have given you a warning - we will take all your goods this time."

644.

Mr Gibson: You do not have to seize the goods the first time. The council officer could say "I am giving you a warning. I will be back in half an hour." He does not have to seize the goods, but he may seize them.

645.

Mr S Wilson: There are two reasons why he may seize the goods. The first reason is that they will be used as evidence. Once you have a judgement from a court saying that all you need is one item, then an officer will find it almost impossible to justify seizing all of the goods. Once you have that, you have done away with any teeth in the legislation.

646.

The second reason is if the officer thinks that they would be the subject of an application for forfeiture. That is an even weaker reason. How could I stand up in court and say that I had every reason to believe that this man would not pay his court costs when he was found guilty? That is ludicrous. If a council officer had to stand up and say that, it would leave him wide open to any barrister who was defending an illegal trader.

647.

As the legislation stands, all that one can justifiably take is a sample item. That is all that one requires as evidence - not the whole lot.

648.

Mr Gibson: How do you know?

649.

Mr S Wilson: If you were a judge, under what circumstance would you say, "Mr Wilson, I require you to prove that this man was trading illegally. I want to see 5000 pairs of socks, not one"?

650.

Mr Gibson: I am not a judge.

651.

Mr S Wilson: No, you are not a judge - that that is quite right. But can you think of any reasonable grounds on which a judge would say that?

652.

Mr Gibson: Forfeiture is not linked to court costs. The council could ask for a forfeiture order afterwards. Forfeiture is not just to get costs back - it is to actually forfeit the goods.

653.

The Chairperson: We need to return to this. We need to speak to our own legal people again and get their views.

654.

Mr S Wilson: I would like the Department officials to come back and tell us on how many occasions the provision contained in the Royal Parks (Trading) Act 2000 has been contested.

655.

Mr Gibson: I do not think that that is relevant, in that we are looking at street trading. I am not sure that we can get that information; we have great difficulty in getting any information about the Royal Parks (Trading) Act.

656.

Mr S Wilson: The Royal Parks (Trading) Act was to stop trading in the parks. This is similar to street trading. It gives an officer the right to seize goods which he
"reasonably believes to have been used in the commission of the offence".

If you are telling us that this would be open to legal challenge, it is not unreasonable for the Committee to request information on whether that particular clause in the Royal Parks (Trading) Act has been challenged in court. If it has not been challenged in court, then it is reasonable for us to ask why it should not be included in the legislation in Northern Ireland.

657.

Mr Gibson: It may not have been challenged for a number of reasons. In the Minister's view, the legal opinion that has been received suggests that it would infringe on a person's human rights to take goods which were not for the purpose of evidence. The opinion that we have received is strong, and we are not in a position to disagree with it. The Committee may decide that it wants to get its own opinion and put an amendment forward. That is, perhaps, the way we should proceed.

658.

The Chairperson: Before we start putting amendments down, we need to discuss this among ourselves. These are legal arguments and we need to consult our legal people for their views. If the Minister is saying that he is concerned that the seizures could have human rights implications, then I agree with Sammy Wilson's point on that. A judge would say "One pair of socks is as good as 500 pairs. All I need from you is proof that this man was trading illegally. I do not need you to drive the ice-cream van into court."

659.

If the Minister thinks that that is an infringement of human rights, I do not see that there is any possibility of seizing more than one item.

660.

Mr Tierney: We have been asked to look at these issues again. The Committee has not come to any decision. We are not all at one, and that is why we are still in discussion. It is not a case of the Committee putting the amendment. One or two members of the Committee may put an amendment. I am not totally convinced, and I would like to hear more of the argument before I agree to an amendment.

661.

The Chairperson: We will ask our legal people to give us an opinion, and we will then return to the three clauses we have dismissed. It may be that we cannot reach an agreement and that individuals on the Committee may want to put amendments down. We hope to avoid that. To avoid it, it is important, Mr Gibson, that you realise that the Committee has a view and a mind on certain issues.

662.

Mr Gibson: I fully accept that.

663.

The Chairperson

664.

It is of no sense coming to us and saying that this is a fait accompli. That would mean that we would not be functioning as a scrutiny Committee.

665.

Mr Gibson: The purpose of our coming here is to give the Committee evidence based on our consultations

666.

The Chairperson: I appreciate that.

667.

Mr Gibson: We will not always be able to come to an agreement, and we accept there will be cases where the Minister might take one view and the Committee will take an absolutely different view and will disagree and put forward an amendment. We would not see a problem with that.

668.

The Chairperson: Okay. Once again, thank you very much for your time.

MINUTES OF EVIDENCE

THURSDAY 30 NOVEMBER 2000

Members present:
Mr Cobain (Chairperson)
Ms Gildernew(Deputy Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr McClarty
Mr Tierney

Witnesses:
Mr Gordon Gibson ) Departmental Officials
Mr Ivan McMaster )
Ms Imelda McAuley ) Legal Adviser

669.

The Chairperson: Welcome to the Social Development Committee, Ms McAuley. We need clarification on a number of clauses of the Street Trading Bill. Will you work through those in chronological order, starting with clause 3, which deals with the designation of streets.

670.

Ms McAuley: Do you want to express the Committee's concerns about each clause?

671.

The Chairperson: Yes. Our concern about clause 3 is on the "as it thinks fit" issue. One Committee member was concerned that the clause would be weakened by the exclusion of the term, "as it thinks fit", without which he felt the council could be open to judicial review by individuals. Can you clarify this point?

672.

Ms McAuley: The query relates to whether the words "as it thinks fit" should be included in clause 3 of the Bill, which deals with the designation of streets. In my view, the inclusion of these words would not make any difference to the meaning or the implications of clause 3. These words do not oust the judicial review jurisdiction. They would not make any difference to whether a person will challenge a council's decision to designate a street or not to designate a street. The inclusion of these words will not lessen the number of judicial reviews which could be brought and it would ot oust the jurisdiction that the judges have in relation to the council's decision. In short, these words would not make any difference to the meaning or the implications of clause 3, therefore they do not need to be included.

