By agreement, speeches will be confined to not more than 15 minutes per speaker.
Casual Trading Bill, 1994: Second Stage.
Question proposed: "That the Bill be now read a Second Time."
An Leas-Chathaoirleach
Is that agreed? Agreed.
The primary purpose of this Bill is to update existing legislation relating to the control and regulation of casual trading as contained in the Casual Trading Act, 1980. That Act applies to selling goods by retail on a street, road, market square, footpath, roadside and any other place that the public have access as of right and any place that a local authority sets aside as a casual trading area. The 1980 Act came into operation following a report from the then Restrictive Practices Commission that had concluded that outdoor trading was fair trading, provided that it was subject to reasonable and, especially, effective control and made a more realistic contribution to public funds.
The primary considerations leading subsequently to the enactment of the 1980 Act related to ensuring that roadside and street traders do not have an unfair advantage over established traders, in so far as they do not have the usual overheads which have to be met by established traders. Additionally, there had been widespread concern about the traffic and other environmental problems created by some outdoor traders. These were some of the arguments in support of better regulation of outdoor trading that led to the enactment of the 1980 Act. The same general considerations could be said to arise today.
The object of the 1980 Act therefore, was to deal with these types of concerns by providing for licensing of casual trading, based on a designated casual area system, that is a place where casual trading can be legally carried out, with penalties as the deterrent against offences. The 1980 Act provides for a dual licensing system, involving a national licence issued by the Department of Enterprise and Employment and a permit issued by any local authority that has a designated casual trading area or areas, on payment of the appropriate fees.
The Act gives powers of enforcement to the Garda Síochána and empowers the Minister for Enterprise and Employment and the local authorities to appoint authorised officers for the purpose of enforcement. In practice, however, it is enforced by the local authorities and the Garda Síochána who have wide powers of enforcement. Additionally, local authorities have powers to acquire market rights, some of which are in private ownership as a result of royal charters and letters patent granted centuries ago, and to extinguish market rights on condition that they provide alternative facilities in the same vicinity as the market or fair to which the right relates and that reasonably correspond in all respects to that market or fair.
The 1980 Act also provides that certain classes of trading are exempted from regulation under the Act. These exemptions relate to the following types of selling: selling by a licensed auctioneer; a farmer or market gardener selling his own produce — livestock, vegetables, flowers, fruit or other crops; door to door selling; a person selling sweets, chocolate, confectionery, cooked foods — other than those cooked at the place of sale — fruit, nonalcoholic drinks or favours from a tray, basket, trolley or other similar device at or immediately beside a place where a football match, race meeting or any other event is taking place whether the public have to pay to attend; selling of ice cream, newspapers, periodicals, magazines or other printed matter or pious or religious objects; fishermen or members of the crew of a fishing boat selling their catch; selling in aid of a charity or for some purpose from which no private profit is made, for example, famine relief organisations, hospitals, organisations that help the poor, churches, mission societies, schools, sports clubs, etc. and selling at a market or fair held with the authority of statute or a franchise.
The thrust of the 1980 Act was that it conferred wide powers on the local authorities to designate the places in their functional area to be set aside for outdoor trading, where this type of trading could be carried on in a disciplined way in the best interest of consumers, established traders and casual traders. During the period in which the Act has been in operation, certain aspects of the Act, in particular exemptions and enforcement, have been the subject of criticism by traders, local authorities, public representatives and the courts.
In response to these criticisms a major review of the Act was undertaken by the Department of Enterprise and Employment in consultation with the local authorities. In addition submissions were received from other Departments and interested bodies, including the established and casual trading communities. The review highlighted a number of difficulties with the operation of the 1980 Act including, among other things, the exemption relating to the sale of agricultural or horticultural produce by the producer as posing particular problems for local authorities in relation to enforcement because the burden of proof of the origin of the produce is placed on the local authorities. This is very difficult in the case of most items with the exception of fruits such as oranges, grapefruit, etc. In addition, efforts by local authorities to use their powers to acquire market rights can be defeated when people selling their own agricultural or horticultural produce, such as potatoes, shrubs, fish, etc., are not subject to any form of regulation.
The absence of power of appeal by a local authority against a decision of the Circuit Court in relation to the designation of a casual trading area has also presented problems for some authorities. This is an area that is crucial to the effective operation of the Act. Difficulties have also been experienced by local authorities in connection with so-called "prescriptive rights" claimed by traders, in the context of the local authorities' attempts to avail of their powers to acquire market rights, and the current exemption from casual trading regulation relating to selling at a market or fair held with the authority of statute or a franchise. The difficulty arising here from the local authorities' point of view is that, where they have been successful in acquiring a market right, a continuing right appears to live on through the "prescriptive rights" route and the local authorities have no means of establishing the validity of such rights. This has been invoked successfully by some traders and as a result the local authorities and the gardaí, in some instances, have declared prosecutions under the Act on fair days to be a lost cause.
It also became clear that the casual trading community was experiencing difficulties with the operation of the Act; for example, the procedure relating to the extinguishment of markets by the local authorities and the provision of alternative facilities in the same vicinity; the operation of the provisions relating to offences; appeals to the courts and the requirement under the Act on traders to display casual trading licences and permits.
