Pedlar Response to the interpretation issue
This article was sent to pedlars.info by the producer of pedlars.info video and explains in layman’s terms how a pedlar may responsibly act as a pedlar in such private Act jurisdictions as Westminster.
An Interpretation of the Westminster Act (and others)
& preparatory defence by a Pedlar.
In 1996 the City of Westminster produced a report that stated “Bona fide pedlars have never caused a problem in Westminster…”
In 1998 a report by the Secretary of State objected to the omission of an exemption for pedlary in the City of Westminster Bill. Westminster then added the exemption with the qualification if the trading is carried out only by means of visits from house to house.
So why have they added the qualification “house to house?”
Why not simply state that pedlars are or pedlary is exempt?
It is quite simple. Westminster did not want rogue traders to show up in any given street, set up a stall or shop and remain there trading from a fixed pitch without being licensed.
A number of rogue traders decided they could wave a pedlars certificate at the officials and this became a nuisance. It was also costly to take all these rogue traders to court and they could sometimes have big stalls objected to by licensed street-traders who had paid to do the same thing.
So does “house to house” mean that pedlars can still trade in the street? How come?
Well, here are the reasons why:
(remember the Secretary of State requested that pedlary remains exempt)
The Pedlars Act states that a pedlar travels from town to town or other men’s houses, in other words he goes from one place to another (wherever those places may be) whilst trading.
A pedlars certificate is valid nationwide, and the Pedlars Act applies to the whole of the UK.
One of the exemptions from street trading regulation in the CoW Act is for pedlars “acting under the authority of a pedlars certificate”, and a “pedlars certificate” entitles a pedlar to trade whilst going from somewhere to somewhere else.
The CoW Act states the Pedlars Act and so has to allow for a pedlar as someone who trades whilst going from one place to another and the CoW confirms this in its own terms as “house to house” whilst making it an offence for rogue traders to use a pedlars certificate to set up illegal stalls in the street.
As the CoW Act makes reference to “the 1871 Pedlars Act” one must assume that all reference to it accepts the definition of a pedlar contained therein. i.e. someone who trades whilst going from one place to another, trading between those places and at those places. If those places happen to be houses, so be it. A pedlar may trade between them, otherwise why refer to the Pedlars Act if there is no acceptance of the definition of a pedlar? The Act states “under the authority of”.
Authority is significant.
A pedlar is authorised to act as a pedlar and CoW has said so.
But why does the CoW Act mention houses at all?
Well the CoW wanted to quote from the Pedlars Act since houses are mentioned there too.
In Westminster, however, there are no other towns and it would make no sense to talk of going from town to town, so they left that bit out leaving “or other men’s houses”, but in order to modernise the language and make a proper sentence they have said “only by means of visits from house to house”. This is to indicate that a pedlar is still a pedlar. i.e. someone who moves around whilst trading. Key words could be “from somewhere to somewhere else trading as you go”… to describe a pedlar’s trading as that is what a pedlar has always done and what is allowed under the Act and so would be suitable as an amended exemption.
This wording continues to allow legitimate pedlars, at the same time as outlawing rogue traders, misusing the pedlars certificate. This is what the Secretary of State wanted, it’s what Westminster wanted and it’s what pedlars wanted.
Furthermore, since a licence is not required for trading on someone’s doorstep, why else would such a clause of exemption for trading “only by means of visits from house to house” be included in the Act? The Act does not require a licence for any other street trader wanting to trade at someone’s private residence whether through advertising, online or any other means and so it has not been included in the Act!
What was intended by the statement, “only by means of visits from house to house”?
A person “acting as a pedlar” under the authority of a pedlar’s certificate is exempt, if he is trading only by means of visits from house to house.
Since we know that the Act was brought in with the intention of not affecting “genuine pedlars” (this was the reason that no pedlars objected in 1999), the qualification “only by means of visits from house to house” MUST, therefore, be included with the intention of distinguishing between “genuine pedlars” and “rogue traders abusing the pedlars certificate”.
This can be the only explanation, because otherwise the promoters were lying when they said it didn’t affect genuine pedlars….(or they were guilty of a “terminological inexactitude” to quote Winston Churchill! As it is not permitted to accuse someone of lying in Parliament!)
So the distinction they are drawing is between:
Pedlar A) a genuine pedlar who is trading by going from house to house and trading as he travels between the houses (any place as per 1881) in the way that is set out in the Pedlars Act,
and
Pedlar B) A rogue trader who might buy a Pedlars Certificate but DOES NOT trade as he travels between houses. For example, a trader who claims to be operating with the authority of a pedlars certificate but sets up his stall in a street and remains there at a static pitch.
