Glasgow 2014 and Trading Licence Implications

ON THE PROPOSED LICENSING RULES FOR “STREET TRADING” AT THE GLASGOW COMMONWEALTH GAMES 2014

The Glasgow Commonwealth Games (Trading and Advertising) (Scotland) Regulations 2013 are being consulted on with the closing date set for answers on 7 August 2013. The consultation papers can be accessed here. The regulations relate, of course, to the Glasgow Commonwealth Games Act 2008, which can be viewed here. The consultation focuses on two main areas: impact on trading, and the impact on advertising. In this blog I will be looking at the impact on trading and in particular the licensing implications.

IMPACT ON STREET TRADING LICENCES

The 2008 Act (s.2) makes it an offence to trade within the vicinity of a games location. This is an overarching provision which takes precedence over the terms of the Civic Government (Scotland) Act 1982. The effect of this is that existing licence holders who have been granted street trading licences which apply to areas caught up in the defined “event zones” will not be able to rely simply on their civic licence for the specified games period unless they secure a secondary authorisation or licence from the Games Organising Committee, a company called Glasgow 2014 Limited (“the OC”).

It is considered that the provisions of the 1982 Act do not stretch far enough to uphold the three main aims of Holyrood policy as regards Games governance. These aims are:

  • To protect the revenue generated through sponsorship by ensuring that companies who have paid for Commonwealth Games association rights have their commitment protected. These sponsors have exclusive rights to associate their brands with the      Games and the regulations prevent ’ambush marketing‘ by non-sponsor      organisations.
  • To protect the character, integrity and safety and security of the Games by eliminating      inappropriate advertising and street trading.
  • To control street trading in relevant designated areas to ensure safety of spectators, and the free flow of spectators and traffic to and from the Games venues.

In addition, and for the avoidance of doubt, it will not be sufficient for new or proposed traders to simply seek authorisation under the terms of these regulations, they will also require the normal street trader’s licence so that they do not commit any offence under the 1982 Act. The nub of this is that persons trading in the event zones will require to be double licensed – a licence under the 1982 Act and an authorisation under the Games regs.

The Consultation indicates that it captures other licensable forms of activity as “selling” and this includes selling articles and services, pedlary, charitable collections, and public entertainment. Each of these is regulated by a separate existing licensing regime but will now also be captured by the requirement to get a special games authorisation under the regs, and this would even apply to such activities for no monetary gain. Public entertainment is defined at Part 2 Reg 3(f) of the proposed Regs as including: (a) a performance of live music, (b) any playing of recorded music, (c) a performance of a dance, (d) a performance of a play, or (e) any other entertainment similar to that prescribed in (a) to (d).

The street trading authorisation requirement will apply to those who are on the ground as well as those who are the organisers such as directors of companies.

There are a number of general exceptions laid down to the requirement to secure the additional “games authorisation” created in the regs. These are:

  • trading undertaken or controlled by the Organising Committee on enclosed land which is a Games location.
  • Selling current newspapers or periodicals provided that the trader complies with rules about any receptacles used for the papers or periodicals;
  • trading in the form of delivery;
  • providing various motor vehicle-related services on private land
  • generally used for those purposes – such as selling cars from a car sale yard, operating an established car wash business, and providing parking services in a car park      building;
  • providing a public sanitary convenience, such as a public toilet;
  • providing a permanent telephone kiosk;
  • trading as a walking tour operator
  • supplying public transport services, however, not including pedicabs;
  • trading on private land adjacent to shops, cafés and related premises, and petrol stations, provided that the trading forms part of the usual business of the shop, café, etc., and is carried out by the current owner and operator of that business;
  • trading activity carried out by the master licensee is permitted without authorisation.

I note the second last of these is similar to the existing exemption for street trading where the operation is “abutting” an existing building premises and this would typically catch something like a stall being placed outside the front of a shop, where the stall is selling good from the shop and is operated by them.

2014 GAMES AUTHORISATION PROCESS
Anyone who does not enjoy the comfort of an exemption will have to apply for authorisation from the OC. The provisions allow for the OC to delegate administrative functions. To try to put what this means into a familiar licensing context, one may consider that the OC is akin to the licensing board, and that authorisation requested may be granted through “delegated powers” prescribed to it. The OC will make decisions on applications for authorisation with regard to the main aims of the underlying 2008 Act as well as the proposed regulations and they have “absolute discretion” in doing so (Part 2, Reg 9(2)).

The 2008 Act also entitles the OC to attach conditions to any authorisation, and the power here is quite considerable, in that the 2008 Act specifically allows the OC to impose conditions which may conflict with or be more onerous than existing conditions under separate trading authorisations (such as a a street trader’s licence). In other words, the OC can trump any other licence requirement placed on the trader, for the period of the Games of course.