These are the principal areas of difficulties that led to the decision to amend the Casual Trading Act, 1980, and to introduce measures that would lead to greater flexibility, efficiency and fairness in the enforcement of casual trading regulation. The principal measures contained in the Casual Trading Bill, 1994, as initiated to achieve these objects were as follows. The current casual trading regulation system, as I already mentioned, involves a dual licensing system operated by the Department of Enterprise and Employment and the local authorities. The Bill recognises that there is no justification for the continued involvement of central Government in this function. It is a function that can readily, and should properly be, carried out only by the local authorities.
Section 4 of the Bill as initiated provides for this by devolving the licensing system to the local authorities who will have a choice of routes to casual trading regulation, that is, either general licences without territorial limitation or a casual trading area system as is currently in operation. If the local authority chooses the latter route then no other casual trading will be permissible in its functional area unless covered by an exempted category or by special events licensing which is also a new provision under the Bill. This is fully consistent with Government policy on local government reform as regards ensuring that local issues are settled at local level.
The 1980 Act contains a number of trading activities that are exempted from the scope of the Act. This means that they are not subject to any specific regulation. This has given rise to particular difficulties, especially in the case of home-grown produce. It is appropriate that the exemptions from the scope of regulation should be as limited as possible and the Bill as initiated accordingly provides for this in section 2 by limiting the existing list of exemptions to just three activities — selling by a licensed auctioneer, door-to-door selling and charity sales.
The deletion of the other existing exemptions has the effect only of making the relevant selling activities subject to regulation by the local authorities. I would like to emphasise that the local authorities are being empowered simultaneously to add back any existing exemption, for example, newspapers vendors or strawberries sellers, or to add any new ones that they may decide are appropriate for their own areas.
In addition the Minister for Enterprise and Employment will be empowered to add to or to delete classes of trading to be exempted at the national level. The removal of the exemption relating to market rights, and a complementary provision which provides that any market right remaining unexercised for a period of not less than ten years will stand extinguished, will help resolve the problem posed by "prescriptive rights".
Section 4 of the Bill as initiated also provided among other things, that a local authority shall, subject to certain specified circumstances, grant a casual trading licence to an applicant who pays the fee fixed by the local authority under that section and who fulfils certain conditions, including tax clearance and a provision relating to social welfare. As I will indicate later, I decided to delete the tax clearance provision and to replace it by an RSI administrative system relating to applications for casual trading licences.
A major change that the Bill as initiated involves, at the request of the Department of the Environment, is to provide broad ranging powers to the local authorities under section 7 of the Bill as initiated for the use of by-laws relating to the control, regulation, supervision and administration of casual trading in their functional areas. It is worth noting that these powers are more extensive than the present powers of local authorities under the 1980 Act, to make by-laws that are limited to designated casual trading areas. This is, in effect, the most significant reform contained in the Bill, and is aimed at giving the local authorities the necessary flexibility that they require to regulate casual trading more efficiently.
In regard to enforcement, as the Minister for Enterprise and Employment will no longer have the function of issuing casual trading licences, the Bill, as initiated, provides that the Minister will have no role in enforcement. This will be the responsibility of local authorities and the Garda Síochána who, in practice, already enforce the Act.
The Bill as initiated provided that the powers of the Garda Síochána to dispose of seized goods will be available to superintendents where this function is currently reserved to the Commissioner of the Garda Síochána; for the doubling of penalties for summary convictions and convictions on indictment to £1,000 and £10,000, respectively, to bring them in line with current levels in other legislation; for the streamlining of the courts' jurisdiction in relation to summary offences; and for amendments to the Occasional Trading Act, 1979, regarding the power of the Minister to amend classes of occasional trading, social welfare and penalties for consistency with the Casual Trading Act. "Occasional trading" as defined under that Act generally applies to occasional selling, for example, at weekends, from hotels or warehouses. Persons who engage in occasional trading are required to have an occasional trading permit from the Department of Enterprise and Employment on payment of the appropriate fee. The Act is enforced by authorised officers appointed by the Minister for Enterprise and Employment.
On assuming responsibility for the Casual Trading Bill, 1994, as initiated, I have given careful consideration to the contents of the Bill and engaged in widespread consultations with interest groups reflecting a wide variety of views. Having taken due account of the concerns made to me during these consultations and by Deputies during the Bill's subsequent debate in Dáil Éireann, I have taken the opportunity of introducing a number of important changes that I have felt necessary to achieve acceptance in the Oireachtas. In this regard, the principal changes that I have introduced to the Bill as initiated, and which are contained in the Bill that is before this House are as follows.
In section 3, which relates to restrictions on casual trading, a presumption is included under subsection (5) that will simplify the courts' procedures for dealing with prosecutions under this section. In section 4 I have deleted the tax clearance provision and replaced it by an administrative system that will ask applicants for licences to quote their RSI numbers on the application forms. This follows Government approval and acknowledgement that the original tax clearance requirements would present an unjustifiable and disproportionate burden on the casual trading community. I am satisfied that the alternative administrative system that has been accepted by the Casual Trading Association will provide a more equitable approach towards creating a licensing system that sits comfortably with the real world of the casual trading communities.
