I move: "That the Bill be now read a Second Time."
The primary purpose of the Bill is to update existing legislation relating to the control and regulation of casual trading as contained in the Casual Trading Act, 1980. That Act, as the House will be aware, applies to selling goods by retail on a street, road, market square, footpath, roadside and any other place to which the public have access as of right, and any place which a local authority sets aside as a casual trading area.
It would be helpful to Deputies if, before dealing with the provisions of the new Bill, I outline some of the background considerations which led to the enactment of the existing legislation in 1980. The 1980 Act came into being following a report from the then Restrictive Practices Commission — which has been subsumed into the Competition Authority — which concluded at that time that outdoor trading was "fair trading" provided that it was subject to reasonable and, especially, effective control and made a more realistic contribution to public funds.
The primary reasons for introducing the legislation were to ensure that roadside and street traders do not have an unfair advantage over established traders who operate from retail outlets, in so far as they do not incur the associated overheads. Another factor was that trade union interests complained at that time that employment prospects for their members were being jeopardised, not merely because of the higher overheads which have to be met by shopkeepers, but also because street traders do not observe the statutory and reasonably negotiated conditions of employment of shop assistants. Additionally, there had been widespread concern about the traffic and other environmental problems created by some outdoor traders. These were some of the arguments in support of better regulation of outdoor trading which led to the enactment of the 1980 Act. The same considerations could be said to arise today.
The object of the 1980 Act, therefore, was to deal with these types of concerns by providing a more effective system of licensing subject to certain conditions, linked to designated areas, with penalties as the deterrent against offences. In this regard, the Act currently provides for a dual licensing system, one at national level involving a requirement on traders to obtain a national licence from the Department of Enterprise and Employment, and the other obtaining a permit from a local authority which has availed of its powers to designate casual trading areas. The Act gives power to the Minister for Enterprise and Employment and to the local authorities to appoint authorised officers, and to the Garda Síochána for the purpose of enforcing it. In practice, however, it is enforced by authorised officers appointed by the local authorities and the gardaí who have wide powers to ask questions and to examine books and other records. Any person who fails, refuses or neglects to comply with a requirement of an authorised officer or a garda commits an offence. In certain circumstances a garda may arrest without a warrant a person contravening the Act and seize any vehicle or goods connected with the illegal trading. Additionally, local authorities have powers to acquire market rights, some of which are in private ownership as a result of royal charters and letters patent granted centuries ago, and to extinguish such market rights on condition that they provide alternative facilities in the same vicinity as the market or fair to which the right relates and which reasonably correspond in all respects to that market or fair.
The 1980 Act also provides that certain classes of trading, which were not then considered to give rise to any problems, are exempted from regulation under the Act. These exemptions relate to the following types of selling: selling by a licensed auctioneer; a farmer or market gardener selling his own produce — livestock, vegetables, flowers, fruit or other crops; door to door selling; a person selling sweets, chocolate, confectionery, cooked foods, fruit, non-alcoholic drinks or favours from a tray, basket, trolley or other similar device at or immediately beside a place where a football match, race-meeting or any other event is taking place regardless of whether the public have to pay to attend; selling of ice cream, newspapers, periodicals, magazines or other printed matter or pious or religious objects; fishermen or members of the crew of a fishing boat selling their catch; selling in aid of a charity or for some purpose from which no private profit is made, for example, famine relief organisations, hospitals, organisations that help the poor, churches, mission societies, schools, sports clubs; and selling at a market or fair held with the authority of statute or a franchise.
In summary, the Casual Trading Act, 1980, set out to regulate casual trading by providing that, with a number of exceptions, anyone engaging in casual trading is required to have a national licence issued by the Department of Enterprise and Employment on payment of a fee, and separate permits from each local authority which has designated a casual trading areas. The cornerstone of regulation under the 1980 Act was, therefore, the wide powers given to local authorities to designate the places in their functional area which would be set aside for outdoor trading, where this type of trading could be carried on in a disciplined way in the best interest of local consumers, established traders, casual traders and all other interested bodies.
It was not then envisaged, and I am not now proposing, that central Government should decide where trading should be permitted and what detailed conditions should be attached to trading at local levels. The 1980 Act was, therefore, designed to give local authorities all the powers they could reasonably need in order to properly regulate casual trading.
During the period in which the Act has been in operation certain aspects, in particular exemptions and enforcement, have been the subject of criticism by traders, local authorities, public representatives and the courts. In response to these criticisms a major review of the Act has been undertaken by the Department of Enterprise and Employment. As part of the review all local authorities were invited to make submissions. Their views were concerned, in the main, with effecting improvements in the operation of the Act by suggesting amendments to particular provisions, rather than proposing overall policy changes. Submissions were also obtained from other Government Departments and interested bodies representing traders, established and casual.
In this regard, the exemption under the Act relating to the sale of agricultural or horticultural produce by the producer has posed particular problems for local authorities in enforcing the legislation because the burden of proof of the origin of the produce is placed on the local authorities. This is very difficult in the case of most items with the exception of fruits such as oranges, grapefruit, etc. In addition, efforts by local authorities to use their powers to acquire market rights can be defeated when people selling their own produce such as potatoes, shrubs, fish, etc., are not subject to any form of regulation.
