Communications with BIS re URN11/542

 

Copied here are communications between pedlars and government about policy in URN11/542. The oldest dated March 2011 is at the bottom of the sequence with most recent at the top. The information is provided for the public record and will be updated regularly. BIS in blue, pedlars in black, dates in red.

 

Chronology of Communications with BIS re Policy URN11/542

 

 

 

29 August 2012
Dear Mr McGerr

BIS refuse to read communications & inform the minister about important stakeholder communications
BIS adopt head in sand policy
BIS adopt bulldozer policy

An astonishing email 17 August has been received from BIS below and I have compiled a chronological sequence beginning 19 June – BIS in blue & stakeholders at pedlars.info in black.

Ms Onikosi at BIS is part of the “deregulation team” and on 17 July I requested that she circulate our “alternative to deregulation” to others in BIS outside her team. This she has determined not to do on the basis that she is “extremely busy“, “not in a position to consider the proposals“, “not able to fwd to others as she has not read the proposals“, “however will deregulate regardless of stakeholders proposals“.

Ms Onikosi is the stakeholder point-of-contact for consultation at BIS and she refuses to read stakeholder communications reasoning that because she will not read the proposals therefore will not send on to those concerned in BIS. This failure in due diligence amounts to civil servants refusing to inform ministers about alternative proposals for legislative amendments. We stakeholders consider such action to be willful and malicious. Stakeholder information is being prohibited from reaching the minister because our communications end up on Ms Onikosi’s desk and she refuses to read it or pass it upwards to the minister.

We stakeholder pedlars are the most severely affected by “deregulation proposals” and have put our case as to why “preservation and amendment policy” more adequately fulfills the requirements of the SD, Services Directive. BIS failure to interpret the SD correctly has already been documented and stakeholders remain concerned that civil servants are acting without oversight by ministers.

Please fwd this email to your MP and MEP to request the minister inform himself about pedlar’s correspondence before allowing BIS to bulldoze policy that has received no public consultation whatsoever.

The questions to HMG await substantive reply from BIS and/or MoJ and are repeated herewith:
1    To ask HMG whether it has carried out an Impact Assessment on pedlars in regard to deregulation of pedlary and repeal of the Pedlars Act.
2    To ask HMG why all stakeholders were not consulted about the u-turn in policy from 2009 (URN 09/1074) of amending the Pedlars Act to that in 2011 (URN 11/542) of repealing the Pedlars Act.
3    To ask HMG to consider pedlar’s alternative draft amendments (as set out in the attachments) and proposed by those stakeholders (pedlars) most directly affected by changes to this legislation.
4    To ask HMG to formally include the pedlar draft amendments to statutes (as set out in the attachments) together with the forthcoming government draft legislation with clear justification that the cultural identity of pedlary can be preserved within statute whilst being compatible with the SD and that this does not “restrict the freedom to provide services by applying criminal law provisions which specifically regulate or affect access to or exercise of a service activity…” (Article 1.5 SD).
5    To ask HMG when to expect a substantive reply to written questions 21 July 2010.

Robert Campbell-Lloyd
admin pedlars.info

17 August 2012
Robert,

Apologies for not coming back to you, but as you probably know we are
extremely busy here trying to ensure Directive compliance with the
street trading and pedlary regimes, amongst others matters.   

As I have not been in a position to consider the proposals, I have not
been able to forward these documents on since I need to know what I am
sending on to others.   

However we do intend to consult on our proposals soon, so once the
consultation has bee issued there will be more time to look at your
proposals?

Regards,      
Rachel Onikosi

17 August 2012
Dear Rachel

You had said to expect your reply  by mid July to the proposals 19 June and 3 July.
awaiting same
sincerely
Robert

17 July 2012
Thanks Rachel
The content and context of our proposals will take some considered contemplation so please don’t feel obliged to rush a reply.
Please be sure that others in BIS who have an interest in this legislation will be made aware of the proposals.
As you are in the deregulation office briefed to deregulate it may strike you as outside your remit to make substantive comment and we will understand if you have to refer it to others in BIS. I would appreciate knowing whom you refer the proposals to.
I will be away from the office until July 30.
Please confirm you summer recess dates.
best wishes
Robert

17 July 2012
Dear Robert,

Thank you for your email. Unfortunately I have not been in a position to
fully consider your emails dated 19 June and 3 July, but I do know they
have arrived and I should have confirmed receipt of both of them.
Apologies for this.

I will endeavour to look at the substance of those emails by close of
play this week and come back to you on Monday or Tuesday next week.

Please confirm that this is ok?

Kind Regards,
Rachel Onikosi

3 July 2012
Dear Rachel

Further to my email to BIS 19 June 2012 that referred to ongoing pedlar consultation, I now send the refinements that have resulted from pedlars substantive feedback.
As before please make all departments aware of these refinements.
Please also confirm that you have received these recent communications.

Yours sincerely

Robert Campbell-Lloyd

Pedlars Act 1871

Pedlar’s proposed amendment:

The term pedlar means any person who goes from place to place as a trader with a capacity and tendency of means that is not greater than that used by a pedestrian selling or exposing for sale any goods, wares, or merchandise, or procuring orders for goods, wares, or merchandise immediately to be delivered, or offering for sale skill in handicraft;

Local Government (Miscellaneous Provisions) Act 1982
Schedule 4 Section 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 pedlar’s certificate granted under the Pedlars Act 1871

Pedlar’s proposed amendment:
at the end of 2(a) above the following words are inserted:

if trading is carried out only by means of visits from house to house, subject to the following mode of operation-
i.    the means of visits from house to house are ambulant means of trading as distinct from static means of trading,
ii.    trading at any premises adjoining a street or in any public place including a street,
iii.    not being restricted by designation of streets for licensed street trading,
iv.    goods or tools of handicraft being carried on the person or in a carrying device of a pedestrian scale and proportion which is pushed or pulled by the person,  
v.    subject to not remaining in one static position whilst not engaged in continuous trading,
vi.    not requiring a street trader’s licence to trade in the street
vii.    not requiring a certificate for door to door sales under the value of £35
viii.    high-risk fresh foodstuff trading (unlike low-risk prepacked foodstuff trading) to require registration with a local Environmental Health Department.

Other amendments are as indicated at pedlars.info.

London Local Authorities Act 2004
Section 20 Street Trading
Amendments to Part III (Street Trading) of the London Local Authorities Act 1990;
Section 21 (Interpretation of Part III)
2    In subsection (2) of Section 21-
(a)    in paragraph (a), at the end, the words “, if the trading is carried out only by means of visits from house to house” are
inserted

Pedlar’s proposed amendments:
at the end of 2(a) following the word house” the following words are inserted:

and subject to the following mode of operation-
i.    the means of visits from house to house are ambulant means of trading as distinct from static means of trading,
ii.    trading at any premises adjoining a street or in any public place including a street,
iii.    not being restricted by designation of streets for licensed street trading,
iv.    goods or tools of handicraft being carried on the person or in a carrying device of a pedestrian scale and proportion which is pushed or pulled by the person,  
v.    subject to not remaining in one static position whilst not engaged in continuous trading,
vi.    not requiring a street trader’s licence to trade in the street
vii.    not requiring a certificate for door to door sales under the value of £35
viii.    high-risk fresh foodstuff trading (unlike low-risk prepacked foodstuff trading) requires registration with a local Environmental Health Department.

19 June 2012
Dear Rachel

Please be aware of the new articles listed at the bottom of the pedlars.info home page and within HMG consultation link:

Street Trading and Pedlary Law – proposed amendment to statute – 6 June 2012 – read more

Regulation of Street Traders & Pedlars – House of Commons SN05692 – read more

Parliamentary Written Questions – House of Lords – 15 June 2012 – read more

You may already be aware of communications via Under Secretary of State Norman Lamb. If not you will find these within the above.

Your ‘de-regulation’ brief may be challenged by these proposals but as BIS never consulted stakeholders about the u-turn in policy between 2009 and 2011, nor have you responded to my previous letters/emails on this issue, then stakeholders themselves have taken the initiative to draft legislative amendments to the 3 national Acts that brings about legislative compatibility and fulfills the terms of the Services Directive within context and proper interpretation.

The initial draft as posted is in a process of consultative refinement by pedlars and in due course an update will be posted online.

I look forward to you passing on all this information to those agents within BIS whose brief is not only limited to ‘de-regulation’ but also to those whose brief was and is ‘amendment’.

