Some late amendments to this Bill have been received and they will be circulated to Members as soon as possible.
Casual Trading Bill, 1980: Committee and Final Stages.
May I say that I regret the late giving of these amendments and regret any inconvenience caused to the staff of the House.
I am a bit worried by the definition of "market right". By virtue of section 2, selling at a fair or market held in pursuance of a market right is exempt from the Act as I read it. We then have to see the extent of the market right and we find that the definition confines it to "a fair or market" that arises under a franchise or statute. One that arises under a statute is fair enough. One that arises under a franchise — I am a bit more puzzled by what exactly that means. I presume it means that somebody with legal power made a grant of a fair or market. Normally such a person would be either the Crown or the landlord.
I should like to ask the Minister what precisely "franchise" means. I should also like him to deal with another worry I have with regard to this. There are many fairs and markets throughout this country that have grown over the years, where no specific grant by Crown or landlord will be forthcoming. Persons engaging in those fairs and markets will be able to maintain that they have a prescriptive right to do so. Such fairs and markets would arise in towns generally that were not boroughs so as to attract a royal grant. If those smaller towns and villages and that particular type of fair and market are not included in the exemption here I think it is a bad thing. They should be included. I would ask the Minister to explain exactly what is meant by "franchise" in the definition and to let us know the position with regard to markets and fairs that have been established by prescription.
I want to come in on the same points, specifically on the definition of "market right". There are late amendments, I understand, being circulated and there are even later amendments possibly in the pipeline because I had proposed to put down an amendment to the definition of "market right" here. I have just put it in this morning. It is too late for circulation on Committee Stage. It is an amendment which proposes to extend the definition of "market right" so that it means a right conferred by franchise, statute, charter or letters patent. As I understand it, there are markets operating here at the moment which derive from charter or letters patent. If so, I think that the market right as defined in the Bill should cover these markets. It is a little on the same lines as Senator Cooney's right merely by prescription, by passage of time, but it is not an area that I would claim any specialist knowledge of. So perhaps the Minister could indicate how many traders at the moment would be exercising their rights under old charters or under letters patent and whether this has been considered by his Department. If necessary I am prepared to table this amendment on Report Stage but at this point I would like to hear the view of the Minister.
In a somewhat similar vein, before the Minister replies I should like to have clarification of the situation. I think I can be specific in this query in relation to my local town. The urban council there acquired the market rights in 1926 and attempted subsequently to regulate the markets within the urban area. They subsequently discovered that there was another market there operating under charter or some other form of right which entitled the public, as distinct from traders, to set up market stalls. The terms used were, "within the meets and bounds of the borough area". This is the one which has caused problems ever since and which has left the local authority powerless. Does the term "market right" we have in the Bill cover that particular situation?
A market right or franchise to hold a market or fair derives from statute law and derives then perhaps from the prescriptive right referred to by Senator Cooney and by Senator Robinson. We are advised that the markets to which Senator Robinson has referred are covered by the definitions.
In regard to what has been raised by Senator Howard, a general right to the public to engage in buying and selling is provided by charters and letters patent in Thurles, Ennis, Carlow, Dungarvan, Longford, Mallow, Navan, Michelstown, Kenmare and Wexford. Markets and fairs in other places are authorised by statute and by the Markets and Fairs Clauses Act, 1847, local legislation such as the Bray Towns Act, 1866, Dublin Markets Act, 1899 and so on. The royal grants usually entitled the grantee to collect tolls or other fees. The local authorities in Thurles and Ennis acquired the rights of the original grantees, but we are advised that in other areas these rights are very restricted and cannot readily be altered by existing legislation. The Department of the Environment advised that, with suitable amendments section 10 of the Local Government (No. 2) Act, 1960, and parts of the Housing Act, 1966, could be extended to the acquisition of market rights. Such provision is proposed in section 8 of the Bill. The owners of market rights may be entitled to compensation for loss of tolls, fees and so on and it may be necessary for local authorities to borrow to pay compensation. Section 4 of the 1960 Act authorises such borrowing with the sanction of the appropriate Minister who in this case would be the Minister for Industry, Commerce and Tourism.
The Minister dealt very quickly with the point I had raised and I would like if he would just explain it a little bit more. Am I correct in thinking that, if at the moment a market right arises by virtue of an old charter or letters patent, that is in the view of his Department covered by the definition here which refers to a market right established by other statute or franchise? Perhaps if the Minister would explain what the scope of the word "franchise" is in this context it might be clearer. I am disposed to feel that it is necessary to add in the words "if the market right is acquired by charter or letters patent" expressly. But if the Minister is satisfied that that is definitely covered then it would not be necessary to move that amendment.
