A council seeking to ban the sale of smoking goods from its prestigious new market complex has been warned by lawyers the decision is “legally defective” and “unlawful” with the authority accused of interfering with ancient rights.
Barnsley Council intends to stop the sale of smoking related goods in the market of its new Glass Works centre when traders move in later this year, but the authority has now been accused of overriding centuries old rules surrounding markets. Barnsley was granted its markets charter in 1249.
Solicitors acting for traders have now written to the council warning its plans to stop existing market traders from continuing to sell smoking related goods when the new premises open later this year is in conflict with rights which, they say, allow both traders and customers to buy and sell goods in the market.
They have also unearthed details of a legal case from 1974, where a trader successfully challenged a decision to exclude him from the market and say “similar principles arise”, with law firm Bury and Walker stating: “The Court of Appeal previously held that the Council had acted unlawfully because they had overstepped their powers; as again their actions interfered with the same ancient rights.”
Barnsley Council will be responding to the letter within days.
The authority is in the process of regenerating the town centre with a combination of the new Glass Works retail and leisure complex, a state of the art library building and a network of new public spaces and a town square.
Their objective is to weld those developments into plans to improve the town’s health, encouraging healthy eating food outlets and extending its work to reduce smoking, which pivots around putting tobacco use out of the sight of children, so they have no ‘role model’ to follow in future.
The result is a ban traders selling smoking related goods at the new Glass Works and the council has previously stated it will help any affected by the change to change their business, but according to the solicitors, the ban will deprive “a number of traders of their livelihoods” with no compensation from the council.
They say one has been told there is no point in applying for a stall in the new market because of the articles she sells, with another threatened with having to stop selling materials used by smokers when the Glass Works opens.
The Barnsley Group of the NMTF have argued the council should have opted for a new market byelaw to formally introduce changes, which would have allowed scrutiny of their actions, arguing the council’s current stance limits public freedom.
Barnsley Group chairman Keiron Hunt said: “We intend to contest this ban vigorously.
“It interferes with the liberty of customers to buy tobacco and E-cigarettes where they choose.
“If the cannot buy them in the market they will simply go somewhere else to make their purchases.
“It will destroy the livelihoods of small traders in favour of big companies who will get the business instead.
“Our legal advice is that the council have gone about this in completely the wrong way.
“The council are claiming this has been done to promote public health but recent medical research has shown that E-cigarettes can help people to stop smoking.
“The council have yet again overlooked the special laws that apply nationally in markets. The law simply does not allow them to override these rights without following the correct statutory procedures.”
Coun Roy Miller Barnsley Council’s Cabinet spokesman for Place said: “The council has very recently received a solicitor’s letter sent on behalf of representatives from the NMTF Barnsley group indicating a proposed claim for judicial review. The council’s lawyers will be responding formally to that letter within 14 days and it would be inappropriate to comment further at this stage.
“We wholeheartedly believe that the policy serves the wider public in working towards a smoke-free generation by 2025. It is important that we take the lead on our smoke-free generation pledge. We have already introduced zones in the town centre, including in front of the market, and we were the first northern town to have an outdoor public space in its town centre that is a smoke-free zone.”