12 November 2013 – Cheshire County Council Act
On 11 December 2013 pedlars.info wrote to the Legal Manager at Cheshire West & Chester Council:
Dear Judith
The Profession of Pedlary
Thank you for providing copy of the Cheshire County Council Act 1980.
Pedlars.info will publish this online today at this link unless you have any objection by return.
As an administrator at pedlars.info my function is to assist all parties in clarifying legislation and to maintain ongoing consultation with government.
The CCP Team responsible for policy formulation at BIS requested a response to a House of Commons Standard Note to address perceived legislative anomalies with street trading legislation and it’s application. The article addresses principle matters referred to in this email.
With this in mind there is expressed concern about perceived anomaly in street trading legislation in the jurisdiction of Cheshire West and Chester Council as follows:
The CCCA Section 30 (2) provides:
“Any person who, in a place designated under this section – … (b) without the consent of the district council or in breach of any condition subject to which the council’s consent is given, hawks, sells or offers or exposes for sale any thing… shall be guilty of an offence…”.
The LG(MP)A Schedule 4 Street Trading provides at paragraph 1:
(2) The following are not street trading for the purposes of this Schedule (a) trading by a person acting as a pedlar under the authority of a pedlars certificate granted under the Pedlars Act 1871.
As a point of reference all concerned parties can rely on Pepper-v-Hart where interpretation of legislation is ambiguous or in this case anomalous.
The important principles that differentiate certified pedlary and regulated street trading are described in the linked article above.
The adoption of the LGMPA Schedule 4 to control licence holders in designated streets is a necessary preventative measure to avoid public liability from static obstacles licensed by local authority and placed on the highway where the public has unfettered access.
The Schedule lists nine trading activities that fall outside of local authority powers of regulation intended for street trading in designated streets.
The first exemption is the activity of certified pedlars who lawfully operate under the Pedlars Act of self-regulation with civil sanctions for alleged offences.
The national Pedlars Act provides authorisation that a pedlar may act “within any part of the United Kingdom”.
The local CCCA Section 30 and the LGMPA Schedule 4 have no impact on persons acting as a pedlar under the authority of a certificate.
By adopting the LGMPA Schedule 4 the local authority has relieved itself of any powers to regulate authorised pedlary.
That is not the case for persons trading in designated streets who trade without authority of certificate, consent or licence.
Any allegation by a local authority of an offence by a pedlar under Schedule 4 for “street trading without a street trading licence” ignores the certification authority of acting as a pedlar and constitutes an attempt to bring criminal prosecution for a civil offence in contravention of Article 1.5 of the European Services Directive.
In this respect your attention is drawn to evidence presented to parliament subsequent to implementation into UK law of the EU Services Directive under the Provision of Services Regulation Act 2009 that all street trading legislation in the UK is currently “unlawful”.
There is concern about the impact of mischievous prosecution under criminal sanction of street trading regulation because it can lead to a CRB listing with direct consequence that police use the CRB listing as grounds to refuse renewal of a pedlar’s certificate.
There is an unforeseen consequence in a recent unreported case that the certified pedlar is thereafter denied employment working with children on the basis of having a criminal record.
A pedlar’s certificate is issued under the Crown by police with responsibility for bringing a prosecution for any alleged civil offence for example ‘failure to act as a pedlar’.
There is no evidence that parliament ever intended street trading regulation to impact on pedlary but there is evidence that some local authorities seek unfairly to restrict pedlary.
Recent evidence to parliament on street trading regulation exposed the motivation by several local authorities to protect licenced street traders from “unfair competition” by pedlars and the desire to remove pedlars from city centres but the Special Report HL Paper 242 concluded “It is not the role of local authorities to decide what is or what is not unfair competition”.
The Report includes legislative acknowledgment of scale and proportion for a pedlar’s means of operation including volumetric capacity of 0.47 cubic metres for the trolley and 1.19 cubic metres for the display. Government has proposed volumetric capacity of 2 cubic metres.
These anomalies in interpretation and legislation are as you mention under review and pedlars.info have published a response to BIS proposed draft legislation and proposed Third Option draft legislation to amend and reform the Pedlars Act as a fair and proportionate solution for all concerned.
Please convey this communication with the links to assist your officers review of its own street trading position.
Please also request any specific reference material relied upon herein.
I trust that this communication provides assistance to your officers to ensure that the profession of pedlary is welcomed in the jurisdiction and we are happy to reply to any points raised so that we may inform others.