673.

The Chairperson: The Member was concerned that the inclusion of these words may actually assist the council. We have discussed in detail the issue of judicial review— we do not want to restrict anyone's right to judicial review. All the legislation here is open to judicial review and we understand that. Mr S Wilson was concerned about the council's position in relation to this clause. Would the inclusion of the words "as it thinks fit" assist the council as far as the designation of streets is concerned? You say that it would not make any difference.

674.

Ms McAuley: I do not think it would assist the council with regard to defending a judicial review. Is that where you are coming from?

675.

The Chairperson: Yes.

676.

Ms McAuley: As far as defending a judicial review is concerned, the words "as it thinks fit" will not give the council any greater strength in its arguments, because the council must still act reasonably, for proper purposes, and within the law. These are the principles of administrative law with which the council must conform, regardless of whether that phrase is included or not.

677.

The Chairperson: Would it make any difference, whether that phrase was in or out?

678.

Ms McAuley: It would make a difference if the words were in, because it would not sit easily within this Bill as currently drafted. Are you thinking of including the words "as it thinks fit" after "a council may pass a resolution" - ?

679.

The Chairperson: "As it thinks fit" - yes.

680.

Ms McAuley: In my view, that would not sit easily with clause 4 of this Bill because, in its decision to designate a street as a street where street trading can take place, the council must do certain things before reaching that decision. It must, for example, consult with certain people under clause 4; it must advertise - i.e. it must publish notice of its intention in the newspapers. So the council may not pass a resolution, as it thinks fit. It must pass a resolution in conformity with the procedures set out in clause 4. The inclusion of those words would not add up with the requirements contained in clause 4 of this Bill. That is the difficulty.

681.

The Chairperson: Ok. Does anyone want to clarify anything in this?

682.

Sir John Gorman: This is an entirely housekeeping point but, unfortunately, the Lord Mayor of Belfast is not present. Where do we go now if he comes back and says that his lawyer does not agree with Ms McAuley? Will we be back to where we started?

683.

Mr Tierney: No, we agreed at the start of the meeting that any unhappy Member can, individually, put up an amendment to the Bill. Mr S Wilson is entitled to do. If he - or any other Member - is not happy with what we agreed today, he can put forward an amendment.

684.

Mr G Kelly: It is the same thing for me. I have a problem with clause 5. I was not here at the last meeting, but I intend to put an amendment to the Bill. So we can move ahead and Mr S Wilson still has the opportunity to put an amendment up.

685.

The Chairperson: It does not stop any Member from amending the Bill.

686.

Ms McAuley: I would like to add an extra point, Mr Wilson pointed to the Local Government (Miscellaneous Provisions) Act 1982 and said the wording was different and that he would like the wording of the 1982 Act - which does not apply here - to follow. I have checked the Local Government (Miscellaneous Provisions) Act 1982, and the wording of clause 3 in this Bill is exactly the same as in the 1982 Act. There is no disparity between this Ball and the 1982 Act - I can quote the provisions if you want me to.

687.

Mr G Kelly: I wish Sammy were here.

688.

Mr B Hutchinson: For the record, Sammy is carrying out his function as Lord Mayor of Belfast. He is in Liverpool, signing an agreement with Cardiff today - just in case people think he just has not bothered turning up.

689.

Mr Tierney: It is the wrong agreement, but.

690.

The Chairperson: OK. Is clause 3 agreed?

691.

The Chairperson: In clause 9, the issue is about adequacy.

692.

Ms McAuley: I will run through the information I have been given about the concern about clause 9. Clause 9 contains a number of discretionary grounds for the council to refuse an application for a licence, under clause 5 of the Bill. The concern is that there is not a ground that relates to adequacy, if there are already a sufficient number people selling the same goods. There is a concern that the inclusion of this provision would be an infringement of human rights law or European Union law. Is that the gist of the concern?

693.

I will take those points one by one. The concern about human rights is probably straightforward. To include a discretionary ground relating to adequacy would have no Convention rights implications whatsoever. Under section 6 of the Northern Ireland Act 1998 the Assembly cannot legislate incompatibly with the Convention rights and these are most of the rights contained in the European Convention on Human Rights. The inclusion of the provision that Mr S Wilson would like to see in the Bill dose not raise any issues under the Convention because there is no right to work contained in it. There is also no right to trade, or right to trade in a particular location. That is completely outwith the Convention rights and therefore raises no issues as regards human rights law. It would therefore be up to the Committee to put down an amendment to include a ground based on adequacy if it were so minded.

694.

I will deal with the point regarding European Union law. An amendment of this nature does not raise issues under the Convention, nor does it raise issues under European Union law. I am not an expert on European Union law - I will put in that small disclaimer - but I have looked into this issue and I think it relates principally to the freedom of movement of workers within the EU. I will go through this in some detail as a specific query has been raised about EU law implications.

695.

This issue relates to the free movement of workers and this is now governed by Part 3, Title 3, Chapter 1 of the EC Treaty. In Article 39 of the Treaty, we get the definition of free movement of workers. Article 39(1) provides that the freedom of movement of workers is to be secured within the Community. That is straightforward. Article 39(2) decrees that the free movement of workers entails the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration, and other conditions of work. Article 39(3) is probably the most important provision in respect of this query. It provides that the free movement of workers entails the right to stay in a member state for the purpose of employment in accordance with the provisions governing the employment of nationals of that state as laid down by law, regulation or administrative action.

696.

