Christmas Day and New Year,s Day Trading (Scotland) Act 2007
The Bill for this Act of the Scottish Parliament was passed by the Parliament on 7th March 2007 and received Royal Assent on 13th April 2007
An Act of the Scottish Parliament to prohibit the opening of large shops on Christmas Day and to confer power to prohibit the opening of such shops on New Year’s Day for the purpose of retail trading.
No large shop is to open for the purpose of making retail sales on Christmas Day unless it is exempted by section 3.
2-
Application of section 1 to New Year’s Day
(1)
The Scottish Ministers may, by order made by statutory instrument, provide that section 1 applies in relation to New Year’s Day as it applies in relation to Christmas Day.
(2)
An order under subsection (1) is to be made only if a draft of the order has been laid before and approved by a resolution of the Scottish Parliament.
(3)
The Scottish Ministers may not lay a draft of an order under subsection (1) before the Parliament in pursuance of subsection (2) unless, having consulted the persons mentioned in subsection (4), they have laid before the Parliament—
(a)
a report about the economic impact, and the impact on family life, of large shops opening for the purpose of making retail sales on New Year’s Day; and
(b)
a statement that they are of the view, having considered the matters in the report, that the order should be made and setting out their reasons for being of that view.
(4)
The persons referred to in subsection (3) are—
(a)
every council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39);
(b)
such persons as appear to the Scottish Ministers to be representative of the interests of those who carry on business;
(c)
such persons as appear to the Scottish Ministers to be representative of those who work in large shops; and
(d)
such other persons as the Scottish Ministers think fit.
3-
Exemptions
A shop is exempt from section 1 if—
(a)
the trade or business carried on consists wholly or mainly of the sale of—
(i)
meals, refreshments or alcohol for consumption on the premises on which they are sold; or
(ii)
meals or refreshments prepared to order for consumption off those premises;
(b)
it is a registered pharmacy and is open solely for the purpose of the dispensing of drugs, medicines or appliances on prescription;
(c)
it is within a port, railway station or commercial airport;
(d)
it is at a motorway service area; or
(e)
the trade or business carried on consists wholly or mainly of the sale of fuel for motor vehicles.
4-
Offence
If section 1 is contravened—
(a)
the occupier of the shop; and
(b)
if different, the person responsible for controlling or managing the operations carried on at the shop on the day in question,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding £50,000.
5-
Offences by bodies corporate, etc.
(1)
Where an offence under this Act committed by a body of persons—
(a)
was committed with the consent or connivance of—
(i)
a person concerned, or purporting to be concerned, in the management or control of the body; or
(ii)
a relevant person; or
(b)
was committed with the consent or connivance of—
that person, as well as the body, is guilty of the offence.
(2)
In this section—
a “body of persons” means a body corporate, a partnership, a body of trustees or an unincorporated association other than a partnership; and
“relevant person” means a director, secretary or other officer of a body corporate, a partner in a partnership, a trustee of a trust or any member of an unincorporated association.
6-
Defence of due diligence
The offence under section 4 is one of strict liability, but it shall be a defence for an accused to prove that the accused or a person under the control of the accused took all reasonable precautions and exercised all due diligence to avoid its commission.
7-
Interpretation
In this Act—
“the 1968 Act” means the Medicines Act 1968 (c. 67);
“alcohol” has the meaning given by section 2 of the Licensing (Scotland) Act 2005 (asp 16);
“appropriate person” has the meaning given by article 2 of the Prescription Only Medicines (Human Use) Order 1997 (SI 1997/1830);
“commercial airport” means any airport (within the meaning of section 82(1) of the Airports Act 1986 (c. 31)) at which facilities are provided for use by members of the general public travelling by air;
“large shop” means a shop which has a relevant floor area exceeding 280 square metres;
“on prescription” means prescribed by a person who, as an appropriate person, is authorised by section 58 of the 1968 Act to prescribe medicinal products that are available on prescription only;
“medicinal product” has the meaning given by section 130 of the 1968 Act;
“motorway service area” means an area of land comprising service area development within the meaning of section 119(2) of the Roads (Scotland) Act 1984 (c. 54);
“registered pharmacy” has the meaning given by section 74 of the 1968 Act;
“relevant floor area” means so much of the floor area of a shop as is used for making retail sales or for the display of goods in connection with such sales;
“retail sale” means any sale of goods for consumption or use, whether or not by the buyer, for purposes unconnected with a trade or business;
“shop” means any premises within a building where there is carried on a trade or business consisting wholly or mainly of the retail sale of goods; and
“trustee” has the meaning given by section 2 of the Trusts (Scotland) Act 1921 (c. 58).
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Short title
This Act may be cited as the Christmas Day and New Year’s Day Trading (Scotland) Act 2007
These Explanatory Notes have been prepared by the Non-Executive Bills Unit on behalf of Karen Whitefield MSP. They have been prepared in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.
