On subsection (1), in regard to the words in lines 20 and 21 "as of right", referring to a place to which the public have access as of right, could the Minister indicate to the House what sort of place that might be? It refers to public roads or other places to which the public have access as of right. Would an unfenced car park beside an hotel, the forecourt of a pub or that sort of a place come within that definition?
Private Business. - Occasional Trading Bill, 1979: Committee Stage.
Yes, it would mean the type of place the Senator mentioned. The Senator mentioned the terms "not being a public road or other place to which the public have access as of right". That means selling goods in a hotel room, car park, those types of places that the public have a right of access to.
The point I am making is that the exclusion is that occasional trading cannot take place on a public road.
Or in a place to which the public have access as of right. What sort of place has the Minister in mind as being a place to which the public have access as a right? I posed the question: would the forecourt of a hotel or the car park relating to a pub be places to which the public have access as of right? Because if not, occasional trading could take place.
I understand that the forecourt of a hotel or the car park would have to come under the Roadside Trading Bill, which is the second Bill which is in the process of being brought before the Houses of the Oireachtas. Therefore, the type of places that would be included in this Bill would have to be a premises of some sort such as a dancehall, a ballroom, a room in an hotel or a business premises in a town or some such place. It could not encompass a car park or a forecourt, in that that would be roadside trading as such.
I place emphasis again on subsection (1). The period of three months is inserted there as the cut-off period, that is a person who is selling goods by retail in a place for a period of less than three months. Can the Minister give us any indication of why this period of three months was decided on?
It was very important, in drafting the Bill, to ensure that we would not be catching established traders as such. Having discussed it with members of chambers of commerce and others throughout the country, we decided that three months would probably be the best length of time in that we would not catch genuine traders. However, we would be catching them if, say, an established trader moved premises or indeed a genuine trader was setting up a business for the first time. We covered that by saying that once they made a statutory declaration to the Minister that they intended to stay in business longer than the three months they would not be covered by the Bill.
We felt that anybody who would be in business for less than three months should be classed as an occasional trader. I am sure that probably a lot of the complaints were in regard to a considerably lesser period than that, maybe for a weekend or a week, or that type of thing. We felt that in order to avoid them getting out from under the provisions of the Bill we should extend it a little bit further and we decided that, on balance three months seemed to be the best amount of time available.
I suggest to the Minister that three months is unreasonable and that the Minister's objective of catching fly-by-night people could be adequately covered if that period were reduced to one month. I do not know that her answer in relation to the person who is there for a shorter period than three months but who is going to continue in business and who can make a statutory declaration under section 3 is quite the answer because the person making that statutory declaration must have reasonable grounds for his statement that he is going to continue in business. As I read that particular section dealing with a statutory declaration the contrary is presumed if he does not remain in the place for the period in question.
Senator Cooney may not be aware of occasional trading that took place recently in Dublin which went on for a period of seven weeks and caused considerable disquiet among the trade and indeed among consumers and the public generally. Therefore, we felt that three months should be the best period of time that we could make available and that it would avoid allowing evasion by these occasional traders. All they had to do, if we said a period of three weeks, was to be in operation for four weeks and they were not covered by the provisions of the Bill. The one which caused an awful lot of talk and a lot of concern among genuine traders went on, in fact, for seven weeks.
Has the Minister any other instances where people were engaged in occasional trading for a period such as seven weeks? I imagine that is a fairly rare example. It leads me to suggest that hard cases make bad law if the Minister is framing her provision on the basis of that one instance.
I would agree with the second point the Senator made. I think, however, that we should not, as very often happens in some forms of legislation, legislate for the normal business hours, the normal times or length of time that occasional traders would be in existence or would trade for, which has been in the past a matter of days in some cases and in others a matter of weeks. I do not, off the top of my head, have any other examples of the type of extreme case I mentioned which went on for seven weeks. However, I have no doubt, having seen the level of advertising and the type of very high-powered salesmanship employed by various people employed as occasional traders and doing their business in this particular way, particularly in my part of the country, that they would be capable of evading the Bill by trading for even one day more than the prescribed time in the Bill, who would say that they would not be covered by the Bill. In all fairness, I think three months is a reasonable period of time and it gives protection to both sides.
What exactly is a Dutch auction? Most of us have heard of it and have a vague idea of what it is. Now that it is being introduced into a statute that selling by auction is not occasional trading unless the auction is a Dutch auction we would want to know precisely what is a Dutch auction.
My understanding of a Dutch auction, and what I have been told about it, is that it is a situation where a seller sets up in a premises or place and offers goods for sale where he starts at a high price and gradually works down. The person says: "Who will give me £10 for this particular article?" It may be worth only a pound but by employing this type of very high-powered sales technique he can get vast amounts of money past the actual value of the item. In other words, a Dutch auction is where the person starts at a very high price and gradually comes down until he gets an offer to buy.