Pedlars have consistently warned of the insidious outcome that BIS is either supporting or indeed is ignorant of. That URN11/542 point 6 v) indicates exactly how government has provided local authorities with the means to prohibit a BIS reinvention of the term pedlary within street trading regulation. Local authorities who have campaigned for prohibition have used the technique of withdrawing enforcement officers from the streets to enable an outbreak of chaos and criminality, gather evidence of such incidents and then use this as evidence to justify a case to prohibit pedlary (on the basis of genuine public safety) in the jurisdiction through local legislation. The policy of deregulation and repeal has this inevitable consequence and it is simply not good enough for your department to pretend that you are assisting the well-being of pedlary by subjecting it to a qualified exemption from licensing regulation for street trading. You will recall from evidence to parliament on Bournemouth & Manchester bills that the City of Westminster promoters introduced the original 1999 bill with an undertaking that the bill would not harm genuine pedlars (I can provide source if requested)… what a lie that turned out to be.  

We have attempted to provide a solution to BIS on the subject of Street Trading & Pedlary Law and already accept that our draft proposals are not yet perfect but I look forward to substantive dialogue with your department or with advisors at MoJ prior to any further proposals for deregulation and repeal. We have asked Mr Lamb to include our proposals in the next consultation and welcome the opportunity of providing an update beforehand.

If  you or anybody else advising your department can find fault with any element of our draft amendments then I will be willing to consider that and respond accordingly.

You are aware that our work is wholly transparent but I can give an undertaking of confidentiality to discuss any content of the draft amendments should your department or that of MoJ be open to substantive dialogue.

Yours sincerely

Robert Campbell-Lloyd

6 June 2012
Dear Mr McGerr
BIS Consultation – Lamb 293050
Thank you for copy of Mr David Heath’s letter inviting comment from Under Secretary of State at the Department of Business, Innovation and Skills (BIS) on various documents supplied by you.
Although we appreciate the protocol limitations on Mr Lamb’s response there is a worrying lack of interest in any solution to preserve and amend the Pedlars Act as proposed in URN09/1074 Nov 2009. Instead BIS continues pursuing a formidably complex route to solve the riddle of Street Trading and Pedlary Law and about which government took an unsubstantiated u-turn in policy from the 2009 document to URN11/542 in March 2011. That change remains unexplained, lacking consultation or impact assessment.
Against public and pedlar’s representations to the contrary, Mr Lamb repeats the derisory reasoning to deregulate and repeal the Pedlars Act on a perverse interpretation of the Services Directive (SD) and which he must admit is not the first interpretation error by his department – the first in 2009 being BIS misinterpretation of the meaning of “service” as “any self-employed economic activity” contained in Article 4 of the SD 2006.

Pedlars have herewith collaborated pro-actively to provide BIS with a simple but substantive solution at Appendix A and Appendix B attached to this letter and via the following hyperlink to re-invigorate the original BIS policy to amend and update the Pedlars Act and to satisfy the SD amongst other legislation.
https://pedlars.info/7-june-2012-pedlars-act-proposedamendments

Consequential to these amendments are proposed amendments to the Local Government (Miscellaneous Provisions) Act (LGMPA) and the London Local Authorities Act (LLAA) at Appendix B.

The amendments address the main textual anomalies reflecting a decade of developments emanating from numerous Select Committee Hearings on private bills and the most recent requirement to implement the Services Directive into all related law. The focus concerns pedlary and it is recognised that the amendments are not exhaustive and that there will be other amendments to Licensed Street Trading legislation outside the remit of this focus.

Pedlars have applied a common sense approach using simply understood textual language that may require further parliamentary refinement.

Pedlars believe that these amendments will provide the following remedies:
• Compatibility between all Street Trading and Pedlary Law
• Clarity and consistency of interpretation of law
• Compatibility with the Services Directive
• Compatibility with the Human Rights Act
• Compatibility with private Acts
• Preservation of a cultural identity

Mr Lamb’s reference to reducing burdens and minimising bureaucracy on business also requires a responsible solution and the BIS changed policy, whilst stating the aim of preserving pedlary, will in due course in itself lead to total prohibition of pedlary by zealous local authorities willing to continue their campaigns to infringe pedlars rights to the extent of ultimate prohibition. This will be achieved using fallacious justification already set out in readiness for LA’s by BIS in URN11/542.
Such an insidious process will be achieved firstly by ignoring criminal activity filling the void of certified pedlary and thereafter citing such chaos as evidence to support total prohibition under the SD justification of public safety.
There being some hundreds of jurisdictions, pedlars however will be in no position to oppose these many prohibitions despite knowing full well that the SD meaning of public safety is found within the SD at Article 23 to mean specifically the possibility only of serious injury or death.

More purposefully, in the interests of reducing burdens, minimising bureaucracy and making a Pedlars Certificate Form B consistent throughout all jurisdictions, it remains for government to nominate one central on-line point of contact for application, registration and issuance of an updated Form of certificate and with publicly verifiable validation of certificates. This will enable removal or further amendment of Pedlars Act Section 9 regarding where application Forms are available.

In the absence of substantive dialogue and open consultation with BIS, pedlars request that the proposed amendments to Street Trading and Pedlary Law in the attached appendices form part of the ongoing public government consultation.
Pedlars via pedlars.info are willing to constructively consult on implementing this process of redrafting the legislation.

Please forward this letter together with your own correspondence to Messrs Heath and Lamb.

Pedlars are currently being consulted on these amendments.
Yours sincerely
Robert Campbell-Lloyd
pedlars.info
Appendix 1 link:
https://pedlars.info/7-june-2012-pedlars-act-proposedamendments.
html
Appendix 2 link:
https://pedlars.info/7-june-2012-pedlars-act-proposedamendments.
html

9 February 2012
Rachel

Please see replies to your questions:

1.0 How long would a pedlar spend at the police station applying for a licence?
1.1 The choice of the word “licence” is disconcerting as there is a fundamental difference between a “licence” and a “certificate” that local authority officers, promoters of private bills and BIS consistently overlook.
A “licence” is issued by a local authority to enable imposition of strict controls on a licensee by enforcement officers within the criminal law.  
A “certificate” is issued by the Crown approving a pedlar’s authority to be self-regulating within the terms of the Pedlars Act and the civil law.
Pedlars regard the BIS policy of deregulating this aspect of law and civil liberty as much a threat as government removing the right to vote.
1.2 A person seeking a pedlar’s certificate (not a licence) either calls or visits a local police station to obtain an application form which may vary from the Statutory Form A of the Pedlars Act  (see first page of the attached .pdf).

1.3 Variation of the Form A causes inconsistency and subsequent confusion although discretion arises from Section 5(2) of the Pedlars Act.
Pedlars seek consistency to remove confusion by enforcement officers.
1.4 Time spent applying for a Certificate is dependent on the efficiency of the police authority and their comprehension of the law.
1.5 Pedlars require that the form of application be consistent throughout the UK as an aid to understanding for enforcement officers.
1.6 Some Application Forms require address and signature of two householders confirming the “good character” recommendation – see attached from Sussex Police as second doc in the .pdf.
1.7 Others require two photographs (not compulsory) as per Dorset police but the Application may be subject to a “suitability check” at Divisional Headquarters which may be a discretionary CRB check but not one that is required by law – see third doc in attached .pdf.
1.8 Many other variations of application are applied as referenced by pedlars.info such as what do you intend to sell, where do you intend to sell, what equipment etc.
These are not required by law and pedlars.info has become involved in writing to police to remove such questions and to qualify them by stating that they are not compulsory – reference alterations achieved with Dorset police at this link: https://pedlars.info/press-release-5-april-2011-dorset-police-concede.
1.9 When completing an application form a person may have to obtain signatures and photographs so will then have to return to the police station to hand in the Form and pay the fee.
1.10 Some front desks can process the Application Form and issue a Pedlars Certificate on the spot but others have a centralised issuing system in another place so the Certificate or refusal notification is posted to the Applicant between 7-54 days with various excuses as to why the process sometimes takes so long.
1.11 In some instances the Certificates are hand delivered by a Police Officer to the Applicant’s address.

2.0 Would a pedlar be required to return to the police station some time later on completion of good character checks?
2.1 Having been approved as a “good character” by Certificate there is no requirement for a pedlar to check with police.
2.2 The Sussex Police application form has a “good character” authority made by two householders upon their signature and does not require police to carrying out further assessment. This is in contrast to the Dorset application.
2.3 An applicant “in good faith intends to carry on the trade of a pedlar” as per Section 5(1) of the Pedlars Act.
There is no statutory obligation for police to carry out a “good character” assessment but BIS without foundation has chosen to use “good character assessment” as grounds to deregulate pedlary.
The “good character” recommendation in the Sussex Form A places assessment responsibility outside the police onto two householders whose authenticity police can check by writing to the given address. There is then no need for a pedlar to have further checks by police.
2.4 A fee is deposited at the time of an application with no need for the person to return to the station. A certificate or refusal is normally posted or can be collected from the station.

