2008 Sept – Pedlars/Berr/Durham

Consultation Report
of meeting between
Pedlars, BERR and Durham University
17 & 18 September 2008
Leicester & Manchester

The intent of this report is to recall some of the issues raised and to register positive solutions for the way forward.

A pedlar observation exercise in Market Street, Manchester enabled research into the views of the general public to objectively test the credibility of negative projection and propaganda by the promoters of private bills to prohibit pedlars. The public were consulted12-2pm and there followed a formal focus group meeting 3-6pm in chambers provided for the purpose at which pedlars identified themselves and accounted their activities, their interactions, their views, concerns and recommendations.
The Leicester meeting was a recorded focus group 3-5pm and unrecorded 5-7pm.

The following brief summary of issues [with proposed solutions in blue] reflects both days in no particular sequence:

1. PROCEDURE ISSUES:
• widespread mistrust of the evidence gathering procedure required addressing
• pedlars felt they were placed in a defensive role of their lawful rights
• they felt that the questionnaire was open to wide mis-interpretation
• the public was not being consulted and law driven by vested interests
• BERR advised that government, and not BERR, is responsible for policy and scrutiny of bills
• BERR advises government on legislative options and consequences
• Durham is contracted by BERR to gather evidence and research consequence of proposed legislation
• BERR reserves political opinion and comment on public bills and private business
• the voice of pedlars in government is through a pedlar’s MP
• a £20 option is open to individuals to Petition Parliament against bills – an  option that 3 pedlars are currently pursuing
• a min £50,000 option is open for Judicial Review through the Courts – an insurmountable reverse burden on most individuals

SOLUTION TO PROCEDURAL ISSUES:
• research about public experience with pedlars provides vital evidence in the General Interest – questionnaire to follow
• recommendation for another pedlar focus meeting for southern counties
• location – London, date – asap
• BERR expects research to be concluded and presented by mid-November
• thereafter BERR/MoJ consider legislative options & judicial consequences
• thereafter presentation to government minister – currently Gareth Thomas MP
• thereafter green paper on government policy circulated to stakeholders including pedlars who have registered in the consultation process
• thereafter white paper approved by government
• thereafter government proposes new public bill, or amendment to existing national Statute, or Parliamentary Guidelines if it considers existing national legislation is adequate but requires clarification for the judiciary

2. INTERPRETATION ISSUES:
• widespread misunderstanding and application of the existing legislation
• enforcement officers subject pedlars to personal opinions about the law
• misquoting of the law amounts to abuse
• widespread intimidation & harassment
• short term confiscation instils fear and incurs financial loss on perishables eg event merchandise
• pedlars who know the law suffer less
• everybody needs one place to go to get information – same hymn sheet
• pedlar’s legislation includes not only pedlars
• hawkers are also pedlars but different – they are ‘with a horse or other beast’ but a pedlar is ‘without a horse or other beast’ hence with or without cart or trolley
• petty chapman are also pedlars – an itinerant dealer who travelled about from place to place selling or buying; one who kept booths at markets etc; a hawker, a pedlar – uncommon parlance today but very common practice of modern business
• tinkers are also pedlars – originally itinerant tinsmiths, who mended household utensils – uncommon as we now live in a throw-away culture
• the final category of pedlar is “others”  –  means none of the aforementioned; distinct from the aforementioned or implied in them. The list includes – someone without a means of drawing burden; someone who is a traveller; someone who trades; someone who is a pedestrian; someone who goes anywhere; someone who is a salesman or craftsman; an entrepreneur; a person who has possession over a company, enterprise, or venture, and assumes significant accountability for the inherent risks and the outcome – a dynamic personality. For example: a performer and seller of small toys like balloons, sunglasses, umbrellas, event paraphernalia, kites, yo-yo’s, window creeper, whistle; a musician performing & selling music, an artist rendering and selling drawings, a poet reciting and selling written poems.

SOLUTION TO INTERPRETATION ISSUES:
• Government Guidelines on Statute, Code of Practice for Local Authority and Police re enforcement
• Public information website for Statute, Government Guidelines, National Pedlars Certificate Application Form, updates with local legislation at variance with National Statute
• Robert & Nic are currently compiling reference information under the title ‘’Government Guidelines’  – to be circulated shortly

3. CERTIFICATE ISSUES:
• inconsistency of format & method of issuing certificates leads to confusion
• some require photographs, others not
• some hand delivered to check residency
• some held up for weeks, some refused
• not many checks makes it too easy to obtain/forge
• not obligatory for Certificate to be visible
• NABMA recognise human rights issues and recommend concentration on local licensing
• control by local authority licence is limited to fixed pitches
• licences limit places, times, days, articles, etc – licence then easily revoked
• licences issued outside jurisdiction not recognised
• licences take weeks & months to issue but pedlars are spontaneous itinerants
• there is evidence of abuse of power by council eg products previously traded by pedlar under national statute, then prohibited following private bills, later traded by licensed traders endorsed by council eg Liverpool

SOLUTION TO CERTIFICATE ISSUES:
• Amendment to Pedlars Act 1871 Schedule 2 Form A and Form B
• Form A updated to include such strict scrutiny as with Licensed Street Traders and include: name & address, trade, age, NI number, public liability insurance number, criminal record check, 2 certified recent passport photographs, approval to register name and Pedlar Certificate number on national database
• Form B in similar format to identity card/driving licence, to contain name & address, trade, age, photograph, expiry date, Certificate number, all security sealed
• Amendment to Pedlars Act 1871, clause 4, add clause 5(3) There shall be paid for a pedlar’s certificate previously to the delivery thereof to the applicant  a fee of £100.00
• Amendment to Pedlars Act 1871, clause 8, add a third paragraph: “The entry in such register shall also be entered onto a national police database   and a public database [to be determined] where name and certificate number only can be verified
• Amendment to Pedlars Act 1871, clause 9, add second paragraph******* this work will continue later as we consider Pedlars Act amendments in full***********
 
