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‘It’s not illegal, but we must find a way to stop it’.

Is a fair summary of the antics of a bunch of Cornish bureaucrats in Padstow, (a harbour and tourist attraction on Cornwall’s north coast) supported by the local MP Scott Mann, in a battle against street traders, who are within the law. And we have that bureaucrats favourite concept, a ‘multi-agency approach’, (which I first heard in the early 1990s), with the following wastes of public money involved: Cornwall Council, Devon & Cornwall Police, Padstow Town Council, Padstow Harbour Commissioners (the Harbour is established by law with government oversight).

Scott Mann discusses Padstow street trader complaints with multi-agency group

It is rather concerning that the local Police are getting involved in a matter that is not illegal, street trading by selling services is not, well, according to Cornwall Council’s legal advice.

Following a number of complaints in 2017 regarding hair braiders and henna tattooists providing services on the quay at Padstow, partners have been working together to consider options for controlling these traders. In recent meetings, each agency or representative has discussed the concerns being brought to their attention by local residents and businesses, what solutions may or may not be available to them, and what options there are going forward.

Independent legal advice has been obtained by Cornwall Council which confirms that the provision of services does not fall within the definition of street trading as prescribed under the relevant legislation.

Or as the bureaucrats find to their evident dismay.

The current street trading legislation under the Local Government (Miscellaneous Provisions) Act 1982 creates a loophole whereby people deemed to be providing a service are exempt from having to obtain a street trading licence or adhere to street trading regulations. In practice, this means individuals who are sat around the harbour braiding hair or applying henna tattoos do not have to obtain a licence because they are deemed to be providing a service, rather than selling tangible objects such as toys, clothes, jewellery or food.

Yes, Parliament never regulated this, so why don’t you all eff off back to your desks, submit your resignations, and ask for your jobs not to be replaced? It’s freedom that upsets you, isn’t it? No one is getting their hair braided without consent, no one is getting tattooed by force, just don’t buy it. There is no trespass, no obstruction, no nuisance, no wrong done, it’s just something that you can’t (yet) licence. A chink of light through the curtain of licensing darkness. It is not a loophole, it is simply not banned. A loophole would be making it legal to sell goods on the street without a licence only if you wore a red hat.

It is for Parliament to propose changes in the law, not bureaucrats, who are paid to do their jobs, and Councillors are, really, paid bureaucrats. Let the public pester the MP, and let him propose what he might, so that her Majesty, with the Advice of the Commons and the Lords Temporal and Spiritual, may so enact if it please her. To be fair to him, this appears to be what he has in mind. It is a symptom of the political culture in Britain, even far from London, that this is something for bureaucrats to fret about, all mask of neutrality has fallen here.

The attitude of the police officer involved is particularly dismaying:

Sgt Andy Stewart said:

“The Police are actively working with other agencies in an attempt to resolve the issues being caused to some people by the street traders. A balanced approached will be maintained, and it is important that each case is considered individually and there is ongoing monitoring of any changing circumstances.”

Why didn’t he say something like:

‘No offences are being committed, this is as lawful as breathing, it’s got nothing to do with me, stop wasting my time. I’m going to look for some hate speech on Twitter instead to boost my stats.

OK, the last sentence is perhaps a little unkind.

14 comments to ‘It’s not illegal, but we must find a way to stop it’.

  • OK, the last sentence is perhaps a little unkind.

    Not unkind enough really.

  • opsimath

    The truth is often unkind — and often not wanted.

  • Paul Marks

    One of the errors of John Locke was to say that Parliament (“the legislature”) “made the law” – rather than saying that the High Court of the Crown in Parliament FOUND what the law already was – by the principles of natural justice applied in individual cases in the light of experience (the tradition of the Common Law).

    Even back in the time of the Wars of the Roses (as they are called now) Fortescue (a sometime Chief Justice) was arguing in terms of Parliament making law in line with the advice of a council of experts for such aims as the manipulation of overseas trade.

    Having a “legislature” “making law” is not as bad as having officials giving orders with the force of law (what Mr Ed is denouncing – and which Chief Justice Hewart denounced in his “The New Despotism” in 1929 and the American Supreme Court struck down, nine votes to zero, in 1935 – alas this ruling against officials was de facto reversed by judgements during World War II), but it is still very bad. Vague “Enabling Acts” giving the Executive the right to give orders with the force of law (such as the one in Germany in 1933 and the one in the United States – also in 1933) are, of course, an ABOMINATION, but even a specific Act of Parliament demanding (for example) the “licensing” of cutting hair is an injustice – indeed the great Chief Justice Sir Edward Coke struck down an Act of Parliament (not just an order of King James the First of England) on the licensing of DOCTORS (the case of Dr Bonham 1610), as practising medicine without a piece of parchment called a “license” is not a “crime” as the Common Law understands a crime – i.e. an aggression against persons or property.

    As Chief Justice Sir Edward Coke rejected even the “licensing” of doctors I shudder to think what he would say about the “licensing” if hair braiders – or the “licensing” of people who sell goods as well as services. Adam Smith was quite correct when he said that it is not in the interests of a butcher or baker to poison their customers – concern for the the REPUTATION of a business is the safeguard for customers, not thousands of pages of regulations (which are used as a shield against complaints – “we followed the rules” being the defence of every charlatan).