They do not have high powered financial advisers, detailed contact and familiarity with the State bureaucracy, or professional, qualified accountants to administer their records and file their returns. The big accountancy firms do not have a thriving business in Moore Street nor is the world of the casual trader, one of detailed recording in ledgers and running accounts of trading performances and activities. It is a world of making a small living in increasingly adverse conditions. Yet it is also part of the social and business fabric of the city of Dublin in particular, and it would be inappropriate to impose on such a community, demands and requirements that are disproportionate to the scale and nature of its activities.
Additionally in section 4 I have introduced an amendment to reduce the five year periods in both subsections (6) and (7) to three years in each case as it appeared to me that the original penalties were unnecessarily harsh bearing in mind the general nature of casual trading offences and to provide for an amnesty for offences by traders under the 1980 Act. This will enable traders to start with a clean sheet under the new regime when it commences operation. The latter measure is essential to resolve the specific and self perpetuating problems of a large number of traditional Dublin traders who do not qualify for trading pitches because they are debarred under the five year ban relating to two or more offences.
In section 5, relating to the display of casual trading licences, I have introduced an amendment to require that a person's licence number only shall be displayed at the place of trading to meet casual traders' concerns about their safety and security, which arose from the original provision regarding displaying the person's licence and his name and home address.
In section 6, I have introduced amendments to ensure that the special interests of disabled persons applying for casual trading licences are taken into consideration by local authorities; to link any facilities and services provided by local authorities to people engaged in casual trading with the setting of fees; and to oblige local authorities to consider submissions received from any interested person to strengthen the procedure for making by-laws under the Act.
In section 10, I have introduced an amendment that will enable local authorities to appoint persons other than officers of the local authorities which will give local authorities greater flexibility in the management of markets, while in section 14, on reconsidering the original provisions relating to summary offences, I have proposed that there should be a scale of penalties instead of one maximum penalty of £1,000, that will provide both guidance and flexibility for the courts in deciding appropriate fines for offences under section 3. In addition, I have made a small number of amendments to the Bill that are mainly of a drafting nature.
I am happy to say that all of the amendments I have proposed have been accepted by Dáil Éireann, and I am confident that the Bill as it now stands will, if accepted by the House, provide for a fair and effective regime for the regulation of casual trading.
I welcome the Minister to the House to debate this important Bill. We largely agree with its provisions. It is legislation that is long overdue. All of us have had numerous examples over the years of major difficulties being caused in cities, county towns and rural areas by unregulated, uncontrolled casual trading. It has caused significant hardship to people in legitimate retailing who have been unable to compete with casual traders because of the advantages stacked in their favour.
The Bill is welcome in that it transfers powers to enforce the legislation from central Government, from the Department of Enterprise and Employment, to the local authorities and the Garda Síochána. This is a good development in that it decentralises the decision making process on what is a local issue throughout the country.
On many occasions I complained at local authority and Government level about the lack of any form of control over casual traders. They move in to the streets or the market squares of towns and take over, causing traffic confusion, litter and debris to be strewn around the area, and much grief to small business people who are trying to make a living in small shops where it is perhaps difficult to make a living in any event. Small traders are burdened with all of the costs involved in doing business, from rates, to rent and taxation, yet casual traders can set up outside shops with no overheads, controls or expenses. It is a most unfair form of trade, and it has been allowed to go on for far too long. This legislation is welcome in bringing an end to unfair competition which has bedevilled many small businesses.
I welcome many of the improvements to the Bill. It was important to tighten up some areas, as the Minister has outlined. The reduction of the exemption areas from ten to three is especially welcome. In this respect the provisions, as originally drafted, were perhaps too wide and would have been open to abuse by casual traders.
It is important that we differentiate between two types of casual traders. The traditional casual traders are found in Moore Street in Dublin and in Eyre Square in Galway. They have been there as long as the shops against whom they compete. They have made their contribution in a special way. The other type of casual traders are the get rich quick merchants, who have left the business as quickly as they entered it, and who have been known to leave people with grave difficulties as a result of the kind of products — their quality and so on — they sell. It is time that we cracked down on these casual traders who have abused the system in every respect. Section 2 limits the existing list of exemptions to three activities, in regard to a licensed auctioneer, door to door selling and charity sales, which I welcome.
The deletion of the other exemptions has the effect of only making the relevant selling activities subject to regulation by the local authorities. This flexibility is welcome. The Minister's emphasis on the fact that local authorities are being empowered to allow any existing exemption, for example, in relation to newspapers or strawberries, or to add new ones which they may deem appropriate is a worthwhile initiative. The removal of the exemption relating to market rights is also to be welcomed. This will resolve the problem of prescriptive rights and I support the initiative.
However, I have a major concern with section 4. While the Minster has made a cogent case that casual traders in traditional areas such as Moore Street are not in the business of employing large firms of accountants, the same could be said for many small businesses who are crippled by the stringent tax regulations which have now been put in place. These require them to have tax clearance certificates even though they are only running a very small business and making a very small profit. It is unfair that the Minister would change this regulation with regard to casual traders if he will not change the same regulation for small business people who have grave difficulty in trying to keep pace with the bureaucracy that is now part of our tax system.
