Shop (Hours of Trading) (No. 2) Bill, 1937—Second Stage.

Minister for Industry and Commerce (Mr. Lemass)

I move the Second Reading of this Bill, which is necessary for the purpose of making better provision than exists at present for regulating the hours during which shops may remain open for serving customers. The existing law relating to hours of trading is contained in the Shops Act, 1912, and its enforcement is entirely in the hands of local authorities, local authorities being the council of a municipal borough, the council of an urban district or the town commissioners of any town which is not an urban district. The Act empowers these local authorities to fix, by order, the hours of closing of shops on week days, with a closing hour not later than 1 p.m. on one day of the week and to apply any closing order to the carrying on of any retail trade in any place which is not a shop. It is the duty of the borough councils and the urban district councils to appoint inspectors under the Act, but that provision does not apply to town commissioners. In rural districts the provisions of the Act relating to the weekly half-holiday and to closing orders do not apply at all. Under that Act, the local authority is empowered to make orders fixing the hours in the evening at which shops of any specified class are to be closed on week days for the serving of customers. The consent of at least two-thirds of the traders to be affected by the order must first be obtained and any such order must be submitted to the Minister for Industry and Commerce who may consider any objections offered to it and may either disallow or confirm the order. Until it is so confirmed, the order has no effect. The Third Schedule to the Act allows exemption from these provisions to shops carrying on certain classes of business. The existing law makes no provision for limiting trading in shops on Sundays. Many representations have been made from time to time that the existing legislation was ineffectual and that it was not adapted to the conditions of the present day. The need for revision is, I think, generally recognised. One of the principal defects of the existing law is the comparative failure of the local authorities to exercise their powers and fulfil their functions under the Act. That failure may be due to the elaborate procedure laid down by the Act for the making of closing orders. Even where local authorities have exercised their powers and made orders, no effective measures have been taken to enforce these orders afterwards. The existing law, as I have stated, makes no attempt to control the hours of trading in rural districts or on Sundays. Furthermore, the provisions which allow a shop with several trades or businesses to remain open during prohibited hours if any of these trades or businesses is exempted, has caused difficulty in enforcement, as almost every shop is now a mixed shop, selling more than one variety of goods. These varieties usually include at least one exempted line of goods or they can easily be made so to do, so that it is, in practice, possible for almost every shop to remain open during prohibited hours if the occupier so chooses. In these circumstances, it is practically impossible to prevent trading in non-exempted businesses during the prohibited hours. The procedure laid down in the Act to which I have already referred, is very involved and cumbersome and in connection with the making of orders necessitates the compiling of registers of shops, the giving of notice of intention to make orders, the taking of a vote of the traders affected by any proposed order, the verification of the signatures to a written application and the consideration of objections. The procedure makes it very difficult for a local authority to make an order which could not be contested on a technical point of procedure. Finally, the requirement that a majority, or two-thirds, as the case may be, of the traders affected by a proposed order, must approve of the order, has been found, in practice, to be an effective barrier to the making of orders at all.

The present Bill proposes to amend the law in relation to all these matters. We are proposing to extend the definition of "shop" contained in the 1912 Act so as to include any wholesale shop where goods are kept for sale wholesale to customers resorting to the premises and also any warehouse occupied for the purpose of his trade by any person carrying on a retail trade or business or by any wholesale dealer or merchant. The definition of "retail trade or business" has been enlarged to include the business of dyer or cleaner, the business of lending for reward books or periodicals and the business of pawnbroker.

It is intended that the enforcement of the new Act will be in the hands of the Gárda Síochána, and inspectors of the Gárda are given power to authorise members of the Gárda to enter shops and to make such investigations as may be necessary to enable them to carry out their duties. The provisions of the Act will not apply to fairs, bazaars or sales of work organised for charitable or other purposes from which no private gain is derived, or to a library at which the business of lending books is not carried on for gain, or operate to prevent the opening of a shop for such time as is necessary to serve a customer with certain classes of goods required by any naval, military or air force authority of the State, or any ship or aircraft on arrival at, or immediately before her departure from, a port or aerodrome.

Part II deals with the weekly half-holiday. In consequence of the prevalence of mixed trading to which I have referred, the making of weekly half-holiday orders has been abandoned, and the proprietor of every shop which does not deal solely in exempted trades is required to specify in a notice to be kept affixed in a prominent place in the shop the weekday in every week on which he proposes to close his shop at 1 p.m., and the shop must be closed on the day so specified. The day specified in the notice may be changed, but not more than once in any period of three months. A copy of the notice, and of any new notice changing the day of the weekly half-holiday, must be sent to the nearest Gárda Síochána station before the commencement of the first week to which the notice relates. Shops will not be required to close on the half-holiday immediately preceding or succeeding a public holiday, if the shop is closed for the whole day on the public holiday. In respect of places frequented as holiday resorts, the Minister for Industry and Commerce may by order, suspend the operation of that Part of the Act for a specified period and for specified classes of shops.