4. EVIDENCE ISSUES:
• no provable evidence exists that genuine pedlars create problems
• no example of actual problem by genuine pedlars
• there is no dispute that rogues cause problems that need enforcement
• even under private acts rogues still operate with need for enforcement
• promoters rely on anecdote, prejudice & bias
• councils have been mislead by greedy parliamentary agents
• misquoting the law began in 1997/8 to enable Westminster bill
• NABMA 10 year campaign title “Repeal of Pedlars Acts”
• APPG & ATCM confirm that no pedlars have ever been consulted
• MP’s Chope & Liddel-Grainger have blocking motions against a second reading of the current bills in Parliament

SOLUTION TO EVIDENCE ISSUES:
• to extend MP’s blocking motion and to have current private bills thrown out, pedlars must write to their own local MP with their personal concerns because MP’s are there to represent constituents
• MP Ian Liddel-Grainger cites ‘lack of evidence’ in his submission
• MP Christopher Chope is yet to make his submission
• pedlars should ask MP’s to prevent Second Reading in the House of Commons reaching Select Committee stage before publication of evidence from BERR in mid November
• pedlars should hand out to their customers the A4 research document titled “A Public Questionnaire about Pedlars” available from g.f.allinson@durham.ac.uk

5. NEGATIVE PROPAGANDA ISSUES:
• lobby groups are responsible for negative, untruthful propaganda
• LGA lobbies for NABMA that pedlars are “criminal gangs”
• IOL infer that pedlars are unlawful/illegal
• Newspapers never report positive views

SOLUTION TO NEGATIVE PROPAGANDA ISSUES:
• BERR provides information/press release about research findings and circulates to media and stakeholders as with their announcement regarding the Durham research

6. LAW ISSUES:
• pedlars have no lobby representation to counter powerful private interests
• pedlars are individual lawful citizens
• Statute is being abused by private privilege in Parliament – private bills
• case ‘not proved’ that National legislation is inadequate
• private bills simply shift the burden onto private residents and/or other jurisdictions – eg Erskine May, Portsmouth Bill
• case to answer – why private bills infringe human rights without scrutiny by government
• case to answer – justification for infringing human rights
• case to answer – why government endorses collision in national/private legislation
• a pedlar is perceived a criminal in one place and not a criminal in another
• case not proved – that the description “or to other men’s houses”  is different to “door to door”
• preamble to private bills is negligent in non-recognition of The Pedlars Act 1881
• Sharpe Pritchard, Parliamentary Agents promoting private bills, interpret national Statute to include 400,000 direct sellers and all door-to-door salespersons as requiring a Pedlars Certificate – case to be heard – no legislation exists about direct sellers – DSA simply endorses an approved code of practice
• JCHR contend human rights issues require further scrutiny whilst declaring “no opinion on private bills”
• evidence exists that once power over pedlars is granted to Local Authority by means of private bills, they then abuse that power by applying unsound research to justify extending street trading regulation from control streets to the boundary of their jurisdiction – effectively prohibiting pedlars in the jurisdiction – case study – Leicester

SOLUTION TO LAW ISSUES:
• BERR provides information/press release about research findings
• Ultimately government produces detailed Parliamentary Guidelines
• Parliament issues guidelines with regard to private Statutes affecting pedlars
• Police upgrade national certificate application procedure with link to database of current registered Certificate holders
• Local Authority rigorously implement Lords Special Report about genuine pedlars by code of practice
• Issue of Certificate to include national information pack with direction to online information site

7. CULTURAL IDENTITY ISSUES:
• lobbyists are driving pedlars off the streets onto private dwelling houses
• other lobbyists are criminalizing door-to-door sellers
• pedlars are faced with no economic foundation
• the very concept of a pedlar as a cultural phenomenon is under threat

SOLUTION TO CULTURAL IDENTITY ISSUES:
• pedlars must choose whether to form an organization to enable their representation and what form it should take or to remain individual protectors of their own cultural identity
• some suggest a contribution from the pedlars certificate fee go towards establishing an organization that provides extensive current information for pedlars
• Government must decide if it is in the General Interest to abandon the cultural identity of pedlars by economic restraint of trade

8. MODUS OPERANDI ISSUES:
• ‘pedlars’ carry their goods on foot
• ‘hawkers’ have a small means of transporting their goods
• ‘petty chapman’ are hawkers
• ‘tinkers’ may be a pedlar or a hawker
• ‘mender of chairs’ may be a pedlar or a hawker
• ‘others’ in contemporary term are pedlars
• because all the above are consolidated in the Pedlars Act there is need for guidance about the scale and proportion of barrow, trolley, stall or transporting means that constitutes the term pedlar. What constitutes a pedlar no longer being a pedlar but instead constitutes an illegal street trader

SOLUTION TO MODUS OPERANDI ISSUES:
• street traders have a fixed pitch allocated by their street trading licence issued by local authority with usual space of 4m x 3m and stall of 3m x 2m
• genuine pedlars who are hawkers do not occupy an allocated, fixed space because they are itinerant and move about
• genuine hawkers accept a mobile stall no greater than 1m x 1m

REPORT END

Robert Campbell-Lloyd
22 September 2008