Why a PSPO Cannot Resolve Illegal Street Trading — Legal Argument
Birmingham City Council appears to believe that the proposed PSPO can eliminate all street trading not authorised by council-issued licences or consents. This assumption is both legally unsound and practically unworkable.
- No Power to Override Primary Legislation
The Council cannot use a PSPO to criminalise conduct that is explicitly authorised by primary legislation. Under the Pedlars Act 1871, as amended by the Pedlars Act 1881, any person who holds a valid pedlar’s certificate “shall be entitled to trade in any place throughout the United Kingdom.” (Pedlars Act 1881, s.3).
The PSPO regime under section 59 of the Anti-social Behaviour, Crime and Policing Act 2014 does not permit local authorities to override such national statutory rights. As confirmed by the principle of statutory interpretation, subordinate legislation (such as a PSPO) cannot impliedly repeal or conflict with primary legislation:
“It is a well-established principle that delegated legislation cannot override or conflict with the provisions of primary legislation.”
— R (Public Law Project) v Lord Chancellor [2016] UKSC 39
Any attempt to criminalise lawful pedlary through a PSPO is therefore ultra vires and unlawful.
- Misuse of Power: Improper Purpose and Disproportionate Means
The Council has stated that one rationale for the PSPO is that certificated pedlars undermine income from council-issued licences. This demonstrates an improper purpose, using PSPO powers to regulate economic competition and protect revenue — not to prevent anti-social behaviour.
“A public authority must not use a statutory power for a purpose that is not authorised by the statute.”
— Padfield v Minister of Agriculture [1968] AC 997
Furthermore, blanket prohibitions that criminalise lawful conduct are disproportionate and irrational when existing enforcement powers remain unused.
“A measure will be disproportionate if it is not the least restrictive means of achieving the legitimate aim.”
— See Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39
- Ineffective and Illogical Response to Unlawful Traders
The Council assumes that unlawful trading will be deterred or eliminated by the PSPO. This is unrealistic and contrary to enforcement logic. As the Council itself admits, enforcement officers have not visited the city centre in relation to pedlars since April 2025. Illegal traders already disregard existing laws. They are unlikely to respect a PSPO.
Legally, a PSPO is not a substitute for diligent use of powers under:
- Local Government (Miscellaneous Provisions) Act 1982, Schedule 4 (unlicensed street trading);
- Highways Act 1980, ss.137 and 147 (obstruction);
- Environmental Protection Act 1990 (nuisance or littering offences);
- And general criminal law.
Failure to enforce these powers cannot justify criminalising everyone, including those acting lawfully. As stated in R (SB) v Governors of Denbigh High School [2006] UKHL 15, public authorities must act proportionately, respecting the legal rights of those affected.
- The Law Recognises That Unlawfulness Persists Despite Prohibitions
No law can eliminate misconduct altogether. Villainy exists in all walks of life — in professions, business, politics, and even enforcement. The mere existence of illegality does not justify outlawing lawful acts. A PSPO is not a magic solution to rogue traders.
Lord Toulson in Kennedy v Charity Commission [2014] UKSC 20 said:
“The rule of law requires not only that the law must be followed, but also that legal powers must not be used beyond their legal limits.”
It follows that targeting pedlars — without evidence, on the basis of economic or administrative convenience — amounts to an unlawful use of legal power.
Conclusion
The proposed PSPO:
- Conflicts with the Pedlars Acts, which remain valid national legislation;
- Pursues an improper purpose (revenue and licensing control);
- Fails the test of proportionality and necessity;
- And will not achieve its stated goal of preventing unlawful trading, which must instead be addressed through proper enforcement.
You cannot ban what is legal in order to deter what is illegal. You must enforce the law you already have.
The Council’s PSPO, in its current form, is legally flawed and destined to fail under Judicial Review.
Pedlars.info 18 July 2025 – Response to Birmingham City Council proposed PSPO