We have been assured by the Attorney-General's Office that the matter is covered as is stated in the Bill at the moment.
I hear that with some surprise because franchise, as far as I could imagine, is something that would have to be interpreted according to its ordinary meaning. I am not aware that it is a word that has any particular specialised legal meaning. But apparently it is being used here in a specialised way to mean not what it normally means, a privilege, but it is to mean something specific — the grant of a market right by a charter or by letters patent. I am surprised to hear that the Minister's advice is as he has told us. We have to be guided by our betters in these things, though the history of advice in regard to certain State officials is not very happy. However, we will have to be guided to some degree. But, even if the situation is as the Minister tells us, what is the position with regard to markets or fairs that have been established by prescription?
Again, we were concerned to ensure that these markets are covered and we are advised that the definition adequately covers them.
Since we share the same concern to ensure that these types of traditional market rights are covered, would the Minister be prepared to accept an amendment which covers them expressly rather than accepting the advice given that it is implied? In other words, would he accept an amendment to cover rights acquired by charter, letters patent and, as Senator Cooney wishes, by prescription? Certainly I would find it not necessarily an obvious interpretation of the word "franchise" but it would cover markets acquired in this way and "franchise" would normally have a rather narrower meaning. Obviously, the Minister has sought advice from the Attorney-General's Office and, in principle, I am prepared to accept that. But it is particularly important because of the provisions of section 2 (2) (h), because, if a person is selling at a market or fair held in pursuance of a market right, that will not include casual trading and all the other provisions of the Act will not apply. It is extremely important for traders that the matter be crystal clear as to what the definition of “market right” is and what kinds of market rights, exercised at the moment, are covered. Since a genuine doubt is raised about this I would ask if the Minister would be prepared to accept the amendment, to spell it out expressly in the definition section.
On the basis of our advice, the definition is accurate and I am not prepared to accept an amendment at this stage.
Would the Minister spell out what he means by "adequate"? What kinds of market right does the definition comprise? Will the Minister list them for us?
The rights are set out in section 8 — a general right to the public to engage in buying and selling.
That is not what I mean. I refer to the scope of the words "market right"? Do they include a market right acquired by charter, by letters patent, or by prescription as well as by statute, all encompassed in the word "statute" or "franchise"?
Yes, it does.
On subsection (2), which gives the exemptions to casual trading, one of the exemptions is in paragraph (d), the selling of sweets, chocolates confectionery and cooked foods. Would the Minister explain what that is intended to exempt?
When the Minister is replying to this query will he consider this observation? The section refers to the selling of sweets, chocolates, confectionery and cooked foods other than those cooked at the place of sale. Chips and burgers provided in stalls would obviously be cooked at the time of sale. Would it be permissible as the subsection stands for sandwiches to be sold? What would be the situation with regard to Bovril? Is Bovril a cooked product for instance?
The selling of agricultural or horticultural produce by producers we are told is almost a thing of the past. We have no complaints about it and it is not the type of trading that could reasonably be confined to designated places. To do so would mean that we would catch people, often children, selling strawberries, vegetables and so on by the roadside. That would be going too far. It should be noted that the exception applies only to the producer of the crops or the livestock or his servants or agents. Anyone else selling agricultural or horticultural produce would be caught by the Bill.
Selling to a person at or at a place adjacent to the place where he resides or carries on business is intended to cover all door to door selling. This Bill applies to selling which can properly be confined to the greater trading areas. The bread man, the milk man, the coal man and other door to door sellers could not serve the community if they were restricted in the way that is contemplated in the Bill. There are objectionable aspects to door to door selling, notably the type of selling which induces a person to contract to buy something fairly expensive which on reflection he decides he does not want. The Sale of Goods and Supply of Services Act, 1980, which will come into force on 1 January 1981 provides that the Minister may by order provide that for certain contracts negotiated away from business premises there shall be a specified period within which the consumer shall be entitled to withdraw from acceptance of the contract. There is an additional EEC proposal to provide the consumer with somewhat similar protection from door to door sellers. There may be other aspects of door to door selling which people may feel should be regulated, but this Bill is not designed to do the job.
People who attend public events, sports meetings, pilgrimages, circuses and so on, expect to be able to buy sweets, chocolates, refreshments and so on listed in this paragraph. Foods cooked at the place of sale are excluded from the exceptions at the request of tourist interests. The places where public events take place could not appropriately be designated by local authorities because if they were designated trading areas less desirable forms of trading would be carried on. The sale of ice cream, newspapers, periodicals, pious and religious objects, are other categories of goods which could not be confined to designated places. The selling of fish by persons by whom they were caught or by a member of the crew of a fishing boat is being accepted for much the same reasons as we are accepting the farmer selling his own produce. Does that cover everything?
