PSPOs

Birmingham’s ban on peddling restricts our statutory rights

This is a guest post by Robert Campbell-Lloyd, administrator of pedlars.info, outlining his objections to Birmingham Council’s proposed ban on peddling in the city centre.

Birmingham Council’s proposal to ban all peddling within the city centre is unlawful, unreasonable and unnecessary. Here are my objections to the measure below:

1. The PSPO unlawfully conflicts with the Pedlars Acts 1871 and 1881

The Pedlars Act 1871 establishes the right of individuals to trade as pedlars upon obtaining a Pedlar’s Certificate issued by the police. This right is further reinforced by the Pedlars Act 1881, which explicitly states that a certificated pedlar has the legal right ‘to trade any place throughout the United Kingdom’.

By attempting to prohibit pedlary within the restricted area, Birmingham Council is directly contravening this statutory right. The PSPO seeks to override an Act of Parliament by imposing a blanket prohibition that is inconsistent with national law. It is a fundamental principle that secondary legislation, such as a PSPO, cannot override primary legislation. The High Court confirmed this principle in R (Boddington) v British Transport Police [1999] 2 AC 143, where Lord Irvine stated: ‘A public authority may not use subordinate legislation to defeat the intention of Parliament expressed in primary legislation.’

Since the Pedlars Act 1881 grants pedlars the right to trade anywhere in the UK, including places covered by the PSPO, the council’s attempt to prohibit pedlary is clearly ultra vires and unlawful.

2. The council’s justification for the PSPO Is unsupported by evidence

The 2009 UK Government Report on Local Authority Controls and Pedlar Legislation directly contradicts the council’s justification for this PSPO. The executive summary (bullet point 6) of the report states:

The scale of pedlary in Great Britain is relatively modest, with an estimated 3,000-4,500 pedlars being granted certificates to trade by police forces. There is little evidence that certificated pedlars present problems in city centres, nor are they in direct competition with shops or street traders. Indeed, consumers valued their presence in town centres and regarded buying from pedlars as a positive experience.

The report goes on to state: ‘Most complaints come from retailers concerned with competition, rather than, for example, illegal trading per se or obstruction.’

This official government research provides hard evidence that certificated pedlars do not cause harm, whereas Birmingham Council’s claims are based on anecdotal and unsubstantiated opinion. The council has failed to provide any factual evidence that pedlary meets the legal threshold required under Section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014.

3. The PSPO fails to meet the legal test under Section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014

A PSPO can only be imposed under Section 59 of the Anti-Social Behaviour, Crime and Policing Act 2014 if:

The restricted activity has a detrimental effect on the quality of life of those in the locality; the effect is persistent or continuing; the activity is unreasonable; and the restriction is justified and proportionate.

The council has provided no factual evidence that lawful pedlary meets these criteria. The 2009 government report contradicts the council’s claim that pedlars cause problems in city centres. The council has relied on vague and unverified opinions rather than concrete evidence. No public consultation has provided proof that pedlars negatively impact the local area.

4. The wording of the PSPO Is overbroad and unenforceable

The use of the term ‘peddling’ without distinguishing between lawful and unlawful activity creates an enforcement problem. Enforcement officers will inevitably wrongly penalise certificated pedlars, leading to unnecessary disputes and legal challenges. A more precise and legally sound alternative would be to restrict illegal trading, not lawful pedlary.

The council should consider using clear and appropriate terminology such as: illegal street trading; unlawful trading; unauthorised trading. This would enable enforcement against genuinely problematic trading activities without breaching the rights of certificated pedlars.

Conclusion: The PSPO must be amended

To ensure the PSPO is lawful and enforceable, the council must remove the prohibition on pedlary and replace it with a restriction on illegal or unauthorised street trading. Should the council refuse to amend the PSPO, I reserve the right to seek Judicial Review proceedings to challenge its legality.