« Previous | Contents | Next »
Listen
A REPORT BY THE TASK GROUP SET UP TO REVIEW THE LICENSING PROVISIONS CONTAINED IN THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
6. SECTION 39 - STREET TRADERS
This part of the Act provides licensing authorities with an optional power to license street traders whether operating on their own account or as an employee. The section also specifies exemptions from any such licensing requirement and provisions relating to the operation of a food business.
6.1 The Task Group concluded that the licensing regime for street traders, whether operating as employees or on their own account, should remain in place in the interests of public order and safety, as well as crime prevention. We took the view that the licensing system should remain optional as there may be areas where licensing is not required, and licensing authorities are best placed to determine the need for, and extent of, any licensing requirement.
6.2 We rejected the proposal contained in the COSLA Report, and supported by a small number of respondents during the consultation, that all those involved in street trading, and not merely those involved at the 'point of sale', should require to be licensed. In doing so, we considered that it would be difficult to define exactly what is meant by 'involved in street trading' and who should be caught by such a definition. We could find no justification for the licensing of employees who are not actually involved in the selling of goods or why other employees of a street trading business should be singled out from other businesses that serve the public. Concerns expressed, such as ensuring food hygiene rules are complied with, are, the Task Group considered, adequately dealt with in other legislation and as such there is no need to extend the licensing regime to cover employees or workers involved in this aspect of the business. In essence, we took the view that the principal purpose of licensing the person involved at the 'point of sale' is to ensure that there is an individual who can be held to account if the buyer has a complaint. This can be, and is, achieved without licensing everyone involved in a street trading business.
6.3 Conversely, as part of our overall consideration of the licensing regime we considered whether there would be merit in deregulating the provisions by removing the licensing provisions for employees and making the owner/operators more accountable, not least for ensuring that their employees were fit and proper persons. However, we concluded that given the nature of the street trading business, the relationship between the employer and employee may be very tenuous and as such it would be unreasonable to expect them to supervise and to be directly accountable for the actions of their employees.
Conclusion
The Task Group concluded that street trading should remain an optional licensing activity and that the licensing requirement should continue to apply to both employees and people trading on their own account.
6.4 Section 39(3)(d) of the 1982 Act exempts those persons operating under a pedlar's certificate, issued by the Police under the Pedlar's Act 1871, from requiring a street trader's licence. The COSLA Report recommended its repeal as being necessary to facilitate licensing authorities having full control of street trading activities, the inference taken by the Task Group being that COSLA were of the opinion that it was possible for those in receipt of a pedlar's certificate to "street trade" without a street traders' licence. We took the view, based on legal precedent, that this was not the case ("a pedlar is one who trades as he travels as distinct from one who merely travels to trade") and that, as such, any exemption from a dual licensing requirement only applies to the peddling of goods. After seeking views in the consultation, the Task Group noted from the responses that there is evidence to suggest the general public are not aware of the difference between street trading and peddling and this can present problems for the various enforcement authorities. However, we remained unconvinced that the exemption provisions should be repealed. That said, we are of the view that the 1871 Act should be reviewed for its adequacy not least for the fact that it does not contain many of the modern-day safeguards contained in the 1982 Act. We were alert, however, to the fact that any review of the 1871 Act is outwith our remit.
Recommendation
While the Task Group noted that the general public were not aware of the difference between street trading and peddling, we did not consider that this interfered with the interface between the two types of licences. However, while strictly outwith our remit, we recommend that Scottish Ministers consider reviewing the Pedlars Act 1871 with a view to determining whether it remains appropriate to modern day needs. In the interim, the Task Group are content that the exemption at Section 39(3)(d) remains valid.
6.5 The Task Group noted Glasgow City Council's proposal that beggars, buskers, street painters and market researchers should be licensed under revised street trading provisions. We took the view that while these activities could cause problems in some circumstances, the licensing system was not an appropriate means of dealing with them. In particular, we considered it would be inappropriate to extend the street traders licensing regime to the sellers of the Big Issue magazine. Notwithstanding the fact that the sellers of the Big Issue magazines are currently exempt from any licensing requirement by virtue of the provisions at section 39(3)(a), we were satisfied that vetting and administrative procedures put in place by the Big Issue itself are sufficiently stringent to tackle any ad hoc problems associated with any of its vendors.
Conclusion
The Task Group concluded that licensing is not an appropriate means of dealing with any problems caused by beggars, buskers, street painters and market researchers, nor that it would be appropriate to license Big Issue vendors.
« Previous | Contents | Next »