It does. The Minister has given me part of the answer to a thing that has puzzled me and it takes up what Senator Howard raised about cooked foods being exempt but food cooked at the place is not exempt. I have in mind a point to point meeting, or a similar situation where a refreshment caravan is specifically asked to attend to prepare refreshments for those working on the day and for those attending the meeting and helping with its organisation. Part of the refreshments provided are things like sausages and hamburgers which are cooked there and then. It is daft for the tourist industry or whoever asked the Minister to put in this exemption, to put it in. I would like more explanation as to why the Minister accepted it. It is a crazy exemption which means that people at-functions such as point to point sports meetings up and down the country will not be able to prepare hot foods for the spectators and for the persons attending. If they do, and do not have a casual trading licence they would be liable to all sorts of penalties. That is crazy.
Normally, that type of thing would take place on premises at a race meeting, for instance, and would not come under the terms of the Casual Trading Bill. The fact that the cooking would take place on premises means that it would not actually come under the terms of the Bill.
They would be premises to which the public would not have access as of right — is that the Minister's point?
I am assuming that we would be talking about private property.
There are some decisions under the Road Traffic Act that says that offences can be committed in car parks attached to publichouses notwithstanding that that is private property and that they are areas to which the public have access of right. The types of function to which I refer is a point to point meeting which is open to the public, and it is not allowed under regulation. There is no charge to individuals, only for cars, but as of that day because of that invitation I submit that the public would have access as of right.
To get back to the basic situation that exists in certain areas, in tourist areas and seaside areas there are often vans serving food and as I see it, the serving of a sandwich from such a van is not prohibited while the serving of a burger is. I find that rather inconsistent.
That is correct. Cold sausages would be in order but hot sausages would be illegal.
In regard to the points raised by Senator Cooney and Senator Howard about point to points and the other events we can make an order under subsection (3) to exempt cooked foods and we will look into this.
Has the Minister anything particular in mind or is this just a precautionary subsection?
No. I had nothing particular in mind.
On section 3, which is the section dealing with restrictions on casual trading, subsection (2) provides that a person shall not engage in casual trading in a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and a casual trading permit that is for the time being in force, and the casual trading is in accordance with the licence and the permit. I find it very difficult in the Act itself to know what conditions the Minister is likely to impose on the trade licences. It would be helpful if he could explain what this means in practice, what kind of restrictions there will be and what kind of limits will be placed on the licences, so that somebody who is applying for a casual trading licence will know what the factual situation they will face will be.
Subsection (2) applies to a person engaging in casual trading in the area of a local authority which is not designated as a casual trading area. He will be obliged to have only a licence issued by the Department and to observe the conditions attached to the licence.
Where are those conditions likely to be?
The local authority designate a casual trading area, and a person may not engage in casual trading elsewhere other than that authority's functional area, or in any part of the functional area of another local authority, which is within five miles of the casual trading area, if the other authority has not designated the casual trading area.
Let us suppose Wicklow Urban District Council designated a casual trading area but that Wicklow County Council had failed to do so. Subsection (3) (a) (i) confines the casual trading within the urban district to the casual trading area, and subsection (3) (a) (ii) prohibits a casual trading area anywhere in the county council area that is within five miles of the urban district casual trading area. The reason for this provision is that the urban district council might find itself denied many of the benefits of the designated and regulated casual trading area if, because of the failure of the county council to take similar action, streets and roadside traders could set up stalls just across the border in a county council area. The conditions then may relate to hours of work, disposal of refuse, noise and so on.
What the Minister has said is fairly clear from the rest of the section. It would be helpful to have some idea of what would be likely to be the conditions attached to a licence for casual trading under this subsection. I find it very difficult to get a sense of that from the bare words of the thing, because it does not particularise at all. So far, the Minister has talked about territorial restrictions and mentioned questions about conditions in relation to removal of refuse. Perhaps it would be helpful if the Minister would specify more particularly what these will be?
It is assumed that the local authorities, in designating areas, will lay down fairly rigid controls in relation to all these matters. We will be dealing with that under another section of the Bill. We assume that it will not be just a question of defining an area for trading, that there will be other regulations which will be necessary for the local authority to introduce in order to ensure that all the irregularities relating to this business will be dealt with in a fashion which will be acceptable to everybody.
Do I understand that the licence will have conditions attached to it which would be similar to the kind of standards that local authorities have been laying down for designated trading areas?