Yours sincerely
Robert Campbell-Lloyd
Roll B Parliamentary Agent
administrator at pedlars.info
cc Guy Morris
On 9 December the Legal Manager at Cheshire West & Chester Council wrote to pedlars.info:
Dears Sirs
Your query addressed to Guy Morris in the Council’s Licensing Department has been passed to me.
I attach for your reference an electronic copy of the above Act as requested.
The County Council Act 1980 is still in force and is in use in the City of Chester but not across the Borough as a whole. The Act was not repealed by the LG(MP)A 1982. Unlike the 1982 Act there is no exemption for pedlars under the County Council Act.
The Council is aware that the legislation is under review and I understand that officers are proposing to conduct a review of its own street trading position across the City of Chester.
Judith Bramhall, Solicitor
Legal Manager
Cheshire West and Chester Council
On 6 December 2013 pedlars.info wrote to Chester Council
Dear Mr Morris
Pedlary in Cheshire
We spoke yesterday and you agreed to email a name and telephone number for a person in your Legal Department.
It is disappointing that you are unable to provide me with copy of the legislation requested nor to follow through your undertaking to provide me with a legal representative point of contact in your council who can.
You said that council has taken independent legal advice but are not prepared to divulge legal justification for that opinion.
You mentioned your council’s concern about potential conflict of interest between the Cheshire County Council Act and the adopted Local Government (Miscellaneous Provisions) Act in regard to the exemption for persons “acting as a pedlar” and you were unable to enter into discussion with me but have raised the matter in council’s reply to government on the URN12/605-606 consultation. This will be made public in due course.
Pedlars are actively engaged on a daily basis with the CCP department at BIS and all communications are published regularly at the web-portal www.pedlars.info. There you will find many articles concerned with BIS findings in Select Committee that all street trading legislation is currently “illegal” under the European Services Directive and that includes the Cheshire County Council Act and the LGMPA.
Resolution of that problem is a separate legislative matter to pedlars proposals to amend the Pedlars Act and you will find helpful articles that resolve all conflicts between local Acts for regulating designated street trading and street traders who are also certified pedlars especially with the issue of interpretation.
We have sought your assistance to enable us to further the public consultation with government and with those affected.
You cannot not be aware that the latter legislation of the LGMPA specifically regulates static licensed street traders in designated streets and that by way of exemption pedlary is “not street trading for the purposes of Schedule 4”. As a licensing officer you must ask yourself why that is?
Pedlars were recently asked by BIS to respond to a House of Commons Library Standard Note that will assist in this respect.
https://pedlars.info/hc-library-reference-paper-snha5693
Pedlars who seek to trade in your jurisdiction have by contacting pedlars.info taken all reasonable precautions and exercised due diligence to avoid commission of a Schedule 4 Street Trading offence by obtaining a valid Pedlars Certificate and acting at all times as a pedlar.
This communication is held as evidence that may be used by any pedlary incident within your jurisdiction that comes to our attention.
Concerned pedlars have contacted us to take issue with misinterpretation of the legislation and the issue is of principle.
Yours sincerely
Robert Campbell-Lloyd
cc CCP Team BIS et al
On 18 November Guy responded:
Hi
I have passed this request to my Legal Department to locate the relevant legislation.
Guy Morris
Lead Officer Licensing Authority
Cheshire West and Chester Council
On 18 November pedlars.info responded:
Dear Guy
Thank you for responding.
Perhaps you can just send copy of any reference to pedlars within.
Has your LA adopted the LGMPA Schedule 4?
sincerely
Robert
On 18 November Cheshire Council responded:
Hi
At present we are unable to locate an electronic copy for you.
I have checked Legislation .Gov.uk and it is not available to purchase from them.
I will keep looking and let you know if I find a copy.
Guy Morris
Lead Officer Licensing Authority
Cheshire West and Chester Council
On 12 November pedlars.info wrote to the Chief Licensing Officer Chester Council:
Cheshire County Council Act 1980
I should be grateful if you can direct me to an online link to the Cheshire County Council Act 1980: c.xiii Part VI
If that is not available please send .pdf copy.
I am carrying out research into licensed and certified trading in public within the current government consultation.
Your earliest attention is appreciated.
sincerely
Robert Campbell-Lloyd
Roll B Parliamentary Agent
administrator at pedlars.info