The Minister must reconsider this change. If he is to introduce an RSI system of administration for casual traders, with which I do not have a problem, it is incumbent on him that he indicate to the House that he is prepared to introduce a similar measure for the people in small shops. This is the most important aspect of the Bill and I ask the Minister, therefore, to give this matter consideration, to level the playing pitch for the small traders who are competing with the casual traders.
The Minister has painted a nice picture of casual traders; we all love the people in Moore Street and want to see them make progress. I am concerned this opens up the sector to many unscrupulous casual traders. I refer to people who may trade in different products from day to day, who go from place to place and leave a trail of destruction behind them. They are in a different category to the normal casual trader who most of us know, who does a good job and makes a living in a legitimate way.
This change must be re-examined. The Minister must level the playing pitch for everybody in competition in this sphere. I have had representations from people in a number of sectors who feel the change proposed in this legislation will create unfair competition. Florists have a major concern about this change which makes business difficult for them. Their businesses cannot compete with casual traders, many of whom are fly-by-nights.
With regard to the enforcement of casual trading licences, it is a good development that the local authorities and the Garda will be fully responsible for the implementation of the legislation. I welcome the Minister's initiative with regard to occasional trading but there is no reason this could not also be regulated by local authorities. Why are those who engage in occasional trading required to have a trading permit from the Department of Enterprise and Employment?
Section 5 deals with the display of casual trading licences and an amendment was made requiring that a licence number only shall be displayed at the place of trading to meet casual traders' concerns about their own safety and security. While this provision is appropriate to places such as Moore Street where everybody knows the casual traders who are there day after day, a full description should be required of casual traders, especially in small towns, who may arrive on a Friday or Saturday and take a pitch.
They are supposed to have designated areas and the legislation provides for a tightening of the way in which they operate. However, the practicality is that by the time the Garda is in a position to take action against some of the traders, they have been in place for the couple of hours they want to do their business and are gone. Such traders should have to display their names, addresses and other details so there can be proper and immediate control of their activities.
I welcome section 6 as the Minister made a good amendment in allowing special consideration for disabled people. I also welcome section 10 which gives flexibility to the local authority to employ people to take control of the markets rather than leave it to employees of the local authority who are hard pressed in their everyday work.
This Bill is welcome as it is past time we had proper control over casual trading and, with minor reservations, I commend it to the House. I hope it will bring about improvements for people in the retail industry.
I welcome this Bill. I come from Navan which has a large weekly market. I have never been involved in dealing with any of the casual traders in Navan on a Friday but for many years I held a clinic close to the main trading area. I got to know a number of the casual traders and I found them decent and honourable. They had been coming to Navan every week for many years.
I welcome the changes being made to the Casual Trading Act, 1980, and the amendments to this Bill in the Dáil. In the discussions in the Dáil in March 1994, many questions were raised as to matters not covered by the Bill. Those of us familiar with the 1980 Act and the way in which it worked were worried the Bill would not protect casual traders and those trading in premises in towns where the casual traders compete.
Many Members agree with Senator Fahey's point about the production of tax clearance certificates. When the Bill was introduced last year I wondered how it would work for the small trader as I could not see it being implemented successfully because of the nature of the business concerned. I welcome the change the Minister has made in this regard. There was room for change to assist the small casual trader and the Minister's proposal should be supported.
I accept the concerns mentioned in this regard but it is not for the Minister of State to approach the Minister for Finance. It is a matter for finance legislation to change the position for small shopkeepers who have a small turnover and who should not have to pay substantial amounts to accountants. I do not think that is the case; matters have changed dramatically for those shopkeepers. The Revenue Commissioners deal with the small shopkeepers on a sympathetic, one to one basis.
With regard to the role of the local authorities and the Garda in implemention, Senator Fahey pointed out that before anybody might have time to make a complaint about a casual trader the trader would have gone and may not return. I am aware of a number of problems with casual traders.
The Garda, in conjunction with the local authority, which may or may not have granted a licence at that time, was able to ensure that those people did not have an opportunity to set up shop the following week. At the time I welcomed the fact that action was taken. I was not contacted about it, but the licensing authority, in the form of the urban council, took action quickly. I welcome the change that local authorities will now deal with granting licences. This will bring all aspects of casual trading licensing into one area. I am a member of the urban council and the vigilant staff are dealing with a number of these matters very satisfactorily.
There are fly by night operators and this has been the case over the years. How will the legislation affect casual traders who do not go to sites which are available weekly? Such a trader spends quite an amount of money advertising on the local radio for a few days that he intends to sell his products in a hotel or hall. He arrives with a substantial number of different items and sells them very cheaply in comparison to prices in shops. There is no redress available to people who buy such items and later find that they do not come up to standard.
Approximately 18 months ago much time was taken up on some national programmes, such as "Liveline", in connection with such traders who arrived from England with a substantial amount of products. Many people discovered, when they got home, that the items they bought were inferior and no redress was available to them. How will such traders be dealt with under the Bill?