3.0 What character checks are conducted by the police? (using the police national computer?),
3.1 Checks on Applicant Street Traders for a Street Trading Licence from a Local Authority is discretionary and not compulsory and may include a CRB check.
3.2 Checks on applicant Pedlars is also discretionary as per Section 5(1) of the Pedlars Act.
Although some CRB checks are undertaken in some jurisdictions there is no compulsion in law.
The Sussex police form of application proves that authority and approval is other than by police but is conditioned by Magistrates.
3.3 The discretion about CRB checks can be extended to Enhanced Disclosure checks which list historically every encounter with police including “relevant information” lodged at the discretion of the the Chief Police Officer. Any single entry may be used as a reason for “refusal” to issue a certificate.

4.0 Is it true that once a pedlar applies for a licence they can travel to any town and peddle, or is it the case that they would  need to apply for a pedlars licence in each particular town? ( I think it is the former, but I need to check for accuracy)
4.1 Please note your continuing use of “licence” which is not the proper authority for a pedlar to travel and trade.
4.2 The Pedlars Act 1871 Section 4 limited the district where the pedlar may act and this limit on the jurisdiction was amended by the Pedlars Act 1881 Section 2 “authorising the person to whom it is granted to act as a pedlar within any part of the United Kingdom”.
4.3 Pedlars.info registers many instances of ignorance by police officers about this amendment.
4.4 Pedlars trade “from town to town or to other men’s houses” and their certificate has national effect.

5.0 Cost of pedlar certificates are 12.50 in the entire UK, or does it differ from area to area?
5.1 The Pedlars Act 1871 Section 5(3) provides a statutory fee of £12.25 but pedlars.info is aware of local variation including £12.50.

6.0 Am I correct in saying that certificates are renewed on a yearly basis?
6.1 The Pedlars Act 1871 Section 5(5) provides “a pedlars certificate shall remain in force for one year from the date of issue thereof, and no longer”.

7.0 What identification does a pedlar have to shown when applying for a certificate?
7.1 The Pedlars Act requires no statutory provision for any particular identification when applying for a certificate.
7.2 Police use discretion to vary the requirement from one jurisdiction to another.
7.3 Pedlars are content to show a passport or driving licence but recommended to the Durham Researchers that a National Insurance Number or any equivalent European identity may be useful in determining eligibility to work in the EU.

We trust that this information is useful and we invite you to request any further details or clarification.

Whilst we welcome your approach to us on this issue about points of law, it is of vital concern to pedlars to be drawn into exact discussions about the future of street trading and pedlar legislation as you now appear to be moving towards completing how BIS will determine policy.
Pedlars wish to avoid the consequences that may come upon them both by the possible abolition of the Pedlars Act and by BIS changing the terms of reference for “Consultation” and its arbitrary and misguided alteration of terms in the Pedlars Act through incorrect interpretation of the Services Directive.
We have forwarded you our most recent communication with other stakeholders, namely NABMA & ATCM who concur with us that the policy of deregulation is not a good policy formulation. They welcome closer collaboration with pedlars about potential changes to street trading legislation.

Yours sincerely

Robert Campbell-Lloyd & Nicholas McGerr
Parliamentary Agents & administrators at www.pedlars.info

7 February 2012
Robert,

Thank you, I appreciate you taking the time to do this.
However it does not need to be substantive as I am looking for precise to the point detail, and something which is easy to quickly read and pull out the main points.
Thanks again.

Regards,
Rachel Onikosi

7 February 2012
Dear Rachel
I am in receipt of your 7 questions and am replying to let you know that Nic & I are preparing a substantive response.
I hope to have this to you by end of the week.
sincerely
Robert Campbell-Lloyd

6 February 2012
Apologies, two more issues

1. Am I correct in saying that certificates are renewed on a yearly basis?

2. What identification does a pedlar have to shown when applying for a certificate?

Kind Regards,

Rachel Onikosi

6 February 2012
Dear Robert/ Nick,

Hope you are both well.

I wonder whether you can assist me with some of the questions below:

1. How long would a pedlar spend at the police station applying for a licence?

2. Would a pedlar be required to return to the police station some time later on completion of good character checks?

3. What character checks are conducted by the police? (using the police national computer?),

4. Is it true that once a pedlar applies for a licence they can travel to any town and peddle, or is it the case that they would  need to apply for a pedlars licence in each particular town? ( I think it is the former, but I need to check for accuracy)

5. Cost of pedlar certificates are 12.50 in the entire UK, or does it differ from area to area?

Your assistance here would be extremely useful.

Kind Regards,

Rachel Onikosi

________________________
27 January 2012

Nick,

Thank you for your email.

As discussed previously, we do not agree that we have acted unlawfully in relation to our legal assessment of the European Services Directive (as implemented by the PSR) that has resulted in our conclusions to repeal the Pedlars Act.  

However as you know, we will be consulting on draft regulations very soon, and that will be your formal opportunity to comment on our intentions on this matter. As a result, we are no longer be able to answer any further correspondence on these issues until the consultation has been published.    

Kind Regards,

Rachel Onikosi

25 January 2012

The  High Court has ruled that the government has acted unlawfully about cancelling payment agreements with domestic electricity generators prior to completing consultation.

Pedlars are able to consider that government has acted and is acting unlawfully in regard to the terms and remit governing consultation about “Street Trading and Pedlar Laws” prior to and subsequent to introducing the PSR and in altering terms of the Pedlars Act without a continuing and comprehensive remit and agreement that enables terms to be altered in consultation with those  directly effected.

BIS forwards HMG into being arraigned for unfair administration by continuing to disregard due process and by relying on the use of  statutory instruments to impose unsubstantiated effects on potential victims contrary to terms of the European Convention and in particular against the UKGB Human Rights Act.

njmcGerr

 

Marcelle Janssis & Rachel Onikosi
Consumer & Competition Policy Directorate
BIS
8 October 2011
Dear Rachael & Marcelle
Implications of BIS policy formulation URN11/542
It is understood that BIS will publish draft legislation later this year but the policy
statement in URN11/542 to amend the exemption for pedlary in local Acts and the
LGMPA / LLAA does not remove the burden of ‘potential victim status’ unless the
definition of ‘Street Trading’ in all legislation is amended to allow unlicensed trading
without authority by any person: ‘trading’ in all legislation is “selling or exposing for
sale any goods”.

The Pedlars Act differs in principle from ‘street trading regulation’ and that is why
pedlary is an exempt activity when referred to in the restrictive ‘control’ regulations of Street Trading. This means that no regulation applies to ‘pedlary’ other than the Pedlars Act.

For those who continue to not understand the Principle engaged by the Pedlars Act:
The Pedlars Act provides common law privilege to any eligible pedestrian person
above 17 to trade with complete freedom based on purely individual decisions.

The attempt to expunge or diminish pedlary to fit within narrow local economic street trading restraints is fraught with complex HMG constitutional problems and is an obvious attempt to circumvent both the principle and the terms of the Services Directive (SD) preamble 12.

The attempt to expunge a statutory civil liberty and regulate its rights under criminal law also goes against the principle aims of BIS “to remove unnecessary barriers to growth”.

A less controversial legislative solution for BIS lies in amending the Pedlars Act by
addressing the only two compatibility issues noted in URN11/542 6(1) arising from
implementing the Services Directive, namely ‘residency’ and ‘good character’.

The ‘residency requirement’ can either be deleted from the Pedlars Act in its form of application for a Certificate or retained as the residency specification to ascertain the origin of the application as it is about a requirement for authorisation to make an application (preamble 94). Section 5 (1) with minor amendment is therefore compatible.
The ‘good character’ reference is not a ‘test’ but relates to an applicant’s human dignity (preamble 41) and the professional intent of self-assessed ‘good faith’ attested by the Pedlars Act Form A application. Any compatibility issue can be resolved through amendment by mutual evaluation of harmonising the form (preamble 54 & Article 5).

Pedlars contend that BIS has failed to consult adequately on implementation of the SD.
In November 2009 the Grand Committee erroneously accepted BIS submissions and rushed approval of the Provision of Services Regulations 2009 (PSR2009) that lacked sufficient scrutiny to stop wrongful interpretation of what constituted a ‘Service
Provider’. Not only has that error been entered into Statute with amendment to the
Pedlars Act ‘skill in handicraft’ but there has been no review of the PSR and its
consequences since its introduction in 2009.

The purpose of the Pedlars Act is to keep undesirable traders off the street.
PSR 2009 contains no such safeguards – only duties to provide contact details, with no punishment for failing to doing so! In this respect deregulating pedlary actually opens the street to undesirables, including children. Strengthening the Pedlars Act is the solution and had been BIS policy until URN11/542.

Further examples of anomaly arises in PSR Section 24/25: a competent authority must

(for any service provider) respect non-discrimination, necessity and proportionality; but not impose restrictions on residency, registration, private contractual arrangements or identity documents unless they are justified for reasons of public policy, public security, public health or the protection of the environment. None of these reasons apply to any service which the relevant authority determines to be of general economic interest.