Does the Minister not consider that that definition would want to be included in the section because what she has said is a form of auctioning? If a licensed auctioneer decides to sell his premises or sell his goods in that way he can say he was merely conducting an auction. If the answer is that this is a Dutch auction and he is therefore guilty of an offence by occasional trading he can ask: "Where is the law setting this out?"
I made that particular point in discussions on the Bill. I was advised at that time by my legal advisers and by the parliamentary draftsman that the term "Dutch auction" is legally sustainable and, therefore, I felt there was no need to define it more clearly than what is already in subsection (2).
If the Minister has doubts about it I would suggest to her that she should reflect on those doubts and tighten up the provisions of the Bill.
I have not any doubts now. I had at the beginning when the Bill was in its infancy. I was told at that time by my legal advisers that the term "Dutch auction" was legally sustainable and therefore I felt that there was no need to make the Bill any more cumbersome than it is.
Is the Minister satisfied that if a person decides to sell goods in the way she described, and that person is the holder of a licence under the Auctioneers Act, that he is engaging in occasional trading?
If the person has a licence under the Auctioneers Act he is not covered by the Bill at all.
Occasional trading does not include selling by auction if the person is an auctioneer. The point I am making is that an auctioneer conducting a Dutch auction engages in occasional trading and is not excluded by subsection (2).
He is not.
Does the Minister consider that it is proper that an auctioneer would not be able to rely on pleading that this is the way he wants to conduct his business?
I do not think any reputable auctioneer would allow himself to become involved in a Dutch auction.
We are not talking about orthodox auctioneers. We are trying to close loopholes. The Minister excludes auctions but she does not exclude Dutch auctions. I am merely asking her to tell us in the statute what is a Dutch auction. I am not aware of any place in the legal code where "Dutch auction" as such is defined.
I am satisfied that there is no need to define it more clearly.
It is not defined at all. In paragraph (d) of subsection (2) occasional trading does not include selling to a person at the place where he resides or carries on business or selling to a person adjacent to the place he carries on business. I would have thought that it might have read "occasional trading does not include the selling by a person at a place where he carries on business" rather than "selling to a person". Could the Minister explain the implications of that?
I know the exemption at (d) was put in to cover the type of situation that is very widespread in this country where the milkman does not sell milk at the place where he carries on business but sells from door to door around the country. This does not happen in all country places but certainly in most urban areas. The breadman very often in urban areas also sells. It would not be fair to include these type of people as occasional traders.
In the case of an agricultural show where many of the stalls and sites are rented to people who are selling, the show could really be described as mainly selling. Would all these stallholders be required to have a licence?
If the sale is at an agricultural show it is understood that the show is mainly for the exhibition of livestock, agricultural machinery or something that has a bearing on the agricultural industry. If we take the Spring Show or any of the shows in the RDS, their main purpose is to show off the livestock and to show machinery to prospective buyers. Therefore, these people who would have stalls or have machinery at the show with the intention of selling would not have to have a permit under this Bill. They would not be classed as occasional traders.
Under paragraph (f), say you have an event at which there is catering and people are selling meals at the event which are cooked on the premises, will they have to have a licence?
If they are cooked at the place of sale they would be covered in the Bill. They would not be excluded. Normally, at those particular types of events—the Senator mentioned one particular one in the recent past in Cork—most of the food would be cold food in that it would be something like salads or food provided at a running buffet, that type of thing which would not necessarily have been cooked there. However, it could have been cooked somewhere else where a large catering firm would be doing the catering. They would have cooked it on their own premises and brought it along with them. Provision would be made for keeping it hot in the place where it was being sold and that would be excluded under the Bill.
The Minister has the power under subsection (3) of section 2 to amend subsection (2) of this section "and that subsection shall have effect in accordance with any such regulations". That means that he could exclude various things from the scope of the Bill. After the Bill is in force for a time and some of these events that the Senator is referring to take place and it is found that they are being caught constantly under the Bill then it will be up to the Minister to make regulations to amend that subsection to ensure that they would not be caught.
Under subsection (2) (c) are country markets or what are commonly called mini-markets excluded? These are very small operations and they are usually run after Sunday Mass in country places. They are generally operated by the ICA or some local organisation. They do not include agricultural or horticultural products as such. They generally are concerned with selling homemade jams and homemade cakes. They are a very small type of operation. Are they excluded under this paragraph?
If they were not excluded under (c), they would be certainly excluded under (i) or (j) if the profits on such sales are used for charitable or similar purposes. The Senator made the point that very often some of these associations sell their own hand-made goods or their own homemade food and naturally any profits that would be made are, in the normal course of events, ploughed back into the association. They would not be covered by the Bill.
In regard to paragraph (d), I take the Minister's point that it excludes the milkman or the breadman selling his goods to a person in a private house. Would there be anything to stop one of the people against whom the Bill is directed making an arrangement with a householder to go into that householder's premises and hold his sale there and sell to the person of that house and to people from adjacent houses also?
I understand that the type of person the Senator is referring to would be classed as an occasional trader, that is, a person other than the milkman or the breadman. The person, as the Senator has said, who would rent a room or go into a person's home and sell, would be classed as an occasional trader and would have to get a permit.