    As Bruno Leoni in his “Freedom and the Law” confirmed in the 1960s – there is also a tradition in Roman inspired law (not just Common Law) that rejects “legislation” rather than law being the application of basic rules natural justice (informed by tradition) to individual cases. “This person sold me meat that made me ill” is a possible civil case, “this person sold me meat without owning a piece of paper called a license” is NOT a case.

    We all know (even the officials know) what licensing and other such regulations are really for – there are there to RESTRICT COMPETITION, erect BARRIERS TO ENTRY against the poor (trying to earn a living by providing goods or services), and RIP OFF customers to the benefit of established interests – and of OFFICIALS. giving officials jobs creating and enforcing the harmful regulations.

  • CaptDMO

    Oh, they’re not illegal
    The Trouble with Tribbles.
    And eventually, the costumed characters (zero royalties) offering photo-ops to the tourists got out of hand.

  • CaptDMO

    The trouble with Tribbles.
    Oh, they’re not illegal
    New York City, Hollywood-Eventually, the throngs of costumed characters (zero copyright royalties) offering photo opportunities,
    got out of hand.
    A hairdo, or henna tattoo are CERTAINLY a tangible product.
    LOOK, HERE IT IS! WHERE IT DIDN’T exist BEFORE!
    A knob job, between the rat and roach infested dumpsters dripping with rancid grease, behind the Family Themed Restaurant, while waiting the 30+ minutes for the seating number to be called….
    Now THAT’S a service!

  • Mr Ed

    Perry,

    I was (foolishly?) affording the good Sgt a presumption of innocence, every now and then an innocent man works for the government etc. I would be surprised and delighted to be right.

    The Sage of course rightly calls me out for my ridiculously modest stance of simply wanting the current constitutional orthodoxy (a heinous error as it happens) to be observed, one small step for mankind.

    The actual prohibition in question came in in 1982, and it defines street trading thus:

    “street trading” means, subject to sub-paragraph (2) below, the selling or exposing or offering for sale of any article (including a living thing) in a street;

    It seems perfectly clear to me (including by reading on) that services aren’t covered by that wording. The licensing here is not so much concerned with the alleged quality of the activity, but its existence. Of course, street traders don’t pay business rates (because no one has got round to imposing that on them yet), unlike hapless retailers with premises, so perhaps that is another reason for the bureaucrats to hate them.

  • As any big city mobster will tell you, shaking down small businesses for protection money is a profitable line of work. The government gets into the same lines as the mob and every branch of government wants a piece of the action until the number of permits gets to the point that no one can afford the protection. Mobsters understand this, which is why they have a capo who decides which local thugs get to shake down which neighborhoods. Sometimes the Capo is referred to as “Mr. Mayor”.

  • I don’t think Paul Marks’s analysis can be faulted, or bettered.

  • Fraser Orr

    This sort of subject is something that always makes me laugh a little (perhaps in a gallows humor sort of laugh.)

    In China, if you want to start an internet business you need to obtain an ICP license from the government. Here in the west people are used to the idea that they can start a blog or youtube channel and hopefully make their fortune. You tell them about the ICP license and they are utterly horrified at the oppression of the Chinese state.

    Somehow, though, when you tell them some girl needs a special license to braid hair or some dude need a license to sell groceries, that that seems like a perfectly normal function of the state.

  • Mr Ed

    when you tell them some girl needs a special license to braid hair or some dude need a license to sell groceries, that that seems like a perfectly normal function of the state.

    I fear that this is perfectly true as to how the issue is perceived by the vast majority. Indeed I am reminded of something I read in the early 1980s of a Westener visiting Moscow asking Russians about the huge posters of Marx, Lenin or Party propaganda and being told dismissively that the locals ‘tuned out’ the posters and did not see them as any more to be taken notice of than trees, they were just a feature in the landscape. But that is how many here see such regulation, a feature of the landscape, not something to be questioned, ridiculed or removed.

  • CaptDMO

    Mr. Ed-
    “But that is how many here see such regulation, a feature of the landscape, not something to be questioned, ridiculed or removed.”
    I can only speak for myself of course, but much like the Russians that “tuned out” the “officialdom”, you neglected the blithely ignored option among the “questioned, ridiculed, or removed”.
    In my days in New York City, I defiantly refused to mind the gap at the Staten Island Ferry subway stop, along with a few other “licencing” bits concerning cutting torches, powder actuated fastener drivers(Hilti),high voltage electrical wiring, fire retardant application, mechanical rigging, laser operation, scaffolding assembly, HVAC modification, gas heater maintenance, locksmithing, Medallion cabs, occupation at registered bars, and ordering breakfast including runny eggs at a restaurant.

  • Rich Rostrom

    I think the indignation is misdirected. The alleged problem is not that these vendors are doing business, it is that they are occupying public space to do business.

    It is the business of local government to control public spaces under their jurisdiction. They have authority (in this case, granted by Parliament) to forbid, permit, and regulate people doing business in public spaces (“street trading”), but that authority is limited to tangible goods. I don’t see that it is unreasonable to seek authority over trading in services as well.

  • Mr Ed

    RR

    It is the business of local government to control public spaces under their jurisdiction.

    No, it is the business of local government to do what statute and common law permits them, and nothing more. They ought not to be involved in political matters (a change in the law) at all. It is not their place to seek functions. They may explain to exasperated agitators that they can do nothing, it would be a political matter, but no more.

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