Part III deals with the general question of hours of trading on weekdays. It empowers the Minister, except in relation to certain classes of businesses which are set out in the Third Schedule, to make orders specifying the hours during which defined shops in defined areas may remain open. The existing closing orders made under the 1912 Act by a local authority will continue in force until and unless superseded by an hours of trading order made under this Bill, or until revoked by an order made under this Bill. Before making or amending an hours of trading order, the Minister is required to publish the proposed order and to invite interested parties to make representations to him concerning the terms of the proposed order. The Minister may, by order, suspend entirely or modify for a stated period the operation of an hours of trading order, or of an existing closing order. That provision is designed to allow a temporary suspension of orders for any special period such as the period immediately preceding the Christmas holiday.

Part IV deals with Sunday trading and provides that only shops in which the sole business is an exempted business, or in which all the businesses are exempted businesses of the classes mentioned in the Fourth Schedule, may open on Sundays for the serving of customers. Particular areas may be exempted from these provisions by order. It is proposed that the provisions relating to the closing of shops on the day of the weekly half-holiday and the hours of trading on week days, and also the provisions relating to trading on Sundays will not apply to a shop, if the only business of the shop is an exempted business, or if all the businesses are exempted businesses. The businesses which are regarded as exempted are mentioned in the Second, Third and Fourth Schedules, but power is taken to the Minister in the Bill to vary by order, the types of businesses brought within the Schedules. In contrast to the provisions of the existing law, the exemptions in the present Bill will not operate if a shop, in addition to carrying on an exempted business, carries on any non-exempted business. It has been provided, however, that nothing in the Bill will interfere with the transaction at any time of any of the following four excepted businesses, the first three of which are regarded as essential services and the fourth governed by other legislation: post office business, the business of selling medicine and medical and surgical appliances when carried on by a chemist, the business of selling meals for consumption on the premises and —which is governed by other legislation—the business of selling by retail intoxicating liquors. The provisions of the Bill apply to any place at which a retail trade or business is carried on, as if that place were a shop and as if the person carrying on the business in such place were the proprietor of a shop.

The only other matter is to draw the attention of the Dáil to the fact that the provisions of the Shops Act, 1912, in so far as it is not proposed to repeal them by the Shop Assistants (Conditions of Employment) Bill, will be repealed by the present Bill. I think I have covered the main features of the Bill. It has, of course, to be considered in relation to the Shop Assistants Bill at present before the Dáil. As I explained on the Second Reading of that Bill, it was originally intended to have one measure embodying the provisions of both Bills, but, for various reasons, it was subsequently decided to divide the proposals into two separate measures. It is, I think, desirable that they should be considered simultaneously by the Dáil. Apart altogether, however, from the need for regulating conditions of employment in shops, I think that legislation to replace the existing antiquated and ineffective law relating to hours of trading is required, and this Bill is designed for that purpose. It is, of course, mainly an enabling measure, enabling the central authority to act by order in the matter of regulating shop hours. It is not possible at this stage to indicate how the powers of the Bill will be used at any time, in any place or in relation to any trade, but the provision of the powers in the Bill will enable many existing grievances in relation to hours of trading in shops to be remedied, and I recommend the Bill to the Dáil.

Mr. Fitzgerald-Kenney

I agree with the Minister that this is a Bill which is supplementary to the Shop Assistants (Conditions of Employment) (No. 2) Bill. There are certain things in this Bill which I must say I do not like, and there is one provision which I go very much further than saying I do not like, I dislike intensely. I refer to Section 8 which reads:

(1) Any member of the Gárda Síochána, if authorised in writing by any inspector of the Gárda Síochána so to do, may enter any shop and may there make such searches and investigations as such member shall think proper, may ask of any person found in such shop such questions in relation to such shop and the work done and business carried on therein as such member shall think proper, and may demand of any such person his name and address.

Sub-section (3) goes on:

(3) Any person who does any of the following things, that is to say:—

(a) obstructs or impedes any member of the Gárda Síochána in the exercise of any of the powers conferred on such member by this section, or

(b) fails or refuses to answer to the best of his knowledge and ability any question asked of him by any such member in exercise of a power in that behalf conferred by this section, or

(d) when his name or his address is demanded of him by any such member in exercise of a power in that behalf conferred by this section, fails or refuses to give his name or fails or refuses to give his address or gives a name or an address which is false or misleading,

shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.

That gives to the Guards powers which, up to a very short time ago, were unknown to the law. The first time power was given to interrogate any person by the Guards, in which it was made an offence to refuse to answer questions, was in Article 2 (a) of the Constitution, which I heard very much denounced by the Minister for Industry and Commerce and by the President of the Executive Council in their unregenerate days, before they had seen the wisdom of that measure. But a provision which was brought in when dealing with a very dangerous conspiracy is one thing, and a provision of that nature, brought into a measure of this kind, giving Guards, with reference to the enforcement of this statute, a power which they have not got when investigating ordinary crimes, a power which they have not got—leaving out Article 2 (a), or, as it was more generally and wrongly known, the Public Safety Act—when investigating murder or major crimes, is going to be given under this Bill, and is entirely against the whole spirit of our law. It is putting in the thin end of the wedge, taking a weapon which was used to deal with a dangerous conspiracy, and which was necessary when dealing with a dangerous conspiracy, and bringing it in to enforce a Bill of this nature. Moreover, there is a generally accepted principle of our law, that no confession or statement made by a man shall be evidence against him unless it is free and voluntary. Under Article 2 (a) of the Constitution, the wording of which is practically the same as this section, it was held by the courts that, on the wording of the Article, a statement made in answer to interrogatories was inadmissible in evidence. That was held by the Supreme Court. I am not challenging the accuracy or the correctness of the decision of the Supreme Court, but, as a matter of fact, that was not the intention of the framers of the Constitution Act. It was interpreted in a different sense to what the framers thought they had stated. Here, with full knowledge of what has been decided, I presume, by the Supreme Court, the Guards can go into a shop and hold up anyone in the shop until he answers all their questions. If he makes any unfavourable admission, that can be put in evidence against him. That is against the entire spirit of our law, and, in a statute of this kind, it is a very dangerous provision.

