STREET TRADING BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum relates to the Street Trading Bill. It has been prepared by the Department for Social Development in order to assist the reader in understanding the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

2. The Memorandum needs to be read in conjunction with the Bill. It does not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. The Bill replaces the provisions of the Street Trading (Regulation) Act (Northern Ireland) 1929 ("the 1929 Act") which relate to the licensing of street trading and enables district councils in Northern Ireland to regulate street trading in their districts.

4. The Bill has proved necessary because, in recent years, there has been a marked increase in the number of unlicensed street traders operating in Northern Ireland.  This is particularly evident in town and city centres and especially at peak times such as Christmas and other holiday periods.  The 1929 Act has become outdated and, in many respects, ineffective and a number of district councils, retailers, police, etc., have lobbied for some time for the provision of an effective deterrent to unlicensed trading.

5. The policy objectives of the Bill are to enable district councils to control and regulate street trading in their districts in such a way as to prevent undue nuisance, interference and inconvenience to persons and vehicles.  The Bill includes more effective measures to allow councils to control the activities of those trading without a licence.

CONSULTATION

6. In an effort to ensure that as much detail as possible was available on the street trading situation, the Department instigated an information gathering exercise in March 1998.  This included contacting all 26 district councils, retailers, street traders, etc., seeking their comments on the existing problems and suggestions on possible ways forward.

7. Following an examination of the responses, a formal consultation document on proposals for new legislation was issued in September 1998 with a 3-month consultation period.  This paper was issued to some 120 individuals and organisations including councils, retail outlets, street traders, Chambers of Commerce, police, etc. In addition, the paper was placed on the Department's web-site and notices were placed in the daily and provincial papers soliciting views on the subject.  As well as setting out proposals for the future, the paper sought comments on financial implications and requested any available figures.

8. Responses to the consultation document revealed the need for further refinement and clarification and, consequently, a report on the consultation exercise was issued in May 1999.  This report was distributed to those who had received the original document and the contents were again published on the Department's web-site.  In addition, officials of the Department have discussed the measures periodically with district council officials.

OPTIONS CONSIDERED

9. In looking at the options available, a number of factors were considered.  The reasonable aspirations of street traders to ply their trade and to have their activities controlled in a fair and transparent manner need to be recognised.  The general public clearly wish to shop at such outlets as the increase in the number of traders would suggest but they also have a right to go about their other activities without undue interference or inconvenience from street traders.

10. The needs of retail outlets have to be considered by ensuring that the actions of street traders do not block the rights of passage of potential customers.  District councils are charged with the responsibility of good local government and they must, therefore, have the tools which are adequate to fulfil this duty.  Any system of control must be effective without being obtrusive and the administration of the scheme, whilst not being over prescriptive, must be detailed, clear and open to challenge.

11. Bearing these factors in mind, a number of options were considered and the pros and cons of each are as follows:

• Do nothing.  This option concludes that, whilst there may be some problem, the end product of solving that problem does not justify the means of achieving that end.  Such an option would clearly involve no additional effort in terms of reviewing the legislation or implementing new measures but would produce no improvement in what is regarded by many as an increasingly serious situation.
• Do nothing to the legislation but provide guidance or clarification on existing provisions.  The current legislation is over 70 years old and in that time significant changes have taken place in the manner and style of street trading which have led to difficulties for councils and street traders in interpreting the legislation.  For example, what is a "street", what constitutes "trading from a stationary position", who should be exempt from the provisions, etc? Some guidance to councils and traders could have been produced quickly with little effort and could have led to a better understanding of the legislation and a measure of improved control.  Since any guidance, regardless of how good, cannot be regarded as having any legal standing, difficulties would have been encountered where a court held that the guidance did not reflect the true meaning of the legislation. Those who flout the law at present were also likely to continue to do so regardless of the clarity of the guidance.  In addition, legislation which was enacted over 70 years ago does not take account of modern day street trading activities.
• Seek to promote a voluntary code of practice/understanding between street traders and district councils.  This would have involved the repeal of the 1929 Act and the regulation of street trading under an agreement between councils and street traders.  This option would have attractions for councils and traders in that they would be free to devise a system suited to their needs and free from central government involvement.  This must be measured against the potential effectiveness of such a course of action and this is questionable since the same traders who apply for licences under the existing scheme are likely to be the only ones who would sign up to comply with a voluntary agreement. Furthermore, with the legislation repealed, a district council would have no legal standing and this could prove difficult where the voluntary agreement broke down for any reason.  Those trading illegally would most likely continue to do so since no effective deterrent would exist.  Additionally, since many traders operate in a number of district council areas, they would have to negotiate a separate agreement with each council, perhaps with differing conditions in each.
• Introduce stronger deterrents into the 1929 Act without a full reform of that legislation.  The deterrent most sought by councils and the police was the right to seize the goods of traders who are operating without a licence and inserting this into the 1929 Act would have avoided a full scale revision of all the other provisions.  To take this route would assume that the only problem with the existing legislation is the absence of an effective deterrent but information gathered and comments received indicated to the contrary. There were differences of opinion and interpretation and, in any event, an amendment to primary legislation would still be involved, the processing of which was likely to have been only marginally quicker than a full reform.
• A comprehensive review of the existing legislation geared to producing a modern licensing system.  Such a step is time consuming since there is a need to ensure that all views are taken into account and that the system produced is fair and transparent.  Producing a more up to date version of the legislation continues to support control by means of a licensing system, a method which some see as unnecessarily restrictive.  A full review, however, should produce a more modern, user-friendly scheme which is fair to all and in which controls which have been advanced as necessary can be prescribed in an overall framework which is clear and open to challenge.