Preamble 17 of the SD defines ‘general economic interest’ as ‘services that are
performed for an economic consideration’. It follows therefore that a competent authority may dismiss Section 24 if justified for reasons of public policy, security, health or protection of environment.
BIS has attempted to provide the justification in 6 (v) but pedlars are now asking why it is that BIS has set out conflicting agenda by helping local authorities to endorses pedlary but also making it more difficult for pedlary?
Nonsense justification could also be used to stop other pedestrians entering a street!

In URN11/542 page 4 at 6(iii) no grounds for retaining the authorisation scheme for
licensed trading have been submitted despite pedlars requesting it – there is simply an unfounded ‘belief’ that licensing and consent is compatible with the SD following necessary amendment.
Pedlars submit that the Pedlars Act is compatible with the SD following minor
amendment but BIS ignors this consideration.

In circumvention of SD preamble 12 – HMG/BIS intends repealing the civil law
provisions of the Pedlars Act and applying the criminal law provisions of Street
Trading regulation which specifically affects the access to or the exercise of the
profession of pedlary.

Article 5 (2) & (3) of the SD makes provision for introduction of a harmonised form equivalent to ‘a certificate’. In the case of the profession of pedlary such a certificate already exists and can be ratified/harmonised by mutual evaluation (preamble 54).

Pedlars have approached MPs and MEPs with a research paper MEP4.pdf concerning the Services Directive and how that is seen to conflict with the BIS Executive Summary in URN11/542 .

In the event of pedlars continuing participation with government’s consultation on “Street Trading and Pedlar Laws” being ignored and discounted, it will be a matter for UK & ultimately EU Courts to hear how BIS is able to justify an unprecedented disenfranchising of a cultural profession – that of pedlary.

As stakeholders pedlars are looking forward to your full engagement and cooperation with forwarding on-going consultation.
Sincerely
Robert Campbell-Lloyd
admin pedlars.info
attachment MEP4.pdf

5 October 2011
Robert,

Thank you very much for your letter addressed to Marcelle Janssis. I will provide a reply in due course.  

I am particularly interested when you say:

‘I am personally interested under the Freedom of Information Act to receive copy of your brief to de-regulate pedlary and about its justification in law’.

It would be useful if you could elaborate on what you mean when you say ‘our brief’? This is to avoid any misinterpretation – hence this to my mind could having several meanings.

Hope to hear from you soon, so as to handle your request quickly.

Kind Regards,

Rachel Onikosi

Marcelle Janssis
Consumer & Competition Policy Directorate
BIS
30 September 2011
Dear Marcelle
I am in receipt of your letter dated 2 August.

The substantive issue has not been addressed by your reply.
It concerns not just the few pedlars who actively write to you, nor the silent majority of those in the professional practice of pedlary. More importantly, it concerns “any person” above the age of 17. If that body of people understood what the civil service was doing to a particular civil liberty then the voice of the people may be louder than those of us who try to respectfully engage in consultation in the general interest. Your lack of serious engagement with our concerns must be founded on your frail hope that such issues attract little public interest and media scrutiny.

Your letter lacks any respect by way of defence of the civil provisions contained in the Pedlars Act. Those civil provisions have endured for 314 years under the protection of HMG but your new BIS posting seems intent on destroying that cultural heritage.

I am personally interested under the Freedom of Information Act to receive copy of your brief to de-regulate pedlary and about its justification in law. I also have to speak as a pedlar and in the collective sense of “us” and “we” as pedlars as I include myself as one and I have volunteered to research and collate information brought through to pedlars.info by other pedlars about their plight.

The significant change in BIS policy from the position of amending statute (under Dennison URN09/1074) to repealing statute (URN11/542) has no justified credibility to those most adversely affected. The excuse, being the Services Directive, is unconvincing.
The SD is intended to preserve the social and cultural fabric and strip away bureaucratic barriers opening free trade in the internal market. BIS policy change inverts that aim by dismantling social and cultural heritage and limiting diversity in consumer choice by abandoning civil certification for ‘any person’ to participate in the economic life throughout the UK and redefining those rights in restrictive economic terms under local street trading controls without any proportional balance for preserving the rights freedoms and liberties enshrined in the Pedlars Act.

Those stakeholders who have considered this issue are concerned that HMG/BIS is abusing legislative powers to dismantle a civil liberty that was intended to distinguish a particular socio-economic group of certified traders from that of vagrants (Section 13 Pedlars Act).
The consequence of repealing the Pedlars Act will degrade culture and return all “unlicensed” persons in the eyes of LA’s to the category of vagrant, exposing pedlars to local fiefdom abuse similar to circa 1871.

Street Trading legislation was introduced in 1982 to overcome the highway obstruction problems caused by large scale static hawking and specifically exempted (amongst others) those non-static pedestrian traders acting under certificate. The loophole in the 1982 legislation has already been rehearsed by pedlars.info and legislatively addressed more recently in the Bournemouth and Manchester private Acts limiting the volumetric scale of a pedlar’s apparatus to one cubic metre.

Since 1999, when private business interests began initiating private Acts, Local Authorities have been increasingly abusing interpretation of Street Trading legislation to prohibit pedlary in those jurisdictions. The mechanism used is by way of LA prosecutions for the criminal offence of “street trading without a licence” in which street trading is defined as “selling or exposing for sale goods” whilst ignoring the certificated civil provisions for a pedlar to “sell or expose for sale any goods”.
The anomaly to be resolved exists in more clearly defining the term “street trader” and this is because certified pedlars and licensed street traders both trade in the street and therefore colloquially known as street traders – pedlars being ambulant and able to move and licensed traders being static on a highway department approved allocated pitch.

We consider the intention of BIS to reinvent the term pedlar under an exclusive and restrictive regime intended for licensed commerce is a notion full of mischief, ignorant of cultural foundation and in terms of the SD an offence against its aims.

URN11/542 gives no information to stakeholders about textual amendment to the description or definition of a pedlar and nor does it address the more important textual amendment in the definition of street trader. A reader of that report cannot make an informed judgment without this information and is unable to consider the implications of the proposed policy.

This consultation has to address principles and refrain from repetition and/or dilettante distractions. The conversation has to begin with forming a consensus with stakeholders about the aims and intentions of each of the 3 main instruments under examination namely the Pedlars Act, Street Trading Acts & The Services Directive.

The current policy formulations of your department that have now become apparent indicate that there has been a successful lobby by those who wish to have control and/or prohibition of commercial competition other than in a completely free trade zone. Pedlars have always been the most visible and active of all free-trade entrepreneurs and their cooperation with your department has always been based on pedlars’ belief that your political policy aims are to sustain and develop diversity in culture and not be distracted by the aspirations of a collection of lobbyists seeking to denounce a PRINCIPLE that is best expressed in the bona fides of the Pedlars Act.

You have asked my colleague Nic McGerr what he sees as the principle of the Pedlars Act and how it differs from the definition of a pedlar.
It is time now for you to disclose what you consider are the main principles of those three instruments which you should have under examination. Without any such scrutiny and disclosure it will appear that you prefer a deaf consultation lacking mutual agreement.