I should like to point out to the House that there was rather the thin end of the wedge, in the twin Act, if I might call it such, which the Minister brought in; but there he confined himself, if my memory is not at fault, to the proprietor. Here it is not a question of the proprietor. It is a question of any single customer in the shop being held up when a member of the Guards enters. There may be 50 persons in the shop when he says: "I want you all to remain here, and to give your names and addresses. You will have to wait until the Guards are finished their investigations." That is an infringement of the ordinary liberty of the subject, and unless the Minister amends the section very drastically, I am going to fight it very strenuously on the Committee Stage. Personally, I think it is wrong that even answers by the proprietor of a shop, if he answers questions, should be used in a prosecution against him. It is all against our theory of law. A person is compelled to answer questions, and a Guard is put into the position that exists in France, of an interrogating magistrate, and therefore he interrogates precisely as he likes. I am very strongly opposed to the section, and I sincerely hope that the Minister will modify it very seriously before the Committee Stage.

Passing from that, there is one thing I should like the Minister to make plain, and that is the provisions contained in Section 17, and Section 30. I am referring to 17 (5), the provisions of which are for all practical purposes repeated in Section 30 (3). As far as I understand, numbers of businesses are excepted. If a person is carrying on an excepted business he can keep open and, for instance, sell cigarettes, petrol, or anything of that kind, if he keeps the business confined to what is excepted, but if he happens to carry on another trade as well, unless he happens to be a chemist, a publican, a hotel keeper, a postmaster or a postmistress, then he has to close his business altogether. Suppose a grocer or an ironmonger in a country district happens to sell petrol, if he is solely to sell petrol he can keep open on Sundays but, as far as I can understand the effects of Section 17 (5), which cuts down the number of excepted businesses, being a grocer, and also selling petrol, he will not be able to sell petrol on Sundays. I should like to know from the Minister what is the reason for cutting down these excepted businesses to four? Why not allow the excepted businesses to be on the same footing as, let me say, hotel people? I presume that the Minister has some reason for drawing that distinction but I confess I was unable to follow it. I do not want to say anything against the general principle of the Bill because it is one of those Bills, the effects of which we can only judge when it is in operation. The real effects of the Bill will arise from the orders which the Minister makes. That is why I say we will not be able to judge this Bill until we see what orders the Minister is going to make under it.

The Minister has not suggested to us where he is going to get the information upon which he will make the varying orders for the different parts of the country. I, myself, do foresee that, for a considerable time to come, there will be very considerable difficulty in enforcing this Bill in rural areas. I am inclined to think that if the Bill were confined to villages or towns over 500 inhabitants, or something like that rather than extending it completely to rural shops, it would be a wiser thing. I say this because in ordinary rural shops I do not think there are any assistants kept. It is very difficult for the Gárdaí to keep complete supervision over these. Take the case of a public house which is open and which also sells tea and there is a shop a half mile away which is closed for the weekly half holiday. There you have a position that will cause difficulties. We know that in theory the public house will not be able to sell the tea and, therefore, I can foresee violations of the law. In such circumstances the owner will break the law and indeed there may be considerable breaches of the law. There will be much more of a temptation to this sort of thing in rural areas. Therefore, I say that the Bill if passed in its present form will not be effective. I would ask the Minister seriously to consider the condition of the shops in rural areas, otherwise there will be such a tremendous temptation to break the law. If he considers these points the law will not be a complete dead-letter.

Mr. McGowan

I rise to say that I welcome this Bill. I refrain from discussing some points which might better arise on Committee Stage, but there are one or two which I wish to bring to the notice of the Minister. The first is the section to which the previous Deputy has referred, Section 7, dealing with the Gárdaí. I think it is the opinion generally of the House that the imposition of duties savouring of the Civil Service on the Gárdaí is not to be commended. Secondly, there seems to be in the Bill the absence of a provision contained in the twin Bill which has just gone through this House with reference to the granting of permission to substitute Catholic holydays for bank holidays. Further, I do not see any provision in this Bill to prevent any premises from opening on Christmas Day and, I might add, St. Patrick's Day. I do not think it would be a matter of public demand that certain shops should be exempted from the clause preventing Sunday opening. I refer to such shops as are engaged in the pursuit of selling fish, meat, cream, etc. I think that the opening of a butcher's shop on a Sunday is not commendable. In addition, I think the Minister excludes flower shops. I find it hard to visualise any romantic gentleman running for a bouquet of flowers on a Sunday, and I do not think such a gentleman should be facilitated. On reading the first section, I think the question of what is a "shop" should suggest to the Minister that he should carefully consider whether he can prevent that despicable thing known as "the travelling shop" from operating on Sundays. I think if he reads the section carefully he will find there is nothing to prevent "the travelling shop" going into a town on Sunday and there selling wares. The words "the premises" are used. I do not think "the travelling shop" would come under the definition of "premises."

