14 February 2013 – Pedlars Act amendments as Third Option

 

GOOD POLICY!    

BREAKING NEWS 16 Octobert 2014 Ministerial Statement – GOOD POLICY wins over BAD POLICY – read more

The case for amending the Pedlars Act as the only “national” solution

Pedlar’s propose a “Third Option” to resolve all anomalies in Street Trading & Pedlary Law

Government is “consulting” on Street Trading & Pedlary Law to implement national legislation and end 15 years of piecemeal local legislation. The department for business BIS has considered 2 policy options – Option 1 “do nothing” &Option 2 “repeal the Pedlars Act” but has failed to present Option 3 “to amend the Pedlars Act”.

BIS is pursuing Option 2 to include restrictive regulation on pedlars within local street trading law. It is claimed that repeal fulfils the terms of the European Services Directive that aims to remove all barriers to free trade. The government’s draft legislation will infringe the European directive by introducing regulation to the existing free trade of pedlary by another route . The government’s choice is to use a Statutory Instrument following repeal of the Pedlars Act to amend the exemption for pedlary from Street Trading regulation within the adoptive Local Government (Miscellaneous Provisions) Act 1982 LG(MP)A Schedule 4. The effect on the 315 year old civil liberty of pedlary will give disproportionate powers to local authorities to bring criminal prosecution for perceived offences.

 

The government to date has ignored stakeholders’ legitimate expectations and it’s own original policy “to amend the Pedlars Act” but is now prepared to respond to pedlar’s alternative Third Option proposals.

Pedlars have been engaged in this consultative process since 2008 when the House of Lords considered 2 private bills directing that the promoters ensure that:

“genuine pedlars operating within this new legislation are not prevented from carrying on their trade“.

BIS has become its own worst enemy by failing to clearly set out the principle difference between Street Trading & Pedlary Law.

 

The Principle of Street Trading Regulation

 In 1966 government abolished licensing of hawkers and for 16 years hawkers (traders with large scale mobile stalls) used the Pedlars Act (that describes pedlar & hawker in the same terms) to avoid prosecution using the lawful authority of a pedlars certificate. Government in 1982 introduced regulation for licensed static street trading under Schedule 4 of the LG(MP)A with an exemption for pedlary. The principle aim of Street Trading Regulation was to prevent public safety concerns from static stalls causing obstruction of the highway but the legislation exemption for pedlary failed to address the scale and proportion of apparatus used by pedestrian traders. Westminster City Council in 1998 lobbied parliament for a private bill to remove all competition to licensed traders including pedlars admitting “bona fide pedlars have never caused a problem in Westminster but in recent years a number of hot-dog sellers have obtained pedlars certificates to try to avoid prosecution”. The Home Office rejected the promoters intended omission of an exemption for pedlary “on the grounds of Principle“that caused conflict between national and local legislation and “that any decision to change the way pedlars are regulated should be taken as a matter of national policy. The Secretary of State does not consider that it is appropriate to deal with controls on pedlars through ad hoc changes brought about through local legislation“. The promoters replied that “the removal of the pedlars exemption would have, in practice, no detrimental effect on genuine pedlars” but pedlary suffers potential victim status in all these jurisdictions.

The Principle of Pedlary Law

The Pedlars Act originates in common law enshrined in Statute in 1697, revised in 1871 & 1881. In today’s parlance the principle of the Pedlars Act is: “to provide common law privilege to any eligible pedestrian person to trade with complete freedom based on purely individual decisions”. That principle had not been meddled with until the City of Westminster Act 1999 attempt to restrict pedlars to trading only as door-to-door sellers. Following a decade of similar private bills the House of Lords most recent report clearly identified that the intent of these private bills has been to introduce “restrictions and sanctions [against pedlary] that were out of proportion to legitimate problems”. The report identified that the promoters interest in “protecting licensed street traders… to remove pedlars from city centres… is not the role of local authorities to decide what is or what is not unfair competition”. The report found no evidence of “customer complaints” and “rejected wholly… to stop pedlars displaying their goods”. However the Lords recognised and addressed the only failure of the LG(MP)A being to limit the scale and proportion of a pedlars apparatus.