Sincerely
Robert Campbell-Lloyd
pedlars.info admin

30 Sept 2011

Questions to MPs and MEPs
Concerning HMG implementation of EU Services Directive and BIS policy to
disenfranchise pedlars by deregulating pedlary and repealing the Pedlars Act
Compiled by pedlars.info 30 September 2011
1) What are the principle aims of the Services Directive?
2) Have the principle aims of the SD been implemented into UK law?
3) Has BIS consulted stakeholders on interpretation of the SD?
4) Has BIS failed in its duty to consult?
5) Has BIS revised the PSR2009 since misleading the Grand Committee in 2009?
6) Has implementation into PSR2009 been scrutinised and approved by any EU agency?
7) Is BIS interpretation of the SD consistent/compatible with other EU countries?
8) Is BIS policy to repeal the Pedlars Act consistent with the aims of the SD?
9) Is BIS policy consistent with the aims of the SD to preserve cultural diversity?
10) Does BIS policy have any evidence of public support?
11) Is BIS policy only supported by lobbyists seeking to restrict competition?
12) What is the legal argument that enables BIS to repeal national statute?
13) Has BIS consulted the nation about expunging the national civil liberty of the Pedlars Act?
14) Is it a proportional response for BIS to expunge pedlary?
15) Is it possible in law to regulate a civil liberty under local control?
16) Has there been an impact assessment of possible conflicts between jurisdictions?
17) Do all Local Authorities accept responsibility for implementing the SD?
18) Can HMG/BIS force LA’s to adopt Street Trading Regulation?
19) Will there be consistency in implementation the SD by al LAs?
20) Will HMG oversee and guarantee consistent implementation?
21) Is an adoptive Act (LGMPA/LLAA) unsuitable to ensure national consistency?
22) What proportion of LA’s have adopted Street Trading legislation?
23) For those that have not, will unauthorised pedlary be perceived an offence?
24) What provisions will enable pedlars to trade where LGMPA/LLAA is not adopted?
25) Will pedlars have any national rights/liberties or will they all be only local?
26) How will the anomaly of pedlars crossing jurisdictions be resolved?
27) How will EU nationals be accommodated in an open free market?
28) Will LA’s be able to continue protecting licensed traders from pedlar competition?
29) Will LA’s have control over what a pedlar may trade?
30) Will LA’s have control over when a pedlar may trade?
31) Will LA’s have control over where a pedlar may trade?
32) Will LA’s have control over how a pedlar may trade?
33) Will LA’s have control over if a pedlar may trade?
34) Will trading in a jurisdiction require any authority?
35) Will trading without a licence be an offence?
36) What will differentiate any person from a BIS re-defined pedlar?
37) Will BIS disregard the historic description of pedlar in a new definition?
38) Is Section 3 of the Pedlars Act a definition or a description of any person?
39) How does carrying to sell or exposing for sale any goods differ from street trading?
40) Will any person carrying to sell or exposing for sale any goods be committing an offence?
41) What text will differentiate licensed street trading from unlicensed street trading?
42) What will stop prosecution of pedlars under LLAA for unlicensed trading?
43) What will stop prosecution of pedlars for trading in controlled streets?
44) What amendments will be made to the definition of Street Trading in LLAA, COWA etc?

27 June 2011

Letter to Secretary of State and ministers
BIS
Re: BIS response to pedlars pre-legislative scrutiny of the Executive
Summary on Street Trading and Pedlary Laws – URN11/542
In responding to Pedlars enquiries to BIS for further clarification Roger
Dennison, Senior Policy Advisor at BIS avoids giving any substantive response
but prefers replying to serious inquiries by confirming his support for what has to
be a pre-determined policy agenda that has not yet been able to persuade
agreement with those stakeholders most harshly, directly and disproportionately
affected by its potential outcome.

Pedlars are likely to be sledgehammered by bullish policy announcements and
this is a letter of complaint to you as heads of the department that Mr Dennison
claims have set more important ministerial priorities than assisting stakeholders.

In his latest communication he takes offence about a pedlar’s perception that BIS
policy is similar to that of Central Europe circa1933 when people were beginning
to be thought about in terms of symbols, although while Germany was a
democracy under a coalition government. What Mr Dennison and his department
fail to acknowledge are the lessons of history, particularly the most recent
examples of how the constitution of a society can be eroded by persistent attacks
of denigration, a similar stratagem to that used by those policies of the 1933
regime.
The department’s tactic of manipulating data in order to justify conclusions as
facts should be a cause for concern to the silent majority of the eligible British
population allowed for by the Pedlars Act – a population which is more than the
paltry and inaccurate figure of perhaps 4000 claimed by Durham University in
their research “consultation” – the only channel made available to them. Pedlars,
identified as particular stakeholders and made to represent an insignificant
proportion of the population2, consider the entire approach of BIS to be a failure
of duty and process by HMG.

This failure is epitomized by how the Services Directive (SD) has been
incorporated into UK law as the Provision of Services Regulation Act 2009,
(PSRA). This directive, arising out of European thought, puts forward compelling
reasons for the necessary removal of all access barriers or restrictive
Authorisation Schemes from National Legislations – this to free up the Internal
Market and allow easy cross-border trade.

The aim is to ensure non-discrimination and provide wider consumer choice with
better pricing, competitiveness and economic progress whilst protecting in
particular social and cultural values for all. It lists sensible criteria to retain some
authorisation schemes but BIS has picked only the scheme of Licensed Street
Trading to defend and justify without any similar consideration for retaining the
scheme for Certified Pedlary.
For instance, BIS and Mr Dennison use the justification of Overriding Reasons
Relating to the Public Interest (ORRPI) such as public safety concerns about
static obstacles that create liability in the street with another justification: the
desire to maintain the “cultural identity of an area or a street” – this for licensed
street traders but not for certified pedlars.
Pedlars had reasonable expectation that BIS would consider the case for
retaining the authorisation scheme for pedlary but the BIS report has usurped the
meaning of Recital 40 of the Services Directive that provides criteria that justifies
a scheme for pedlary with the following: “cultural policy objectives, including … in
particular social, cultural, religious and philosophical values of society… the
preservation of national historical and artistic heritage“. Recital 40 applies to
the social and cultural identity of “people” and not as BIS usurp the meaning to
apply to the cultural identity “of an area or a street”, which is a corrupt
interpretation of Recital 40.
 

Recital 54 of the Services Directive [footnote 3] provides a convincing argument
on the basis of consumer redress to justify an authorisation scheme for pedlary
and concludes with the following statement ”The results of the process of mutual
evaluation will make it possible to determine, at Community level, the types of
activity for which authorisation schemes should be eliminated”. BIS has not
bothered to reveal anything about “mutual evaluation” to stakeholders but
reverses its own consumer redress argument in support of an authorisation
scheme for pedlars. Kevin Davis of BIS writes on 4 November 2009 – “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”.
 

The Provision of Services Regulation Act 2009 (PSRA) implements the Services
Directive but makes no provisions for complaints by a recipient of a service other
than the Section 7 “duty to make [service provider] contact details available”.
There are no penalties if one fails in that duty or if one gives false information.
Pedlars are concerned that under BIS policy there will be unregulated service
providers who are neither answerable to Recital 54 of the SD, nor Section 7 of
the PSRA regarding consumer protection. This is adequate justification for HMG
to maintain an authorisation scheme for service providing pedlars.

No effort has been made to satisfy points that the BIS report finds “untenable” in
regard to certification of pedlary. These are: police certification, residency, and a
test for good character. Pedlars have serious concerns about why BIS neglects
seeking justification for retaining a Pedlars Certification Scheme. They suspect
that conformity to the principle of subsidiarity for the UK is being unfairly applied
by BIS to diminish the professional identity of pedlars and so diminish the
nation’s cultural diversity.
 

The principle of the Pedlars Act is to allow and enable a certified person to
provide an economic service at any time and in any place throughout the UK
without hinderance or causing a nuisance, in safety both to the pedlar and to the
public.
The purpose of the Pedlars Act is to differentiate a “genuine” service provider
from rogue traders and others.
Pedlary has been part of an oral, cultural, identity granted recognition in the UK
since 1697, renewed in 1871 and in 1881, and is unique throughout Europe. The
cultural tradition of self-regulating ambulatory trading was made a statute by the
Pedlars Act to differentiate a certified person from any other person, including in
Section 13 – “idle and disorderly persons, rogues and vagabonds and Section
23 – commercial travellers, sellers of vegetables, fish, fruit, or victuals or sellers in
public markets”.
When Street Trading legislation was introduced into localities by the use of the
adoptive Local Government (Miscellaneous Provisions) Act 1982 Schedule IV
(LGMPA), it had nothing to do with pedlary and made no provisions for regulating
pedlars. Pedlary was listed as an exempt activity. The LGMPA Street Trading
Schedule was intended primarily to regulate licensing of obstacles (street traders
apparatus) in the street, the positioning of which requires approval by Highway
authorities but has evolved to become a tool for abuse by enforcement officers to
harass and intimidate pedlars who for three centuries have also traded on
highways, streets or at houses but unlike static traders are ambulatory causing
no obstacle liability to the flow of traffic or generic pedestrians.
The proposed new BIS policy has not indicated how or by what means of
description it is “intended” to protect pedlars from being caught up in the resulting
chaos of de-regulation. The BIS report hints at a “new definition for the mode of
operation of lawful trading that is outside the scope of street trading legislation“
but the report gives no textual substance for consideration and that is what
current pedlar scrutiny finds so offensive. Pedlars find it impossible to endorse
the notion of de-regulation of the very fundamental civil liberty that currently
protects their daily profession. This mischief understandably places pedlars on
the defensive.
Mr Dennison says all matters can be resolved by courts and whereas shifting the
issue of pedlars onto Local Authorities (LA’s) may get HMG off a short term hook,
for pedlars, and that includes every eligible person over 17 years… it’s not good
enough!
The 48 million silent majority can expect HMG to act to protect civil liberties for
the best and for the good of the general interest in the long term.
They also expect government to not use EU directives against a national interest,
here, as with this example of an attack on pedlary – by omitting a cultural identity
and expunging it as an historic profession from the statutes.
The policy of repeal of the Pedlars Act satisfies only the self-interested and more
powerful lobby groups. BIS shows the true intent of its policy towards pedlary and
“de-regulating pedlars” despite the fact that pedlars are currently free of any
regulation other than the conditions of the Pedlars Act and of the general law.
BIS prompts LA’s to find “creative criteria” such as “pedlars may cause
congestion in busy streets” in order to prohibit pedlars directly by using LA local
legislation.
This begs the question about consumers also causing congestion in busy streets,
and how to regulate this other form of allowable free ambulatory activity. The
abuse of principle and of primary constitutional safeguards has been noted by
pedlars as a mischief for more than a decade since the City of Westminster Act
in 1999, “the trailblazer” for causing confusion by altering sub-clause texts, and
BIS, who make no comment on “private business”, but nonetheless support and
seem determined to perpetuate those sorts of thought processes that become
set out in corrupted interpretation.