Mr. Fitzgerald-Kenney

There are the words "any place."

Mr. McGowan

Well, I suggest that is a question into which the Minister should carefully look. That is all I have got to say on this Bill.

Mr. D. Morrissey

There is just one point I want to make on this Bill. First of all I might say that I welcome the general principle of the Bill, but there is one point which I would like to see the Minister bear in mind when making his regulations. Unquestionably many business houses in this country remain open very late at night. This is particularly the case in rural areas and even in the outlying parts of the cities. When the Minister is fixing his closing hours, I would like him to keep in mind that hardship might be inflicted on workingmen in the rural areas in this way—these workingmen do not receive their wages until fairly late on Saturday night. As a result they are not in a position to do their shopping until a late hour on Saturday. I know it is fairly common in rural areas that workmen are not paid until 6 or 7 o'clock on Saturday night. That is a point the Minister should keep in mind. Of course if it were possible for the Minister to secure in some way that those workingmen would receive their wages on Friday so as to enable them to do their shopping early on Saturday morning, there would be many advantages to the employees. In this late paying of wages on Saturday night, apart from the fact that the men are prevented from doing their shopping until a very late hour that evening, there is another disadvantage, that is, that they are usually left with the tail-end of the day's business. That is a point I strongly wish to impress on the Minister. There are a few minor points that will arise on Committee Stage. But the point I have specially mentioned now is a fairly important one and applies generally to the entire country.

Mr. Brennan

I would like to ask the Minister if he will clarify the matter raised by Deputy McGowan, that is the point dealing with travelling shops. Does Section 18 or Section 30 cover that particular point? I think they do, but if they do not it would be a very serious omission in the Bill. These shops should be covered. I think the Minister would be well advised to take to heart what Deputy Fitzgerald-Kenney said regarding exemption in purely rural districts. I do not agree with Deputy McGowan that the people in the rural districts should not be facilitated, because, as we all know, you have people in a rural district who live three and four miles from a shop. The housekeepers may forget to buy in a supply of something or other, and it is the custom in many places to make purchases on a Sunday after Mass. It is done in most country places. That point, of course, can be met if the Minister agrees to make an exemption order with regard to the rural districts. I am sure that it is not the intention of the Minister or of anybody else to inflict hardship on any person. This Bill is ancillary to the one that we passed some time ago, and to that extent everybody wants it. At the same time we do not want to inflict hardship on the poor people in the rural districts who may require to make a few small purchases in a country shop after Mass on Sunday.

Deputy McGowan called attention to the Fourth Schedule. I also wish to do so, but for a reason different from that advocated by the Deputy. Under that Schedule it is provided that the business of selling meat, fish, milk, cream, bread, confectionery, fruit, vegetables, flowers or other articles of a perishable nature is exempted from the provisions as to Sunday trading. There are other things that should also, I think, be included, such as butter, lard, cheese and salt. The list given in the Schedule does not by any means exhaust the number of things that are an absolute necessity and, therefore, I think care ought to be taken that hardship is not inflicted on anybody.

Mr. Benson

I agree with most of the previous speakers that this Bill is a desirable one. I am sorry that the Minister did not see fit to take power to make the actual closing order in the Bill rather than of doing so by order. I suppose he thought it would be too big a job in an agricultural country like this to make the closing order under the Bill. Still, I think if he had done that it would be more easy to enforce it than it will be by the other method.

Like Deputy Fitzgerald-Kenney, I am somewhat confused with regard to the exemptions and the excepted trades, but possibly that is a matter that can be cleared up more easily in the Committee Stage. At the moment it seems to me, in connection with this matter, that there is a lot of unnecessary verbiage in the Bill. I want to enter a protest, as I did on the other measure, against the business of a dyer and cleaner being regarded as a retail trade. Suppose there is a closing order made for 6 o'clock, the Conditions of Employment Act will allow people to work until 9 o'clock if it happens to be a rush period before a holiday, or immediately after a holiday. But, if the closing order says 6 o'clock, the factory must close at 6 o'clock because, as I read the definition section, it comes under "shop". On the question of the half-day, there seems to me to be an inconsistency between Sections 16 and 17. As I read Section 16, it means that there must be a weekly half-holiday for every shop in an ordinary week while Section 17 says that, where a holiday occurs in a week, the shop need not close, though of course the other measure says that the assistants must have their half-holiday. Section 16 does not seem to provide for the possibility of a shop keeping open throughout the week, still allowing the assistants a half-holiday. In that way the two sections seem to me to be inconsistent.

As regards the Schedules, one of the businesses scheduled is that of selling tobacco or smokers' requisites. The Minister does not tell us in the Bill what is a smoker's requisite. In the absence of a definition, I take it it would be something required by a smoker, irrespective of whether he required it for smoking or not. I do not know whether it could be extended that far, but as it is it seems to me to nullify the whole point of the Bill because a smoker might require anything. I note in the Second Schedule the business of selling motor, cycle, or aircraft supplies or accessories for immediate use. That business, so far as I can see, is not included in the Schedule which exempts under the Hours of Trading Orders. I do not know whether that is intentional or not. At any rate I hope the Minister will not have the unpleasant experience of being detained on the road in the middle of the night due to a failure to get a supply of petrol.