Parliament has taken 31 years to resolve a minor but important legislative anomaly that began in 1966. The BIS response to Lords concern about discrepancy between local and national law is to propose draft amendments to the LG(MP)A that is “adoptive” local law and is not national law. Lords dissatisfaction with a piece-meal approach therefore continues because outside of the adoptive local Act jurisdictions are numerous local private Act jurisdictions and many jurisdictions that have no street trading legislation at all. The BIS proposed policy therefore fails any test for national resolution.

Stakeholders Proposed National Resolution

The Third Option

In June 2012 stakeholders took pro-active responsibility to propose amendments to the Pedlars Act that is the only national law different entirely from local Street Trading regulations which government and local authorities have confused and wrongly merged.

The Third Option proposed amendments to the Pedlars Act incorporates the principle of the European Services Directive to “promote balanced and sustainable economic & social progress… social protection… competitiveness… social cohesion… eliminate restrictions… give consumers wider choice and better service at lower prices… safeguarding in particular social, cultural values of society… preservation of national historic heritage… protection against sufficiently serious threat to human dignity… access to a service activity subject to non-discrimination, necessity and proportionality justified only by over-riding reasons related to the public interest”.

The Third Option amendments to the Pedlars Act incorporate the principle of the Human Rights Act to “prevent potential victim status” being legislated on any person.

Neither the then Under Secretary of State for BIS nor the nominated single point of contact at BIS for the government consultation URN12/605 & 606 have been willing to justify the dramatic 180 degree change in policy from “amendment” during 2008, 2009, 2010 & 2011 to “repeal” in 2012.

The Third Option draft amendments first submitted in June 2012 were updated in January 2013 and handed once again to BIS and are herewith presented for public scrutiny.

THIRD OPTION

	Amendments to national legislation the Pedlars Act.
Section 3	Interpretation of certain terms in this Act. “Pedlar”.
Section 5	Grant of certificate.
Section 9	Forms of application to be kept at chief police office.
Section 24	Reservation of powers of local authority.
Schedule 2	Form A – Form of Application for a Pedlar’s Certificate
Schedule 2	Form B – Form of Pedlar’s Certificate

 

Stakeholders contend that there are many benefits to be had by adopting the proposed Third Option amendments:

1. The Pedlars Actis the national legislation that by simple amendment can resolve national Pedlary Law;
2. The Pedlars Act is a national liberty similar to the vote, the right to use the highway or the right to national health;
3. The Pedlars Act is outside the remit of local authorities whose role is to ensure public saftety & public health;
4. The authority of a pedlar [bona fides – certificate] is issued by the Crown with oversight only by police;
5. The authority of a Street Trader [licence] is issued by the local authority with enforcement by council;
6. A pedlar is akin to any other pedestrian with 1 difference being the right to move about and trade in public;
7. An investment of less than 10 pence a day provides the micro-business of pedlary access to private contracts in public;
8. The profession of Pedlary is recognised under EU law – the Services Directive Recital 31 & Article 4.11;
9. Any restraint or repression of pedlary is against The Small Business Act for Europe that anchors the Think Small First principle in national policy-making enabling Member States to disregard the SD for any policy contradictory towards micro-enterprises;
10. Any attempt to repeal the civil right of pedlary and impose, through a different route, regulations with criminal sanctions on pedestrians trading in public infringes Article 1.5 of the Services Directive;
11. Providing guidance within the Pedlars Act on interpretation issues within private Acts resolves unwarranted pedlar prosecution;
12. Interpretation clarification can resolve anomalies between the Pedlars Act, the LG(MP)A, the LLAA & all private Acts without unecessary complication caused by attacking pedlary through circuitous street trading regulation;
13. Police income instead of being cut by £49,000 [BIS policy] increases to £170,000+ for certificate fee;
14. Local Authority enforcement budgets cut by unnecessary wages for officers employed to bully pedlars; 
15. Parliamentary time will no longer be required for pedlars petitioning against unnecessary private business;
16. Consumers will benefit from greater choice, fair competition & continued diversity in the cultural & economic life;
17. The General public will continue to benefit from the dynamic assistance that pedlars have historically contributed to society;
18. Children will benefit from their shopping experience from pedlar entertainment and low cost novelties;
19. High streets will no longer be monopolised only by greedy corporate business interests;
20. Entrepreneurs will have economic access to the public to test thier products & ideas for 10 pence a day;
21. Reduction in cost of unemployment benefits if applicants are encouraged into self-employment as pedlars;
22. The economic health of a nation is enhanced when government policy provides equal access to economic activity;
23. The spiritual health of a nation increases when government policy provides freedom with responsibilty;
24. The political health of a nation is enhanced when equality permeates all policy;
25. The foundations of good principle are a necessity in changing perception;
26. Realising that the Pedlars Act is unique, original & wonderful underlies the Third Option;
27. Pedlars Parliamentary Agents are willing and able to help BIS develop good policy and better legislation;
28. This list of benefits is a work in progress… please send further contributions to robert@pedlars.info