So, let us apply this information to the query you have raised about a discretionary provision based on adequacy. To include such a provision in national law means that it would apply equally to Northern Ireland nationals and to those people who wish to engage in street trading here but who are from other parts of the EU. As long as there is no discrimination between those who live in Northern Ireland and those who normally reside in other parts of the EU, the law is compatible with the EC Treaty.

697.

The Chairperson: So, it is quite permissible to include that provision.

698.

Ms McAuley: Yes. In my view, adding this discretionary provision for councils would not breach the Convention rights or have any implications for EU law.

699.

The Chairperson

700.

Human rights legislation applies equally in Great Britain as is does in Northern Ireland. Is that correct?

701.

Ms McAuley: We would be looking primarily at section 6 of the Northern Ireland Act 1998 in relation to the amendment of a Bill, not the Human Rights Act, 1998.

702.

The Chairperson: Shall we move to clause 15?

703.

Mr Tierney: What did we agree as far as clause 9 is concerned?

704.

Ms McAuley: I would like to add that in terms of there being no legal implications for the Committee if it wishes to put down an amendment of this nature to the clause, there may be some practical problems as far as its workability is concerned. I do not think they are insurmountable, however.

705.

The Chairperson: That would be a matter for the body implementing the Act. It would be a matter for the councils to deal with.

706.

Ms McAuley: It would be a matter for the councils to work out how they would approach that provision in practice - ultimately with an eye on judicial review.

707.

Mr Tierney: What is your recommendation, Ms McAuley? Should we amend this clause or is it acceptable as it is?

708.

Ms McAuley: I cannot comment on that because I am here to check the legal implications of the Bill only.

709.

Mr Tierney: You are here to advise us. Forget the word "recommendation", what do you advise?

710.

The Chairperson: Ms McAuley is here to advise the Committee on the legal aspects of the clauses. Those are political decisions to be taken by politicians.

Clause 9. The Committee agreed to include in its report to the Assembly a suggested amendment.

711.

Clause 15 (Fees and Charges)

712.

Ms McAuley: The concern about clause 15 which I have been asked to clarify relates to 15(2)(c).

713.

The Chairperson: The concern relates to the administration costs and whether the court costs are recoverable in an illegal trading case?

714.

Ms McAuley: Are you referring to the council's power to recover legal costs?

715.

The Chairperson: As I understand it, there are only two means of recovering these costs — the council can do so through rates payments, or by increasing the licence fee for legitimate traders.

716.

Ms McAuley: Your latter suggestion for recovering court costs is not allowed under clause 15(2)(c).I will clarify the powers of a council, under clause 15(2)(c), as it is currently drafted. Clause 15(2) states that
"A council may recover from holders of street trading licences, such charges as may be sufficient to cover the reasonable costs."

A list is included — paragraph (a) cites the collection of removal and disposal of refuse, (b) cites the cleansing of streets. Paragraph (c), the part which is giving rise to concern refers to
"Any reasonable administrative or other costs not otherwise recovered under this Act in connection with the services mentioned in paragraphs (a) and (b)."

717.

Paragraph (c) relates only to paragraph (a) and (b), "any reasonable administrative or other costs relating to the collection removal or disposal of refuse, and the cleaning of streets." There is nothing clause 15(2)(c) which empowers the council to recover legal costs from the licence holder. To do so would be unlawful and the action could be successfully challenged by judicial review.

718.

The Chairperson: The council then has to pay from its rates any costs incurred through the prosecution of illegal traders?

719.

Ms McAuley: As the clause 15(2)(c) is drafted at present, that would be the only way in which those costs could be recovered.

720.

The Chairperson: We need to speak to the Departmental officials who gave a different answer to that issue when they attended the Committee last week. I would like clarification on this point. We argued about this issue for half an hour last week.

Mr Gibson and Mr McMaster joined the meeting.

721.

Mr Gibson, can you clarify an issue for us. When we interviewed you last week about recovering costs, you said that the council could recover court costs by increasing street trading licence fees, or through the ratepayer. Is that correct?

722.

Mr Gibson: Our view was that this clause would not stop the councils from recovering costs from rates payments, it would simply allow councils to recover reasonable costs. We gave the opinion that if the court costs were not deemed reasonable, it would be open to the council to recover them by other means. They could not recover the costs from rates within the Bill, but there must be separate legislation which allows councils to recover costs or to make charges.

723.

The Chairperson: It is totally confusing because it would be difficult for councils to recover costs from some other body, except those persons are taken to court. If we are taking illegal traders to court, the only way we can recover costs is either through fining the illegal trader or taking it from the rates.

724.

Mr Gibson: Or take it from the licence fee, which is what we are talking about now.

725.

The Chairperson: We cannot increase the licence fee to recover costs. Do you not agree with that?

726.

Mr Gibson: That is not our advice. The point I am making is that I do not think we could put in the Bill that the council could recover the costs from rates. I am not sure that that would be legally acceptable. There must be other legislation which allows councils to recover costs or to make charges.

727.

The Chairperson: To whom would the council make the charge?

728.

Mr Gibson: If it were to be the rate payers would there not be other legislation to cover that?

729.

The Chairperson: Councils draw their finance from the rates. The council is taking the illegal street trader to court. The court costs are awarded to the council against the illegal trader. The illegal trader does not pay costs. Every single ratepayer in Belfast then has to pay a proportion towards recovering the costs. There is no other avenue.

730.

Mr Tierney: It is not only Belfast.

731.

The Chairperson: I beg your pardon, it is not only Belfast. Last week I thought that you gave the impression that the council could, through increasing licence fees to legal traders - and that is what the argument is about - recover court costs. We have been told that the legislation which you have drafted specifically rejects that avenue.

732.

Mr Gibson: That is contrary to the advice that we have been given.

733.