Surely the paragraph, as it is drafted, is to give exemption to somebody selling to a person. The Minister gave the example of the milkman. Suppose somebody selling dolls decides to come to my house and sell them to me there, under paragraph (d) he is exempt. That is not occasional trading because paragraph (d) is an exemption from occasional trading. I am suggesting that it would be legal for that person to come to my house and sell to me and to neighbours, because they would be from adjacent places in accordance with the paragraph.
Once a person is coming to your house to sell just to you, he is not covered in the Bill. If that person is coming to your house to sell to a group of people then that person has to have a permit under the terms of the Bill. He would not be excluded because he is making a profit and it is not for charitable purposes.
Where does it say that it has to be a group of people? The exemption refers to where a person lives. People coming from adjacent places could come into my house. That sale would be in order. Instead of the milkman selling to me only, he sells to me and all my neighbours together.
The milkman goes to the Senator's door and he actually sells to him. The breadman goes to the Senator's door and he sells to him. The person I am talking about would be an occasional trader who, if an exemption were made in his case, might try to come to the Senator's house and set up a similar trading outlet as he would have in an hotel, in a dancehall or in any other type of premises. He would be coming to the Senator's house to set up a shop, except that it would be in a private house and not in a business premises or hotel.
There is nothing wrong with that because the Minister has told us that if the milkman comes and sells to me in my own house that particular trading is exempt.
I think Senator Cooney is imagining something that might happen rather than something that would ever happen.
No. This Bill is to deal with the type of trader who has a reputation for a certain amount of ingenuity in his approach to his business. We do not want to leave him a loophole. If one of these traders finds himself caught by the Bill and does not want to take out a permit he reads paragraph (d) and sees that it is not occasional trading to sell to me in my own house or to people from adjacent places. He comes to me and says: "I want to sell my range of light hardware to you and your neighbours. May I do so?" I, being a good friend of his, will say, "Come into my house and sell to me and my neighbours". He is then prosecuted and his answer is: "I am the same as the milkman. I am selling to this man in his own house and to the neighbours he has invited in".
The field of selling would be very small.
That would have a bearing on whether it would be a good or bad business operation. We are discussing here if it is possible.
I do not understand what the Senator is saying. He is talking about a trader coming to him and saying he wants to sell certain types of goods and he wants to use a room in the Senator's house. Is that what the Senator is talking about?
That is the reality of it.
That type of person is an occasional trader and he could not do so under section 2 (d).
If the people present consist of me, the householder, and people from adjacent places in accordance with paragraph (d) I do not see anything illegal in it. I do not see that it is occasional trading. In regard to the Minister's breadman, if the breadman comes into my house, brings a vanload of loaves into my house, sells to me and invites the neighbours in and sells to them there instead of going to their individual doors, that is not occasional trading. I am suggesting that it is the way it is done rather than the type of goods that are being sold that is the criterion. Under the Minister's example here the loophole that I suggested is present.
I do not think it is. That would only arise if paragraph (d) was not there.
If paragraph (d) was not there the Minister's milkman would be in trouble.
When the Minister has to provide an exemption for the milkman she lets in all types of traders who want to sell in that particular way.
I do not think that would arise. In regard to the situation that Senator Jago pointed out, if we found on the enactment of the legislation that people were using it as a loophole or to exempt themselves from the terms of the Bill then the Minister would have the power under subsection (3) to make regulations to ensure that this did not occur again.
It is hard to include regulations to include the milkman and exclude the others.
If you start defining various people you will surely leave out somebody who engages in door-to-door selling at present.
I appreciate the Minister's problem but in trying to provide that exemption she is leaving a loophole.
Time will tell.
On paragraph (i), page 3, occasionally charitable organisations arrange for auctions for charitable purposes and contract with people to handle the auctions. Does that come under the heading of private profit?
Is that included?
Once the organisations use the profits of a sale or auction made, regardless of who carried it out, once the profits of that are ploughed back into the organisation or used for charitable purposes then they are excluded from the terms of the Bill.
Would they be excluded if a charitable organisation contract with somebody for a fee to do the job? Is that regarded as a profit?
No, because the profits are still being made.
It would be a profit.
At the risk of appearing facetious or naive, could the Minister give a few examples of the type of selling that would come under paragraph (e)?
Senator Cooney will tell the Senator all about it. For instance, the Departments of Justice and Defence would be the two Government Departments most concerned. Both of them have vehicles which need changing from time to time. It would not be fair to cite the Ministers for Justice and Defence, in the event of them auctioning their cars, as being occasional traders.
In fairness to myself, the persons who would be using this would be auctioneers, who would appear to be exempt under paragraph (a).
