City of London (Various Powers) Bill
February 26, 2013
Mark Field (Cities of London and Westminster) (Con): I beg to move, That the Bill be now read a Second time.
The Bill would make some relatively minor changes to street trading controls in the City of London and to the law on the walkways within the square mile. The only place where street trading can take place in the City is on Middlesex street, as part of the famous Petticoat lane market. The limitation on street trading can be traced back over a century and is reflected in the City’s current local legislation, which confines such activities to the street market on Middlesex street.
The reason for the City’s particular code lies in its demography—it is primarily a business area, not a residential one—and the unique demands that that imposes. As hon. Members will be well aware, the City was not always almost entirely a place of offices and of the commercial sphere. Until the rise of the railways, it was a significant residential area. It was home to more than 130,000 residents in 1801, but there was a precipitate drop as the railways emerged in the 1830s and 1840s, and the impact of the second world war, in particular, ensured that much of the residential population is now in the Barbican area.
However, London’s attractiveness as a tourist destination and the greater accessibility of the St Paul’s area via the Millennium bridge from Tate Modern at Bankside brings large numbers of tourists on a daily and hourly basis from south of the river. That has meant an increased demand for retail development around New Change and some retail development in the Broadgate area, and I suspect that before the world is too much older there may yet be further retail development in the area around Aldgate. It is development in the area around St Paul’s cathedral, in particular, and the New Change area adjacent to it, that has prompted a review of the existing code. The aim has been to try to meet the needs that the changes are generating while at the same time preserving the essentially business environment that the City needs in order to prosper.
In consequence, the City of London corporation now wants to utilise the Bill to liberalise the regime in two specific respects. First, the Bill is designed to enable temporary street trading licences to be issued to enable the use of public thoroughfares, such as Cheapside, for street markets and similar events. The new retail development at New Change, beside St Paul’s, aims to attract shoppers not just during the week, but at weekends. It provides a particular prompt because such liberalisation would enable promotional activities to be held. Of course, the timing of such events would have to be carefully managed because, as is well known, the City is relatively empty on most weekends.
Secondly, the Bill would allow ice cream and related products to be sold outside food premises. That, too, is prompted by increased tourist demand, particularly in the vicinity of St Paul’s. It is difficult to imagine the consumption of ice cream as an attraction at the moment, given the cold winter we are having, but I hope that it will be only a matter of weeks or, being pessimistic, months until that will prove extremely welcome.
These new regulatory changes are balanced by provisions for more effective enforcement of the street trading controls, including an increase in the maximum fine to the level that applies elsewhere in London and extension into the City of the powers available in other London boroughs to seize goods and property used in connection with unlawful street trading. I am well aware that that power of seizure may not be liked by all colleagues, even by some of my hon. Friends, including my hon. Friend the Member for Christchurch (Mr Chope). However, it reflects the powers that are available in the rest of London, although I should point out that it does not go as far as the powers that are available in the City of Westminster or even in the London borough of Wandsworth. I am sure that my hon. Friend is well aware of those powers. Street trading in the City is very limited in scope, but where it does exist effective provisions are needed to control it.
Mr Christopher Chope (Christchurch) (Con): My hon. Friend will be aware that other Bills recently debated in this House, including the Nottingham City Council Bill, the Canterbury City Council Bill, the Reading Borough Council Bill and the Leeds City Council Bill, all contained similar provisions to those contained in this Bill, but they were cut out when those Bills were considered in the other place, and those amendments were accepted by this House. Why is the City of London holding out against this?
Mark Field: As I said, there is a case to be made that the City of London is a different sort of local authority in a different sort of area given the preponderance of office space rather than residential space and its character as a business quarter. The corporation has tried to ensure that we encourage tourism. It is obviously in everyone’s interests to have a large amount of tourism throughout the UK, and attractions such as St Paul’s cathedral will remain of global importance. However, there is also a recognition that the square mile—the area of the City of London—is rather unusual in this regard. Therefore, the very limited changes proposed in the Bill should apply to the City despite the great efforts that my hon. Friend has made to ensure that such changes are not made in places as far flung as Reading, Canterbury and Nottingham.
These powers are intended not least to deal with the problem of ice cream vans trading illegally in the City—a rather small category of pedlarship, as my hon. Friend will recognise. These illegal traders have given rise to numerous complaints from the public, from schools, from businesses, and indeed from the chapter of St Paul’s cathedral. The City has brought cases against some traders, but the maximum fines that can be imposed have not, on their own, been adequate to deter this activity. That is why we are moving beyond the idea of a maximum fine to try to create a new power of seizure so that we can properly enforce the rules that are already in place.
The reason why prosecution is such an ineffective means of dealing with these things is that the fines are so derisory. The fine is currently set at level 2—only £500—and we are trying to raise it to the new maximum level of £1,000. However, even at that level it is so nugatory that the power of seizure would be more effective. As my hon. Friend is aware, the sheer cost of starting a legal action is outweighed manifold by the moneys that can be brought in through fines.