Hence the qualification “house to house” which makes more sense in Westminster than “town to town” which does not make any sense in Westminster.
The qualification “house to house” is simply stating that a pedlar who is genuinely pedlaring, “Pedlar A”, is exempt, whereas a rogue trader who is in possession of a pedlars certificate and is not trading as a genuine pedlar, “Pedlar B”, is not exempt.
A person with a pedlars certificate is exempt only if he is acting as a pedlar going from one place to another and able to move around whilst he trades. Otherwise he is not exempt, because he is not acting as a pedlar. The exemption is to clarify what a pedlar does.
It is saying that simply holding a pedlars certificate is not sufficient for trading in the streets of Westminster. You must also be acting as a genuine pedlar.
Either this is what is intended, or the promoters of the bill were being “economical with the truth” when they stated that it wouldn’t affect genuine pedlars.
Why “Licensed” street trading is different from “Peddling” and why this Act does not even apply to “regulating” pedlars .
1 The CoW Act is for the regulation and control of street trading and to prosecute unlawful trading, not peddling.
2 The CoW Act has the following section: “Subject to section 4 (Itinerant ice cream trading) of this Act it shall be unlawful for any person to engage in street trading (whether or not in or from a stationary position) within the city unless that person is authorised to do so by a street trading licence or a temporary licence.”
This is a problem for the CoW as it is not possible to apply for a street trading licence for peddling. Westminster does not have such a licence, nor is there any need because pedlars in the street trading regulation of the CoW Act do not have to have a street trading licence – they are exempt.
3. Westminster might point to “whether or not from a stationary position” requires a pedlar to have a street trading licence, but peddling with a certificate and a definition of its own is a different activity from licensed street trading.
4. With licences for all other types of trading from licensed trading positions whether or not stationary it is simple enough to understand why there is not a licence for peddling: because a pedlar’s certificate entitles a pedlar to trade anywhere thoughout the United Kingdom and does not require a pedlar to obtain separate licences.
The Pedlars Act allows for a pedlar to not have to obtain separate licences for every place that a pedlar might visit whether or not knowing that a licence is required.
Imagine a pedlar is moving around on a street outside London. (Let’s say Cambridge for example). Say he is moving around other streets carrying his goods, and a council official asks to see his pedlar’s certificate. If the pedlar shows him a street trading licence for a fixed pitch, would that be sufficient? No. The official would be right to prosecute the pedlar for trading without a Pedlar’s Certificate.
Even if a pedlar had two separate licences for two fixed pitches at which to trade, and then traded whilst travelling between the two and didn’t have a Pedlars certificate, the pedlar could be prosecuted. A licence would be of no use – a pedlar’s certificate is required for that sort of activity.
In order to have a street trading licence for this sort of activity a pedlar would have to apply for thousands of licences for various pitches and make sure to only stop at those. This isn’t what was intended when the Pedlars Act was introduced, nor is it what the Secretary of State intended as it wouldn’t just be a nonsense. It would be “nonsense upon stilts! ”
5 If Pedlars are street traders needing to be licensed they are entitled to be informed of councils passing specifying resolutions, for example see the following (from the CoW Act):
Specifying resolution
(1) The council shall not pass a specifying resolution or rescind or vary such a resolution unless they have first given notice in writing—
(a) to all licence holders whom the council could reasonably expect would be affected by the proposed resolution; and
(b) to any body which appears to the council to represent such licence holders.
If interpretation of the CoW Act is such that pedlars are exempt from street trading regulation “only by means of visits from house to house” it seems that pedlars “acting under the authority of a pedlars certificate” are excluded from being informed if any such specifying resolution was passed concerning selling at the door as they do not hold licences – they hold certificates granted by the police.
This sort of council interpretation of the CoW Act and others like it does not make sense and shows the law in this interpretation doesn’t fit what it intends and has no sense of proportion as it unfairly excludes pedlars and is not fit for purpose as councils do not license “house to house“ or door to door trading.
6 Here again is an example of how this (mis)interpretation does not fit: “Appeals against refusal, revocation or variation of licences
(1) Any person aggrieved— ….by a decision of the council…….
…. etc ….etc …etc
may appeal to a magistrates’ court acting for the area in which the street trading pitch is situated or in which is situated the street to which the prohibition relates.”
Pedlars can’t appeal a decision of the council in terms of this Act because a pedlar’s certificate does not specify “a street in question or a pitch” since a pedlar in terms of the Pedlars Act does not require a particular ”street in question or a pitch”, is not required to have a licence and has no licence for a particular pitch or street.