12. It was concluded that an effective legislative deterrent was necessary and the best option was to provide for the seizure of goods within a regulated scheme.  To introduce such a powerful deterrent into a system which was over 70 years old and one which is subject to many interpretations would not serve the best interests of all the parties in question.  It was decided, therefore, that a full review of the legislation was necessary to carry the required deterrent.

OVERVIEW

13. The Bill has 30 clauses and 3 Schedules.  Clauses 1 and 2 deal with the general requirement for street traders to have a licence.  Clauses 3 and 4 contains provisions on the designation of street where trading is to be permitted.  Clauses 5 - 15 cover the actual licensing of individual traders and clauses 16 - 22 deal with the enforcement of the scheme and the penalties for breaches of the law.  Clauses 23 and 24 provide for miscellaneous matters and clauses 25 - 30 contain definitions of terms used in the Bill and set out supplementary matters following the coming into operation of the legislation.

COMMENTARY ON CLAUSES

Clause 1: Licensing of street traders

Subsection (1) of this clause sets out the general prohibition on street trading unless the trader has a licence issued by the council for the district in which he wishes to trade.  Where a street trader wishes to operate in a number of districts, a separate licence will be needed for each.

Subsection (2) provides a definition of street trading.  Trading in a street (whether or not from a stationary position) by selling articles or things or supplying services for gain or reward constitutes street trading.  Certain activities are excluded from the definition under Clause 2.  The term "street" is defined in Clause 25.  Trading in any area outside of a "street" may be carried on without the need for a street trading licence but will be subject to the controls of any other legislation, for example, planning, environmental, etc.

Subsection (3) is an interpretative provision which extends any references in the Bill to "selling an article or thing" to include offering or exposing it for sale.  Similarly, it defines "supplying a service" as supplying a service "for gain or reward" and "offering" to supply that service.

Subsection (4) clarifies that a person will be regarded as street trading even if he is engaged in trading only for a short period or trading is not his normal occupation.

Clause 2: Activities which are not street trading

This clause lists a number of trading activities which are not "street trading" and so are not regulated by the Bill. Such activities may be controlled in other ways, for example, the pedlar will still need to obtain a pedlar's certificate and those operating charitable sales will still need the appropriate police permission.

Subsection (1) lists the following activities which are not regarded as street trading:

• traders selling articles or things or supplying services to the occupiers of private residences or places of business;
• roundsmen such as milkmen, breadservers and coalmen who are regarded as delivery persons rather than street traders;
• trading in a market where the right to hold the market has been formally created by grant, presumed grant or created by statute.  If a market does not have such a legal pedigree, it is an "informal market" and the traders who operate within it are required to obtain street trading licences;
• sales and collections for charitable purposes but limited to activities which have been authorised under the appropriate legislation. Regulations made under the Police, Factories, &c (Miscellaneous Provisions) Act 1916 specify that no collection of money or sale of any article for charitable purposes can be made in any street or public place unless a permit is first obtained from the police. Under the House to House Charitable Collections Act 1952 a licence must be obtained from the police to carry out a house to house collection for charitable purposes unless a Minister has otherwise granted an exemption from this requirement;
• trading under the authority of a pedlar's certificate but only if the trading is carried out on a house to house basis.  Under the Pedlars Act 1871 anyone wishing to trade as a pedlar must first obtain a certificate from the police.