Ministers should be aware that BIS in 2009 commissioned Durham University for
£85,000 to gather information about Street Trading and Pedlar Laws as research
information for policy formulation. The one page summary on the Services
Directive concluded that “It may be possible to institute a national system of
authorisation for service providers within the requirements of the Services
Directive…”. However BIS has not provided any research information about the
impact of the Services Directive on certified pedlars and licensed street traders
other than outlining its own conclusions. This has not been a consultative
process and repeats Roger Dennison’s failure to disclose what order was made
in 2009 to initiate research consultation giving precise information about the
chosen methodology for the research or how that was determined and about the
wider consequences of an Impact Assessment. The latest BIS policy report bears
no connection to the Durham Report and instead concentrates exclusively on BIS
re-interpretation of the meaning of the Services Directive and without any
significant public consultation.
Pedlars.info has already informed BIS about the “potential victim status” of
pedlars operating in private Act jurisdictions due to woeful interpretation by LA’s
of an amendment to a local Act such that all “genuine pedlars” are prosecuted for
the alleged offence of unlicensed trading. It is well documented that LA’s
want repeal of the Pedlars Act and total control of all trading activities. BIS is
following that guidance – fact. Genuine pedlars are being prosecuted – fact.
The BIS policy to de-regulate pedlary and repeal the Pedlars Act will make
“potential victims” of all itinerant traders in every jurisdiction whether with private
Acts or not unless BIS proposed legislation breaks the powers of prosecution by
LA’s for exempted trading activities “in the mode of a pedlar”. The BIS policy
supports existing and even more draconian measures in private Act jurisdictions
including seizure, confiscation, forfeiture and fixed penalty notices. BIS say this
policy will not harm pedlars but pedlars recall promoters’ empty assurance in the
City of Westminster Bill 1998 that “genuine pedlars would not be affected by the
bill“. Pedlars in fact, have been affected for the last decade and are currently
affected. It is reprehensible of BIS to ignore pedlars repeated warnings.

Gareth Thomas, while Parliamentary Under Secretary of State for Trade &
Consumer Affairs at BERR, now BIS, stated that “the restriction on pedlars’
activities” is of concern9 when he reported on compatibility with the European
Charter of Human Rights of the then current City of Westminster bill, the
trailblazer to all these other privately adopted LA Acts. Pedlars believe that a
“potential victim status” arises out of the private Acts reported to BIS and
potentially also out of current BIS policy. It provides for a case to be brought
before the European Court of Justice about HMG discrimination against a
singular cultural profession, that of pedlary as recognised in EU nomenclature.
Pedlars.info seeks to avoid this outcome in the knowledge that ECJ does have
powers of determination about mis-treatment by a national government of its
more vulnerable people. Pedlars suspect that deregulation is a superficial PR
spin that appears to remove restrictions on pedlars but will have exactly the
opposite effect by a different route contrary to Article 1 (5) “This Directive does
not affect Member States’ rules of criminal law. However, Member States may
not restrict the freedom to provide services [such as an alleged offence of
unlicensed street trading under local street trading legislation] by applying
criminal law provisions which specifically regulate or affect access to or exercise
of a service activity in circumvention of the rules laid down in this Directive”.

Section 45 of the Provision of Services Regulation Act 2009, (PSRA)
illustrates incompetence by BIS regarding pedlars when in 2009 upon the advice
of BIS, the Grand Committee in the House of Lords erroneously expunged
pedlars of “handicraft” and “chair-menders” from statutory protection. Pedlars
forewarned of this as a grave error. BIS seems intent on handing control of
pedlary to LA’s whose lobbyists seek prohibition of pedlars by whatever means.
Pedlars contend that this direction of policy towards prohibition will never change
no matter how cleverly BIS intend to re-invent the wheel by re-writing a national
allowance for pedlars within local control.
Such an anomaly in law is not only absurd but is perverse when given with intent.
It should be the intention of BIS to preserve the national Social & Cultural
heritage as it already has ORRPI within the Services Directive as the means for
justification.
Britain has a unique advantage compared to other nations in Europe, as the
British constitution seeks to protect its people by statute such as with the Pedlars
Act, but BIS and HMG appear to be prepared to abandon this quality either
through ignorance and stupidity or by concupiscence.

Pedlars are prepared to enter willingly into constructive drafting of better and
fairer legislation but reject humiliation by BIS using dismissive or blatant
discrimination.
Pedlars have already produced helpful amendments to enable preservation of
the Pedlars Act and to enable justification within terms of the Services Directive.
These include:
• retention of the cultural identity of the profession of pedlary;
• the protection of civil liberty in the Pedlars Act;
• the removal of the restrictive residency criteria and implementation of
similar requirements to those of licensed street traders;
• alteration of the good character test to non-mandatory but discretionary
tests similar to those applying for Street Trader Licenses;
• an imposition on pedlars to have public liability insurance for the protection
of consumers
• in the absence of the practical possibility for local authorities to issue
national certificates, the continuation of police certification through the
Home Office;
• the removal of the anomalous restriction on the activity of pedlars whether
at houses or between houses;
• amendment in local legislation defining “street trading” removing the
anomaly hindering the right of pedlars to “sell or expose for sale any
goods” and to make a clear distinction between static trading and “mobile
ambulatory trading” as that which primarily distinguishes the two types of
lawful street trading;
These are amongst other refinements that can only be discussed when BIS is
instructed to engage directly with pedlars.

BIS took some thirteen months to digest stakeholders replies before producing
URN11/542 and we at pedlars.info respectfully request further time to
disseminate information and convey feedback.
As the Head of departments at BIS, pedlars through pedlars.info request an
immediate halt to detailed proposals in draft regulations being developed as
policy for government by BIS. Those most directly and negatively affected by
determinations about pedlary are to be properly consulted. Frank and transparent
consideration of policy is due in respect of the dignity needed to be given to the
profession about which pedlars speak. This has, and should be, a common aim
of producing a proportionate, balanced and sustainable outcome.

We the undersigned await your immediate reply.
Yours sincerely
Robert Campbell-Lloyd
Nicholas McGerr
Simon Casey
Andrew Carter

 