Mr McMaster: Does the advice given relate to clause 15(2)? Our understanding was that through clause 15(1) the council may charge a fee for the granting of a licence as may be sufficient in aggregate to cover reasonable administration costs of the street trading scheme. I accept advice that under clause 15(2) the administration or other costs are related to charges such as refuse and litter collection. Clause 15(1) provides for the general administration of the scheme and that is where I understood the council had discretion whether to include court costs.

734.

Ms McAuley: May I respond Mr Chairperson?

735.

The Chairperson: Ms McAuley is here to give us her independent advice. Rather than turn the matter into a court case Ms McAuley can respond and then if we need further clarification we can ask for that from the Department.

736.

Ms McAuley: I would respond briefly. Clause 15 subsections (1) and (2) are separate powers that are being given to the council. The council must have legislative powers to administer a street trading scheme. Under clause subsection (1) the council is being given the power to charge for licences. Subsection (2) deals with the recovery of costs. Legal costs are not mentioned and in fact the subsection is specific as to exactly what costs can be recovered. That is clearly spelt out and any reasonable administrative or other costs in paragraph (c) of subsection (2) are, as I mentioned earlier, qualified in that the subsection relates only to those things which are itemised in paragraph (a) and (b).

737.

The Chairperson: We need to have another look at that. Clearly the council, through licensing, will not be able to recover its costs incurred.

738.

Ms McAuley: It cannot recover legal costs through licensing and pass those on to traders.

739.

The Chairperson: That would be improper. We will look at that again.

Clause 18 (Powers of Seisure)

740.

The Chairperson: We will move on to clause 18 - the most important clause in the Bill. It gives a council the ability to seize illegal goods. Last week the issue was brought up about whether only one pair of socks was needed for a court case, which allows illegal traders to hold onto the rest of their stock and keep on trading. Some Members were concerned about this. If an authorised officer or constable has reasonable grounds to suspect that somebody is illegally trading they could take one pair of socks - as that is all they need for the court, as an indication that this person was illegally trading. The illegal trader could take all other goods away, come out the next day and start trading again, and this could go on forever. There is legislation across the water that allows constables to seize property - the seizure of all illegal goods. Could we have some advise on that?

741.

Ms McAuley: The legislation you refer to is the Royal Parks (Trading) Act 2000.

742.

Under clause 18, if an authorised officer or constable has reasonable grounds for suspecting that a person has committed an offence, he may seize any article, any receptacle or equipment. In saying any article, any receptacle, any equipment, any other article or thing of a similar nature, the draftsman has used standard wording and the reference includes the plural. A constable or an authorised officer of the council could go along and take everything from the stall; there is no question about how the wording here would be interpreted.

743.

The Chairperson: So this gives sufficient powers to councils to seize all of the illegal goods?

744.

Ms McAuley: Yes, if the authorised officer or constable reasonably suspected -

745.

The Chairperson: It is all reasonable.

746.

Ms McAuley: Of course, reasonableness is the qualification. If a constable or authorised officer tapped the person on the shoulder and said "where is your licence, let me see it" and had reasonable grounds for suspecting that an offence had been committed, then the constable or authorised officer could seize everything.

747.

The Chairperson: Mr Wilson's point last week was that he was concerned that the courts might take a different view. If one article would be sufficient to prove the case of illegal trading, why did the officer seize all of it? You are saying it is perfectly legal for officers to seize all.

748.

Ms McAuley: Yes, it is. The courts would not be too concerned about the number of items taken because the courts are interested in seeing whether the elements of the offence have been made out.

749.

Sir John Gorman: On the Continent, particularly in France, there are very few shops in villages because the marketing and trading is all done from specialist vehicles, on which the side drops down. This fashion might spread here, for reasons already attested. If this occurred here, would the constable or authorised officer be entitled to seize the vehicle?

750.

Ms McAuley: In the general interpretation clause - clause 25 - the definition of "receptacle" includes a vehicle, trailer or stalls, so that would be included.

751.

Ms McAuley: Would you like me to comment on the Royal Parks (Trading) Act 2000 that you mentioned?

752.

The Chairperson: No, as long as you are happy that the constable or council officer has sufficient powers under this Act to seize all.

753.

Mr Hutchinson: Sammy Wilson had an issue with the Royal Parks (Trading) Act 2000, so it would be useful if we heard it as well.

754.

Ms McAuley: I was given notice of the queries and it might be worthwhile putting this further information in the transcript. I had a look at the Royal Parks (Trading) Act 2000 that Mr Wilson was concerned about.

755.

This recent Act of the Westminster Parliament contains a section on seizure of property dealing with trading and parks. Section 4 does not contain the same wording as the clause that we are looking at, in that it does not require seizure for evidential purposes. That clause is not in section 4 of the Royal Parks (Trading) Act. I want to point out that the legislation differs from the Bill that we are looking at. The enforcement system is different, so we are not comparing like with like. Section 4 of the Act contains a seizure power. In section 5 there is also a retention power, which is given to the Secretary of State. There is nothing in the Act that requires any goods to be produced before a court before a forfeiture order can be made. The goods do not have to be produced as evidence in court, and that is where the difference is wording is justifiable.

756.

The Chairperson: OK. Thank you. Is clause 18 agreed?

Clause 18 agreed

Clause 15 (Fees and Charges)

757.

The Chairperson: Can we go back to try and agree clause 15, and get it clarified? Mr Gibson, in Hansard last week, when asked about this question, you said that the advice we got from the solicitor was that, as it is presently worded
"It allows councils to allocate the costs either to the licence holder or elsewhere because it mentions reasonable costs. If the council decides that court costs are not reasonable it does not"

et cetera. Could you reconsider that, after the advice you have been given?

758.

Mr Gibson: I can only go on the advice that we are given, Mr Chairman. I appreciate that that is different to the advice that the Committee has been given.

759.

The Chairperson: Yes, but we are putting through a piece of law and we do not want to spend an enormous amount of time arguing over points between the solicitors, barristers or whoever it may be. We are trying to get this thing right.