Yes, we also hope that trading hours and matters of that kind would be confined to what we now recognise as normal trading hours in towns and villages throughout the country.
Would the Minister explain what is intended by subsection (3) (a) (ii) and the following paragraph. I am inclined to think it is an effort to ensure that there should be a reasonable distance between points of casual trading?
This applies to a person engaged in casual trading in the area of a local authority which is not a designated casual trading area. He will be obliged to have a licence issued by the Department and to observe the conditions attached to the licence. Subsection (3) says that if a local authority designates a casual trading area a person shall not engage in casual trading elsewhere than that authority's functional area or in any part of the functional area of another local authority which is within five miles of the casual trading area, if the other authority has not designated a casual trading area.
I need time to assimilate that.
Suppose that Wicklow Urban District Council has designated a casual trading area, but Wicklow County Council has failed to do so, subsection (3) (a) (i) confines casual trading within the urban district to be a casual trading area, and subsection (3) (a) (ii) prohibits casual trading anywhere in the county council area that is within five miles of the urban district casual trading area. The reason suggested for this provision is that the urban district council might find itself denied many of the benefits of the designated and regulated casual trading area, if, because of the failure of the county council to take similar action, street and roadside traders could set up their stalls across the border in the county council areas.
Would it not have been another way of approaching it to place some sort of onus on all local authorities to designate in their functional area a casual trading area? Was this considered by the Department, rather than to leave it totally to the discretion of the local authority, that there would be some onus to designate a casual trading area? It would have avoided a lot of the problems this section is endeavouring to meet at the moment.
In the submissions to the restrictive trade area we had representations from all local authorities and it is assumed that, because of the representations and because of their strong objections to what is happening at the moment, that each one will try to ensure that whatever steps or authority is made available to them under the Bill, they will carry it out as well as they possibly can. We are assuming that we will have the full co-operation of all local authorities to ensure that the spirit of the Act will be maintained.
Do you expect that most if not all local authorities will designate trading areas?
I move amendment No. 1:
In subsection (3), page 4, between lines 33 and 34 to insert:
"(b) An applicant for a casual trading licence shall be required to obtain a bond of not less than £5,000 from a licensed assurance company, for the protection of consumers purchasing goods or property to which the licence relates."
I would like to apologise to the House if putting down these amendments at this late stage caused inconvenience to the House. Effectively this amendment deals with an issue of considerable consumer protection interest. Obviously when the consumer is purchasing goods from established traders with properties in towns, villages or cities there is an inherent protection which does not always obtain in the purchase of goods in the market place from casual traders. It is simply to ensure that the consumer is protected and has some come-back in so far as the purchase of goods is concerned.
This amendment provides that before a local authority issues a permit an applicant should be obliged to furnish a bond to the authority setting out that there is some form of protection for the consumer. There are two basic objections to this amendment. Firstly, shopkeepers are not required to take out such insurance and it would be unfair to impose this requirement on casual traders. It is almost certain that no insurance company would bond a casual trader and, if it did, the cost of the insurance would be excessive.
There are provisions in the Bill and other legislation which go a considerable way towards protecting the consumer. But it must be recognised that, unless one is trading with a big, well-financed company, one can never be sure of compensation. People should be choosey when it comes to buying particularly something like a television set which is likely to need service. They should do their buying from traders they know and trust or from traders who have good reputations and the means of satisfying decrees.
With due respect to the Minister, I take quite a number of his points and certainly there might well be difficulty in getting such bonds. Possibly a lesser figure might be apt. At the same time that inherent protection is necessary. I do not think it is altogether valid to suggest that, because shopkeepers are not required to give these type of assurances, casual traders are in the same category. I do not know that that is necessarily a valid argument. I take his point about the difficulty in arranging such insurance, possibly at a lesser level. We have had the example of the collapse of a travel agency in this city in the last two to three days. We find that, under a certain protection scheme in Northern Ireland, customers there are protected under this assurance scheme whereas they are not in the Republic. It is just a small example of a very sensitive area in which we should seek to protect the customer.
The provisions of the Bill — because the casual trader has to display a licence — will provide some kind of comfort for the customer in that he will now be able to identify the trader. This does not apply at present. If we were to go as far as Senator Staunton is suggesting we would be accused of discriminating against one type of trader as against another. We might be going too far in implementing the suggestions made by Senator Staunton. We could find that it would be prohibitive and could well kill casual trading entirely. This is not the purpose of the Bill. We recognise — as was mentioned on Second Stage — that there are people who have engaged in this type of business for a long number of years, who have been providing a service for the public. They are not the fly-by-night people who have come in recently. They have been there over a period of years and, traditionally, have been providing a service to the public. I do not think it would be fair to go as far as the Senator suggested.