Section 3 (2) is designed to give an amnesty to a couple of groups of traders during a short period after the commencement of the Act. The first group comprises traders who occupy a premises or place for the first time, less than three months before the date of commencement of the Act, and who intend to become established traders. Time is being provided to enable them to make the statutory declaration required by section 3 (3) of their intention to trade at the same premises or place for not less than three months. When they make this declaration they are exempted from the need for paying for a permit. The second group to be exempted comprises persons who before the commencement of the Act occupy a premises or a place but do not intend to remain in occupation for a total of three months including a period after the commencement of the Act. After the date of commencement this second group would, of course, be occasional traders as defined in section 2 (1).
The questions we had to answer were, what was the minimum reasonable time we should allow for the first group, the prospective established traders, to make the statutory declaration and secondly, for how long should we tolerate occasional trading without a permit. Initially, it was felt that three months was the answer but on reflection this would be over-generous and I am moving an amendment to reduce this to one month. One month is not a period that was arbitrarily decided on.
Section 4 (2) provides that an application for an occasional trading permit shall be made to the Minister not less than 30 days before the first day on which it is intended to engage in occasional trading. Therefore, occasional traders would have had to be given the one month amnesty since the Minister could not grant them a permit. The traders would have no means of complying with the law. As regards the people who intend to trade on a long-term basis, one month is a reasonable time to allow them for making and submitting to the Minister the statutory declaration which is required.
Subsection (3) excludes premises on certain conditions set out in paragraphs (i), (ii) and (iii). The condition in paragraph (iii) is continuous occupation of the premises for three months. What the Minister is seeking would be better obtained if mere occupation was not enough, if it had to be occupation and trading in the premises for three months.
If we did what Senator Cooney suggests, if it read "occupies and trades", we would be limiting the power of the Bill in that a person could occupy a premises but not be trading in it at the same time. He could occupy a premises for two months and only trade for a week or two weeks.
I am suggesting that if a person is qualified he should not be merely in occupation but he should be also trading for the three months as extra proof of his bona fides.
If a person really tried to establish himself he could get a premises and occupy it for three months. Having occupied the premises for three months, he has established a base for occasional trading. That is the point that was worrying me.
If the preliminary three months were not merely for occupation but for trading as well, it would prove the bona fides. Section 3 (3) (b) provides that a person can make a statutory declaration that he intends to continue trading. If he makes it without having reasonable grounds for his statement that he intends to occupy it for more than three months he can be guilty of an offence. There is a severe sting at the end of the paragraph, which reads: "... it shall be presumed ... that the person did not have reasonable grounds for the statement aforesaid". That is an unfair presumption. That a person did not have reasonable grounds for the statement cannot always be proved objectively. The subjective intention of the person declaring that he has reasonable grounds would have to be relied on. To say that he had not reasonable grounds because he did not fulfil his intention is extreme and it is putting an unfair onus back on the declarant.
The trader should not have any doubt in his mind when he makes the statutory declaration that he intends to occupy the premises and that he intends to be an established and full-time trader, not an occasional trader. The constraints of the Bill are not such that it would be unreasonable if he had not occupied the premises. Failure to occupy the premises for a continuous period of three months, as is shown in the Bill, should be sufficient grounds for presumption until it is shown that the person did not have reasonable grounds for making the statement in the beginning.
None of us is master of what will happen to us tomorrow. There could be numerous situations where a person bona fide moved into a premises, made a declaration and intended to stay there, until totally unforeseen circumstances intervened. It should be sufficient for him to be asked at that stage to explain the position rather than that there should be a presumption against him. There is a danger of shifting an onus there.
If a situation arises, as the Senator makes out, that he may not be master of his own affairs, that something might happen, then the matter would have to be left to the discretion of the courts to decide whether or not he had sufficient grounds for making a statutory declaration in the beginning. There is a precedent for this type of declaration in the Companies Act, 1963. If, through no fault of his own, something happened which stopped him from occupying the premises for a continuous period of three months, the courts would have to decide whether or not it was an offence.
Can the Minister tell us why or how she arrived at the fee of £50 for the permit and a daily fee thereafter of £25? They seem heavy. In this Bill we have to deal with a bona fide occasional trader and we also want to discourage the fly-by-night who is not bona fide. I just wonder if the Minister, in deciding on a fee of £50 and a daily fee thereafter of £25, is being a bit harsh on the person who is bona fide engaged in this type of commercial activity and providing a good service.
It is not harsh at all. In fact, I think that some of the Senator's colleagues on both sides of the House would probably say that it is not high enough. We had to arrive at a figure that would be comparable to the overheads that the established traders throughout the country have to meet, such as rent, rates, ESB, telephone bills and so on, to which the occasional trader was not making any contribution. The unfair competition lies in the established and genuine traders throughout the country having to meet these high costs when the occasional traders did not have any overheads. Having taken all points of view into consideration and having discussed the matter both in the Department and with interested parties from outside the Department, it was decided that £50 and £25 were a reasonable assessment of the overhead costs of genuine traders.
Were any occasional traders among the interested parties with whom this matter was discussed?