Mr. Dockrell

I welcome in general terms the provisions of this Bill. As has already been pointed out, the success of the measure will depend to a large extent on the trading orders that are issued, and I suppose Deputies will have an opportunity of dealing with them when they are laid on the Table of the House. I am wondering how the Minister is going to define a trading area, or what a trading area is. For instance, what will the position be in the case of premises with an entrance outside a trading area, while the shop itself is within a trading area? What is the position with regard to street trading? In the case of the humbler classes of shops, you get down to the position in which vegetables, fruit, fish and other things may be sold on the footpath in front of one of these shops. Surely it is not the Minister's intention that the shop should be shut up and that street trading in the commodities I have named should be allowed to continue on the kerb.

Mr. Linehan

I desire to support what Deputy Fitzgerald-Kenney said with regard to Section 8. I have a very strong objection to the powers which it is proposed to give the Guards under that section. I think it is quite wrong that, as Deputy Fitzgerald-Kenney pointed out, the Guards should be put in the position of being able to go into a shop and hold up everybody there while carrying on their interrogations, and afterwards, in the case of a prosecution, use as evidence against the proprietor or one of his assistants statements which may have been made in the course of these interrogations. When a major criminal offence—murder, for instance—is committed the Guards are not allowed to go to a person whom they suspect and demand statements from him on various matters. If, in such a case, they intend to make an arrest they are bound to caution a person; tell him that he need not make any statement if he wishes, but that if he does so it may be used in evidence against him afterwards. But under this Bill that is not to be the position. Much more extensive powers are being asked for the Guards. It is proposed to give them power to go into a shop in any street and to demand information on all the matters set out in the Bill. Suppose a shopkeeper commits some small technical breach of the law, he can be hauled into court, and any statement that he may have made to the Guard in the course of his investigations may be used in evidence against him. It puts a person, who may have to meet the law under these Acts, in the position that, when he comes into court as a defendant in a case, the entire onus is put upon him. It was bad enough, as I believe, under Article 2A of the Constitution, that statements taken from people in such a way could be used in evidence against them, and I strongly object, as Deputy Fitzgerald-Kenney objected, to this business of asking people to come into court and then using against them their answers to questions which they dare not refuse to answer under the terms of the Act.

I should also like to refer to a matter mentioned by Deputy McGowan. That is in connection with the Fourth Schedule to the Bill, referring to businesses exempted from provisions as to Sunday trading. I do not think the Minister should take out that, because there are various parts of the country where poor people can do their shopping in a very easy manner on Sundays, and where it is quite common for them to do their shopping after Mass on Sundays. Accordingly, I think there is no reason at all why that provision should be removed from the Schedule. Of course, you have the Second and the Third Schedule, dealing with the sale of refreshments, foodstuffs, and so on, but I think the retention of the items I have referred to, in the Fourth Schedule, will not do any harm at all.

I should like also to refer to an item in the Second Schedule dealing with the motor business. In connection with that, I should like the Minister to tell us whether or not a garage owner could sell, let us say, a gallon of petrol to somebody who needed it.

Mr. Heron

I think that Deputies are all aware that there is hardly any occupation in this country where there is more "sweating," and more in the way of unfair conditions, than there is in shops—particularly in the smaller shops that are untouched by trade union organisations; and shops, large and small, in the smaller towns and villages—and Deputies of my Party welcome and effort that can be made to grapple with that state of affairs. In the present Bill we are confronted with the difficulty that the Bill itself does not indicate what protection will be given to employees of these types of shops. It simply gives certain powers to deal with "sweating," long hours, and unfair conditions generally. Personally, I do not see how the question of shop hours, and such questions, can be dealt with effectively except on the principle of this Bill and, on the question of enforcing whatever powers may be conferred under this Bill, I do not sympathise with Deputies who have suggested that such nowers should not be conferred on the Gárdaí. I do sympathise with what Deputy McGowan said, which was to the effect that a great many duties have already been imposed on the Gárdaí—more than, perhaps, they are able to cope with. There might be something to be said for that; but I certainly welcome the handing over of the enforcement of the provisions of this Bill to the Gárdaí, as against leaving their enforcement to local authorities. I believe that there is much more likelihood of the provisions of the Bill being enforced with efficiency by the Gárdaí than by any other authority. Reference has been made to the possibility that the conferring of such powers on the Gárdaí would lead to an interference with individual liberty. I do not think that there is anything revolutionary here in that regard, or anything in the nature of an introduction of a new principle in that connection. At present, for instance, the Gárdaí have authority to enter licensed premises and to demand information from any people that they may find in licensed premises during prohibited hours, and there does not seem to be anything here that would be very different from that.

Mr. Fitzgerald-Kenney

Under what section is a person bound to answer or to give information in such a case?

Mr. Heron

Well, I take it that a person, in such a case, is bound to give his name and address to the Gárda.

Mr. Fitzgerald-Kenney

Under what section, or by what authority, is he bound to do so?