Is the amendment withdrawn?
In view of the assurances of the Minister we withdraw the amendment.
Amendments Nos. 2, 3, 4, 5, and 6 are related and may be discussed together.
I move amendment No. 2.
In subsection (4), page 4, to add to the subsection:
"(b) A person who is dissatisfied with a decision of the Minister under this subsection shall have a right to appeal against such a decision to the Circuit Court."
Amendments Nos. 2, 3, 4, 5 and 6 essentially cover the same point. Under section 4 we are discussing the circumstances in which the Minister may revoke a casual trading licence, or may refuse to grant licences in relation to individuals who have been convicted of various offences or who have been involved in the importation, possession, or sale of goods committed whilst being holders of licences. That is in subsection (4). I presume you are allowing us, a Chathaoirleach, to take all of these together?
Yes, Nos. 2 to 6.
Subsection (6) says:
The Minister shall not grant a casual trading licence to a person who was convicted of two or more offences (each offence being either an offence in relation to the importation, possession or sale of goods committed while the person was the holder of a casual trading licence or an offencce under this Act) if the latest conviction occurred less than five years before the first day on which the person proposes to engage in the casual trading to which the application for the licence relates and, two, at least, of the convictions occurred after the expiration of the last period (if any) of disqualification by virtue of this subsection for being granted a casual trading licence.
Subsection (7) reads:
A casual trading licence, if not previously revoked, shall continue in force for a period of twelve months and shall then expire.
A point made by a number of people in relation to this Bill is that this arbitrary decision by the Minister, or by the local authority, may not necessarily be fair to the person involved. The amendments seek that, added to each of the subsections, is the sentence: A person who is dissatisfied with a decision of the Minister under this subsection shall have a right to appeal against such a decision to the Circuit Court. Effectively it is the right of appeal by the casual trader in circumstances in which the Minister makes the arbitrary decision in each of the subsections of section 4.
By way of brief reply to the Senator, we are advised that, in common law, everybody has a right of appeal against a decision of the Minister. There is no provision in the Bill but we are told that the Ombudsman Act 1980 provides that such decisions are subject to review by the ombudsman. We are advised that an ombudsman will be appointed — in order to implement that Act — early in 1981 by the Minister for the Public Service. That would cover the matter raised by the Senator.
I thank the Minister for his reply which is obviously very accommodating. The Minister states that, under common law, an individual has the right of appeal. I take his point in relation to that. However, I should like to ask just one question: whilst appreciating that the Ombudsman Act is coming into force, apart from the ombudsman issue could the Minister tell me what right of appeal the citizen has under common law, independent of the ombudsman issue?
It is the same as anything else, if you like. Under common law a person has a right of appeal against a decision of the Minister. It applies here the same as anywhere else. The Ombudsman Act would cover a good deal of the points raised by the Senator.
I do not want to labour the point. I take the Minister's point about the ombudsman issue. But on this question of the citizen's right of appeal under common law, to where has he that right of appeal? Has he that right of appeal in the courts, for example.
Yes, of course.
Therefore what we are seeking here by this additional sentence under each of these subsections is available without such addition.
Thank you very much.
Is the amendment withdrawn?
As I read this section if a casual trader applies for a licence, pays £100, supplies the information sought by the Minister and has no previous conviction the Minister has to grant a casual trading licence under section 4 (1). A case could arise where an undesirable casual trader would seek a licence. If he fully complies with the requirements, he must get the licence. There also could be a situation where undesirable items would be put on sale. Yet as long as the person has no previous convictions, pays £100 and supplies the information sought by the Minister the licence must be granted. That is rather strange. I would prefer if it was left to the discretion of the Minister to decide whether or not casual trading licences should be given. Perhaps the Minister would say if he has that discretion.
The Minister may refuse to grant a licence to a person who has been convicted of an offence in relation to the importation, possession or sale of goods while he was the holder of a casual trading licence. He may revoke a casual trading licence if he is satisfied that any condition of the licence has been or is being contravened or if the person to whom it was granted is convicted of an offence in relation to the importation, possession or sale of goods committed while he was the holder of a casual trading licence or an offence under section 3 of this Bill. Perhaps that does not cover the points raised by Senator Markey in that he was referring to a person who applies for a licence for the first time. If the person appears to be bona fide, the Minister would find it very hard to refuse the application. I do not know what criteria one could apply. If the applicant and his application seem to be in order there is no way that the licence can be refused. On the other hand, if it emerged after the licence had been issued that the applicant had offended in any way against the terms of the Bill, the Minister could take action as stated in the section.