Surely the Minister would want their views as to what would be a reasonable figure for them to bear. There are bona fide people engaged in this activity and I think their views should have been sought. If the proposed fee puts them out of business the Bill would be going too far. The Minister said that they do not pay anything at all, but surely they have to pay rent for the premises and that rent is probably pretty high. That is their form of overheads.
In the light of experience when the Bill is enacted, under section 4 (13) the Minister can vary the amount of the fees, either upwards or downwards. I would remind the Senator that when the initial discussions were being held by the commission, everybody, including the occasional traders, knew that they were being held and no occasional traders came forward to offer views. Therefore, the onus was not on me as Minister or on my officials to talk to occasional traders if they were so disinterested in their future as not to offer any recommendations to the commission. The onus should not be on us to respond to them.
They are probably shy of the Establishment.
They are not shy.
On section 4 (1), the Minister's permit will specify such matters as the Minister may determine. Could the Minister give us some idea of what she has in mind?
It is probably a bit early to decide because we are only talking about this at the moment and trying to see what——
There is great pressure to have the Bill passed and brought into law.
I suppose it will be in operation about a month after it passes and is signed.
Or immediately thereafter.
The type of things which would be in a permit would be the hours of trading. It could prescribe, if it was found to be necessary, the type of goods for which the occasional trading permit would be granted. It would have to give the name of the specific place and the specific number of days on which the trading would take place. Those type of things would be in a permit. If it were found, after a number of permits were granted that the detailed information required was not sufficient the permit would have to be varied. If other information was required it would have to be given in the next issue of permits that would be made.
The Minister mentioned one matter that she has in mind that could be in it, that is specifying the type of goods that could be sold. I do not want to be taken as having a brief for these people and I agree that abuses should be controlled but I do think that legislation should be fair. If the Minister is reserving the power to put anything or everything into these permits and to chop and change them as her experience leads her to deem necessary, the position of these people could be well-nigh impossible and they would be forced to stop trading. I think there would have to be some indication in advance. The indication that the Minister has given is discouraging. For example, she said there would be control over the type of goods that they sell. This would be an unjustified interference with the freedom of trade.
I did not say that that would actually be included in a permit. I was giving an example of what might be included in a permit. Discussions have taken place between myself and various associations who were interested in these traders and interested in fair competition being available for consumers. Various submissions have been made on what might be included in a permit and these are all being looked at within my Department at the moment with the intention of coming up with a standard type permit. It is not envisaged that the Minister would chop and change and make things impossible. I am not trying to get rid of occasional traders. We could have done that by yielding to pressures from established traders, but we are allowing them to survive. Therefore, it would not be the intention of any Minister to make life so difficult for them that they would not know from one day to the next what would be included in their permit.
I am glad to hear that.
Reference has been made on this section to days and specified dates and so on. When we speak of a day, is it a 24-hour period or is it a day within the terms of the Shop Hours Act which relates to the opening hours of shops?
We are talking about a 24-hour day.
On section 4 (2), an application for an occasional trading permit has to be made not less than 30 days before the first day of trading. Would the Minister consider taking power to abridge the 30 days in suitable situations, for example, when a trader has booked a premises, made his application and then finds that the premises are not available but that adjoining premises are available? The permit, of course, would relate to the first premises. If there was an abridged time allowed the Minister could grant the permit.
If an occasional trader takes the trouble to advertise that he is having a sale on the premises, he will be quite sure—and the owner of the premises would ensure that he would be quite sure—that the premises will be available for the time of trading. If an occasional trader applied for a permit for the Royal Hotel in Athlone and discovered that he could not use it and had to go to, for example, the Prince of Wales Hotel, it would be unfair if we allowed him just a 12-day notice to say, "I am switching from one place to the other". If he goes to the expense of advertising, he is quite sure that he is going to get the actual premises specified.
Perhaps the example I gave was not a good example, but there could be other unforeseen circumstances in which his original intention would be aborted. I am not saying that the Minister would have to grant the licence on a lesser notice than 30 days. I am merely suggesting to the Minister that she take power in a situation where she is satisfied that it would be reasonable to do so to abridge the time of 30 days, not necessarily to use the abridged time but merely have power to abridge the time. When certain notices are specified for court applications there is generally a saver that the court has power to abridge times and it is done in reasonable situations.
I am advised that a change of address would not necessarily invalidate an application for a permit.
In that example that is fair enough, but there could be other situations where power to abridge the time could be useful and could ensure equity. The Minister would not necessarily have to use the power.
If other unforeseen circumstances arose they would not invalidate an application. The Minister should not have power to say that a person can apply for a permit ten days in advance. There are 30 days before the trading commences. If unforeseen circumstances arise, the occasional trader should bring them to the attention of the Minister.
Section 4 (5) gives the Minister power to revoke an occasional trading permit if he is satisfied that a conditional permit has been or is being contravened. There might be doubt, legally, about that subsection. The Minister can revoke the permit if he is satisfied that he is revoking a legal document. The Minister would be satisfying himself that an offence has been committed under subsection (3). The words "is satisfied" in a similar context in the 1939 Act were held to be unconstitutional in that the Minister in establishing satisfaction was, in effect, exercising a judicial function. An amending Act was introduced changing the words from "is satisfied" to "is of opinion". The Bill is inviting the Minister to be satisfied whether or not an offence has been committed.
