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25 November 2015 - Oxford PSPO affects pedlary PDF Print E-mail

In November 2015 pedlars.info was informed about an Oxford PSPO that affected pedlary in Oxford.

The following is a chronology of communications that remain unresolved.

Scroll to the bottom to begin the communication.

 

As at todays date 2 June 2016 Oxford has not replied.

 

On 30 March 2016 pedlars.info wrote:

Dear Mr Smith

Your reply 23 March 2016 by email

Pedlars are concerned about interpretation of the PSPO para 1(f) because they report regular interference by enforcement agents who are quite ignorant about lawful pedlary.

An enforcement agent that is overly zealous about enforcing the PSPO para 1(f) but at the same time ignorant of pedlary law may attempt to interfere or restrict a pedlars activities by any of the PSPO criteria which are:

1 remain in any location for more than 10 minutes unless it is to complete a transaction

2 locate themselves within 50 metres of their previous location

3 return to any location already occupied in the last three hours

4 obstruct the highway or shop entrances

Pedlars require an explanation about how it is proposed to enforce para 1(f)?

You have cited 'recent case law and government guidance' together with 'the modern legal position'.

Please provide scrutiny reference to the exact precedent.

Please provide scrutiny reference to the government guidance document.

Please provide scrutiny reference to the modern legal position.

Contrary to good intent the PSPO in pedlars opinion fails to provide said benefit or lawful protection to either themselves or to the public.

It appears that you are less than legally informed about the correct terminology that should have been applied to the title of 1(f) which reads:

f) No person trading as a pedlar shall:

etc

The correct legal terminology should have been written and should be revised to the following:

f) No person trading in public shall:

1 act as a pedlar without lawful authority

2 act as a Street Trader without lawful authority

3 act as an illegal trader

or

4 act without lawful authority

We urge you as legal advisor to Oxford City Council to advise Council that the Pedlars Act being Statutory law makes no provision for conditioning the activities of a pedlar and the PSPO para 1(f) is therefore ultra vires. Should you have no authority to retract and amend the PSPO then for the remaining duration of the Order Enforcement agents should be obliged to disregard any enforcement action relying on para 1(f). 

The principles of Certificated Pedlary are not the same as the principles of Licensed Street Trading.

I look forward to your further engagement with this important public matter so that pedlars.info may publish a resolution.

Yours sincerely

Robert Campbell-Lloyd

admin pedlars.info

 

 On 23 March 2016 Daniel Smith wrote:

Dear Mr Lloyd,

Thank your email of 22nd March.

If it’s helpful I can confirm that I was referring to the 1871 statutory definition of ‘pedlar’ rather than lawful pedlary entirely.

The Public Spaces Protection Order does not seek to prevent lawful peddling. The criteria in the PSPO are designed to reflect the modern legal position on pedlars and give understandable guidance to traders and enforcement agencies. The Order is intended, among other things, to help alleviate the significant nuisance problems caused by unlawful pedlars and traders in Oxford city centre - to that end it should benefit lawful pedlars as well as the wider public.

The PSPO came into effect on 1st February 2016, the period for appealing having expired. The duration of the order is currently 3 years.

Daniel Smith | Lawyer 

 

on 22nd March 2016 pedlars.info responded to Oxford Legal Services:

Dear Mr Smith

Your reply 9 March 2016 by email

Thank you for your reply to our correspondence with Councillor Sinclair.

We are concerned and therefore obliged to respond to the three points you make as follows:

The criteria in paragraph 1(f) do not originate directly from statute.

Thank you for correcting Councillor Sinclair's misunderstanding that the PSPO 1(f) is not the definition of a lawful pedlar.

The legal status of ‘pedlary’ as set out in the Pedlars Act 1871 is archaic and not particularly helpful to traders or public authorities in the modern era.

Your opinion about the Pedlars Act is legally irrelevant

Pedlars would be grateful for your substantiation about what you consider is "archaic or unhelpful" about a pedlar's legal status as set out in the Pedlars Act. For a pedlar's professional trade it is perfectly current, clear and helpful.

You may be referring to some descriptions of a pedlar's trade circa 1871 but Parliament was sufficiently wise to incorporate another description in "or other person" to cover an ever evolving type of trading activity.

Paragraph1(f) derives from clarification of the legal meaning of ‘pedlary’ provided by recent case law and government guidance.

This opinion is a false claim.

On the contrary the derivation of 1(f) is found in a government consultation policy URN12/605-606.

That same policy to repeal the Pedlars Act failed in 2014 together with the policy to incorporate pedlary within Street Trading Regulation as summarised in PSPO1(f).

When pedlars were alerted to the PSPO they were surprised that a failed policy proposal from 2012-2014 was ever adopted by Oxford City Council in 2015 as a legal meaning of pedlary.