2.
The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or a part of a section does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND TO THE ACT
3.
The Act prohibits large shops from opening for the purpose of retail trading on Christmas day and confers power to prohibit such shops opening on New Year's day. At present there is no legislation in place in Scotland to stop shops of any size from trading on any day of the year.
4.
The Act does this by:
Making it a criminal offence for a large shop to open for the purpose of making retail sales on Christmas day;
Defining a large shop as one with a trading floor area exceeding 280 square metres;
Exempting specified trades or businesses and shops at specified places;
Defining who commits the offence and providing a due diligence defence.
COMMENTARY ON SECTIONS
Section 1
Large shops not to open on Christmas Day
5.
Section 1 prevents a large shop from opening on Christmas day for the purpose of retail trading unless that large shop is exempt under section 2. A large shop is defined in section 6 as one with a relevant floor area over 280 square metres. The relevant area is defined as the area being used for making retail sales or displaying goods in connection with such sales. The definition of "retail sale" makes clear that it is opening for the purpose of retailing goods to the general public unconnected to a trade or business that is being prohibited.
6.
The area to qualify as a large shop is taken from the Sunday Trading Act 1994. A similar description was also used in the Christmas Day (Trading) Act 2004. Neither measure applies to Scotland.
Section 2
Application of section 1 to New Year's Day
7.
Section 2 provides that the Scottish Ministers can apply section 1 of the Bill to New Year's day. They may do so by laying a draft order before the Parliament. However before they can lay the order, they must consult with the persons referred to in sub-section 2(4). They are also required to lay before the Parliament a report about economic impact and the impact on family life plus a statement of reasons.
Section 3
Exemptions
8.
In addition to those shops which do not exceed the qualifying size, further premises are exempt by section 3 of the Act.
9.
The exemption at sub-paragraph 3(a)(i) relates to the sale of meals, refreshments or alcohol on the premises in which they are sold for consumption. As a consequence restaurants, cafes, public houses and any other sit-in eateries are exempt even when they exceed the 280 square metre size limit. Sub-paragraph 3(a)(ii) relates to meals or refreshments prepared to order but consumed away from the premises and thus take-away eateries are exempt (again even where they exceed the size limit).
10.
Paragraph 3(b) exempts registered pharmacies, but only to enable prescriptions to be dispensed.
11.
The exemption at paragraph 3(c) covers shops at ports, railway stations or commercial airports in order to cater principally, although not exclusively, for the needs of passengers in transit. Similarly the exception at paragraph 3(d) covers motorway service areas, and paragraph 3(e) allows for the sale of fuel and other products retailed by filling stations to motorists.
Section 4
Offence
12.
This section provides that the occupier and any person responsible for controlling or managing the shop operations commit an offence if they allow a shop to trade in breach of section 1. The section also sets out that prosecution for any offence is by summary criminal procedure with a maximum penalty of a fine up to £50,000.
Section 5
Offences by bodies corporate etc.
14.
Where an offence has been committed by such a body of persons with the consent or involvement of a person concerned in the management or control of the body such as a director, partner, officer or employee (or any other person specified) of a corporate body or similar, that person will be guilty of an offence as well as the organisation itself. This arises when they consent to, or connive in, the commission of an offence by the organisation, or if their negligence results in the commission of an offence by the organisation.
Section 6
Defence of due diligence
15.
Section 6 provides a defence for anyone accused of the offence in section 5. That defence is that they or anyone working for them or representing them had taken all reasonable precautions and had tried to the best of their ability to avoid committing the offence. It is considered that this will require the taking of positive measures such as training staff in their responsibilities. It will therefore not be a defence for accused persons to solely argue that they did not know the shop was in fact open for trade.
PARLIAMENTARY HISTORY
The following table sets out, for each Stage of the proceedings in the Scottish Parliament for this Act, the dates on which the proceedings at the Stage took place, the references to the Official Report of those proceedings and the dates on which the Committee Reports and other papers relating to the Act were published, and the references to those Reports and other papers.
Proceedings and Reports
Reference
Introduction
20 March 2006
Act as introduced (SP Act 41)
Stage 1
(a) Justice 2 Committee
20th Meeting, 2006
5 September 2006
21st Meeting, 2006
12 September 2006
22nd Meeting, 2006
19 September 2006
25th Meeting, 2006
3 October 2006
26th Meeting, 2006
24 October 2006
29th Meeting, 2006
7 November 2006
Report
14 November 2006
(b) Consideration by the Parliament
22 November 2006
Cols 29527-29564
Stage 2
2nd Meeting 2007 (Session 2)
16 January 2007, Cols 3121-3134 & Minutes J2/S2/07/2/M
Stage 3
Consideration by the Parliament
Stage 3
7 March 2007, Cols 32778- 32826
Royal Assent
13 April 2007
Christmas Day and New Year's Day Trading (Scotland) Act 2007 (asp 13)