Subsection (2) takes two further activities outside the definition of street trading.  Firstly, proprietors of petrol filling stations may offer a range of goods (including fuel) to motorists on their forecourts.  Secondly, trading at premises used as a shop is permitted, so long as the activity is carried on within the curtilage of the premises. In both cases the exemption only applies where the trading is by the owner in the course of his business and during the hours when that business is in operation.  This will mean, for example, that persons trading on garage forecourts or in shop doorways when the premises are otherwise closed for business will require a street trading licence.

Subsection (3) in effect, exempts paper sellers from needing a street trading licence. If the sales extend to other than newspapers or periodicals or if a receptacle (defined in Clause 25(1)) is set on the ground as part of the selling, the exemption will cease to be appropriate and a street trading licence will be required.

Subsection (4) gives powers to the Department to vary, by means of an order, the activities which are not street trading.  This allows the Department to respond more quickly to the need for change by introducing changes by means of subordinate legislation which will, nevertheless, require approval by the Assembly. 

Clause 3: Designated streets

Subsection (1) of this clause permits a district council to pass a designating resolution using the procedures detailed in Clause 4.  The purpose of this exercise is to designate streets in which the council can allocate street trading pitches to those persons who trade as stationary traders (special arrangements are provided for "mobile traders" and those operating under a temporary licence).  Under provisions set out in Clause 6 of the Bill, a licence cannot be granted to permit street trading by stationary traders in any street which is not so designated.

Subsection (3) also permits a designating resolution to specify which goods or services may or may not be offered for sale in a designated street.

Subsection (4) permits a district council to rescind or vary any resolution and specifies that this is to be done by passing a further resolution.  This could occur where, for example, because of certain changes in local road, traffic or other conditions, a street was no longer regarded as suitable for street trading or where a council wished to extend the streets where such trading is to be allowed.

Clause 4: Designating resolutions

This clause sets out the procedures that a district council must follow when it considers passing, rescinding or varying a designating resolution under Clause 3.

Subsection (1) states that as well as requiring the insertion of a notice of its intentions in 2 newspapers, a council must consult formally with the police and the Department for Regional Development (in its role of having responsibility for roads, etc.,).  This will ensure that traffic and other environmental issues are properly taken into account.

Subsection (2) makes it clear that, although the police and the Department for Regional Development are the only bodies which must be consulted, a council can also consult with any other body or person it wishes.

Subsection (3) provides that, where a district council considers rescinding or varying a designating resolution, it is required to notify all existing licence holders affected by this action.

Subsection (4) provides the details which must be contained in the notification to existing licence holders and the time limit for responses.

Subsection (5) obliges a district council to consider any representations made to it during the period for such responses in relation to its proposal to pass, vary or rescind a designating resolution.

Subsection (7) requires a district council to set a date when each resolution will become effective.  A council must allow at least one month from the date on which the resolution is finally passed.

Subsection (8) requires a council to publish the final outcome of its considerations on the proposal and to send a copy of its decision to every person who made formal representations regarding the matter.

Clause 5: Applications for the grant, renewal or variation of street trading licences

This clause provides details of how applications for the grant, renewal or variation of street trading licences are to be made and a district council's responsibility when such applications are received.

Subsection (1) states that the application should be made in writing and gives each council the discretion to specify the type of the application form and when it should be completed.  The subsection also gives a council the discretion to demand that the fee for a licence, or any part of that fee, should accompany each application.

Subsection (4) sets out certain details which must be included in any application form designed by an individual council for the grant or renewal of a licence.

Subsection (5) permits a council to require 2 photographs (of a quality acceptable to the council) to accompany each application for a licence.

Subsection (7) makes it clear that each council may ask whatever additional information relevant to street trading it may reasonably require.

Subsection (8) requires a district council to respond in writing to each application for a street trading licence within a reasonable time.