The majority of people dealing on Moore Street, Eyre Square in Galway and the market square in Navan are genuine. They arrive on a daily or weekly basis and their presence adds to the areas during the time they are there. A huge number of people attend market day in Navan and this benefits not only the casual traders but also quite a number of the shops in the town. People go to the market and then walk up the main streets to different shops for various items which they wish to purchase.
Casual trading is an old occupation and I am delighted legislation is not being introduced which will put such traders out of business because they are part of Ireland's character. Most Members have visited other countries at various times and they have visited the markets there. Such activity is part of our culture and the aim of the Bill is to make it a little easier for those involved. It also provides identification for the people concerned, which is important.
Small shopkeepers are also being considered. People should not be allowed to arrive and set up in a particular part of a town, remain there for perhaps a couple of weeks and then leave. The Bill will ensure that local authorities have control in this regard in towns and villages across the country. People say traders may come and go without the local authority being informed. However, if a trader arrives in a particular area and the local shops object to his activities, they will soon inform the authority that the trader is there. A telephone call does not cost much and it does not take long to get through to the people concerned. My experience is that action will be taken.
I welcome the changes made by the Minister and the Bill is better as a result of the debate in the other House in March 1994. The changes made since then, as outlined by the Minister, have improved the Bill and I welcome this. In his reply I ask the Minister to outline how the Bill will affect fly by night operators who give casual traders a bad name. People who visit markets on a weekly basis and buy from regular traders have no problem returning the following week if there is a problem with items they purchased.
Market day in Navan is when the elderly people go into town. In addition to collecting their pensions, they take the opportunity to meet people and chat to them. It is an enjoyable day out for many people who, for much of the week, do not have many people to talk to or visit. I welcome the Bill and I hope it will receive unanimous support in the House. It is a major improvement on the 1980 Act.
I join other Members in welcoming the Bill. I realise it is important legislation which is long overdue. However, it does not deal with a black and white situation. For example, there are many different types of travellers; some deserve our support and consideration, while others are wealthier than traders. Many people are involved in casual trading and one does not have to drive any distance on a national primary route before one sees different categories of traders.
Some successful traders are travellers. How will the Garda apprehend and the local authorities prosecute traders who are travellers? They are in every line of business, including selling farm gates and paint, paint spraying and tarmacadaming yards and avenues. They are involved in a wide range of areas and this matter is not well covered in the Bill.
I welcome the opportunity to contribute to this debate. I come from a Border town and we have experienced a particular problem over the last 25 years, which reached reasonably serious proportions. People tell a story, which is almost true, that a man arrived and offered a trader a lorry load of fridges and other goods. He said it was very good value and that the items came from a place which had been bombed. The trader said he had not heard of any place being bombed recently. He replied that it was going to be bombed that night. We have had to live with that situation. "Casual trader" is a very wide description. He can be selling anything from pocket handkerchiefs to farmyard gates.
We should be realistic in our expectations. The weakness in this Bill is that it is being left to the local authorities and the gardaí to implement it. They must control the trading, impose penalties and apprehend and seize goods. Everybody in rural Ireland knows that the local authorities do not have the resources or the manpower to catch people who dump their litter on the roadside. Under the law an on-the-spot penalty can be imposed on such people but how many people have been caught and prosecuted?
The implementation and policing of this legislation will be the criteria of its success. In theory the Bill is welcome. It attempts to regulate an area that was in need of regulation. In practice, neither the local authorities nor the Garda Síochána has the manpower or resources to implement this legislation. A trader can set up a stall one day during the weekend. If the gardaí notice they can approach the trader and ask to see his licence. The trader can say he has left the licence with his grandmother who is trading in another town. By the time the gardaí have checked on his name, address and licence, the trader will be in a different town the next day to avoid the town or village where he has been noticed. The Minister is not giving the gardaí and the local authorities an easy task. I have not come here to criticise the Bill. I accept and support it but I have a duty to point out how it might not work. It falls down in its policing and implementation.
Selling or collecting for charitable organisations is open to abuse. If a person collecting at the door of a supermarket is approached for his licence, he can show it but he does not have to say what percentage of the money is going to the organisation. This is a major concern. The country is littered with such collectors. They generally collect outside their home county.
Is the Minister in a position to put resources into the implementation of the Bill? If not, it will not achieve its objective. I have a great interest in this Bill although my expectations were, perhaps, too high. I recall seeing a lady set up trade selling teas from a caravan in Barnas Gap one summer. The local authority brought her to court and the sensible judge fined her one shilling. Nevertheless, she was moved away. Within one hundred yards of her site a gentleman with another caravan was selling paintings. He was painting them on the spot and they were very nice. However, the local authority did not touch him. He was acceptable. It is hard to see the difference.
We would dearly love to see this Bill being successful and being implemented as the Minister has outlined. We are enthusiastic about it. I appreciate the flavour of the market town in rural Ireland. A hotelier in Ballybofey has a notice in his hotel which states: "Ballybofey is the best little market town in Ireland". He was right to acclaim that. However, the situation has got out of hand to the point where it must be controlled. The wording and presentation of the Bill is perfect. My concern is that it will not achieve its objectives largely because we do not have the resources to support it. We are passing the buck to the local authorities and the gardaí who do not have the resources to meet the duties they already have.