The absence of power of appeal by a local authority against a decision of the Circuit Court in relation to the designation of a casual trading area has also presented problems for some authorities in an area that is crucial to the effective operation of the Act. Difficulties have also been experienced by local authorities in dealing with so-called "prescriptive rights" claimed by traders when the local authorities have attempted to use their powers to acquire market rights. As I have already indicated, one of the current exemptions from casual trading regulations relates to selling at a market or fair held with the authority of statute or a franchise.
The difficulty arising here from the authorities' point of view is that where they have been successful in acquiring a market right, a continuing right appears to live on through the prescriptive rights route and the local authorities have no means of establishing the validity of such rights. This has been invoked successfully by some traders and as a result the local authorities and the Garda, in some instances, have declared prosecutions under the Act on fair days to be a lost cause.
These are the major concerns raised by the local authorities. There are others of less significance which I do not think it necessary to detail here. Suffice it to say that having received my Department's evaluation based on the various submissions received and close consultation with other Departments, in particular with the Department of the Environment in view of its responsibilities for policy for local government matters, I have decided to amend the 1980 Act to address perceived weaknesses and with a view to achieving more effective regulation of casual trading. I will now set out the principal reforms I am proposing to the House for consideration under the Casual Trading Bill, 1994.
As I have already mentioned, the current system involves a dual licensing system which requires that national licences are issued by my Department and permits are issued by the local authorities. I do not consider there is any justification for the continued involvement of central Government in this function. It is a function that can readily and should properly be carried out only by the local authorities. This is fully consistent with Government policy on local government reform with regard to ensuring that local issues are settled wherever possible at local level. As I have already indicated, the 1980 Act contains a number of trading activities which are exempted from the scope of the Act. This means they are not subject to any specific regulation. This has given rise to particular difficulties, especially in the case of home-grown produce.
I consider that the exemptions from the scope of regulation should be as limited as possible and accordingly I am proposing under section 2 to limit the exemptions to just three activities, namely: (a) selling by a licensed auctioneer; (b) door-to-door selling and (c) charity sales. I am proposing that the following five exempted activities under the 1980 Act be removed: (a) the selling of agricultural and horticultural produce by the producer; (b) the selling of sweets, chocolate, etc. at public events such as sports and concerts; (c) the selling of ice cream, newspapers, etc. and pious religious objects; (d) the selling of fish by the crew which catches them; and (e) selling at a market or fair held with the authority of statute or a franchise. I want to emphasise that the removal of these exemptions will not make the activities in question unlawful, rather it will have the effect of making them subject to regulation.
The existing provisions enable the Minister for Enterprise and Employment to amend the exemptions by making regulations, in other words, without the need to introduce a Bill in the House. However, advice received from the Attorney General has indicated that this power is limited to adding to the exemptions. The removal of existing exemptions cannot be carried out under the 1980 Act by regulations and I am therefore proposing that such powers should be given to the Minister for Enterprise and Employment in order to be able to react more flexibly to any changing circumstances. In addition, local authorities will be empowered to add to such exempted classes of trading as they may consider necessary as far as their own areas are concerned.
In the case of the removal of the current exemption relating to the sale of agricultural and horticultural produce, I would point out that I am aware of the rural development dimension which such direct selling can have in terms of adding value at the local level, for example, farm produced cheese. However, I consider that the provision which I am making under the Bill enabling local authorities to add such further exemptions as local circumstances dictate will cater adequately for this concern. In other words, if a local authority has a view that relates to its specific locality or the nature of a particular activity in its area it will make the judgment in that regard. The removal of the exemption relating to market rights, and the further provision contained in section 8 to the effect that any market right remaining unexercised for a period of not less than ten years will stand extinguished, will go some considerable way to resolving the problem posed by prescriptive rights.
The 1980 Act provides that a casual trading licence cannot be issued to any person who has committed two or more offences under the Act, within five years of those offences having been committed. This provision has been criticised as being unduly harsh and has indeed been the subject of a case before the Supreme Court. That court found the power to be constitutional and therefore I am proposing to retain this penalty. However, I propose under section 4 to amend the text to meet the court's criticism of the lack of clarity in the present text.
Section 4 also provides that a local authority shall, subject to certain specified circumstances, grant a casual trading licence to an applicant who pays the fee fixed by the local authority under that section and who fulfils certain conditions, including tax clearance. The latter issue will no doubt be of concern to some traders. This was a specific requirement contained in the Government decision approving the general scheme of the Bill and is a reflection of the Government's determination that the tax burden should be as equitable as possible for all sections of the community.
In this regard I have been advised by the Department of Finance that suitable arrangements to ensure that no casual trader, except for exceptional circumstances, will be refused a tax clearance certificate. Therefore, this new requirement will not be an obstacle to new or existing casual trading applicants for licences. In addition, section 6 provides for the application of the tax clearance requirements to the issue of casual trading licences in such a manner that it will not interfere with the casual trader's constitutional right to earn a livelihood. Under section 4, again in accordance with the Government's decision, there will be an obligation on the local authorities to inform the Minister for Social Welfare when a licence is issued.