Clause 6: Grant, etc., of street trading licences

This clause places an onus on a district council to grant a street trading licence unless one of the mandatory or discretionary grounds for the refusal of such an application applies.

Subsection (2) gives a power to the Department for Social Development to make regulations setting out the form of a street trading licence.  The Department intends to have such regulations in place on the coming into operation of the substantive provisions of the Bill.

Subsection (3) requires a district council to state, in relation to each licence it grants, whether the person is authorised to operate as a stationary trader or a mobile trader. This distinction is important since the stationary trader may only operate from a specified place in a designated street whereas the mobile trader may operate in any area (designated or otherwise) set out by the council on his licence.

Subsection (4) gives a council the discretion to decide how long it wants any street trading licence to remain current up to a maximum of 3 years.  A council can also decide whether licences should all terminate and, hence, fall for renewal on a common date or allow them to expire at various dates according to when they were granted or renewed.  

Clause 7: Conditions relating to street trading licences

This clause sets out the conditions which a district council must or may impose on the licence as a pre-requisite to granting or renewing that licence.

Subsection (1) sets out the conditions which must be specified in every licence.

Subsection (2) gives a council a discretion to specify any other condition it considers reasonable.

Clause 8: Mandatory grounds for refusing an application

This clause sets out a number of circumstances where a district council must refuse an application for a street trading licence.  As a council is given no element of discretion in these circumstances, there will be no right of appeal.  The circumstances are where:

• the applicant is not an individual;
• the applicant is under the legal school leaving age;
• trading is prohibited by means of other legislation; or
• the application is for a licence to trade from a stationary position in a street which has not been designated or the application is for trading in goods which are excluded by a designating resolution.

Clause 9: Discretionary grounds for refusing an application.

Subsection (1) of this clause sets out the circumstances where a council may refuse an application to grant or renew a street trading licence.  An applicant has a right of appeal against the refusal of an application on discretionary grounds.

Subsection (2) offers an alternative to refusing the applicant where he has not availed of a previous street trading licence to a reasonable extent.  Instead a council may grant a licence permitting the trader to trade on different days from those in the application or trade in a different area or different designated street.

Clause 10: Revocation, etc., of street trading licences

Subsection (1) gives a council the powers to revoke a street trading licence at any time when it is satisfied that any one of the conditions set out in the subsection applies.

Subsection (2) makes it clear that, where the cancellation is being considered because of failure to store receptacles or failure to comply with conditions of a licence, a council cannot take such action until it gives the licence holder at least one written warning about the conduct that it considers could lead to that cancellation.

Subsection (3) provides a district council with an alternative to revoking a licence where this is being considered because of certain circumstances.  Instead, a council can offer another place to trade, limit the days or hours of trading or restrict the types of articles being sold where:

• the place where a licence holder is trading becomes unsuitable for any reason;
• the council varies or revokes a designation resolution in relation to the street or the goods sold; or
• a licence holder is not utilising the licence to a reasonable extent.

Clause 11: Variation of street trading licences

This clause provides a council with a power to alter the conditions specified in a licence.

Subsection (1) allows such an alteration to the conditions to be carried out at any time where:

• the licence holder has asked for the variation of the licence;
• the licence holder's trading site or area has become unsuitable;
• the council has cancelled or changed the designation order in relation to the area or the goods in which he is trading; or
• cancellation of a licence is being considered because it is not being utilised to a reasonable extent.

Subsection (2) provides that a council may alter the conditions specified in a licence in other ways but such alteration can only take place when a renewal application is being considered.

Clause 12: Notice and representations

This clause sets out the administrative steps that a council must take when it intends to refuse an application for a licence or intends to revoke or vary (or refuse to vary at the request of the licence holder) a licence.

Subsection (1) requires a council to write to the licence holder or, as the case may be, to the applicant for a licence, setting out its proposal.

Subsection (2) specifies that the written notification must set out the grounds on which the district council's proposed decision is based and indicate that representations may be made to the council on the matter within 21 days.

Subsection (3) prevents a council from taking any action to implement a decision until the necessary consultation has taken place.

Subsection (4) requires a council to write to the person affected, giving the grounds on which its final decision was based and setting out the appropriate appeal procedures.