The Senator is probably right in that the proper wording may be "if he is of opinion" rather than "is satisfied". I was not aware of the precedent that the Senator has outlined. The Minister should have the power to revoke a permit because the same power is there already in regard to driving licences, publicans' licences and so on.
With the critical distinction that the revocation of those two instances is exercised by the courts after a full judicial hearing. This is why I think that this section is objectionable constitutionally. I hope the Minister will look at it.
Section 4 (6) provides that the Minister shall not grant an occasional trading permit to a person who has been convicted under section 3 (1) if the conviction was for less than five years before the new date proposed to the Minister. If the conviction had been a technical conviction incurring a nominal fine or the Probation Act, it would be very harsh if the Minister could not do anything for that person for five years.
I would not agree that it is unduly harsh. It is a reasonable condition to impose on these traders. If they have been convicted more than once of the offence of engaging in occasional trading without a permit, subsection (6) is reasonable.
As it reads, it means that a person is disqualified for five years after a conviction from getting a further permit.
After being convicted more than once of the offence. It would discourage occasional traders from committing an offence.
It certainly would. Suppose there were two convictions related to technical matters concerning the conditions of the permit. One of the conditions might relate to the hours of trading. As we know from another code, there can be after-hours trading through no fault of the traders but because there is a crowd on the premises. Two convictions would mean that that person would not get a permit for five years. I think that would be very harsh.
The only offence that is mentioned in this subsection relates to a person engaged in occasional trading without a permit.
With respect, not merely is it an offence to engage in trading without a permit, it also provides that the occasional trading be in accordance with the permit.
If the occasional trader did not comply with the conditions they would not be technical matters. The trading permit is not something to be taken lightly. Any offence in relation to non-compliance with any of the conditions in the permit would be a very serious matter.
They might or might not be serious. If there was a minor infringement of the condition relating to hours of trading—if trading was to cease at 10.00 and instead it ceased at 10.20—twice in succession and two prosecutions were brought, the court would be coerced into imposing a conviction though it might not impose any fine at all. But there would be two convictions and the trader would find himself barred from getting a permit for five years. All I am suggesting to the Minister is that, instead of having the prohibition mandatory, the Minister should have discretion to refuse it in a case where there was abuse and breach of serious conditions. But in cases where it is shown to the Minister's satisfaction that the breach was technical or unwitting, then she could disregard it and in her wisdom grant a further licence earlier than the five years.
I feel that Senator Cooney is being unnecessarily alarmist about this subsection. My worry is somewhat different from his. I doubt if it will have any legal effect at all. I think these people are quite sufficiently ingenious to get round it. All it says is that the man who held the permit before will not be given one, but his brother or a friend could apply for it. I think the Minister would find herself in the position of having a threat which was not effective.
If the Minister would agree with Senator Yeats, I would be happy. In the case of two convictions in five years, if the wife of the offender applies for the licence and gets it, I would be quite happy.
She would be a different occasional trader.
Can I take it that the Minister's policy in such a situation would be that the other person would get the licence? Would the Minister agree in that case?
On subsection (7), can the Minister give us any idea of the information she will be seeking from applicants for permits?
The name and address of the applicant, his usual trade or profession, the postal address at which he intends to carry on trading, the dates on which he proposes to trade. That is the type of information that will be sought.
Among the information the Minister is seeking she should consider asking for his proposals to look after his VAT obligations.
Under subsection (10), if a person fails to pay the Minister a fee in accordance with the section, he shall be guilty of an offence. Is that a new principle? Where a person fails to pay a statutory fee, what usually happens is that a civil liability is incurred. Is this a new principle? Why is it necessary? Under subsection (3) (b) I am sure it would be a condition of the permit that a person should pay a fee and, if the person does not pay the fee, he is in breach of the permit and consequently guilty of an offence. Would that not be sufficient sanction? Is it a new principle that where a person fails to pay a fee he shall be guilty of an offence rather than incur a civil liability?
No. An offence is created by non-payment of a fee in respect of an occasional trading permit, but the fees in this case are payable in advance. The offence would arise only if the person traded without a permit.
Then what is the need for the subsection?
It is an additional offence. There are two offences created. If a person trades without a permit he is guilty of trading without a permit, but he is also guilty of trading without paying the fees in advance.
All I can say is that it is very odd. On subsection (12) what is the Public Offices Fees Act?
It requires receipts for fees paid to Government Departments to be in the form of adhesive or embossed stamps and this procedure would be quite inappropriate to this Bill.