Pedlars contend that neither 'recent case law' nor 'government guidance' provide substantiation of your opinion and will be pleased if you can provide reference links to verify your claim.

It appears that the PSPO has been wrongly drawn and is subject to misguided interpretation making it unsafe in law.

We invited Councillor Sinclair to table a motion to vary the order at the earliest possible convenience and we urge you to support that advice as a matter of public importance.

I look forward to your reply.

Yours sincerely

Robert Campbell-Lloyd

 

On 9 Mar 2016, at 10:23, SMITH Daniel wrote:

Dear Mr Campbell-Lloyd,

I have been asked to respond to your email of 28th January 2016 addressed to Councillor Sinclair.

The criteria in paragraph 1(f) do not originate directly from statute.

The legal status of ‘pedlary’ as set out in the Pedlars Act 1871 is archaic and not particularly helpful to traders or public authorities in the modern era.

Paragraph1(f) derives from clarification of the legal meaning of ‘pedlary’ provided by recent case law and government guidance.

Yours sincerely

Daniel Smith | Lawyer | Law and Governance Service | Oxford City Council 

 

On 28 January 2016 pedlars.info wrote:

Dear Councillor Sinclair

Oxford City Council - PSPO

Thank you for replying to my email.

Pedlars are grateful for your reassurance "that the PSPO is in no way intended to interfere with the traditional trading rights for pedlars".

They are also pleased that you have clarified Oxford City Council's understanding that the PSPO is not "an attempt to circumvent national laws".

Pedlars remain concerned about Item 1(f) which you say "is in effect the definition of a lawful pedlar".

To enable us to advise pedlars further please confirm the Statutory Legislation that provides the definition supporting Item 1(f).

We understand that both 'licence' and 'certificate' provide trading rights but they are quite different Authorities and both 'regulators' and 'the regulated' must maintain diligence regarding their principle differences. The use of casual language can so easily lead to misunderstanding.

I look forward to your earliest reply with the legislative reference.

Yours sincerely

Robert Campbell-Lloyd

 

On 27 Jan 2016, at 14:28, Councillor SINCLAIR Delia Mary wrote:

Dear Mr Campbell-Lloyd

Thank you for your email, and I am sorry for the delay in responding. I would like to reassure you that the PSPO is in no way intended to interfere with the traditional rights for pedlars, nor is it an attempt to circumvent national laws.

1f is in effect the definition of a lawful pedlar, so if someone doesn't contravene the provisions of the clause 1f they would be considered to be trading lawfully as a pedlar.

The use of the word ' licence' in this general context implies the right to do something. There is no requirement for a licence.

I do hope this helps.

Dee Sinclair

City Councillor for Quarry and Risinghurst

 

On January 18, 2016 pedlars.info wrote:

Dear Councillor Sinclair

We at pedlars.info have communicated with your council since November 2015.

Pedlars are concerned that the recently adopted PSPO is an attempt to circumvent national civil law and trading rights of pedlary. 

Your Mr Adams has not addressed the inaccuracies/anomalies in his responses and we therefore request that a competent person respond to the concerns so that they are registered and steps taken towards amendment as soon as possible.

We look forward to your earliest response so that we may inform the national pedlar community.

Yours sincerely

Robert Campbell-Lloyd

ps.We refer you to the latest Briefing Conference in London

 http://www.pedlars.info/bis-consultation/230-5-december-2015-briefing-at-bishopsgate-institute.html

 

On 18 January 2016 Oxford's Richard Adams wrote:

Dear Mr Campbell-Lloyd,

The person you are wishing to speak to is Cllr Dee Sinclair. 

The councillor is copied in on this email.

Best wishes

Richard

Community Safety Service Manager, Oxford City Council,

 

On 18 January 2016 pedlars.info wrote:

Dear Mr Adams

We have requested (below) contact details for the person you referred to as "the portfolio holder leading on this issue".

Please forward that information within the next 7 days.

Your sincerely

R Campbell-Lloyd

admin at pedlars.info

Begin forwarded message:

From: Pedlars Admin < This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it >

Date: 6 January 2016 11:54:50 GMT

To: "ADAMS Richard J" < This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spambots. You need JavaScript enabled to view it >

Subject: Re: Oxford PSPO enquiry

Dear Mr Adams

Thank you for your response but we are concerned that it does not address the issue that certified pedlars have with the text of the PSPO.

The PSPO Item 1(f) is headed by the following "No person trading as a pedlar shall" and then lists four conditions.

It is not correct for you to say that the PSPO relates to illegal street trading - there is no mention of illegal street trading in the document.

Item 1(f) clearly relates exclusively to lawful pedlary.

Your use of the word "licence" is inappropriate when referring to pedlary.

You are aware that the council issues licences for various activities and there is no such device as a council issued licence for pedlars.