I await the Minister's observations on my comments.
I welcome the Bill and the changes the Minister has made both to the 1980 Act and to the Bill proposed by the previous Government. I welcome a number of the provisions. The decision to devolve the licensing system to local authorities is welcome. It is a forward looking approach and will make it easier to deal with problems on the ground.
I seek a number of clarifications from the Minister. He said that section 7 of the Bill gives general powers and flexibility to a local authority to make bylaws relating to the control, regulation, supervision and administration of casual trading in its functional area. I am aware of a problem that has arisen locally in this regard. A local authority provided a casual trading area in a town but it was not a proper facility because its location would not allow a flow of traffic. It was causing a number of problems and the local authority which wished to have the area changed had to go to court to appeal the decision. I am not sure if, under section 3 of the Bill, the local authority will still have to go to court or if it can make the decision to change the casual trading area.
Less bureaucracy should be a consideration in this Bill. Everybody will agree that once one becomes involved in court proceedings one is faced with expense and loss of time before a decision is made. I would be grateful if the Minister would clarify if, under this Bill, the local authority will still have to go to court to seek to change a casual trading area.
The Minister referred to the Moore Street casual traders. However, casual trading has developed to a great extent throughout rural Ireland in the last number of years. The Moore Street casual traders have long played a role in the cultural history of this country and they still have a role to play. A number of the amendments which the Minister may propose on Committee Stage will, if accepted, make it easier for everybody involved to know where they stand as far as the law is concerned.
When speaking on this Bill I admit to being biased, as I come from a long tradition of family business people. I have seen — and I am not being dramatic about this — small family businesses run into serious financial difficulties due to the unfair competition of casual traders. There was no recourse in law to allow the family businesses compete fairly with these people. They came into towns for one day in the week, they often did not have licences, they had no overheads, they did not have to pay rates and they got away with it. That is the main reason I welcome the whole tenor of this Bill.
I sometimes get worried if I think my political ideals are falling into line with those of the Progressive Democrats. I refer to where a tax clearance certificate was looked for under section 4. I concede that the situation where the administration system will ask applicants for licences and RSI numbers may solve the problem. A lot of the fly by night casual traders could get around that and it is something I ask the Minister to look at in the short term. If it is not working, he will have to seriously reconsider requiring the provision of a tax clearance certificate.
According to Government policy many jobs will be created in the service industries over the next few years. The potential is great in rural Ireland, but if businesses face unfair competition— even if it is only one day a week — the profit margins will be so small and the competition so strong that, unfortunately, a number of them will cease to exist. That is my only gripe with the Bill. I am willing to wait and see if it will solve the problem, but we will have to keep a close watch on it and, if it is not having the desired effect, the Minister will have to reconsider the aspect of tax clearance certificates.
The Bill will make life much easier for the Garda Síochána and the local authorities to police casual trading on the ground and that is to be welcomed. I hope it will be enacted soon because there are many outstanding local problems and many local authorities and gardaí are awaiting its enactment so that they can resolve the matter quickly.
I wish to make a few comments on the Bill but, first, it is traditional to welcome the Minister. It sometimes seems patronising for somebody from the backbenches to welcome the Minister to the House, but suffice it to say that I am glad to see him in the position of authority which he now occupies. I have some difficulties with the Bill, but I do understand the principle of it. The Minister outlined this in his opening remarks where he said:
The 1980 Act came into operation following a report from the then Restrictive Practices Commission that had concluded that outdoor trading was fair trading, provided that it was subject to reasonable and, especially, effective control and made a more realistic contribution to public funds.
The Bill acknowledges the place of casual trading in our economic society but looks for the almost clichéd entity nowadays — the even playing field. I am not sure that the playing field is evened entirely by this legislation. The Minister stated that:
The primary considerations leading subsequently to the enactment of the 1980 Act related to ensuring that roadside and street traders do not have an unfair advantage over established traders, in so far as they do not have the usual overheads which have to be met by established traders.
I listened to Senator Reynolds speaking from a tradition of family business and I am aware of the fact that, from time to time, casual traders have impinged upon the business of established traders. This is unfortunate, particularly for people who committed themselves and have expenses in terms of plant, shops, equipment, staff and so on.
I received a briefing from the florists' association who are quite agitated about this, particularly in the Grafton Street area. However, I have to say that ever since I was a child there have been florists on Grafton Street. It is part of the colour of the city and adds greatly to the attraction. As long as it is a fair playing field, I would hate to see the removal of that beautiful display of flowers and those rather engaging people — principally women — from whom I have had the pleasure of buying flowers ever since I was about six or seven years old going to my music teacher. I would not like to think that they would be driven out in a mean-spirited way by the florists in that area.
I also used to patronise florists in that area for Interflora purposes, because I believe in horses for courses. The casual traders were fine for the odd bunch to give to somebody and say "Thank You" or "Sorry" but they do not provide the Interflora service, so there is no competition there. I used to go to a decent man called Mr. Byrne. He had to move because the rents skyrocketed in that area due to property speculation. The real threat to the small florist in the Grafton Street area is not the ladies on their pitches; it is property speculation which has driven rents through the roof, and the ordinary merchant cannot afford them.