 

Clarification of Third Option amendments to the Pedlars Act:

1. Section 3 amendments clarify that pedlars are “service providers” within the terms of the SD Article 4.1;
2. Section 3 deletion of “hawker” in the description of “pedlar” removes the 47 year old loophole used by those whose apparatus is larger than that of a pedestrian trader;
3. Section 3 limit on the scale & proportion of the pedlar’s apparatus to no greater than those of a pedestrian provides discretion for pedlars to determine what means best expose their business ideas in public and enables just defence in court;
4. Section 3 adoption of the terminology of “ambulant trader” is consistent with European law emphasising the trader’s movement and ability to move;
5. Section 3 qualification of the description of “pedlar” with interpretation having effect on street trading legislation prohibits deviant or mischievous interpretation that is out of context as to what constitutes acting as a pedlar;
6. Subclause i clarifies the proper contextual interpretation of private Act amendment to the exemption for pedlary;
7. Subclause ii differentiates certified pedestrian means of trade from licensed static means of trade;
8. Subclause iii clarifies that pedlary may occur at premises adjoining any street and also throughout any street regardless of designation by local authority resolution for purposes intended to regulate static traders only;
9. Subclause iv enables pedlars who carry goods on their person to have complete discretion over their trading activity;
10. Subclause v imposes a time restriction on those pedlars [previously kown as hawkers] who with small means of carrying goods establish a short-period static location, reflecting case law and differentaiting pedlary as non-static from that of static licensed trading;
11. Section 5 amendments remove any anomaly with the Services Directive by deleting the residency, age and good character criteria and replacing them with criteria of personal references and photographic identity;
12. Section 5 amendment increases the cost of a certificate to reflect the true costs of police administration [to be assessed];
13. Section 9 amendment removes discriminatory need to apply in a person’s residential jurisdiction;
14. Section 24 amendment restricts powers of local authorities to introduce private bills/Acts intended to abuse pedlary through circuitous local Acts intended for regulating static street trading;
15. Schedule 2 Form A amendments update the application for a pedlar’s certificate;
16. Schedule 2 Form B amendments update the Pedlars Certificate to reflect best practice introduced by Dorset Police in consultation with pedlars in 2011.

Pedlars of foodstuffs are aware that police and councils confuse the meaning of Section 23 of the Pedlars Act and the matter has been investigated thoroughly in this link and in this update. What follows is a proposed Subclause vi to Section 3 above:

Section 3

Subclause vi amendment provides proper interpretation of Section 23 of the Pedlars Act. 

end

pedlars.info