The European Union services directive has been raised in connection with the Canterbury City Council Bill and other recent local Bills. I thought that it might be helpful if I went into that in a little more detail than I had intended at this stage, having been prompted to do so by a brief discussion with my hon. Friend earlier. As Members are well aware, the EU services directive came into force on 28 December 2009. In respect of the City of London, the Department for Business, Innovation and Skills accepted in correspondence some two years ago that the general prohibition on street trading can stay. It stated:
“We think that, by virtue of recital 9 to the Directive, there is a reasonable argument that a complete prohibition on street trading, as is the current situation in the City, except in respect of Middlesex Street is not caught by the directive at all (and so does not need to be analysed against the requirements of the Directive).”
Baroness Wilcox raised three issues on Second Reading in the Lords. One of them is pertinent to this debate and I will put it on the record, because I know that my hon. Friend would want to address and it would make sense for me to do so now rather than in response to further interventions. The issue is whether a provision restricting ice cream street sales to a business occupier might indirectly be discriminatory against temporary service providers who have no established premises in the UK. I accept that this remains a live issue to an extent.
BIS set out some of the concerns in correspondence in July 2011 and suggested that most business occupiers in the City would be UK nationals or companies, and that the provision could therefore be seen to be indirectly discriminatory. The Department also recognised that for temporary service providers—in other words, someone who is not established here—the requirement is not likely to meet the directive’s necessity and proportionality principles. Indeed, the Department suggested that we take independent legal advice on the issue and, following a meeting with BIS in September 2011, the City corporation sought the opinion of leading counsel, which was sent to BIS in the past few weeks. On 14 February, BIS indicated that it “may disagree” with the opinion and confirmed as much on 19 February, but without giving any reasons beyond stating that the opinion had not changed its view that clause 9 is likely to be considered as indirectly discriminatory in the context of service provision.
I hope the House will forgive me if I go into some detail, not just on leading counsel’s case, but more importantly on why we feel that this issue could and should properly be dealt with in Committee rather than by delaying this Second Reading. Leading counsel’s advice was, in summary, that the intended beneficiaries of the Bill are sellers or suppliers of food who are being allowed to trade a little way outside the premises that they occupy, that the commercial activity taking place in the street is a spill-over from that which is carried out in the associated premises, and that it is, therefore, clearly distinguishable from the right to sell ice cream as a street trader. As a result, such activity is subject to provisions on the freedom of establishment in the EU services directive. The counsel further advised that that is compatible with the provision in the services directive, as there is no restriction on who may open a food business in the City.
Likewise, the Bill does not make it any harder to open such establishments. In fact, many of the food businesses in the City of London are operated by nationals of other member states. Indeed, anyone who has tried to buy a coffee or a sandwich in a shop in the City will know that it is almost impossible to find anyone who is not a national of another state working in such an establishment.
For the specific purposes of this Second Reading, we strongly believe—I hope that this will satisfy my hon. Friend—that this does not affect any of the Bill’s provisions, particularly the provision of temporary street trading licences, about which I will say more in a moment. Therefore, the corporation will seek the views of businesses and discuss the issue with them. As has been said, similar elements were struck out of Bills relating to Canterbury, Reading and Nottingham, but we feel that there is a special case for the City of London and, given counsel’s opinion, we hope that we will prevail in Committee. This matter has been properly considered and should be fully examined in Committee. It should not delay the relatively smooth progress of the Bill through Second Reading.
Mr Chope: I am grateful to my hon. Friend for his full explanation of the issue, but does he share my concern that a European Union directive has been incorporated into United Kingdom law and that the implications for cases such as this are not at all clear?
Mark Field: I very much share my hon. Friend’s concern about the lack of clarity and about the fact that, given that this has been in play for three years, the implications were not addressed in advance. Too much legislation from Europe seems to get through on the nod and the problems of compatibility only become apparent at a later stage. As I have said, a question remains, but we have received strong advice from leading counsel and hope that we will prevail on this matter when we examine it in Committee.
We feel that this is a useful, minor liberalising measure that will be welcomed by those who work in the City and the countless hundreds of thousands of people who visit the City daily. The tourists come in their millions every year. I make the pledge to my hon. Friend the Member for Christchurch that I will be happy to table an amendment in Committee, in conjunction with the City corporation, if it appears that the advice that we have had from legal counsel is contrary to the EU services directive. However, I hope that we can proceed with the Bill even though there is a small element of doubt in relation to the directive.
Mr Chope: To clarify, is my hon. Friend saying that the discussions on this matter will take place before the Bill is considered in Committee so that there is time for it to be amended to reflect the outcome of those discussions or is he saying that any amendments will be made subsequent to Committee stage?
