ON PROPOSED REFORMS FOR PEDLAR LAW AND STREET TRADING: THE SCOTTISH PERSPECTIVE.
Westminster, Stormont and Holyrood have joined together to reform the law surrounding pedlary. In Scotland this relates to both the Pedlars Act 1871 and the Civic Government (Scotland) Act 1982. A link to the consultation can be found here.
This consultation proposes to abolish the Pedlars Act in Scotland as well as other UK jurisdictions. At present, Scotland has a dual system in which perambulatory traders may potentially fall under the Pedlars Acts, or alternatively be classed as a street trader under the Civic Government (Scotland) Act 1982 depending on how they conduct their business. There has been some case law discussing the difference between the two. In Watson v Molloy  1 WLR 1024 the court offered a useful definition: “If the distinction is to be encapsulated in an aphorism, one might say that a pedlar is one who trades as he travels as distinct from one who merely travels to trade”. The proposal now is to abolish the Pedlar certificate and simultaneously remove the exemption under the 1982 Act, meaning pedlars would fall under the definition of “street trader” and require a licence.
It is unclear how many people may be affected by this in Scotland but upon anecdotal evidence I understand that several Scottish police forces have an active register of Pedlar’s certificates so it would seem that any number of new licence applications would have to be made. This will increase the scrutiny upon these traders as they will have to go through the full civic licence application procedure for a street trader. It will be for local authorities to determine those applications. Any person could object, including of course the police, on grounds such as the person is not “fit and proper” to hold a licence.
I agree that the Pedlars Acts are antiquated and should be repealed. I also agree that pedlary should be brought within the ambit of the 1982 Act which is its natural home in the modern context. It remains open to local authorities to determine the exact type of pedlary which will require street trader licences so there will be local flexibility. The 1982 Act allows Scottish local authorities to only require a licence for certain “types” or “class” of trader so each authority may, for example, allow its own local list of exemptions for certain types of pedlary. This means that in some areas all pedlars may need street trader licences but in others they may not, depending on local “section 9” resolutions.
This will almost certainly have a financial impact upon pedlars who will be subjected to the civic licensing regime for the first time. This will involve application fees and possibly legal costs if they require the services of a solicitor. In addition, they would, it seems at first blush, need to secure a licence in more than one area. The Pedlar’s certificate allowed the holder to trade throughout Scotland; now, the trader may have to apply for multiple licences to let them trade in separate local authority jurisdictions. This may create the bizarre result that a trader needs a licence in one area but does not in another. I anticipate confusion. There is also a greater cost to pedlars, who may find themselves having to apply for multiple licences. This may also result in a strange happening where a trader may be granted a licence in one area but be refused in another. More work needs to be done to consider the pan-geographical nature of this type of trade.
Thankfully I can point the Government to precedent under the 1982 in the form of metal dealer licences and a sub-set of that, itinerant metal dealer licences. It seems to me that a pedlar is an “itinerant street trader” and more thought should be given to how the law might allow one licence to operate throughout Scotland in the same way that itinerant metal dealer licences do.
Further detail on street traders licensing and pedlary can be found at pg 99 – 108 of my book “Local Government Licensing Law in Scotland” (2012).