The Crown via police issue "certificates" for pedlary.

These two distinctly different authorities are confused either by intent or negligence.

Contrary to your conclusion the current PSPO fails to provide a clear set of standards for pedlars and can mislead the public and law abiding pedlars.

We reiterate our contention that the PSPO requires amendment.

Please provide contact details for "the portfolio holder leading on this issue" so that we may engage further.

Yours sincerely

Robert Campbell-Lloyd

 

On 6 Jan 2016, at 10:11, ADAMS Richard J wrote:

Dear Mr Campbell-Lloyd

Thank you for your email which I shall make sure is seen by the portfolio holder leading on this issue.

The provisions in the PSPO you refer to relate to illegal street trading.  The city council supports pedlars and we have a number of people peddling their goods in accordance with their license.  Unfortunately these are vastly out-numbered by people who street trade without a licence, whilst claiming to be pedlars.  This is blatantly not the case as we have had a number of successful prosecutions against them.

We hope the PSPO is a deterrent that provides a clear set of standards for everyone using the city centre.

Best wishes

Richard

Community Safety Service Manager, Oxford City Council,

 

On 4 January 2016 pedlars.info wrote:

Dear Mr Adams

Oxford PSPO enquiry

Thank you for responding to this enquiry.

We are concerned that neither government nor pedlars were consulted.

It seems that the intention of the PSPO was to catch illegal/unauthorised traders but its scope catches genuine law abiding persons/pedlars.

As you know the national Pedlars Act concerns all pedlars throughout the United Kingdom and likewise any 'restraint of trade' Order on legitimate traders.

You will be aware that pedlary is an 'exempt trading activity' within the adopted LGMPA because it is self-regulating as a civil activity.

You will know that the most recent attempt by government to repeal the Pedlars Act failed and that the BIS attempt to restrict & regulate pedlars within Street Trading Legislation also failed so it seems surprising that your PSPO extracted and adopted vague elements of that failed policy proposal.

The PSPO item 1(f) may be considered an attempt to circumvent the national Pedlars Act, a civil liberty for 50 million adults in the UK, by the use of criminal sanction that infringes Article 1 of the European Services Directive implemented into UK legislation in 2009 -

“Member States may not restrict the freedom to provide services by applying criminal law provisions which specifically regulate or affect access to or exercise of a service activity...".

The affect of this Order may not be limited to "interested persons" as defined in the Schedule as it affects any pedlar who trades under the authority of a nation wide Pedlars Certificate and as such entitled to lawfully trade throughout Oxford City.

Please confirm that this concern will be drawn to the attention of all relevant persons in Oxford City Council and that action will be taken at the earliest convenience to strike out item 1(f) in a future variation of this Order.

In the meantime pedlars.info would like to publish an assurance to genuine pedlars that your authorised officers have been informed that item 1(f) is unsafe and that genuine pedlars acting as such under the authority of the Pedlars Act will be granted every courtesy whilst trading in Oxford.

We look forward to your response given that it has come to our attention that genuine pedlars acting as such during the busy Christmas period were not affected by the Oxford PSPO Section1(f). We trust this continues until such variation to the Order is implemented.

We look forward to your earliest response.

Yours sincerely

Robert Campbell-Lloyd

Note: pedlars.info is a not for profit open information portal that publishes relevant communications online to assist regulators and the regulated.

Since the first public conference on Pedlary in the City of London 5th December 2015 pedlars.info has begun working towards a "Guidance for Pedlars" document to assist government and all interested parties. We welcome your participation to ensure clear understanding of the Principles that differentiate Certified Pedlary and Designated/Licensed/Consent/Prohibited Street Trading.

 

On 27 Nov 2015, at 17:31, ADAMS Richard J wrote:

Dear Mr Campbell-Lloyd,

I have been forwarded your email to our legal department regarding the Oxford City Centre PSPO.  Permission for the introducing the Order was granted by the council’s City Executive Board on the 15th October and the papers can be found here.

The PSPO is designed to set clear standards of behaviour and one of the issues we face in Oxford city centre is illegal street trading.  The council support pedlars and a small number of people peddle their trade in the city.  However, we do have a large influx of illegal street traders, particularly during the summer and holiday periods who are not peddling.

I hope I have clarified the purpose and process that the PSPO underwent.

Best wishes

Richard

Environmental Protection Service Manager, Oxford City Council,

 

On 25 November 2015 pedlars.info wrote:

Dear Ms Brown

Further to my telephone message left for you todays date I herewith confirm that enquiry.

A draft PSPO has been drawn to our attention.

Please confirm the status of that draft as pedlars are concerned stakeholders and we on their behalf seek to be formally included in the consultation process.

Yours sincerely

Robert Campbell-Lloyd

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