Mark Field: The Committee stage is clearly not imminent, so there will hopefully be time for fully fledged discussions in which the corporation can make its case robustly, given the opinion that we have received from counsel. That will provide the opportunity for amendments, but one would hope that they will not be needed and that the case can be smoothed over in advance of Committee stage. I will willingly do that on behalf of the corporation to try to get the Bill through the Committee stage, whenever such further proceedings can be arranged.
I believe that the corporation is right in its view that the street trading provisions in the Bill are consistent with the directive. The Government, in the shape of Department for Business, Innovation and Skills officials, have indicated that they are content on two of the three main points that have been raised, although they have recently expressed concerns about the third point, which we have already discussed. Clearly, it would not be in anyone’s interest, least of all the City corporation as promoter of the Bill, to do anything that could reasonably be regarded as contrary to EU law. We therefore need to get clarification on this matter.
I will go through the Bill in a little more detail. The substantive provisions begin with clauses 3 to 5, which make provision for temporary street trading licences. Those licences will last for up to 21 days and may be granted for any area in the City other than Middlesex street. The organisers of an event would be able to apply for a licence on behalf of any number of street traders.
Clause 6 will bring the maximum fine for illegal street trading in the City into line with the rest of London. Currently, the maximum fine in the City is a level 2 fine of £500, whereas for the rest of London it is a level 3 fine of £1,000. That is a straightforward measure to harmonise the situation.
Clause 7 provides for the seizure and forfeiture of vehicles and goods used for the purpose of unlawful street trading. As I have said, this is in substance the same set of powers that exists in the rest of Greater London under the London Local Authorities Act 2007, which introduced a new enforcement regime into the street trading code laid down by the London Local Authorities Act 1990. Seized property may be forfeited to the court or sold to meet an award of costs on the conviction of a person for the offence. Otherwise, it must generally be returned to the person from whom it was seized. Provision is made in the Bill for the disposal of property that cannot be returned and for compensation for any unlawful seizure. Special provision is made for the return or disposal of motor vehicles or perishable items. Clause 7 also enables a fixed penalty notice to be given for illegal street trading, as can happen in the rest of Greater London and areas outside the capital.
Clause 8 will end the need to enact a byelaw to vary the charges that apply to street traders. That procedure is so cumbersome that the charge for street traders in the City has remained unchanged for the past 24 years. It seems to me that only MPs’ salaries have remained unchanged for the same length of time. Perhaps I am exaggerating slightly. However, the charge has remained unchanged at £15, which contrasts with the charge for street trading imposed in, for example, the neighbouring Tower Hamlets, which is £32. I should say that Middlesex street is bisected by the boundary—it runs from north-west to south-east, and the southern side is in the City of London and the northern side in Tower Hamlets. It would make sense to harmonise the charges.
Mark Field: I have been regularly to Petticoat lane, mainly before my time as a Member of Parliament, and it did not strike me that there was an immense difference at that time, although that was some time ago. Notwithstanding the different charges, there did not seem to be a particular disincentive to have a stall in Tower Hamlets rather than in the City of London. I should perhaps stress to my hon. Friend that the charge is designed only to reflect relevant costs, but having been set at £15 since 1989, putting it up to £32 does not seem a huge imposition on those who would trade on the City side of Middlesex street.
Clause 9 will enable food premises to sell ice creams from stalls or dispensers on the public highway outside the premises. If approved, a stall may be set up within 15 metres of the business premises. That distance was chosen as a reasonable outer limit given the nature of the public areas in which the sale of ice cream might take place. If a location closer to the premises were deemed more appropriate by the House, I believe that could be set out by the corporation.
Finally, clause 10 will make two small changes to the law on City walkways. I should say that walkways are neither footpaths nor highways in the conventional sense but private access ways over which the public are given a right to pass on foot. The concept was initiated by the City in a private Bill enacted as long ago as 1967. Walkways are found, for example, in the Barbican. In the immediate aftermath of the second world war, as part of the rebuilding following the bombing, there was the dream of creating the Barbican, and indeed the dream of creating a business district within the City of London with relatively few residents. Pedways were envisaged at first-floor level, not just in the Barbican but beyond. The clause will enable the corporation to impose a charge to recoup administrative costs incurred whenever a landowner requests a new declaration or a variation of a walkway. The second element of clause 10 will enable a fixed penalty notice to be issued when there is unlawful parking on a City walkway, as already occurs when there is unlawful parking on a footpath.
The Bill is a modest measure aimed at relaxing the existing street trading code in the City of London to provide important flexibility. It will enhance the attractiveness and vitality of the City both for its residents—for the first time in more than two centuries we saw an increase in the residential population of the City of London in the most recent census—and for those work in and visit the City. As I have said, the emergence of New Change as a new shopping centre means that the City will become a more attractive place over weekends, and more and more shops there are open on Saturdays and Sundays. I therefore ask the House to give the Bill a Second Reading.