The full detail of the assessment criteria for who should be granted an authorisation by the OC (in licensing terms this might be seen as a sort of Games “fit and proper” test) is yet to be clarified but the consultation proposed the following types of considerations:

  • Whether a trader’s pitch is particularly close to a venue and is likely to interfere with spectator flows or cause a security risk
  • Overall number of traders and consideration of flow of people in an event zone
  • Any history of failing to comply with other regulations or trading conditions
  • History of any previous or existing licence held under the 1982 Act
  • Whether mobile or fixed trading is proposed
  • Consumer protection and product safety issues

The full authorisation process will be released in the Advance Public Notice for the Games, which is to come, but the Regs say the admin fee must not exceed £70 (Part 2, Reg 9(5)).  I expect that there may be some traders disappointed as there will no doubt be considerable interest in this and the OC may have no option but to grant authorisations on a ballot for certain areas, however the OC will no doubt work with existing traders as far as possible under the circumstances to try and make some sort of provision is made for those who miss out.

2014 GAMES AUTHORISATION: APPEALS
The Advance Public Notice will also set out more detail for appeal should the OC refuse an authorisation. Under the terms of the proposed Part 4 of the Regulations anyone dissatisfied with a decision made by the OC in respect of an authorisation may appeal it, in writing, to the Scottish Ministers. This must be lodged within 21 days of the decision of the OC, and the Scottish Ministers have 21 days after receipt of any appeal to make a decision. They may confirm the original decision or substitute a new decision. They must provide reasons. There is no onward appeal and although the decision of the Ministers may be subject to judicial review the timing of such legal processes is most likely to be prohibitive given the short window when any authorisation can possibly have effect.

ENFORCEMENT
The 2008 Act gives the OC special power to create enforcement officers who are, it would seem, to be “borrowed” from other city council departments and deputised into the ranks of the OC for the duration of the Games. The 2008 Act specifically mentions, for example, trading standards officer authorised in terms of weights and measures legislation.  These OC officers have the power to take steps to prevent or end something which they consider to be a Games offence, and this includes the ability to seize “infringing articles”. There are however, limitations and rules surrounding this particular action and these can be found in s.23 of the 2008 Act.

The OC enforcement officers also have a wide power to enter and search “any place” where they believe a Games offence has or is occurring, or used in connection with a Games offence. Use of reasonable force by OC officers applies only where a warrant has been granted by a sheriff and the officer is accompanied by the police, or failing that where they are accompanied by a police officer who believes there is “a real and substantial risk that delay in seeking a warrant would defeat or prejudice the purpose of taking action” (s.25(1)(b)).

The officers also have the power to require any person to provide information that they believe appropriate in connection with a perceived or actual Games offence, and the officers are also entitled to carry out test purchasing operations, with s.29(2) removing such actions from the ambit of the Games offences.

Similar to other licensing regimes, it will be an offence to obstruct an OC enforcement officer.

CONCLUSIONS
The 2008 Act and 2013 Regulations create between them a one-off special licensing environment for traders during the Games. Existing licensed operators will need a separate authorisation from the Games Organising Committee, Glasgow 2014 Ltd, in order to keep doing what they are doing during the Games (if they are in a relevant zone of course). This authorisation is like an additional temporary licence, for which they will have to pay around £70.00. New operators seeking to come in and capitalise on the Games will require a licence under the 1982 Act in addition to any authorisation from the OC. The OC has very wide powers in granting the authorisations and imposing conditions.

Some existing traders may find that the rules they are used to will suddenly change because the authorisation takes precedence over any existing licensing conditions. The new conditions may be more onerous or indeed entirely different. Some may lose out altogether. The concept of “trading” captures not just street trading licences in the 1982 Act sense but other people too who are supplying services or entertainment so these regulations may cover a significant number of persons or organisations wishing to provide goods or services during the Games. Such potential operators must remember that in addition to securing an OC authorisation they may well need additional local authority licences such as, for example, a temporary street trader or public entertainment licence.

It has always been the case that a special licensing world would exist during the Games and the Regulations simply confirm that. The Government and Glasgow City Council will, I am sure, continue to work hard to ensure that affected parties have plenty of information about all this and I look forward with interest to the Advance Public Notice to learn of the exact authorisation procedure. Existing and proposed traders may wish to avail themselves of legal advice in order to secure the authorisation they will need.

Bring on the Games!

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About Stephen McGowan

Leading Scottish licensing solicitor at TLT. Chairman of BII Scotland.
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