760.

Mr Gibson: I appreciate that.

761.

The Chairperson: At the end of the day, I know perfectly well in the back of my mind what will happen - councils will have to bear a cost. If people are trading illegally, and we have noticed this before, they go to court three or four times and they are fined. When the fines mount up to £1000, they go to jail for three days and then they are clear. There is no way that councils will be able to recover costs. You know that, I know that and everybody else knows that.

762.

Mr Tierney: Do we have to make a decision on this today?

763.

The Chairperson: We have to clear the Bill today.

764.

Mr Tierney: If we have received two different types of advice, and both of them legal advice, can we take these back, have a look at them and say "Well, here is one set of legal advice and here is another, we must look at it again".

765.

Mr B Hutchinson: I am a bit confused about the argument. We are talking about who bears the cost. If you send someone to prison the taxpayer bears the cost. Are we getting bogged down in semantics?

766.

The Chairperson: No. The argument that was made by the Department is that, if the council runs up figures of, for example, £50,000 over a year in court costs, rather than the ratepayer bearing that, they need to increase the licence fee to cover the £50,000 lost in court costs through a licence charge. Our legal people are telling us that it is illegal to do that. You cannot do it. There is no provision in the Act to do that. We were told last week that there was; our legal people are saying that there is not. We have two options. You either charge the legal trader additional money to cover costs for taking illegal traders to court, or else the council bears the costs. It is highly unlikely that legal traders are going to allow the council to charge them. At the end of the day the council will bear the cost. We are only seeking clarification from the clause. Our legal people are saying that under no circumstances can the council directly charge legal traders for costs.

767.

Mr Tierney: We would not want them to either.

768.

Mr B Hutchinson: Are we not saying that the ratepayer is going to bear the cost anyway? If the council is going to take on these powers, then the ratepayer will pay.

769.

The Chairperson: That is what we are saying, but the Department is saying "No, that is not true. You can charge the legal trader".

770.

The Chairperson: That is what we are saying. The Department says that is not true, and that it is possible to charge the legal trader.

771.

Mr Hutchinson: Would the council want to do that?

772.

Mr Tierney: If it is in the legislation, the council could be in bother if it does not recoup the losses of the trader. That is the problem. If the legislation states that the council can and should take it off the traders, it would be put in a position where it would have to put up fees. We do not agree that legal traders should be penalised for illegal traders

773.

The Chairperson: Our difficulty is in knowing how the auditor is going to interpret these things.

774.

Mr Tierney: The local government auditor would say you have the right to recoup.

775.

Mr Hutchinson: Why are you not doing it?

776.

The Chairperson: Our legal people say there is no provision to do that.

777.

We will move on to part 15.

778.

Mr Gibson: What do you want us to do, Chairman?

779.

The Chairperson: I want you to have another look at the legislation and clarify the position. You could speak to the Local Government Audit Office to ensure that councils are not going to be left in the position whereby they are going to have to charge legal traders court costs for illegal traders.

780.

Mr Gibson: We can only go to our legal advisor - we cannot go to the Local Government Audit Office.

781.

The Chairperson: Can you find out from the audit branch who will be auditing the councils' books and ask for their view?

782.

Mr Gibson: That is not for us to do, Chairman.

783.

The Chairperson: I am asking if you could do that please?

784.

Mr Gibson: The other option is for the Committee to pass an amendment.

785.

The Chairperson: We will pass amendments if we think fit. We are trying to resolve this Bill, instead of having amendments running through the House. This could be clarified. I am asking your Department - or we will write to the Minister if you do not think this is appropriate -to speak to the audit branch to find out what their interpretation will be.

786.

Mr Gibson: It is not appropriate for us to speak to the audit branch, but we will speak to our legal advisor if that is helpful.

787.

The Chairperson: I will write to the Minister and I will ask him to speak to the audit branch. If you cannot do it then the Minister can. Thank you.

MINUTES OF EVIDENCE

THURSDAY 7 DECEMBER 2000

Members present:
Mr Cobain (Chairperson)
Sir John Gorman
Mr B Hutchinson
Mr G Kelly
Mr O'Connor
Mr M Robinson
Mr Tierney

Witnesses:
Ms I McAuley (Assembly Legal Adviser)

Clause 15 (Fees and Charges)

788.

Ms McAuley: Last week when we considered clause 15 my attention was drawn to paragraph 15(2)(c), to clarify the effects of that particular provision. The query was whether a council could recover legal costs under this provision, and my answer was that legal costs could not be recovered under this clause. However, the Committee's concern about the recovery of legal costs arises under clause 15(1). That is where the confusion arose at last week's meeting, between the two departmental officials and myself. They were referring to clause 15(1) but I was asked to clarify 15(2)(c).

789.

To clarify the position today, under clause 15(2)(c) a council cannot recover any legal costs arising out of proceedings in relation to this Bill. However, under clause 15(1) - which I did not elaborate on last week - a council could recover legal costs in connection with any proceedings brought in relation to its functions under this Bill. It was my understanding that the Committee was concerned about the possibility that a council could recover legal costs, so I submitted a memo to you setting out the options.

790.

There are essentially two options open to the Committee at this stage. Option A would be an amendment to clause 15(1) to exclude the possibility of a council recovering legal costs. That could be put into clause 15(1) to exclude that power being given to the council. Option B would be to leave clause 15(1) as it stands. The implications of that would be that a council would have a discretion as to whether it would increase a licence fee to include a charge for the legal costs that have accrued over the course of the year. In leaving the clause as it stands the council would have discretion - but of course it is not an unlimited discretion. The council could be challenged because, in looking at clause 15(1) of the Bill, any costs that are passed on to the licence holder must be reasonable. A challenge could be brought by way of judicial review if the costs being passed on to the licence holder were unreasonable: a judge in the High Court would decide on the question of reasonableness.