Mr. Heron

Well, Deputy Fitzgerald-Kenney probably is in a much better position than I am to furnish that information; but I am sure that he knows, just as well as everybody in this House knows, that the Gárdaí have authority to enter licensed premises during prohibited hours, and to question, not alone the proprietor of the licensed premises, but any people that may be found thereon during prohibited hours. I say that, of course, subject to correction, but I believe that what I have said is correct. However, apart from that, there are six public holidays mentioned in this Bill, but, so far as I can see, there is no provision in the Bill which compels a shop to close on any one of those public holidays. I do not see why a provision should not be made for the compulsory closing of shops on public holidays. I think that that is the only means by which it could be assured that assistants employed in these shops will get public holidays. As far as I know, it seems to be the regular thing in other countries for shops to be closed on public holidays, and I do not see why the same could not be done here, actually by legislation instead of by Ministerial Order.

I should also like to point out, in regard to the question of closing hours, that there is no provision for the closing of shops at any particular time on week days, and I think that the time has now arrived when there ought to be legislation to bring the trading hours of shops within some sort of reasonable limits. Like Deputy McGowan, I should like to hear from the Minister as to why he proposes to exempt businesses engaged in the sale of meat and fish from the closing order. I think that it might be found that, possibly, in this matter, reference has been had to old legislation in Britain. Whether or not that is so, I cannot say; but I know that, at one time, in Britain, butchers' shops were exempt from Sunday closing. That, however, no longer exists, and I do not see why such a state of affairs should be allowed to exist here. Again, we have the question of shops engaged in the sale of tobacco and newspapers, and it appears that they will be permitted to remain open up to any hour of the day or night. Now, I say, and I think everybody will agree, that the employees of tobacconists' shops and newsagents' shops are probably amongst those who most require and deserve legislation for the limiting of the hours of trading, and, taking this Bill in conjunction with the other Bill that is still before the House, I think it would be very hard to enforce the conditions which apply to shop assistants unless that is accompanied by a provision actually regulating the hours of trading. One Deputy referred to the desirability of exemptions from the provisions of the Bill in the case of towns and villages with less than 500 population. Again, as in the case of the smaller shops, I think that in the case of the smaller towns and villages there is possibly even more need than in the large centres for this legislation. Generally speaking, in the large centres the operation of trade unionism on the part of shop assistants has had the effect of limiting the hours of trading as well as the hours worked by the assistants. It is precisely in these smaller communities, in the smaller villages, that legislation such as this is most urgently required. Therefore, I have no sympathy whatever with the suggestion that the villages should be exempted.

As I said in the beginning, this measure can either be a very useful one or a useless one, according to whether the Minister uses the powers which the Bill will confer upon him. It would be more satisfactory from the point of view of the Labour Party if the Bill itself more definitely laid down restrictions in the hours of trading, rather than that it should be left to the Minister by order to regulate these matters himself. There is no doubt that very considerable pressure will always be brought to bear upon the Minister to give exemptions for various reasons and in various circumstances; and from many points of view it would be more acceptable, to the Labour Party, at any rate, if the Bill itself had contained more definite restrictions. However, such as it was, we welcome any measure that has for its aim the regulation of hours of trading in shops, and, in consequence, the protection of the assistants working in the shops.

Mr. Lemass

Most of the points raised in the debate were, as was to be anticipated, of a detailed character and did not bear upon the principle of the measure at all. We can, I think, discuss most of them more effectively in Committee than at the present time. Deputy Fitzgerald-Kenney, of course, did raise a point of importance in relation to Section 8. I am never quite sure when I am expected to take Deputy Fitzgerald-Kenney seriously. Sometimes I think he likes to engage in the business of pulling the leg of the Dáil. I am not sure that he was not enjoying himself in that practice when speaking on the Bill. Deputy Linehan took him seriously, but I do not know that anybody else did. There is, of course, no extraordinary constitutional change being effected by this section. In Utopia, in some ideal State where nothing wrong ever happened, it would, undoubtedly, be merely necessary for the Legislature to pass its laws, and for the Government to make its orders. Everybody would, of course, obey them, and there would be no necessity to make any provision for enforcement. The enforcing of laws is always a fairly nasty business, and none of us likes to contemplate the various measures that have to be taken to that end and the safeguards which must be imposed upon everybody to prevent the possibility of the invasion of the law by a few. This is not Utopia. If we make a law here we must, at the same time, take steps to ensure that that law is going to be obeyed, and somebody must be charged with the responsibility of seeing that it is obeyed and given the necessary powers to that end.

Mr. Fitzgerald-Kenney

That is a wonderful doctrine.

Mr. Lemass

It is common sense, in my opinion. I am not offering it as a doctrine. We could, undoubtedly, entrust the enforcement of the measure to inspectors. I would have expected Deputy Fitzgerald-Kenney to have protested against any such proposal.

Mr. Fitzgerald-Kenney

The Minister knows that I have no objection to the Guards enforcing the Bill. It is the extra unconstitutional powers given to the Guards to which I object.