The licensing regime proposed under section 4 will enable a local authority to either issue a general licence without territorial limitation in its own jurisdiction, or else confine it to casual trading areas or special events. Licensing of special events, such as sporting events, pop concerts and such gatherings, will make it possible for local authorities to deal more effectively with this type of trading.
Another major change which the Bill will make, and which has been suggested by the Department of the Environment, is to provide broad ranging powers under section 7 to the local authorities for the use of by-laws relating to the control, regulation, supervision and administration of casual trading in their functional areas. I would like to emphasise that these powers are more extensive than the present powers of local authorities under the 1980 Act to make by-laws which are limited to casual trading in casual trading areas under their control. This is, in effect, the most significant reform in the Bill and I am confident that it will give the local authorities the kind of flexibility they require to regulate casual trading more efficiently. They have sought those powers from successive Ministers.
In connection with the power of the local authorities under section 7 to set fees under by-laws, I would point out that local authorities already have discretionary power under the Local Government Act, 1983, to charge fees in excess of the £20 fee set by the Casual Trading Act, 1980. I am aware, however, that some local authorities do not consider that they currently have discretion to charge fees above the prescribed £20 limit because of decisions by the courts in favour of traders who objected to any increases in the fees for permits.
While I consider reasonable that local authorities should have flexibility with regard to the fixing of fees to cover administration costs, I would be concerned that local authorities would keep the fee limits at modest levels commensurate with this requirement. It is my intention in this regard to write to my colleague, the Minister for the Environment, at the appropriate time with a view to ensuring that this will be the case.
In making by-laws setting fees, local authorities will be able to provide for different circumstances and different classes of persons, including disabled and handicapped persons. This section will also provide power of appeal to any party, including a local authority, to the Circuit Court from the District Court in connection with by-laws proposed by a local authority.
In regard to enforcement, as the Minister for Enterprise and Employment will no longer have the function of issuing casual trading licences, I am proposing that he will have no role in enforcement. This will be the responsibility of local authorities and the Garda Síochána, who in practice already enforce the Act. Section 11 of the Bill reflects the new approach.
In this connection I would like to draw Deputies' attention to a small but important change which I intend to make to this section on Committee Stage, that local authorities will also be empowered to appoint persons other than officers of the local authorities. This additional power to appoint persons who are not employed by the local authorities will give them greater flexibility in operating the legislation, for example, in the area of managing markets.
Under section 13 the powers of the Garda Síochána to dispose of seized goods will be available to superintendents, where this function is currently reserved to the Commissioner of the Garda Síochána. This change was suggested by the Department of Justice on behalf of the Garda and reflects the Government's philosophy in terms of devolving to local government decisions that can be best made at local level.
Section 15 of the Bill will have the effect of doubling the penalties for summary conviction and conviction on indictment to £1,000 and £10,000 respectively, and will bring these penalties in line with current levels in other legislation. In addition the courts' jurisdiction in relation to offences will be streamlined in the sense that a defendant's current right to trial by jury for an offence which the court and the Director of Public Prosecutions may consider to be fit to be tried summarily will be removed, again in accordance with current trends.
I will be proposing a small number of minor amendments to the Bill on Committee Stage. I have already referred to the proposed amendment to section 11 relating to the power of local authorities to appoint authorised officers. I intend also to propose a number of amendments to the Occasional Trading Act, 1979, in order that similar provisions of that Act will remain consistent with similar provisions in the Casual Trading Bill.
Occasional trading as defined under the 1979 Act means "selling of goods by retail at a premises or place (not being a public road or other place to which the public have access as of right) of which the person so selling has been in occupation for a continuous period of less than three months ending on the date of such selling". Persons who engaged in occasional trading are required to have an occasional trading permit which is granted by my Department on payment of the appropriate fee. The act is enforced by authorised officers appointed by the Minister for Enterprise and Employment. They have wide-ranging powers similar to those of authorised officers under the Casual Trading Act, 1980, to ask questions and to examine books and other records. Penalties under the Occasional Trading Act are identical to those in the Casual Trading Act.
I will, therefore, be proposing the following amendments to the Occasional Trading Act, 1979, to keep it consistent with provisions contained in this Bill: first, in relation to the number of exempted activities under section 2 of the Occasional Trading Act which are broadly the same as those contained in the Casual Trading Act, I will be proposing that the Minister for Enterprise and Employment should also have power to enable him, by regulations, to amend the exemptions if circumstances warrant; second, I propose to amend section 9 of the 1979 Act to increase penalties and streamline the jurisdiction of the courts to make this section consistent with the Bill and third, I propose to make similar provisions in the 1979 Act relating to tax clearance and social welfare matters. These are necessary changes which I consider should be made to the Occasional Trading Act, 1979, so that similar legislative provisions should apply to casual and occasional traders, thus avoiding any potential for discrimination in terms of their treatment under the respective Acts.
I am confident that the measures proposed in this Bill will bring about a considerable improvement in the regulation and enforcement of casual trading, and I commend it to the House.