791.

The Chairperson: Are we saying that a council incurs legal costs during the year, dealing with the illegal traders, some of that, or a reasonable amount, may be passed on in the following year to bona fide traders through increasing the licence fee?

792.

Ms McAuley: Yes, under clause 15(1), as it currently stands, a council may charge for the grant or renewal of a street trading licence. In the main paragraph it says that the council may charge for the grant of a licence
"such fees as the council may determine and as may be sufficient. to cover any reasonable administrative or other costs"

It is the reference to "other costs" that potentially cover legal costs.

793.

The Chairperson: Potentially or does?

794.

Ms McAuley: The council has the discretion as to whether it would want to do that or not. A council would have these powers but may decide not to use them.

795.

The Chairperson: But, using these powers, could it?

796.

Ms McAuley: These powers could be used in that way.

797.

The Chairperson: Does the Bill, as drafted cover that?

798.

Ms McAuley: Yes. As it is currently written, the council has the discretion to take legal costs into account. The question is whether you want to leave the discretion with the council or amend clause 15(1) to ensure that they cannot take legal costs into account.

799.

The Chairperson: No, we need to leave it at the discretion of the council.

Clause 15 agreed to.

800.

Clause 9 - Discretionary grounds for refusing an application

801.

The Chairperson: This clause is to ensure that there is not overselling of a product and is about adequacy. For instance, if six people apply for a licence to sell burgers in the street, the council would have the option of deciding that a sufficient number of traders, from shops or otherwise, are already selling articles, things or services which the applicant wants to trade. We are considering an amendment to the proposed clause.

802.

Ms McAuley: It is proposed to add a fourth paragraph to clause 9(1)(a), to include a ground based on adequacy, which we agreed last week.

803.

The Chairperson: Would that give the council discretion when dealing with adequacy?

804.

Ms McAuley: Yes, the council would be able to take into account other traders in the street trading in the same goods in deciding whether to grant a street trading licence.

Clause 9, as amended, agreed to.

805.

The Clerk: We will put the amendment down and, based on that, we will prepare our report for next week.

Street Trading Bill, as amended, agreed to.

Top

COMMITTEE FOR SOCIAL DEVELOPMENT
INQUIRY INTO STREET TRADING BILL
WRITTEN SUBMISSION BY:
BELFAST CITY COUNCIL

14 NOVEMBER 2000

As you may be aware I have had a number of conversations in recent weeks with Mr Liam Harte from your office about the City Council's continuing consideration of the new Street Trading Bill which is currently under consideration by the Social Development Committee. The Council's Health and Environmental Services Committee, at its monthly meeting yesterday evening, considered the Bill in detail and approved the comments as set out in the accompanying document for immediate submission to the Assembly's Social Development Committee. These comments are subject to approval and adoption by the full Council at its next monthly meeting on Monday 4 December but it was felt that they should be submitted for the Social Development Committee's attention at the earliest opportunity.

The Committee has also decided that the Council should be recommended to seek an opportunity to address the Social Development Committee on this matter. If the Council adopts this recommendation the Council's Members' Services Section will be writing to the Committee in this regard.

As agreed with Mr Harte I have also copied this letter and attachments to the Department for Social Development.

If you require clarification of any of these matters please let me know.

W A FRANCEY
Director of Health and Environmental Services

1. Designating Streets:

(a) Clauses 3 and 4, do not state what considerations, if any, a district council should take into account in deciding whether to designate a street.

It is quite possible that potential traders will apply for licences for streets which the council have not designated although the council must refuse such applications on the grounds that such a street is not designated (see Article 8(3)(g)). The Bill does not permit any right of appeal in these circumstances to an applicant. However an applicant would be able to judicially review a council's decision in such circumstances. The difficulty that this would raise for a council, is that the council may not have given any consideration to whether the street should have been designated in the first place. The scheme of the Bill is that trading should not be permitted in any street unless it is a designated street. Thus a council will have to give some initial consideration to what streets in its district should be designated. There is no provision in the Bill on how a council should do this. If this is an intentional omission, and the matters of what streets should be designated is to be left to the general discretion of councils as they see fit, this should be made clear at Article 3(1) of the Bill. If councils are to be able to defend, a judicial review of a decision not to designate a street, then it will have to be able to demonstrate to the court, that the matter of which street should be designated, is a matter which lies within the absolute discretion of the council. To make this clear it is recommended that the words "as it thinks fit" should be inserted at the commencement of Article 3 so that it reads "A council may as it thinks fit pass a resolution .". This wording is consistent with the wording used at Paragraph 2(8) of Schedule 4 of the Local Government (Miscellaneous Provisions) Act 1982 which applies in England.

(b) There is no provision in Article 3 of the Bill which would permit the designation of part of a street. Some streets in Belfast, such as arterial routes are very long. Rather than designation of a whole street, it would or might be more sensible to designate part of a street. When the Department responded to our comments on the "Report on Responses to the Consultation Paper" (May 1999) they stated that if a part of a "designated street" became unsafe that part could be "undesignated". This would seem to imply that parts of streets could be designated in the first place. The Bill does not appear to provide for this. (Note: Such a power would be convenient as it would allow streets, in which a very limited number of pitches would be acceptable, to be designated only in respect of those limited areas and thus avoid the administrative burden of fully processing applications for undesignated parts of the street.)

It is therefore suggested that power be given to councils to designate a street "or part of a street" in its district.