Mr. Lemass

We are giving the Guards, in relation to this Bill, no greater powers than inspectors enjoy who are charged with the responsibility of the enforcement of any measure—no greater powers than the existing shop inspectors have under the existing shops legislation. The only difference between this Bill and the Factories and Workshops Act, the various Agricultural Produce Acts, and the other measures which have to be enforced by inspectors is that, instead of having inspectors, we are proposing to use the Guards. We are proposing to use them because, in fact, experience has shown that it is not possible to build up an inspectorate organisation capable of dealing effectively with the enforcement of trading hours in shops. It is necessary to use the Guards; it is cheaper to use them; and the only thing that arises, in order to ensure the existence of an effective machine for the enforcement of the legislation, is to confer the necessary power upon them.

What power do we give them? Power to go into a shop to see what they are selling. If an order is made prohibiting the sale, say, of drapery goods after six or seven o'clock in the evening and some shop is found open until eight o'clock, surely the enforcing officer, whether an inspector or a Guard, should have the right to go in and ask in that shop: "Are drapery goods being sold here?" He should have the right to see for himself and, if he finds infringement has taken place, to ascertain the name and address of the person responsible. That is the only power he is getting. Section 8, to which the Deputy referred, relates only to the circumstances arising when somebody obstructs the Guards—refuses to give information, declines to give the name and address, declines to state the class of goods sold—and we provide that such a person commits an offence. Most people will agree that Section 8 is an eminently reasonable one. Without Section 8, you might tear up the Bill altogether because it could not be enforced or would not be enforced. The various orders that might be made under it would be of no greater significance than the existing closing orders are in many towns and in many parts of the country where the enforcement is entrusted to some part-time inspector, who could not possibly carry out the duties entrusted to him, even if he were particularly anxious to do so.

Deputy Fitzgerald-Kenney requires some explanation of the provisions of Sections 17 and 30, and I think Deputy Benson also referred to the same point. There are two classes of trades described in this Bill as being excluded in certain circumstances from the operation of the Bill or orders made under it. One class is described, for the purpose of convenience, as "exempted businesses" and the other class is, "excepted businesses." The distinction between them is this. If a person is engaged in mixed trading and, under any order, is required to close at a particular time, then he must close at that time, even though he is also engaged in some business which is exempted from the scope of the Bill by one of the Schedules, but he need not close at that time for the purpose of an excepted business, the three excepted businesses being the business of a post office, the business of selling medicine, or the business of selling meals for consumption on the premises. A person engaged in one of these excepted businesses can keep his premises open for the purpose of the excepted business, even though he is required by order to close for some other business in which he may be engaged on the same premises.

The exempted businesses are in a different category. One of the provisions of the existing law, in fact a provision which has made that law almost completely inoperative, is that if a person is engaged in a mixed business, and any one item is exempted from the scope of the law, he may remain open for the purpose of that exempted business. He is, theoretically, committing an offence if he sells any of the goods which are not exempted at a time prohibited by the order but, in fact, enforcement is impossible so long as the shop is allowed to remain open for the purpose of the exempted business. As mixed trading is the practice at the present time, it is always possible for any trader to add to the lines of business in which he is engaged some exempted line and he can, therefore, get the right to remain open indefinitely. Even though he is required not to engage in the sale of some goods during prohibited times, he cannot be prevented from doing so. In order to get over that difficulty we are providing in this Bill that where a person is engaged in mixed trading, he is required to close at any time mentioned in any order applying to any line of business in which he is engaged. That is the only effective way by which enforcement is made possible. That explains the difference between the exempted business and the excepted business. The three excepted businesses are not in that position. Persons engaged in an excepted business can still remain open for the purpose of conducting that business, even though the shops are required to close by some order relating to some other line of business in which they are engaged.

Mr. Fitzgerald-Kenney

Suppose a person has a post office and a drapery. Can he sell drapery goods during post office hours?

Mr. Lemass

He cannot sell drapery goods, but he can keep the premises open for the purposes of the post office. "If such shop is so kept open for the purposes of any transaction connected with such excepted business and for no other purpose." These are the concluding words in the first part of sub-section (5) of Section 17. The ideal situation would be not to have these excepted businesses at all, but we think there is no way out but to except certainly a post office business, certainly the business of selling meals for consumption on the premises and, probably, the sale of medicines. I anticipate that there will be some objection to granting this exception for the sale of medicines, but that can be argued at some other stage. A suggestion was made that the Bill should not apply to rural areas at all, and with that suggestion I have a certain amount of sympathy. I think there is a lot to be said for not applying it to purely rural areas, but something can be said against that also. It is necessary, of course, for Deputies to bear in mind that there is a clear distinction between having powers to do something and actually doing it. In relation to two Parts of the Bill, certain things automatically come into operation. That is the Part dealing with the weekly half-day and the Part dealing with Sunday trading. Once the Bill becomes law, only trades exempted from the provisions of the Bill by the Second and Fourth Schedules will be entitled to ignore the law relating to half-holidays or Sunday trading.

In relation to hours of trading on week-days, the bringing of the Bill into operation will not effect any change unless and until orders are made relating to various trades and to various areas, and of course these orders can be adjusted in their operation to meet the requirements of different districts. Sunday trading, I think, must be permitted in respect to certain commodities. Objection was taken to permitting Sunday trading in meat, fish and other articles mentioned in paragraph 7 of the Fourth Schedule. These articles are included there because they are perishable in the sense that they deteriorate very rapidly. In any event, the sale of them on Sunday, in certain areas, at any rate, is a fairly common practice. I am, however, prepared to consider amendments to item 7 of the Fourth Schedule in respect to any of the articles mentioned. I must say that the question whether certain articles should be included in paragraph 7 or should come out of it caused me grave concern, and it took me some time to make up my mind on the point. I would draw the attention of Deputies to the fact, however, that the putting of it into operation does not mean that an irrevocable decision has been taken, because under Part IV there is power to take any item out again at a later stage by order if it is considered necessary to do so.