Where else does it say that this Act does not apply to pedlars?
“Interpretation
In this Act, except as otherwise expressly provided or unless the context otherwise requires—…..
“street trading” means, subject to section 3 (Exemptions) of this Act—
(a) the selling, offering for sale, display or exposing for sale of any article (including a living thing); and
(b) the supplying or offering to supply a service for gain or reward, in a street;”
In this case of a pedlar prosecuted under this sort of Act the context is most definitely “otherwise requires”.
7. “Offences:
Any person who—
without reasonable excuse contravenes any of the conditions of a street trading licence or a temporary licence; or..”
Pedlars cannot contravene conditions of a licence that does not exist. They do not hold licenses so this does not apply to them. But even if it did apply to them, Pedlars have reasonable excuse. (everything stated here)
8. The following are not street trading etc etc …
Persons acting…pedlars certificate…if they are trading only visits house to house.
This sheds no further light on what a pedlar is than what we already knew. It simply tells us that someone only trading from house to house is not street trading. We agree.
What did the Secretary of State say? That pedlars should be exempt.
If it was the intention to outlaw pedlars from acting as pedlars, i.e. trading whilst they move around, Parliament would have included a simple clause stating:
“A pedlars certificate is no longer valid in the City of Westminster.”
Why would they complicate the matter by talking about houses otherwise? If they didn’t want pedlars, it is quite easy to say this in plain and simple English.
“Pedlars may not act under the authority of their certificate in Westminster” .See? Easy!
Is the prosecution honestly trying to tell me that lovely, kind, generous Westminster council were concerned for all those thousands of pedlars who had been previously trading door to door?
At which stage did they all pipe up and clamour for their right to go door to door?
Never. Because they do not require a licence to do so!
At which stage did the residents in the City of Westminster pipe up and clamour against the injustice that they could no longer buy dishcloths and dusters at their door, and they now have to go down to Sainsbury’s? Never. Because “they do not want people knocking on their doors because of the risk of criminal activity” and nuisance. (I quote Brian Iddon MP for Bolton SE). Also, even if they DID want to buy tea towels at their door, they know they could anyway because no law restricts selling at the door for goods under the value of £35.
(Is not a doorstep private property?)
And on a personal note: why a guilty verdict would encourage racism.
It is stated that “reasonable suspicion” is enough for an officer to confiscate a pedlar’s goods. Taking away his livelihood until he can get more stock and new apparatus.
This pedlar is simply trying to make a living (in harsh times I might add, when making an effort should be encouraged to relieve the burden on state benefits. There’s a recession don’t you know!).
Instead, the cost to the state is increased when over zealous officers might decide to victimise innocent pedlars and bring prosecution.
If “he didn’t have a street-trading licence” or “I’m only doing my job, mate” or “No one’s allowed to trade here, I’ve never heard of a pedlar’s certificate” constitute “reasonable grounds for suspicion”
then this means that any council official or policeman may ruin a pedlar’s livelihood and cause the pedlar to have to work under extreme stress. This opens up a huge scope for racism, prejudice or just plain cruelty if it so pleases the official and if the said official just takes a dislike to someone.
An officer might see a black man peddling and because of not liking black people the pedlar is asked to leave on the grounds that “I’m just doing what I’m told, mate…I don’t know what the pedlars act is but no one’s allowed to trade here.”
And because of the clause (f) below, officers can do this as much as they like: disrupt and ruin the pedlar’s means of income and not cost the council anything, because if the pedlar is disrupted enough, the pedlar will simply give up through stress or depression or lack of stock!
They don’t even have to prosecute. Perhaps this is councils actual tactic and purpose.
“(f) If no proceedings are instituted before the expiration of a period of 28 days beginning with the date of seizure, or any proceedings instituted within that period are discontinued, at the expiration of that period or, as the case may be, on the discontinuance of the proceedings, the article or thing shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry, to identify that person and ascertain his address;”
Any bored police can confiscate your stuff and ruin your livelihood, pick on you or victimise you, without having to take you to court!
If, God forbid, a racist council official exists, this law is an encouragement and an aid to victimising people of colour.
It should NOT be encouraged.
If the court finds the defendant guilty, it is essentially saying that it is happy to encourage local governments to ride rough-shod over other Acts of Parliament which have been found to be sound;
to go against the requests of the Secretary of State; to give their officers the power to exercise racism without detection if they so desire, and to remove the cultural identity and profession of people whom the public have welcomed on their streets for hundreds of years.
Joolzy Productions
www.joolz.tv
13 April 2011