(c) Adequacy

The absence of any provision for the number of pitches in any given designated street is a matter requiring some consideration. Where two applicants of equal merit make an application in relation to a designated street, how does the licensing authority actually limit the number of such pitches in the street if the legislation does not provide for the same. Clause 9(1)(a)(ii) and (iii) does state that the convenience or interference on the street may be a factor in refusing a particular pitch, but there appears to be no prior mechanism for restricting the numbers. A comparison with the provisions of the English Local Government (Miscellaneous Provisions) Act 1982 and the London Local Authorities Act 1990 shows that both contain a provision entitling councils to refuse an application on the grounds "that there are enough traders trading in the street from shops or otherwise in respect of which the application is made in the goods in which the applicant desires to trade".

It is recommended that this be added as an additional ground of refusal to Article 9 of the Bill.

2. It is not clear whether Clause 4 (5) precludes consideration of representations received after expiry of the specified period.

Clause 4(8) and 4(9) - Is this 28 day period between publication of notice of passing of resolution and date of coming into effect to allow for challenge and, if so, by what route?

3. Clause 6 does not appear to require consultation, or specifically permit it as in C.4 (2), with people likely to be directly affected by the granting of a licence or with RUC/DRD (cf. C4 (1) and (2)).

4. Clause 8(1)(a) provides that a Council must refuse a licence if the applicant "is not an individual". Thus limited companies will be unable to hold a licence. The reason for this provision is not stated in the explanatory memorandum. The Council believe that to properly control street trading, it is necessary for licence holders to take personal responsibility of the stall. This should mean that licence holders should not be able to withdraw from the day to day operation of the stall, and should retain personal supervision of activities. This view is in accord with the provision that licences should only be granted to individuals. However the Council believe that the responsibility of licence holders to exercise personal supervision of the licensed activities would be strengthened by an amendment to clause 10(1)(c) by adding the word "personally" so that this clause would read "the licence holder has, without reasonable excuse, personally failed to avail himself to a reasonable extent of his licence".

In support of this proposal the Council would refer to the case of R v Southwark Crown Court exp Watts (1992 COD 140) in which judicial recognition was given to the fact that a district council cannot properly control street trading if the licensees are absentees.

The Council are also of the view that individual supervision and responsibility for a stall or pitch lies in with the issue of the "conduct" of the individual who may be granted a licence.

These comments also have an impact on Clause 24 which deals with the employment of assistants. The Council understand that licence holders may wish to employ assistants and that there may be valid occasions when a licence holder would be temporarily absent from his stall. However, the Council note that this is specifically referred to at Section 36 of the London Local Authorities Act 1990 and therefore suggests that the words "during the temporary absence of the licence holder" be added to Clause 24(3) so that it should read "If any person employed by a licence holder, during the temporary absence of the licence holder, fails to comply with the conditions specified .".

5. Clause 9 - Discretionary grounds for refusing an application.

The Council has a number of comments regarding the proposed discretionary grounds for refusal at Clause 9(1):-

9(1)(a)(i) refers to locations being unsuitable. Again this does not deal with the issue of the number of pitches in any given street. What is likely to determine the limits of what might render a site unsuitable?

9(1)(a)(ii) & (iii) deals with the space where trading is proposed as being "inadequate" because of undue interference or inconvenience.

Again as a general comment there appears to be no power to initially restrict the actual number of pitches in any particular street or area. Also,

9(1)(a)(iii) Areas in which mobile traders wish to trade are likely to be widely defined by applicants and hence it will be very difficult to assess this comprehensively. It is not clear whether mobile traders would have to seek a licence for each separate and distinct area in the same council area.

9(1)(c) This refers to "misconduct or some other reason relating to trading activities .". It is not clear if the issues of "misconduct" and "other activities" are disjunctive and to be read separately. This confusion should be removed.

This seems to the Council to be extremely and unnecessarily restrictive regarding a prospective applicant's fitness to hold a licence. For example there could be a matter out with the trading activity that may impinge seriously upon the issue of fitness.

It is also noted that there is nothing at all that requires the grantor to have regard to the fitness of persons employed by a licensee. Clause 24 deals with employees in a very general sense. This is a potentially serious defect. It appears to the Council that the present statutory arrangement at least implicitly permits the decision-maker to have regard to employees.

A more general statement of fitness appears more appropriate on the following lines:

"In considering the fitness of a person to hold a licence, regard shall be had to:-

(a) the character, reputation and financial standing of the applicant;

(b) the qualifications and experience of the applicant to manage the business which is, or is proposed to be, carried on under the licence, or the character, reputation, qualifications and experience of any person who is, or is proposed to be, employed by him in that behalf."

The Council also believes that the issue of fitness of an applicant should properly be located in Clause 8.

9(1)(d) concerns a licensee with reasonable excuse failing to avail himself to a reasonable extent of a previous street trading licence.

The Council refers to the comments previously made in relation to the addition of the word "personally". The Council are also concerned that this paragraph is so wide it is almost meaningless. There are no guidelines as to minimum trading periods of times. If an occasional licence is restricted to 5 per annum, then it appears to be within that range. Problems arise for example where there is seasonal use only for a few months in a year.

It might be useful to give some thought to a fixed minimum number of days in any year.

The council wishes to highlight three further matters which it considers should be discretionary grounds for refusal:

(i) The first relates to the employment of children as assistants on stalls. The Council is aware that Article 135(4) of the Children (NI) Order 1995 prohibits children engaging in street trading and that any person who employs a child in this capacity is guilty of an offence. Although a Council could contend that this is "misconduct" which falls within clause 9(1)(c) it feels that the addition of a ground for refusal which makes specific referent to the improper employment of children would strengthen this part of the legislation and make it absolutely clear that this was a proper ground on which to refuse a licence.

(ii) The second is the adverse effect that a stall selling specific goods might have on the environment or amenity of an area. In this respect the Council is particularly concerned with odours or strong smells that may be given off by hot food or burger stalls. In many cases this smell may not be bad enough to constitute a nuisance but is strong enough to be unpleasant and cause people to form an adverse view to the general amenity of the area. The Council's experience has shown the importance of ensuring that such odours from hot food businesses carried on in fixed premises are collected and passed through suitable odour abatement equipment and/or discharged at roof level. Clearly such control can not be effected in the case of a stall or vehicle based operation. The Council therefore strongly recommends that an additional ground for refusal be included on the basis of adverse effects to the amenity of the area on the grounds of general amenity or adverse environmental effect such as odour or litter.