The Minister has not replied to the case I put. It still permits the possibility of an undesirable character getting a licence. A person who sells undesirable products must get the licence once he complies with the requirements laid down in this section, namely, that he pays £100, supplies the information sought by the Minister and has no previous convictions. That is taking a risk because we could have a situation where a casual trading licence could be sought on a blanket basis to cover a number of areas. Damage could be done before the question of revoking the licence arose. The Minister should have discretion on this.
I do not know how Senator Markey wants to define an undesirable character. If there is evidence available to the Minister that an applicant may not be a suitable person, that would be looked at. It would be very hard to expect him to have detailed information about every applicant.
If the Minister knows from an application that a person is an undesirable character, or perhaps selling undesirable products, has he the authority under this section to refuse the granting of a licence?
The Bill lays down the authority vested in the Minister. If a person has been convicted of an offence and has been punished that is the end of it. I have an idea of what Senator Markey is getting at, but it is very difficult to write it into a Bill. We know that there is a big question mark about the creditability of some of the people who are in this business.
I suggest it is quite simple, by changing "shall" to "may".
We have gone as far as we can. If a person does something which is against the terms of the Bill we can deal with it. Otherwise I cannot see how we can accept what Senator Markey is saying, even though I know what he is trying to get at. It is difficult to write it into the Bill.
Under this section the applicant has to pay a fee of £20 to the local authority. Do I take it that an applicant can seek what I would call a blanket casual trading licence from the Minister by paying £100 which would cover many towns? He would apply to individual local authorities and have to pay £20 to each one. Is that the situation?
Yes. The £100 licence applies to the country. That leaves a person in the position where he can apply to local authorities to trade in the designated areas defined by the local authority.
I find this strange. There should be a scale of fees in a situation where licences are sought for more than one area. We could have a situation where a very large corporation or company would apply for a casual trading licence to cover every town and county. We could have a situation where a small trader who operated for years in one local authority area would have to pay the same amount as a large corporation or company. That is unfair. A scale of fees would have been desirable.
The intention is to make traders contribute to public funds in lieu of rates and other charges they may evade or not be liable for. This is to offset partly some of the competitive advantages they enjoy over shopkeepers and to cover the cost of administering the Bill. We have no reliable figures about the number of casual traders but our guess is that there are about 600. In the 1971 census about 1,000 people described themselves as outdoor traders. This included news vendors, pedlars and some classes of hawkers who would not be casual traders. While there may be some "chain store merchants", our impression is that most outdoor traders could not be so classified. The ideal fees would probably be related to the volume of trade or profits. However, even the Revenue Commissioners, who have wider powers and resources than would be appropriate in this case, cannot always be satisfied with the trading figures returned by even the largest and most sophisticated businesses. A fee in excess of £100 would be an intolerable burden on many itinerant traders and people who have no other means of livelihood. When a local authority designates a casual trading area, a trader will have to pay £20 per year to trade in that area. There is nothing in the Bill to prevent a local authority from charging something extra.
If a local authority provides a roof-market place, a paved-market place, water, toilet facilities, weighing machines or some other facilities or amenities there is nothing to prevent the local authorities charging a reasonable rent to cover the overheads or cost of maintenance. The Minister has power to vary these either generally or in respect of specified classes of traders. When we have better information about the number of traders and some means of identifying the classes of trader who should pay more or less than the £100 per annum the Minister has the power to vary them. As I said earlier when the Bill comes into operation that will be regulated in a way that we can take a closer look at the whole scene.
I am pleased to hear that but it is no harm to mention that if the intentions, as outlined in this Bill, are operated I can see a situation arising in future years where local authorities will provide casual trading areas with plenty of suitable facilities, sewerage facilities or even public lighting. That is the desirable end result we want to see. I could not agree with the Minister that it is unlikely in that instance that either supermarkets or large companies would not consider attempting going into such casual trading areas. I imagine they would. I was anxious to prevent a situation arising where one casual trading blanket licence would cover the whole country for £100 while the small casual traders have still to pay the same amount. I accept what the Minister has said: that the matter can be kept under consideration and that local authorities have a discretion to apply additional fees if they so wish. A close eye should be kept on this because if the end result is casual trading areas with good facilities a lot of large companies will move into those areas.
I move amendment No. 7:
Before subsection (3) to insert the following new subsection:
"(3) A person engaging in casual trading shall display on his person an identification to the effect that he is engaged in such trade.".