There is, however, substance in another point which was made concerning Sunday trading to meet which Section 29 was inserted. In some parts of the country Sunday trading is the rule rather than the exception. I have in mind certain districts on the west coast where people come in from islands and outlying districts to Mass and as a rule do their whole week's shopping after Mass on Sunday. In such areas Sunday trading must be permitted. It would be a considerable hardship to these districts if Sunday trading were prohibited. Consequently power is taken to permit Sunday trading in such areas by order. I think the fact that in the matter of fixing trading hours on week-days considerable discretion is allowed, and that orders can be made to meet the requirements of particular districts, meets the point raised by Deputy Morrissey as to the need for allowing different conditions to operate in small rural towns as compared with the larger cities. It would, I think, be a considerable inconvenience to a number of people in these smaller towns if shops were required to shut on Saturday evening at the hour which might reasonably be enforced in cities and larger towns.

Deputy Heron's observations showed, I think, that he was rather inclined to mix up slightly the matter of trading hours and the hours of employment of shop assistants. I do not see any very strong objections on the grounds of public policy to allowing a tobacconist or a newsagent to remain open to a late hour at night, provided it does not mean that the assistants are being required to work unduly long hours. We have a Bill at present before the House which provides a 48-hour week for assistants, and that Bill will be enforced simultaneously with this measure. Their hours of employment, therefore, are limited and, subject to that limitation, I do not see that it is necessary to restrict unduly the hours which shops may remain open for trading. So far as certain classes of shops are concerned, places where meals are sold for consumption on the premises, there is no Deputy who has not at some time found himself in the position that he would prefer that a larger number of these establishments should remain open at night.

Mr. Heron

Would not the Minister agree that, if the hours of opening of the shops were restricted, it would make much easier the enforcement of the conditions applying to shop assistants in respect of hours? In fact, it would make it possible, where it may be impossible otherwise.

Mr. Lemass

I do not say it would be impossible at all. There may be certain difficulties, but I do not think we should set out to make the hours of opening and the hours of employment of assistants coincide. I do not think it would be practicable to do so. Take the case of the licensed trade, which are, I think, in the City of Dublin permitted by law to remain open 68 hours in the week at the present time. It may be suggested, but it is not at the moment being suggested, that those hours should be reduced; but at the same time it is proposed that the hours of employment of assistants should be limited to a maximum of 48 hours in the week. That may mean some adjustment of staffing arrangements in a number of those shops, but it does not necessarily mean that, in order to protect the assistants against unnecessarily long hours, the hours of trading in those shops must be similarly curtailed. We must take into account the requirements of the public, and I think we can do both. I think we can protect the assistants against exploiting, against being forced to work unduly long hours, and at the same time meet the reasonable convenience of the public in relation to certain trades where it is desirable to do so. Nobody will say that it is necessary to keep an ironmonger's shop open until 10 or 11 o'clock at night, whereas any man who is addicted to smoking having to go home at that hour without cigarettes would feel a real grievance.

Mr. McGowan

He could buy them a little earlier.

Mr. Lemass

In other places where they did, accidentally or otherwise restrict unduly the hours of opening shops of that kind, they merely encouraged the replacement of human assistants by automatic machines, and that may well happen here if we were to be unduly restrictive in regard to hours of opening. I think we must protect the assistants against unduly long hours of work, but, subject to that, we can be reasonable in the matter of the enforcement of opening hours.

Mr. McGowan

In the absence of a definite general closing hour for shops of that nature, has not the owner of a shop who does not employ labour an unfair advantage over the owner of a shop who employs labour?

Mr. Lemass

That is a consideration which has to be borne in mind, and different circumstances obviously apply in different trades. For the ordinary run of shops I think we can contemplate quite reasonable hours of opening, but there are certain classes of shops which are being exempted, and it is in relation to those exemptions that I ask the Dáil to examine the matter. The only significance to be attached to the exemptions in the Third Schedule is that by exempting those trades we are in fact precluding ourselves from making Orders restricting the hours of opening of them. There is not a single one of them in relation to which I am not prepared to consider an amendment being moved on the Committee Stage. Travelling shops are covered, in so far as they are required to conform to the same law as to hours of trading that other shops have to comply with, by the provisions of Section 27, sub-section (1), which says:—

Whenever an hours of Trading Order or an existing Closing Order in relation to any area is in force, then subject to such exemptions and conditions (if any) as may be contained in such Order, it shall not be lawful for any person to carry on in any place, not being a shop, within that area any retail trade or business at any time when, if such place were a shop to which such Order applies and such person were the proprietor of such shop, such person would by so doing be guilty of an offence under any section (other than this section) contained in this Part of this Act.

The intention of that part of the section is to ensure that whatever Order as to hours is applied to ordinary shops shall apply to those travelling shops or to those street trading stalls with equal effect.

Dáil Éireann debate -
Wednesday, 1 Dec 1937