11 May 2011 by email attachment to Roger Dennison, Senior Policy Advisor, BIS
Roger
I note that you have not responded to our pre-legislative scrutiny
correspondence concerning potential victim status of pedlary dated 11 April… I
understood the policy of BIS was to respond within 15 days?
There is now the need for you to respond to these further questions, comments
and concerns that have been raised concerning your URN11/542 by various
contributors to pedlars.info about the report.
Pedlars are concerned that your department has not taken the initiative offered it
by pedlars’ participation with the consultation of URN 09/1074 and how points
of principle raised by pedlars have been ignored alongside matters about
process such as pedlars’ recommendations about certification which are able to
be applied simply and in conformity to European Directives.
The concept that somehow a plethora of Local Authorities will be able to make
up for the overall compass of a national statute appears to a majority view to be
unworkable, and can be seen as a means to avoid the consequences of HMG
being held to account in a European Court for unfair or maladroit procedure.
The questions should be read in conjunction with the numerical sequence in the
report points 1-16.
We expect individual reply to each.
Executive Summary:
1.0 Please explain what aspect of licensed street trading legislation will be
modernised? Does this refer only to Appeals to the Secretary of State in point
16?
Pedlars perceive that BIS intent has been to force pedlary under local
controls with the fallacious reasoning of modernising.
2.0 Please explain how pedlary being recognised as a legitimate business
activity… subject to minimum restrictions has in this Report been associated
with illegal street trading and consequentially de-regulated with the effect that
the said legitimate business activity has no longer any protection or
differentiation from illegals?
Pedlars perceive that BIS are failing the conditions of the 1647 Social
Charter and its continuation through the Pedlars Act of 1871.
3.0 Please explain why you mention the anecdotal figure of 4000 when a
more accurate figure of 48 million eligible persons will be affected?
Pedlars perceive that BIS is supporting the NABMA agenda but is
seeking to avoid the implications of proportionality by diminishing the
magnitude of effect.
4.0 Please explain why BIS does not explain historically that de-regulation of
Licensed Hawkers in 1966 (LGA) was the primary cause for the 1982
(LGMPA) legislation to control large-scale static street trading and that
certification under pedlary was the loop-hole that government policy, with
obvious consequences, failed to appreciate?
Pedlars.info provided this historical context that BIS has decided
to withhold from readers.
4.1 Please explain why BIS does not identify “obstruction of the highway” as
the main reason why large-scale static street trading requires licensing and
why any approved obstruction can cause a public liability concern for local
authorities?
Pedlars perceive that BIS are covering up their predecessor’s failings.
4.2 Please explain why this report has not drawn on and referred to the 71
point summary of the legitimate trading activities of pedlary provided by 17
contributors to the Pedlars.info response to the consultation?
Pedlars perceive your authors textual use of efficient enforcement of
street trading licensing is misleading when it is obvious throughout the
consultation that “efficient disabling of pedlary” was the intent?
5.0 Please explain why the Report did not refer to the grave decision of the
Grand Committee in 2009, on the recommendation of BIS, to expunge pedlars
with skill in handicraft from the Pedlars Act, over-ruling warnings from
Pedlars.info?
Pedlars perceive that such cover-up shows deceitful intent.
5.1 Please explain why BIS accepts no responsibility for this change in
interpretation when BIS is wholly to blame for its inability to read plain English
in the words any self-employed activity…?
Pedlars perceive that BIS interpretation of all matters is therefore suspect
and questionable.
6.0 i) Please explain why URN09/1074 led pedlars to await BIS proposals for
amending the Pedlars Act to conform to the Services Directive and now in
URN11/542 are met with the bland proclamation that the certification system
for pedlars is untenable… it is too restrictive…?
Pedlars perceive this BIS mischief to be untenable. If it is too restrictive
then BIS in consultation is obliged to provide considered solutions – as
described by Pedlars.info previously and again as follows…
Firstly: BIS submitted to Pedlars.info that: 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. This safeguard remains and
BIS is obliged in the public interest to explain why there should be any reversal
of this policy or any diminished concern.
Secondly: the “residency” restriction solution is simple… replace the
restriction in the Pedlars Act 1871 Section 5 (1) and extend the allowance to all
persons throughout the EU. This is justified in the context of the first point as
made above and upholds the EU/GB policy of trade without barriers. BIS by
review has the opportunity to widen UK trade with Europe rather than satisfying
only narrow domestic demands and self appointing interests such as those
expressed by NABMA.
Thirdly: BIS create difficulties in its use of English and its means of
interpretation. This statement that BIS has no evidence to support the need to
impose an authorisation regime based on a test of “good character” is
fallacious as the question was never posed by research in the consultation thus
evidence cannot be deduced. It is reasonable that any scheme of authorisation
has means of establishing compatibility and such schemes as the CRB or the
DVLA, as recognised and allowed in Europe are widespread in UKGB and are
easily adaptable to any other authorisation scheme.
To simply remove text in Section 5 (1) of the Pedlars Act, at any other part of
the Pedlars Act or as you recommend – to abolish the Pedlars Act, appears to
allow for the spread of unlawful and unregulated activity. Please explain how
you have come to these conclusions.
Fourthly: if a requirement for “modernisation” was required by the
Directive (and it is not) then the nonsense “anachronistic” argument can be met
with the following textual amendment to the Pedlars Act Section 3: The term
pedlar means any person who as a pedestrian travels and trades carrying to sell
or exposing for sale any goods in any part of the United Kingdom – or words to
that effect and which already exists in the Act.
6.1 ii) your report believes pedlars should not… be regulated under other
schemes…(!). Please explain why currently you allow/endorse/provide-forpassage-
through-Parliament with exactly the opposite contention supporting the
notion of local council enforcement and control of pedlary?
Pedlars perceive a fundamental deception by BIS to benefit its own
preference to remove statutory protection from pedlary.
6.2 iii) Please explain exactly what elements of street trader licensing
regimes are also not… compatible with the Directive…?
Please explain why you believe that the 314 year old United Kingdom
principle of pedlary should be compromised instead of promoted and
strengthened under this current BIS watch?
Pedlars perceive a mischief by BIS in having two separate street
trading licensing regimes: one for temporary traders (registered in other EU
countries) and one for all other traders (established in the UK)…
BIS fails to understand why pedlary was ever an exempted activity. It is because
it has nothing whatsoever to do with council approved obstacles/liabilities in the
streets, that’s why!
6.3 iv) Please explain the legal advice relied on to show that pedlars’
proposed amendments to the Pedlars Act fail a compatibility test within the
Directive?
Pedlars are concerned that the 108 page report lacks any real attempt to
consider how to maintain the integrity of the Pedlars Act and instead has taken
the most draconian policy measure without due consideration of less restrictive
measures to achieve the stated aim. That aim was originally to remove illegal
traders but has now turned into meeting the Directive.
6.4 v) Please explain the mechanism suggested by BIS to restrict pedlary
from an activity open to the public to that via a temporary local authorisation
scheme…? Please ensure your justification is in accordance with the Directive.
Pedlars perceive that BIS is being led by lobbyists NABMA et al whose
decade long public agenda has been and remains “repeal of the Pedlars Act” and
are fumbling to justify repression of pedlary on fallacious Health &
Safety/Public Safety grounds. This paragraph in the Report indicates clearly the
hidden agenda of BIS to assist powerful vested interests by guiding them in
ways that can close off access to financially viable trading routes for pedlars.
Please confirm what body or organisation will evaluate the justification
put forward by local authorities, and what will be the Appeal mechanism for
pedlars from outside a jurisdiction?
7.0 Please explain why BIS is promoting the notions of temporary local
authorisation schemes and prior authorisation measures and other restrictive
measures against pedlars instead of promoting pedlar accommodation?
Pedlars expected the BIS report to offer 48 million eligible people a
balanced approach rather than a series of repressive measures. This scheme by
BIS has to be challenged as it has not sought sufficient justification on its effect
on more than 48 million persons in the UKGB, neither does it sufficiently have
regard to Europe.
8.0 Please explain why this report has failed to provide government with any
explanation as to how the Pedlars Act could be modified in accordance with the
Directive?
Pedlars contend that BIS has fabricated changes not required by the
Directive but which have origination outside the Directive but within BIS et al.
Pedlars.info identified the alternative legislative vehicle to BIS in August
2009 in a Reform Order under 2006 legislation – see page 11
https://pedlars.info/images/stories/roberts/bis11.pdf
9.0 Please explain how BIS thinks it can achieve a collaborative attempt to
hoodwink the EU by intent in the words must be made (to) mean… are no
longer tenable, or practical… when such a blatant propaganda campaign is so
repressive to pedlars?
Pedlars perceive a disgraceful deception by the author(s) of this
report and wish identity to be made known.
10.0 i) Please provide an impact assessment about how this policy will have
effect on pedlars?
Pedlars know full well the consequences of losing the protection of a
certificate and how this will place them alongside what the 1871 Act sought to
remedy in contrast to rogues, vagabonds, beggars and criminals who will now
as before 1871 be given free-range upon the highways. Consider where your
policy will lead: criminals will be set to use hoards of child labour or illegal
immigrants; differentiation between legal and illegal will become impossible;
redress on person and products impossible with chaos inevitable.
Your policy is a replay of the repeal of the Hawkers License in 1966. BIS is
deluded if this policy is believed to be workable. It merely repeats the sequence
as noted since 1966 but now aided and abetted by BIS of councils who, with
intent, do nothing about control of illegals until there exists sufficient evidence
that a problem exists and then use that evidence to justify a private Act across
its whole jurisdiction eg Leicester and others.
10.1 ii) Please explain, in the light of the paper “A Short History of Pedlary” by
Pedlars.info why BIS fails to respond to the issue of mis-interpretation of text
in the amendments to the exemption for pedlary in Local Authority Acts which
