6 Jan 2013 – BIS invite views on URN but have already made decision
Simon wrote to pedlars.info 6 January 2013… see pedlars.info reply below:
Hello,
This is kind of complicated but bear with me.
1) BIS have stated that they have to comply with the services directive and have to repeal the the Pedlars Acts as a result of their interpretation of it.
2) They have invited those places with Private Law to review their legislation, but have not obliged them to have to comply with EU legislation, we do not know who will have to oblige them if they do not comply, HMG will not we presume, that leaves us through the courts, disproportionate burden on us a citizens?
3) They have stated in their impact assessment:
“What policy options have been considered, including any alternatives to regulation? Please justify preferred option (further details in Evidence Base)
Option 1- Do nothing: However this is not a realistic option as we are obliged to comply with European law, which requires us to change conflicting national law.
Option 2 (Government’s preferred option) – Repeal the Pedlars Act in its entirety, and amend several provisions contained within Schedule 4 to the LGMPA – this will be done using section 2(2) European Communities Act 1972( ECA) regulations.
No other options are presented as we believe this method of compliance with the Directive is the only possible option. However we invite views in the consultation.”
4) I fail to see the second underlined sentence in the recent consultation document
5) Does the first sentence underlined law apply to both the repeal of the Pedlars Acts and amendments to LGMPA?
6) If not, which one is it, the first or later?
7) This we do not know, because the wording is not precise, but the use of the word “and” would imply that both will be ammended using section 2(2) European Communities Act 1972( ECA) regulations.
In other words, we need to know which UK legislative vehicle (first underlined) do they intend to use to repeal the Pedlars Acts and amend the LGMPA?
8)Without knowing this basic fact in law, we cannot make any reasonble judgement that they are correct in law and that they are or are not acting Ultra Vires by the application of such law.
9) If infact thay are correct with regards the civil statute of the Pedlars Acts and LGMPA, then how is it that this section 2(2) does not then apply to those places with private law?
http://www.legislation.gov.uk/ukpga/1972/68/contents
All the best,
Simon
Pedlars.info replied 7 Jan 2013:
Simon
Thank you for raising such an important question with pedlars.info.
Such concern goes to the root cause of this fiasco that BIS calls a ‘consultation’ but is more akin to an insult… ation.
Pedlars.info point of contact at BIS Rachel Onikosi willfully & in writing denied those in her department any knowledge of pedlar’s proposals for continuing the original Policy Option that evolved between 2009 and 2011 and as substantiated within the Services Directive by BIS Kevin Davis 4 November 2009 as follows:
“We think that the requirement to have a pedlar certificate is a proportionate measure
justified by the need to ensure that those with a criminal record are not
allowed to sell services on the street and that consumers are able to know
who it is that is selling the service so they can seek redress if something
goes wrong”.
Pedlars during that period consulted directly with BIS throughout URN09/1074 and URN11/542 but more recently neither Onikosi nor Norman Lamb MP have responded about the dramatic policy shift revealed in BIS 2009 justification for retention of the Pedlars Act to 2012 repeal.
Onikosi failed to inform pedlars that an Impact Assessment 12/606 even existed when notifying them of URN12/605 on 23 November 2012.
This fallacious 11 page waffle only satisfies the obligation to attach an Impact Assessment but there is no verifiable substance.
Your point 3 reference to the Impact Assessment reveals BIS denial of pedlar stakeholders Option 3 alternative that is consistent with a proper reading of the Services Directive Article 9 being “the objective pursued can be attained by less restrictive measures”.
Pedlars have shown BIS how the “residency and good character” concerns can be resolved firstly by proper interpretation and by simple amendment.
“That no other options are presented” is a fabrication amounting to a LIE at the root of this latest BIS URN.
Pedlars submitted an other option to Lamb and Onikosi some 6 months prior to URN12/605&6 requesting it be included in the consultation.
BIS failure to read and properly interpret simple plain English has been a consistent theme from BIS since the Services Directive was published in 2006.
Pedlars.info has responded to your last point 9 about the constitutional conflict between public law and private law.
Government hides behind a veil of parliamentary protocol by having no opinion about private interests abusing the parliamentary process.
Nothing in URN12/605 resolves that constitutional crisis.
BIS’s Branton submission to Lords on the question of compatibility with the Services Directive admitted “all Street Trading legislation is already ILLEGAL”.
The legislature has powers over national law but no powers over private law so any economic opportunity for pedlars on a national scale is less than half under the adoptive LGMPA and more than half under PRIVATE LAW.
Stakeholder pedlars will be left to battle with zealous LA’s and the will of the judiciary in court.
What is fair… or proportionate… or balanced… in that?
And how can this “continue to protect the rights of genuine pedlars to operate… and… be free to trade with the minimum of restrictions”?
The more one researches this subject the more one realises the mischief in this department of crushing Buisness, stifling Innovation and prohibiting Skills.
Please keep pedlars informed of your on-going research.
I trust you will allow pedlars.info to publish this exchange online.
Robert
robert@pedlars.info