Clause 13: Appeals

This clause sets out the grounds where an applicant or an existing licence holder can appeal to a Magistrates' Court against a decision of a district council.

Subsection (1) details those grounds as being against:

• any condition specified in a street trading licence;
• a refusal to grant or renew a licence (except where one of the mandatory grounds for refusal in Clause 8 apply);
• the grant of a licence but on different terms to those applied for or different to those on the licence previously held;
• the revocation of a licence;
• the variation of the conditions specified in a licence; and
• the refusal to vary the conditions specified in a licence at the request of the licence holder.

The appeal against such a decision is initiated by the appellant notifying the clerk of petty sessions.

Subsection (2) provides that, on hearing an appeal, a court may make such an order as it considers appropriate.  A council must give effect to the court's order subject to the council's right of appeal to a higher court.

Subsection (3) to (5) provide that existing licences should remain in force during the appeals procedure and, similarly, that any changes to the conditions on a licence should not come into effect until the appeals process has been completed.

Clause 14: Temporary licences

Under this clause a district council may issue a temporary licence to permit street trading for a limited period.

Subsection (2) provides that a district council will have the discretion to decide the form and timing of the application and the details required on the form.  A council can also ask for photographs of the applicant and specify the fee that should accompany the application.

Subsection (3) requires a district council, within a reasonable period, to advise applicants in writing of the outcome of their application.

Subsection (4) states that the mandatory grounds for refusing an application because the applicant is not an individual, because of the age of the applicant or because trading would be unlawful will apply equally to an application for a temporary licence.  However, unlike the full-term licence, a temporary licence can permit trading in a street that is not a designated street or in goods not designated by the council.

Subsection (5) requires a district council to develop criteria upon which it will decide applications for temporary licences.   These criteria are to be available for inspection by any interested party.

Subsection (7) makes it clear that in granting a temporary licence, a district council can allow the holder to trade anywhere in the district of the council or in any goods or services the council may choose.   This means that a holder of a temporary licence may be allowed to trade in places which have not been designated and to trade in goods or services which  may not otherwise be permitted.

Subsections (8) and (9) place limits on the number and duration of temporary licences which may be granted to an individual trader and permit a council to modify the form of the licence as appropriate and to attach any conditions to the licence which it considers appropriate.

Subsection (10) gives a council a power to revoke a temporary licence where the holder has failed to comply with any condition specified in that licence.   Before doing so, the council must consider any representations made by the licence holder.

Subsections (11) and (12) provide a right of appeal against the decision of a council in relation to an application for a temporary licence.

Clause 15: Fees and charges

This clause gives a district council the power to charge fees which will enable it to recover the full costs of administering the street trading licence scheme.  It also allows a council to recover any costs it may incur in refuse disposal and cleaning of streets associated with street trading activities.

Subsection (1) sets out the range of circumstances in which a council will be able to charge a fee.

Subsection (2) sets out the scope of the other charges (and the administrative costs in relation to these charges) which a council will be entitled to levy.

Subsections (3) to (7) set out the requirements placed on a council to publicise the fees and charges it intends to set, the date from which these can come into effect and the need to make available the details of how these were calculated.

Subsections (9) to (11) state the circumstances where refunds of fees or charges must  be made and provide discretion for a council to refund in any other circumstances it wishes.

Clause 16: Identification of street traders

Subsection (1) requires holders of street trading licences to have their licence with them at all times when they are trading and, on being asked by a council official or a police officer, to produce that licence for inspection.

Subsection (2) requires anyone suspected of engaging or having been engaged in street trading to provide their correct name and address to a council official or a police officer on demand.

Clause 17: Unlicensed street trading

Subsection (1) provides that anyone who engages in street trading without a licence (or trading in a place or on a day not specified in a temporary licence) is guilty of an offence which is punishable by a fine of up to £1,000.  It is also made clear in this subsection that the trader must hold a licence granted by the district council in whose district he is trading - a licence from another district council will not be acceptable.  It should be noted that under Article 49 of the Magistrates' Courts (Northern Ireland) Order 1981, any person who aids or abets in the commission of an offence, or directs another person in the commission of an offence may be equally convicted of the same offence.

Subsections (2) and (3) provide that any article or thing which is displayed in the street and any receptacle or other equipment will be assumed to be there for street trading purposes and that the person having possession or control of them was engaged in street trading.  In such instances, the burden of proof that the items were there for some other purpose will be on that person.