I understand the principle of unfair trading and the fact that people have to spend money on their shops, overheads and so on. That can also be said of the buses. CIÉ is clearly placed at a disadvantage because of the operation of a casual trading system by private bus operators, who apparently do not have to pay for garages. They use the public thoroughfares of Dublin, sometimes in most inappropriate places and at most inappropriate and inconvenient times, whereas CIÉ have to provide bus stops, shelters, garages, bus stations and so on.
They do not provide services to some rural areas.
Of course they should, but the area of competition is not a level playing field. While I am on my inner city hobby horse, I want to raise another matter that may be marginally considered by the Bill, and that is a traditional market — that is fine as far as I am concerned but it is also a blister — the Cumberland Street market. Although I support casual trading because it has a long and honourable tradition in Dublin — and also a dishonourable tradition on another hand — I find it offensive that people who are given pitches in the Cumberland Street market, which is now apparently acknowledged and registered by Dublin Corporation, appear to be under no compulsion or obligation and have no sense of obligation to clear the place after them on a Saturday morning. Perhaps the Minister would look into that. It is an outrageous disrespect for the centre of a capital city that people can come in with old clothes, bits of old broken clocks, bedsteads and so on, sell them if they can find somebody to buy them — that is fine and I am told one does find interesting things down there — and then leave all the detritus and rubbish lying around all over the place for the unfortunate corporation to have to clean it up in the afternoon. In the gap between the moment when the traders leave and the cleaning of the street by the corporation, it is an absolutely unspeakably filthy, disgusting and demoralising sight. I have no qualms about drawing that to the attention of the Minister.
I wish to turn to an area of the city which I know quite well — the Henry Street-Moore Street area. I know the Minister has been approached by representatives of the traders in this area. I wish to act as a messenger — and I hope that I will not be shot for so doing — as I am in possession of a letter which may appear in The Irish Times. However, editorial decisions may prevent it from reaching the pages of The Irish Times and the Minister may be interested in hearing it. It is from an old friend of his and mine, Seánie Lambe, whose company I have just left because he is launching a programme to raise money for the rehabilitation of drug stabilised women from the inner city. The letter reads:
Dear Sir,
It pains me to criticise my old friend, Minister Pat Rabbitte, but in the case of the Casual Trading Bill one must wonder which tail is wagging what dog. Having met the Minister and his officials, it would appear that we were unable to convince them of the outrageous impact of the proposed legislation on decent women trying to earn an honest living.
Much emphasis is put in the modern Irish economy on entrepreneurial skills, but when such skills are used by people who, to quote the Minister in his former manifestation, are "living on inadequate social welfare incomes" then the power and influence of big business comes into play. A £10,000 fine for selling bananas off a pram in Henry Street is surely a penalty which bears no relationship to the gravity of the alleged crime.
The Minister and his officials were unaware, as no doubt are the general public, that these women have to pay to be arrested. Every time that they and their goods are brought to the Garda Station they are charged £7.50 for the dubious privilege. They then have to pay again to get their goods back — goods for which they have paid legally with their own hard earned money.
The unremitting war against casual street traders being waged by the Garda at the behest of the Dublin City Centre Business Association reaches the level of absurd farce when the Garda inform the Department of Social Welfare of every street trading conviction, while the Garda do not inform the Department of convictions for heroin dealing.
As a taxpayer I fully agree that anyone earning enough income should pay tax on that income, but until Dublin Corporation regularises street trading for those who have traditionally reared their families by this means then the problem will continue. It seems clear to me that the only way out of this impasse is to ensure that the provisions of the Bill are not implemented in the inner city area until after the local authority has made provision for the legalisation of the casual street traders on fixed sites in the area.
Using sledgehammers to crack nuts has never been a good idea and so I urge the Minister to reconsider, even at this late stage, the propriety of this Bill. There are only two sides in this issue: those for the rich and those for the poor.
That letter is well worth considering. He invokes, first, the idea of "decent women trying to earn an honest living", of which there is a tradition. The Minister has probably read — if he has not I will be very happy to send him a copy — a very interesting and remarkable book by Professor Kevin Corrigan Kearns called Dublin Tenement Life: An Oral History. He tape-recorded and edited verbatim accounts of life from just before World War I up to the 1970s by those living in the city. A number of those people living in the city centre — in the world of O'Casey and Behan — made their living in very difficult times, particularly during the depressions of the 1920s and 1930s, and maintained their families the only way they could, which was by this sort of trading. The Minister will know, as I do because I know a number of them personally, that earning their living in this way has been a family tradition for many of them. It seems an absolute irony that the city has taken the song “Molly Malone” as its unofficial anthem and that we should sing about an 18th century woman “wheeling her wheelbarrow through streets broad and narrow” at the same time as we are impinging upon the rights of her descendants.
I know the Minister is a caring person and that his intentions in this Bill are good and honourable. However, Seánie Lambe makes a very good point when he indicates the disparity involved in imposing a fine of £10,000 on somebody selling bananas from a pram. That seems disproportionate and the punishment should fit the crime. I know this may not be a mandatory sentence but the courts have had a tradition of imposing the maximum sentence in such circumstances. The idea of charging somebody for the privilege of being arrested suggests the worst excesses of the French Revolution.