is consistent in meaning in both the Pedlars Act and the private bill / Acts but
with which BIS fails to address.
Pedlars contend that acting as a pedlar within any part of the UK
[1881] is an exempt activity in all Acts including private Acts. BIS misguided
interpretation has not been tested and places conflict between local and national
Acts. The BIS reference to certain pedlars (meaning those trading in the street)
should not be caught by private or local Acts if they are interpreted in the proper
context of the Pedlars Act.
10.2 iii) Please explain why BIS is exemplary in saying one thing and doing
another for example by acknowledging that local and private acts exempt
regulation of pedlary but then allowing re-regulation through the LGMPA,
LLAA, COW etc. by another route.
Pedlars’ mode of trade is a “travelling mode” as compared to a “static
mode” and if BIS after years of having this explained to them still bury their
heads in the sand of misunderstanding then who is competent in BIS to reinvent
or clearly define the exempted mode of trade..?
Pedlars suspicion is that BIS is searching for a palatable yellow symbol (circa
1933) to imprint on the forehead of all genuine pedlars to assist easy
recognition… BIS failed miserably to identify the lawful activities of a pedlar in
the earlier URN and as far as local authorities are concerned all but licensed
traders will be seen to be potential victims.
10.3 iv) Please specify what parts of the street trading regimes are required by
the Directive to be amended?
Pedlars perceive that it is BIS shortsightedness that has brought on any
need for urgent amendment.
11.0 Please provide reasons why BIS have not outlined possible amendment to
the Pedlars Act to satisfy the Directive? BIS has not been able to clearly identify
the Lords stipulation about requirements for a “genuine pedlar“. It is therefore
spurious of BIS to apply the same use of “genuine” to the term for “genuine
public safety reasons“.
Pedlars consider that the public itself may cause greater public safety
concerns by its very number rather than by the presence of a small numbers of
pedlars.
12.0 Please explain why BIS perpetuates the notion that there is any confusion
whatsoever about when the exemption for pedlars from street trader licensing
applied.
Pedlars are not at all confused because they can read plain English that
does not require interpretation. Pedlary is an exempt activity in all street trading
legislation… full stop! Pedlary is a different trading activity to static trading…
full stop! Pedlars are itinerant, ambulant, mobile, moving, random,
opportunistic, non-conformist, self-regulating, etc… that’s it! It’s called
entrepreneurship… full stop! The BIS website has links and interviews with
young entrepreneurs endorsed by BIS propaganda – a doctrine or policy that in
itself does not entail results, but there are no interviews with young entrepreneur
pedlars…why?
Unless there has been an undisclosed memo or remit that encourages BIS not to
promote pedlary, it must be in the favour of BIS to commission Lord Sugar to
spell out his message about pedlary that he’s put out on his Apprentice program
that “when you are mobile the world’s your oyster” which of course also applies
to the streets of London.
13.0 BIS / HMG now recommends that it is only the courts that can make
definitive interpretation of the law, which in itself is part of tautology but is also
a serious reneging of responsibility for government to provide effective and
reasonable guidance when setting down provisions in law.
Pedlars are aware, as must be those authorities that raise summons against
pedlars that those summons are being issued erroneously. Summons for
offences for example under the London Local Authorities Act of “selling or
exposing for sale any goods” are being issued in spite of the provisions of the
Pedlars Act granting the right to carry out that precise activity and in spite of
explicit exemption in the Act for pedlars from regulatory provisions.
BIS has to explain to pedlars about any intention to ensure the continued
freedom of pedlars to trade and to prevent re-regulation by another route…?
By reply please provide textual alternatives for consideration by those directly
affected.
13.1 The exemption from street trading regulation for acting as a pedlar can be
addressed by BIS by issuing guidance to local authorities that any alleged
offence, in the first instance, should rest on proving beyond reasonable doubt
that the said activity was or was not the lawful actions of a pedlar and the
Summons should be issued for the civil offence of not acting as a pedlar within
the terms of Pedlars Act.
Penalties can be increased to reflect a street trading offence but there is no
justification to criminalise a person who is then disbarred through such as the
CRB, and will then have the burden of a continual punishment that is
disproportionate to the fair administration of justice that allows for reform and
rehabilitation. Criminalisation denies opportunity for a potential lifetime of
work with others such as the vulnerable or the official.
Please indicate how de-regulation of pedlary by the BIS preferred policy will
avoid automatic implied criminal offence to over-zealous enforcers?
14.0 In this section of the Response to “A joint consultation on modernising
Street Trading and Pedlar Legislation there is a fleeting moment of unexpected
clarity. There is understanding that the chief identifiable problem for local
authorities is educating enforcement officers to have clarity about pedlars’
mode of trading.
Pedlars.info’s “A Short History of Pedlary” (available online at
https://pedlars.info/histyory-of-pedlary-foodstuffs)
discusses pedlars means or mode of trading in detail and is able to provide BIS
with a simple “in the field” check box so as to avoid the requirement of the
preferred BIS option of forcing all pedlars to justify their actions in Court.
It is also worth a mention that although the Response suggests that somehow the
Pedlars Act, a national statute can or should be “modernised”, there is little or
no determination about how BIS as a national government agency is able to
alter the LG(MP)A, which is in effect an adoptive Act, to be able to suit all the
individual requirements of more than 480 local authorities, who in themselves
as “private” bodies have their own constitutional independence.
This quandary more than emphasises why it is that BIS has decided to not touch
those “private” Acts such as the CoW and others currently in force.
Please be aware that due to “alleged” government savings, pedlars no longer
have the safeguard of Legal Aid, rarely have the means to pay for
representation, and must defend themselves against formidable court orators
without any likely success in a Magistrates Court and little chance on Appeal.
Please confirm that this is not the intention of BIS to thrust this burden on to
pedlars that all pedlar issues be settled in Court..?
14.1 Please confirm to pedlars why it is that BIS/HMG do not intend to remove
additional enforcement powers already obtained..? Does BIS not understand
that it is those unreasonable powers of seizure, confiscation and FPN’s that are
being so abused by some jurisdictions? Is such unfair privilege endorsed by BIS
when the rationale and propaganda for BIS is for “fair markets” and is it not the
duty of a national governing body to provide a national level playing field?
For those who don’t understand the current unfair mechanism to disable
pedlars here is a reality check so you know – under “provisions of seizure” law
abiding pedlars have goods and equipment seized for alleged offence of selling
or exposing for sale their goods. From that bullish moment to the time of being
entitled to enter a defence at Court can take several months. Those are
intolerable months of loss of ability to work, no income, just preparation of
defence for wanting to work within the law. An innocent verdict does not
compensate for months of loss of income whilst enforcers hide from
prosecution by the provision of “reasonable suspicion that the person was
committing an offence”. That is what is unfair, disproportionate and makes
pedlars potential victims of law.
15.0 Please be aware that pedlars do not accept the BIS proposal to expunge &
re-invent a meaning of the term “pedlar” especially given its appalling and
controversial first attempt in Annex B of URN09/1074 and in the blatant lack of
any indication in this “Response” 11/542.
The words our forthcoming work strikes fear and anxiety into all potential
victim pedlars. It appears that there is intention without further consultation
with those most vulnerable and directly affected by BIS and collaborators in
other departments such as the DCMS and the Ministry of Justice, to disrupt and
destroy cultural, social and economic arrangements that have existed throughout
many years and which form the context to and the reality of a national
constitution and identity.
That a government department charged with coalescing international obligations
with domestic arrangements should then use that charge to effectively
dismember the domestic environment by wrongly interpolating the intent of
international convention is not simply paradoxical but absurd, dangerous and
liable to bring government into disrepute.
Outside of the UK pedlars have been prominent in averting catastrophe – in NY
city USA, a pedlar gave warning to prevent the destruction in Times Square; the
protest of a single pedlar in Tunisia has brought about civil revolution in North
Africa and further to near neighbours in the Gulf and Middle East.
How is it that BIS/HMG on the presumption of a general interest has decided to
ravage the simple livelihoods of ordinary self-employed persons known as
pedlars who have satisfied the public need for centuries?
16.0 Pedlars involved in the consultation were not made aware
of implications about removing the right of appeal to the Secretary of State as it
seemed only to apply to the one aspect of the entire consultation that had
relevance to licensed street trading.
What is now understood is the intent of BIS is to dismantle the existing legal
framework from government responsibility and place all liability for decisions
upon local authorities.
This not only removes the legal responsibility from HMG about fair
administration it also places the financial burden on local authorities and the
fiduciary burden upon local charge payers.
This ploy is being conducted under the assumption of the European indication
of “subsidiarity” which has become translated in domestic terms as “localism”,
which with the existing legal framework of government responsibility
dismantled, and all liability for decisions “locally” resting upon local
authorities, controversial matters will only be resolved in courts where only the
most wealthy with the most expensive of representation will have any remote
chance of succeeding.
The twist to the terminology: so subsidiarity becomes “localism”, and with
HMG’s secretary of state removed from the “decision making” process it will
not be possible for any individual of this the UKGB “member state” to take the
government to court on any basis of government liability.. it will all be down to
squalid little courtroom tussles with squalid little local administrators enforcing
the law as they the squalid little interpreters interpret it.. wanting justice is going
to be a very expensive item.
BIS is headed towards the American way, but without any Bill of Rights.

Awaiting your prompt reply
sincerely
Robert et al at pedlars.info
Note: This initial response to the Executive Summary points 1-16 will be followed by further
requests for greater clarification on 17-49, 50-233. We caution your further work on Next
Steps 235-240 until this work is done.

March 2011  

publication of BIS URN11/542