ATCM Chief Executive's Blog - All Postings

Friday 30 September 2011

PEDLARS/STREET TRADING – EUROPEAN SERVICES DIRECTIVE

Graham Wilson, Chief Executive of NAMBA represented the ATCM and other Retail Market Alliance members at a recent BIS seminar on the changes that need to be made to the Pedlars/Street Trading legislation arising out of the impact of the Directive.

The BIS officers opened the meeting by indicating that they are pursuing a reform of the consumer landscape. They had been tasked with simplifying the law and ensuring that “markets” are open for those who which to utilise them but, at the same time, ensuring that consumers are protected from harm. It is anticipated that a Consumer Bill of Rights will emerge in a few years and they spoke of providing Trading Standards with increased powers to deal with consumer issues. The current Government has a “repeals agenda” with the intention of simplifying the current law. Anything that protects “insiders” is potentially anti European and the BIS officers indicated that there is a significant risk, where infringements are identified, because we are already beyond the date (1st December 2009) when the requirements of the Directive should be implemented. In terms of the Pedlars/Street Trading legislation the Government can only do what is compatible with the Directive.

There is a current proposal to repeal the Pedlars Acts but the Government cannot ban pedlars. There is lots of evidence of problems caused by pedlars or unlawful street traders but there is not enough evidence to justify a nationwide ban.

The representatives from around the UK gave numerous examples of the impact of pedlars on town centre trading. Some, like Newcastle, had already seen the successful impact of the legislation that they had enacted some years ago. Others outlined the problems they were currently facing and Bournemouth gave examples of how the presence of pedlars had affected investment in the town centre.

The BIS officers indicated that the Government’s intention is to put forward draft Regulations and the purpose of the seminar was to talk to local authorities about how the Regulations would be framed. It was emphasised that the Government can only put forward Regulations that are compatible with the requirements of the Directive. In due course further consultation will take place on the content of the draft Regulations. Many of the representatives at the meeting felt that pedlars should be licensed under the Street Trading legislation.

Rather than have the current exemption, contained in the 1982 Act, a system of licensing should be introduced to enable pedlars to be considered in the same way as existing street traders. Belfast gave an example of the legislation operating in Northern Ireland where there is provision for the licensing of mobile street traders. It was suggested that this would be a useful precedent to adopt in the rest of the United Kingdom. The BIS officers emphasised that they were prepared to endorse the continuance of the licensing arrangements under the 1982 Act because they felt there was justification for the continuance of these arrangements (with some adaptations to take account of the requirements of the Directive) but they were currently unable to justify any regulation scheme in respect of pedlars.

We continued to advance the argument that it was totally inequitable for existing market/street traders to have to pay fees/rent and conform with the requirements of the legislation when pedlars, who might be trading in the same goods, were completely unregulated and did not have to pay any charges. While the BIS officers accepted the merit of this argument they felt that they could not justify legislation in the context of the requirements of the Directive.

It may be possible to limit the number of pedlars, or even ban them from operating, where there are large crowds expected and there is a concern regarding public safety. This would not be incompatible with the requirements of the Directive. There was a discussion regarding the definition of a pedlar and the general feeling was that the definition should be very prescriptive with a limitation on trolleys and a requirement that goods they are selling should be carried on their person. It was also felt that time limits should be included in the legislation together with a provision allowing the seizure of goods.

There was general acceptance that the definition of a pedlar contained in the 1871 Act was no longer sustainable and we argued that rather than have a revised definition of pedlar it would be sensible to adopt the Northern Ireland approach and refer to a mobile street trader which would enable all traders to come within the framework of the Street Trading Legislation. On street trading itself the BIS officers are looking at the application requirements and the process by which applications are considered to ensure that the new regime meets the requirements of the Directive.

There may be some changes to the reasons for refusing an application. We will have to wait and see the content of the draft Regulations. NABMA maintains that pedlars should be licensed and they should operate under a similar regime to existing street/market traders. If the definition of pedlars is to be revised then it should be a very prescriptive definition limiting the goods that can be sold and making it clear how the trading can take place.

Draft Regulations may be published before Christmas as the BIS officers are keen to move forward on these matters particularly as the Directive has been in force since 1st December 2009.