Clause 18: Powers of seizure

This clause gives a district council (and the police) the power to remove the goods (including the stalls or vehicles used in their sale or display) of persons suspected of trading without a licence.  The power of seizure extends to goods and equipment which may be required to be used in evidence in any proceedings or which may be the subject of a forfeiture order under Clause 19.

Subsections (2) to (4) make special provision where the articles seized may appear to be of a perishable nature.  Under these provisions, the council or the police may take the items to a justice of the peace who may provide a certificate in relation to the items and make an order as to how the items are to be dealt with. The justice's certificate will provide independent verification of the items seized for the purpose of proceedings.

Subsections (5) to (7) provide for the action which a district council must take to return goods seized where no proceedings are taken within 28 days from the date of the seizure.

Clause 19: Forfeiture

This clause permits a court which convicts an unlicensed trader to order the forfeiture of the goods seized under Clause 18.

Subsections (3) to (5) set out provisions to cater for the situation where, under Clause 18, a justice of the peace has made an order in relation to perishable goods which have been seized.  If that order did not require the articles to be disposed of at that time, the court may order them to be forfeited and dealt with in such manner as appears appropriate.  If the justice of the peace ordered the disposal of the items the court may now treat them as forfeited and any proceeds from the disposal dealt with as directed by the court.

Subsection (6) prevents a court from making a forfeiture order until it has given an opportunity for any person claiming an interest in the seized articles to make representations to the court.

Subsection (7) provides that where a court does not order the items to be forfeited they must be returned to the person from whom they were seized.

Clause 20: Compensation

This clause gives a right to the owner of the goods (or any person with a legal interest) to seek compensation in certain circumstances where a case has not been brought within 6 months, where the trader is acquitted or where proceedings are withdrawn.

Subsection (2) deals with the situation where the goods seized were perishable goods and, despite a conviction being obtained, a court refuses to grant a forfeiture order. In such circumstances, any person with a legal interest in the goods may seek compensation in respect of any deterioration in the goods seized.

Subsection (4) makes it clear that a court will make no order for compensation unless the authorised officer or constable acted unlawfully in seizing the goods.

Clause 21: Other offences

This clause sets out the other offences (and the maximum penalty of £1,000 on conviction) which may be committed by a street trader. These offences are:

• a breach of the conditions on a licence (apart from conditions relating to fully availing of the licence and payment of fees and/or charges);
• failing to produce his street trading licence on demand;
• failing to provide a name and address (or the correct name and address) on demand;
• making a false statement on an application for a licence; and
• preventing a council official  from carrying out his duties under this Bill.

Clause 22: Fixed penalty offences

This clause gives effect to Schedule 1 to the Bill under which a district council may offer a fixed penalty notice to a trader who is believed to have committed an offence under paragraphs (a) or (b) of Clause 21 of the Bill.

Clause 23: Power to remove receptacles

This clause gives a district council the power to remove any receptacle used by a street trader to a place of storage after trading has finished for the day if that trader has breached his obligation regarding the storage of receptacles. Where this occurs, the council may charge the trader for the cost of storage before the receptacle is returned and, if not claimed by the trader, may dispose of it as it wishes.

Clause 24: Employment of assistants

This clause allows a street trader to employ anyone to assist him in running his business provided that person is over the legal school leaving age.  However, if that employee fails to comply with the conditions of the trader's licence, the licence holder will also be held responsible.

Clause 25: General interpretation

This clause provides definitions for key words and phrases used throughout the Bill.

Clause 26: Minor and consequential amendments

This clause gives effect to Schedule 2 of the Bill which contains amendments to other legislation as a consequence of the introduction of this Bill.

Clause 27: Transitional provision and saving

Since the main provisions of the Bill will not come into operation until a date appointed in an order to be made by the Department (see clause 29) this clause will permit licences granted under the existing legislation to remain in force until 31 December next following the appointed day.

Clause 28: Repeals

This clause gives effect to Schedule 3 to the Bill which details the provisions to be repealed as a result of the introduction of the Bill.