(iii) The Council is also concerned that it should have explicit powers to consider the number of licences already held by an applicant in deciding whether to issue further Street Trading Licences. Councils should be permitted to refuse an application on such grounds where other applicants holding no, or fewer, licences wish to trade in the same street.

6. Revocation:

Clause 10:

C. 10(1)(e) relates to misconduct leading to revocation. The same point applies as that relating to C.9(1)(c).

C.10(1)(f) refers to failing to avail of a previous licence and the point raised earlier.

C.10(1)(g) & (h) The interpretation of "persistently" would require clarification.

7. Notice and Representation:

Clause 12:

The process described would appear to involve two Council or Committee hearings. This will impose a considerable administrative burden.

8. Temporary Licences:

Clause 14:

Regarding temporary licences this makes no reference back to the criteria to be applied on full licence applications. This seems to be a shortcoming.

In this clause there is the potential for double the number of temporary licences granted in the case of application by partnerships.

9. Fees:

Clause 15:

It is not clear why the fees should be so narrowly restricted. They should of course be fixed on reasonable criteria, but this area of legislation may have significant ancillary costs.

C.15(1) It is not clear whether this permits the Council, assuming licences are granted for 3 years, to charge a licence fee up to an amount equal to three times its total annual costs for monitoring, enforcement, administration (including Committee meetings) and prosecution of offenders divided by the number of licences it expects to grant.

C.15(2) Clarification is also required as to whether the use of the plural "holders" mean that charges are to be uniform regardless of any apparent difference in the burden of refuse collection and street cleaning arising from the activities of individual licence holders.

10. Clause 16(2) should also provide for the person engaged in street trading to state his employer's name and address if the person is trading as an assistant.

11. Clause 17:

The substantive offences under Article 17(1)(a) and (b) appear to be sufficiently clear and straightforward in the context of the definition of street trading provided at Article 7.

Article 21(a) creating the offence relating to a breach of a licence condition should, in the Council's opinion, be included as a paragraph of Article 17.

Article 7(1)(a) contemplates imposing as a licence condition the street trading pitch allocated to the trader.

Article 7(1)(b) contemplates imposing as a condition of a licence the areas in which a mobile trader will be permitted to trade.

It is therefore arguable that a licensed trader who trades at a location other than that permitted by the licence is breaking a licence condition as opposed to committing a substantive offence of trading without a licence.

Whilst the level of penalty (level 3) is the same the offence under Article 21(a) does not render the Defendant susceptible to the powers at Articles 18 and 19. The Council considers this to be a major weakness which should be rectified.

The level of penalty (level 3) is insufficient to act as a meaningful deterrent. It is clear that the Belfast experience statistically can demonstrate an increase in the overall level of trading and a significant number of repeat offenders. Many repeat offenders simply surrender themselves to Police on foot of accumulated warrants for non-payment of fines and discharge same by serving a period of imprisonment fixed in default. Many of those convicted will surrender on foot of warrants when there is likely to be a seasonal wane in trade.

It would also be beneficial if Clause 17 included powers of an authorised officer or constable, for example, to enter, inspect and examine any place where he has reasonable cause to believe that street trading is being engaged in.

12. Seizure Powers:

The Council notes that in drafting the seizure powers contained in Clause 18, regard has been paid to the requirements of the Human Rights Act and that the Department is satisfied that a council's exercise of these powers to seize articles being offered for sale and any receptacle or equipment being used for the purposes of sale, could be defended as not being in contravention of the Act. The Council, however, continues to have concerns in this regard and would therefore request that the following matters be given the closest consideration so as to ensure that the legislation, when enacted, includes effective and appropriately integrated seizure and forfeiture provisions. The Council is particularly concerned that references in the Bill to seizure of articles, equipment, etc, which may be used as evidence in any proceedings should not limit the quantity or range of things which may be seized from a person who appears to be trading illegally, and, upon whose conviction, may become the subject of an application for forfeiture. The Council would wish to draw attention to the provisions of the Royal Parks (Trading) Act 2000. The seizure powers in this recent Act do not explicitly associate the seizure of things with the collection of evidence.

Clause 18 does not provide for powers of detention similar to the Consumer Protection Act 1987 or the Royal Parks (Trading) Act 2000. This clause may also require a reference to stored goods. Also it is suggested that a notification of seizure and notice of intention to apply for a forfeiture order should be given to any person suspected of having an interest in the goods seized.

C.18(1)(c) "Receptacle" includes a vehicle, trailer or stall but it is not clear if the power to seize extends to a vehicle which has been, or will be, used to transport goods and is, say, parked beside the stall.

13. Clause 19(5) may have liability implications for district councils if goods sold were unsafe, stolen or counterfeit.

14. A query arises in relation to Clause 19(6) as to what happens to seized goods if the owner cannot be traced. Provision should be made for the district council to apply for a forfeiture order in such circumstances. This is similar to the powers in the Consumer Protection Act.

15. Clause 21 - Other Offences

Clause 21(a) should be contained within Article 17. The words "without reasonable excuse" are unnecessary and undesirable as the reasonableness or otherwise of non-compliance with licence conditions is left to the subjective view of a court. The defence of necessity is open to any criminal charge whether the offence would be statutory or at common law. "Without lawful excuse" would be better.

Clause 21(e) should include Constable.

16. Clause 24 - Employment of assistants

The Council refers to its previous comments in this regard at paragraph 4, in its comments about clause 8 and believe that clause 24(3) should be amended.

Top