On subsection (9), in view of the fact that the Minister said earlier that a day in her interpretation represents a 24-hour period, would it be possible that the amount of the fee to be paid could be less than £50 if the trading is for less than one day? The point was made earlier that the fee of £50 may be excessive in certain cases and it may not be excessive in others. There may be bona fide genuine cases where a fee of £50 per day might be rather excessive. Will subsection (9) allow the Minister to give a refund of that fee in part?
The subsection would allow the Minister to give a refund in the case, say, of an occasional trader who applied for a permit and got it to trade for six days and, when he went to trade, traded only for three days. He would get a refund of the fee which he had paid for the other three days. It is not envisaged that he would get a refund if he traded for half a day only and had got a permit for a full day. We consider that any reasonable portion of a day should be regarded as a full day's trading. The Minister has the power to "up" the fees or bring them down.
I would prefer to be more specific in regard to the publication of the trading permit notice. The wording is, "shall display the occasional trading permit relating to trading in such a position at or near the place where he is carrying on the trading..." These words "near the place" will bring a certain amount of doubt and even confusion into the matter, particularly having regard to the final words in the section that it must be "clearly visible and easily legible to members of the public at the place". That brings a certain amount of confusion and doubt into the whole matter. I see no reason why it should not read "shall be displayed at the place where trading is going on." I cannot visualise any place where trading is going on which is such a vacuum that it is not possible to append a notice or have a notice publicised. As the section stands, a less than bona fide occasional trader could say to the people trading: "The notice is 50 yards away from here."
That is an extreme case. If the notice is to be clearly visible and easily legible to the public, to those people who are coming in to have a look, or to do business on the premises, it would be ridiculous to assume that it would be 50 yards away or three or four doors down the street. After the enactment of the legislation if it were found that that was being done, we would have to amend it accordingly. We could not allow that to continue.
What is the reason for those words "near the place"? I cannot understand why it could not be "at the place". Why have "near the place"?
It seems to me that if you said simply "at the place" you could get into terrible legal problems. Somebody prosecuted about this might say: "I was selling the goods at one end of the room and the notice was at the other end". Is it "at the place" or is it not? "At or near" is more flexible. If you say "at the place" then the question is what is "at"? You could have wonderful arguments in court as to whether or not five yards, ten yards, 15 yards was "at". If you say "at or near" you have no problem. The safeguard there would appear to be that it must be "clearly visible and easily legible to the members of the public at the place." When you go in to take part in these transactions, if you are not able to see the notice the law is not being complied with. The safeguard is that you must be able to see it. It still would not matter if it was 50 yards away provided it was displayed at the only way in and you had to pass it on your way in. To limit it to "at" could cause frightful legal problems.
I take the point.
Subsection (2) provides that a person shall not with intent to deceive either alter or use an occasional trading permit. It would seem to me that it would be sufficient to say: "A person shall not either alter or use an occasional trading permit" and have another subsection saying: "A person shall not use an occasional trading permit issued to somebody else". By putting in there the words "with intent to deceive" you are putting on to the prosecution an extra onus in a type of offence that does not require it. Altering a permit or using a permit issued to somebody else should be a simple technical offence.
Suppose the permit were issued to me and I was not taking part in the trading at all—some agents on my behalf were taking part in the trading—then of course I could alter the permit. I would be doing it with intent but the people who would be acting on my behalf would not be aware of any such intent on my part and would feel that once the permit was legible and visible to the public on the premises everything was being complied with. They would not necessarily know what the Minister had insisted should be in the permit. Therefore I would be the person who would be doing it with intent to deceive the public and, indeed, to deceive my own agents as well probably.
Would it not be in ease of the Minister in bringing prosecutions if it was made an offence simpliciter to alter the permit? The Minister would not have to prove any intent, and might not even have to prove that the permit was altered.
Could there not be a case where there was no intent to deceive? I could pass it on to my brother, for example.
That would be an offence.
It would not be an alteration. It would be a use of the permit.
It complicates it from the prosecution's point of view. It is not necessary in an offence such as this. On subsection (3), would the Minister tell us why she felt it necessary to have this subsection which reads: "A person shall not forge a document purporting to be an occasional trading permit." I understand that forgery is already a criminal offence. I cannot see the need for it here, particularly as under subsection (4) subsection (3) is not made an offence.
We felt that as forgery takes place in other areas in this country we should ensure, as far as possible——
That is a reflection on the nation.
Maybe we are all to blame for that. Therefore, we felt that some occasional traders if they wanted to deceive—and some of them as the Senator said and as I said myself, are fly-by-night individuals—would be quite capable of forging a document and saying it is a permit, and showing it in a premises where they were carrying on business, and members of the public would be duped by such a document. The main protection for the public is that a permit is there with the name and address of the person carrying on the trading.
I agree that forgery should be prohibited but what I am saying to the Minister is that forgery is already an offence and there is no need to have a statement here that a person shall not forge a document purporting to be an occasional trading permit. That is stating what is already the law. I am just wondering why is there any need for it here.
When the Bill was being drafted the draftsman insisted on having this subsection in the Bill. He felt that although there were already provisions dealing with forgery this should be re-stated in this Bill.