This amendment relates to an issue which was debated very keenly in the Dáil. Very strong views were put forward by Deputy Enright, representing our party, regarding what in his judgment was the desirability of the traders being obliged under this section to have personal and visible identification. He mentioned experiences he had in other countries in casual trading areas where, apparently, it was always the case that in addition to a permit being visible on the stalls those operating the stalls and involved in this trade also carried identification. I support his views with some conviction.
In the debate in the Dáil the Minister made the point when defending the Bill that this did not happen in shops or supermarkets around the country so why should it apply to casual traders? I do not think there is any comparison. A shop is a fixture but we are talking about the movement of people in casual trading. While the permit may be displayed on the stall there are problems relating to people because it is possible a different person may be on the stall to the person named on the licence. That person may be a fly-by-night. The carrying of such a badge would be in the interest of the serious traders involved in casual trading and would, effectively, be a protection for them against abuses that might occur in this area.
The effect of this amendment would be to require a person to display on his person some sort of sign to convey that he was engaged in casual trading. We do not see the point in this. Section 6 states that a casual trader shall display his licence or permit wherever is appropriate and the licence or permit will contain the trader's name and postal address. We made inquiries and we were told that all itinerants have postal addresses for social welfare and other purposes. I am giving instructions that save in the most exceptional circumstances a licence is not to be handed out to an applicant but will be posted to whatever address he gives. It will be recommended that the local authority will act in the same way.
I appreciate that this will not guarantee that the trader will always be available at that address but one way of identifying him at the moment is by having the licence displayed. We know that some of those people are constantly changing their addresses but we are going as far as we can to try to identify the trader so that the general public will have some postal address. They will have some way of tracking down these people if it is necessary. We believe that having the licence displayed will help to protect the consumer. We would be going too far if we were to accept the amendment put down by Senator Staunton. We would be discriminating against those people as against what the ordinary trader is expected to do.
I do not accept the Minister's case. I do not think it is valid to say that there is a comparison between the casual trading position and the established traders in properties in towns, villages and cities. It is because of the nature of casual trading that the Bill was introduced. One might say it is discriminatory against shopkeepers up and down the country or against casual traders to bring it in but it is to protect the public because of the unusual nature of casual trading. It is because of that that certain measures are being taken that do not affect the shopkeeping community as such. It is not acceptable to say that it would be discriminatory against casual traders because it is not being done against the shopkeeper. I do not think there is any validity in that particular argument.
In so far as security of the public is concerned, I do not feel there is adequate protection with the licence displayed on the stall. As was pointed out many of the people involved in this area are, in a sense, of no fixed abode. They may have an address for social welfare purposes but there is a lot of movement of people and those licences may be abused. For example, whilst the Minister or a local authority might issue a permit or licence for those people to trade, that licence can be abused. A licence may be displayed on a stall which may not belong to the person who is trading under it. If the person in question does not have identification the public is not protected. If the owner of the permit is going loosely to allow somebody else to use the licence or if it is stolen what protection has the public that the person operating the stall has been granted the licence by the Minister? In the circumstances it would be reasonable to seek that this amendment be inserted in the Bill.
We have power under the Bill to control the type of operation those people carry out. If we find any irregularities we can revoke the licence. We have a great deal of authority in the Bill to take the necessary steps to guarantee the consumer against what Senator Staunton has been talking about. On the question of identity, I think that it would be necessary to have a law covering the whole country where everybody would be asked to carry some form of identification. I would not like to see control to that extent. I am not so sure that constitutionally we could introduce the measure that Senator Staunton is talking about.
In the implementation of this Bill over the next year or so presumably this matter will be under constant review. If in the workings of the Bill there is a problem in this area, would the Minister at that stage give consideration to the introduction of this measure?
The object of this measure is to protect the consumer. In so far as we possibly can we will try to ensure that protection.
I move amendment No. 8:
In subsection 5, page 11, line 33, to delete "without a warrant" and substitute "on the production of a warrant".
Section 11 (5) of the Bill states:
if a person fails, refuses or neglects to comply with a requirement of a member of the Garda Síochána under this section, the person may be arrested and any goods which he is selling or has in his possession for sale at the place where the member believed him to be engaged in casual trading and the receptacle, vehicle or stand on or in which the goods are and all utensils, boxes and other articles (including money) thereon and any draught animal attached thereto may be seized, detained and removed by the said or any other member of the Garda Síochána without a warrant.