Schedule 1: Fixed penalty offences

This Schedule provides a district council with the option of offering fixed penalty notices to traders who are suspected to have been committing an offence under paragraphs (a) or (b) of Clause 21.  The Schedule also sets out the procedures to be followed in issuing and processing the notice.  A trader may pay the fixed penalty within 14 days of receiving the fixed penalty notice or await the institution of proceedings.  Any sums paid on a fixed penalty notice are to be treated as if they were fines imposed on conviction of an offence. The sum of the fixed penalty is set in the Schedule at 5% of the maximum fine of £1,000, that is to say, £50.   The Department may review the percentage from time to time as circumstances require.  A power is provided for the Department to prescribe the form of the fixed penalty notice and regulations will be introduced to come into effect whenever the Bill receives Royal Assent.  

FINANCIAL EFFECTS OF THE BILL

14. The Bill is unlikely to lead to any significant increase in public expenditure as district councils already have an administrative and enforcement role under the 1929 Act.  Although the provisions of the Bill may mean some additional administrative costs, for example, in seizing goods from unlicensed traders, any increases will be limited.  In any event, any additional costs may be recovered by councils who will, for the first time, be able to set their own fees to meet the costs of administering the scheme.

EFFECTS ON EQUAL OPPORTUNITY

15. No information is available on the background of persons currently holding or applying for street trading licences nor is any information available on the status of those trading without licences.  The proposed scheme, whilst considerably modernised and providing a more effective deterrent, is not dissimilar in structure to the existing one.  This has been in existence for over 70 years and there is no record of any problems arising of an equality nature.  In addition, the proposed scheme has been widely consulted upon with no comments being received which would indicate the possibility of any of the proposals having a disproportionate impact on any of the relevant groups.

HUMAN RIGHTS ISSUES

16. The proposed Bill will provide a district council with the power to seize goods of persons who are trading illegally. This would appear to call for some consideration of the provisions of Article 1 of protocol 1 of the European Convention of Human Rights. This Article deals with the right to peaceful enjoyment of possessions, commonly referred to as the right to property. Under the provisions of this Article, a state may deprive an individual of his possessions in the public interest and subject to the conditions provided by law. In considering these provisions it is interesting to note that a licence itself has been deemed to constitute property and, therefore, the act of revoking or taking away a licence may also fall for consideration here.

17. The Convention as a whole seeks to strike a balance between the rights of the individual and the interests of the community and the proposals suggested in the legislation are considered to achieve such an aim. Seizure of goods will only be possible where a district council is satisfied that a person is trading without a licence and, therefore, in breach of a system that is designed to prevent undue nuisance, interference or inconvenience. Controls are built in and there is a system of compensation in the event of a district council being found to have exercised its rights unfairly.

18. Overall it is considered that there are no Human Rights implications in the proposed legislation.

EQUALITY IMPACT ASSESSMENT

19. The provisions of the Bill have been assessed against the equality principles set out in Section 75 of the Northern Ireland Act 1998.  Each of the proposals was considered to ascertain which, if any, would be likely to have an impact on equality of opportunity.  It was concluded that the proposals will not have a differential impact on any group or sub-group within the community (see paragraph 15 above).

SUMMARY OF THE REGULATORY APPRAISAL

20. The overall impact of the Bill on business is difficult to quantify.  A better-regulated system may enable street traders to operate in a better-structured environment and should help to prevent undue nuisance to pedestrians and vehicles.   It will also permit shopkeepers to trade without the problems of obstruction caused mainly by unlicensed traders.  However, the precise impact can only be a matter of speculation but, in purely cash terms, the effect is unlikely to be significant.  The current licence fee of £20 may increase and this would clearly be an additional cost to street traders.  However, the fee set by district councils will be limited to the recoupment of the costs of administering the scheme.

21. A full Regulatory Appraisal may be obtained by contacting the Department for Social Development, Social Legislation Branch, Annex 1, Castle Buildings, Stormont, Belfast BT4 3PP or by telephoning Belfast 90522583.

SECRETARY OF STATE'S CONSENT

22. In replacing the 1929 Act the Bill introduces some new offences and penalties, the creation of which is a reserved matter under paragraph 9(b) of Schedule 3 to the Northern Ireland Act 1998.  The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.

The Minister for Social Development has made the following statement under section 9 of the Northern Ireland Act 1998:

"In my view the Street Trading Bill would be within the legislative competence of the Northern Ireland Assembly."