If a prosecution is to be taken for forgery will it be taken under this subsection? I presume it will have to be taken under this subsection when it is included specifically in the Bill even though forgery is already a crime. If it is taken under this subsection there is no declaration in subsection (4) that this particular type of forgery is an offence. Will it be prosecuted under the ordinary criminal laws?
Could not the Senator argue on behalf of a client that the Bill does not say you cannot forge?
It occurs to me that there is a flaw in this section which I suspect will need to be remedied. Section 6 (4) says that a person who contravenes subsection (1) or (2) of this section shall be guilty of an offence. There is nothing about subsection (3) being an offence, as Senator Cooney has pointed out. I can only conclude that it was intended to make it an offence. Certainly if it is not intended to make it an offence, you are back to the ordinary law on forgery with vast penalties, indictable offences and so on. I would have thought what was involved here was treating a new offence with the £500 maximum fine and summary trial. I can hardly conceive that the subsection was put in merely to point out that you are liable to imprisonment for life or whatever the maximum penalty for forgery is. It would seem that subsection (4) should refer to subsections (1), (2) or (3) of the section.
If you did that you would be in the position that the indictment would have to relate to this Bill only and you could not relate it to the ordinary law on forgery. I suppose there is a choice when it is not included.
You could not accuse anyone of forgery under this Bill because there is no offence created. It is specifically excluded from the list of offences.
Under the ordinary law on forgery you could, but there is some difficulty in framing an indictment and answering a defence submission: what about subsection (4)?
It is specifically not an offence under subsection (4).
Would it not have the obvious effect of warning people that they should not forge documents, and that they should not avail of such an opportunity, and possibly get away with it if the warning were not there? It is a safeguard. It is a good thing to have it there as a warning to people that they may not and should not forge documents to engage in occasional trading.
Provided they read the Bill.
I submit that it is important that the date of the permit should be included in any advertisement relating to the trading. After all, it would be quite easy for a less than genuine occasional trader to insert the number of an old permit which was valid 12 months before. This is intended to safeguard the public in general and not the enforcement officers who can easily find out from the permit number whether or not it is valid. If the public want to ensure for their own satisfaction that the occasional trading is bona fide they would be able to ascertain that more clearly if the date of the permit were included in addition to the number.
I must say I felt that including the number of the permit and the name and address of the person to whom it was granted would be sufficient safeguard in that this would ensure that officers of the Department who will be policing this Bill would be able to ascertain whether or not the permit was a current permit and would be able to ensure that the occasional trading did not take place if the permit were out of date.
I would accept that up to a point if I were satisfied that the enforcement officers would peruse every provincial paper and every daily paper to satisfy themselves that this trading was bona fide, but I am afraid that, given normal circumstances a great deal of this detection will be left to genuine traders, regular traders, to ensure that nobody is carrying out occasional trading without having a proper authorisation. The inclusion of the date of the permit would bring that matter to public notice quite explicitly. I would suggest that the Minister should consider including the date of the permit as well as the number.
Would the Minister give us an assurance that, when an application for a permit is made, there will be no delay in granting it so as to ensure that the applicant will have adequate time between the obtaining of his permit and the holding of his sale to advertise it?
There will be no administrative delay used to discourage applicants?
With regard to the powers to enter a place where the officer believes occasional trading is being engaged in, if there is a fee for entry does he have to pay that?
I suppose he would. Prices inspectors have to go in and actually buy the item. They cannot just go in and say the person behind the counter is over-charging. They must go in and buy the particular item and then come back again.
That relates to a question of obtaining proof of the offence but here if an authorised officer is asked for a fee to enter the premises, can he be told: "It is £200 to you, sir"?
No. It would be the same fee as everybody else paid, but if there was no fee being paid he would not—
Can he not go in with a warrant?
I do not think he pays the fee.
He may be refused entry.
Under this Bill he is entitled to get in. They can ask for as many fees as they like. He can say: "I am authorised by the Act to come in because I think occasional trading is taking place. I am going in." If they do not let him in, they have a problem.
Paragraph (b) says he can take with him a member of the Garda Síochána if he anticipates there will be trouble.
The section reads: "Where an offence under this Act is committed by a body corporate and the offence is proved to have been committed with the consent or connivance of, ..." Is that a new concept in the criminal code?
No. It is a standard provision, I understand.
Has the Minister any idea is it in the company law?
I have not got an example here but I understand it is a standard provision.
Has the Minister any idea when we will see this Bill in operation?
I would expect immediately on its enactment. When the Minister makes an order it will take 30 days for the first application to come into effect. So I suppose we are talking about the new year.
When is it proposed to take the next Stage?
I thought I answered most of the questions raised.
I drew the Minister's attention to wording which has been held to be unconstitutional in another Bill.
Could it be done by amendment at a later stage?
It is a cardinal principle that the Legislature does not pass legislation which it knows or suspects to be unconstitutional. I would suggest to the Minister that in honour of that principle we will have to check this out.