The amendment which we have introduced here seeks to delete the last three words of that subsection, namely the words "without a warrant" and to substitute the three words with the following words "on the production of a warrant". In simple terms this means that we take the view that the authority to seize, detain or remove matters or goods by a member of the Garda is very strong, and in cases where a person fails, refuses or neglects to comply with the requirement of the member of the Garda under this section the Garda may act arbitrarily without a warrant. I have not got a legal background but my understanding of the legal process is that authority to arrest without a warrant can apply in very serious cases. This matter under this subsection would not seem to be in that area. I am informed that the public will be much better served in this instance if the authority to arrest given on a warrant from a peace commissioner or a justice, which would be much more normal in relatively minor matters like this, rather than be the power to arrest without warrant which could be abused.
In this we are giving the Garda powers similar to what they enjoy under the Street-Trading Act, 1926, powers to arrest without warrant in certain circumstances and powers to seize and detain vehicles and goods used by people contravening the Act. The Street-Trading Act applies to Dublin and 26 other urban areas that have adopted it but the Bill will extend the powers of arrest and seizure to the whole State. The Garda asked for these powers and the local authorities who made submissions to the Restrictive Practices Commission urged the Garda that they should be involved. I am reasonably satisfied that these powers are needed in certain circumstances. For example, if a casual trader or a group of them and their customers are creating a traffic hazard that will have to be dealt with immediately. Another case could arise where the owners of vehicles and other goods were not immediately identifiable, and arrest or seizure would solve this problem. We think that it is absolutely necessary to give these powers to the Garda. For that reason we cannot accept the amendment that Senator Staunton has put down.
The powers are being extended.
As I said earlier, the authority given to the Garda in certain areas of the country is extended to the whole country.
On the latter point the Minister made, if traffic hazards are being created or there are disturbances, for example, in the squares or streets of our towns, it seems that the Garda have power to act there under Acts other than the Casual Trading Act and that the passing of the Casual Trading Act is not necessary to give the Garda authority in that area. Do I understand the Minister to say on this issue of arrest without a warrant this Bill is effectively extending the power that up to now had obtained only in certain urban areas in the country?
This then is effectively a new measure to give the Garda power which until now they have not had. That the Garda seek this power does not necessarily mean that it is in the national interest that they should have it. There is a strong view that in this relatively minor area this power of arrest without warrant is simply too strong a power. They have not had this power up to now and there has not been any significant reason that at this stage they should be granted these powers which some would think as excessive in this relatively minor area.
This authority is enjoyed already by the Garda in certain areas and the Act will entitle them to the use of this authority in the rest of the State. We suggest that it is reasonable and it will help the general public, and it will help us in the implementation of the Act.
It seems we have stalemate here because I cannot really accept the Minister's argument that this increased power given to the Garda to arrest and act in this area without warrant in relatively minor cases is desirable. The power the Garda have had in this area up to now, that is, authority to arrest with a warrant from a peace commissioner or justice, is adequate. Under other sections relating to traffic, disturbances and so on they have certain existing powers. This additional power without warrant is unwarranted. I did not intend to use a pun.
The Senator will accept that there would be times when it would be necessary for the Garda to act very quickly and take immediate action. Having to go and do the roundabouts of getting a warrant might mean that you would be tying the hands of the Garda and leaving them in a position where they would not be able to take the necessary action. This power, I imagine, would only be used in extreme circumstances. We feel that it is necessary.
Would Senator Staunton not agree that, if the powers exist in relation to some areas, there should not be an objection to extending them to those areas to which they do not apply?
Simply because these powers have existed in certain urban areas in the country does not necessarily imply that it is a good thing. One might argue the reverse, that when they do not apply in other parts of the country, why impose them in certain urban areas? That is a two-way argument. This subsection gives individual members of the Garda Síochána very strong powers which would normally, under law, apply in cases where we are talking about much more heinous offences than these involved here.
Talking in terms of protection of the public, there is also the protection of the trading public involved in this instance. It means that in certain instances this subsection could be abused and a casual trader might, for the wrong reasons, fall foul of an individual officer of the law. It is for reasons such as this that, legally, apparently this whole question of a warrant being necessary before a certain action is taken is there to protect the public and the casual traders in this particular instance.
We accept that it is necessary to extend the powers now vested in the Garda for certain areas of the country. The experience to date is that there has been no abuse by the Garda of that privilege and that they have used their authority without discrimination and I do not see the point really in the arguments being put forward on this by Senator Staunton.
Two questions to the Minister — I noticed that he has not made available to the public, the register which will be kept either by the Minister himself or by the local authority concerned. I should have thought it desirable that it should be so available to the public for possibly aggrieved persons so that they can identify and gain information as to the address and so on of the casual trader. In the absence of such provision in the section, would the Minister tell us whether the information sought by an aggrieved person would be readily available at the local authority office or at the Minister's office?
Yes, my advice is that it would be available at the Minister's office or at the local authority office.