I am not too concerned by the Garda informing the Department of Social Welfare — I have no problems with the culture of the informer — however, it should be even handed. It is a very serious cause for concern when one of the most vulnerable elements in society, the street traders, are subject to this kind of informing to the Department of Social Welfare while, at the same time — and I know this is true — the Garda do not pass on parallel information about the activities of heroin dealers. That is outrageous and should not be tolerated.
Mr. Lambe gave me a proposed amendment to the Bill but I do not think it would be worthwhile to table it because I do not think it could be brought into operation. The amendment reads "That this legislation will not be enacted in the inner city of Dublin until the local authority has provided new sites for the traditional unlicensed street traders". I do not think that amendment is possible because it seems vague in terms of its delineation of the inner city and I am not sure if such a provision would be constitutional. However, the idea behind it is valuable and reasonable. These people should not be penalised until some alternative form of employment is found for them.
There are between 40 and 50 unlicensed traditional street traders operating in the Mary Street, Henry Street, Liffey Street and Earl Street area, the vast majority of whom are living on social welfare incomes supplemented by street trading. Most of them have been jailed at some stage for non-payment of fines, as have some Members of the Oireachtas — Deputy Gregory went to jail for expressing solidarity with these women. The courts in the past have frequently applied the maximum penalty to this kind of offender, which is why the £10,000 fine is very dangerous. They cannot get legal pitches because of previous convictions. The Minister's amnesty on previous convictions will make no difference if Dublin Corporation does not earmark new pitches as the women will soon accumulate new convictions.
Staggering the fines merely postpones the inevitable because in order to pay fines they have to increase their street trading activities. They are the only people in the country who have to pay for the privilege of being arrested. If one takes into account fines, confiscations and bad weather, over a year few, if any, of them would earn a taxable income and when goods are confiscated they have to pay to get them back, although they bought them legally.
The legislation appears to be designed to apprehend people operating on a much larger scale but has massive implications across the board, which I am sure is not the Minister's intention. The legislation should not come into effect in the inner city until Dublin Corporation has addressed the problem by providing new pitches in the area for traditional street traders.
I welcome the Minister and congratulate him on bringing the Bill before the House. It is important that roadside and street traders do not have an unfair advantage over established traders who operate retail outlets. Casual traders do not have to pay rates — which is a big issue with retail outlets — and they do not have ESB or water charges. They do not have the normal overheads, which are of considerable significance in the cost of goods, incurred by retail traders. The growth of casual roadside trading has put pressure on retail business and put jobs in jeopardy. This Bill will level the playing field and will protect jobs in this area.
Casual traders do not have the labour costs incurred by shopkeepers in that they do not observe the statutory and negotiated conditions of employment for their staff. Casual trading is creating many problems and must be regulated. These traders create a traffic hazard in many areas and leave behind extensive litter problems, particularly after special events.
The Casual Trading Act, 1980, did not adequately cover all the concerns in this area. Many issues regarding casual trading have developed since the introduction of the 1980 Act, and the main concerns relate to exemptions and enforcements. The review of the 1980 Act identifies difficulties experienced by local authorities, especially in the area of acquiring market rights. This can be frustrated, especially by those selling agricultural and horticultural products which are not subject to control.
I welcome the fact that under the Bill local authorities will have more power and authority in that there will be a dual system of licensing involving the Department of the Environment and local authorities. This recognises the principle that where functions can be effectively carried out at local level, that should be done. Members of local authorities have been asking for this for years because of their frustrating experiences when powers were being taken from them. As a member of a local authority I am very conscious of this. The Bill provides for a reversal in that trend and allows for licensing to be done locally if this is possible.
The Government is following the principle that what can be done locally should be done at that level and, in fairness, the previous Government also did so. All legislators and Ministers should follow this principle when framing legislation. With regard to each issue they should ask whether functions can be delegated to lower levels and if people at local level can be more closely involved in the making of regulations and the implementation of law. This would improve the political process.
People are alienated from politicians because of the centralisation of politics. Down the country we say power is centralised in Dublin but what is meant is that power is centralised in the Government. For politics to grow and survive — the latter word may be a little extreme — and for democracy to be more acceptable, power must be closer and more immediate to the people. This part of the Bill in a small way recognises this, which is a welcome trend, and it should be a headline when considering legislation in other areas.
I welcome the fact that local authorities will be able to operate the licensing system in two ways. There may be a general licensing system for casual trading which will not have limitations or territorial limits or a casual trading areas system, which is similar to the system operating at present. Difficulties have arisen under the 1980 Act and also because certain trading activities are not subject to regulation. The limitations of the Bill will be confined to selling by licensed auctioneers, door to door selling and charity sales. Local authorities will have the power to add to the list of items which are not subject to regulation. It is important to recognise this because there could be scaremongering about a great deal of traditional trading being eliminated because of the Bill. Members of local authorities are the best people to know what is traditional and what works in an area.
I welcome the part of the Bill which provides that tax and social welfare clearance will be required in respect of legal casual traders. This will bring them into the white economy and will make enforcement against illegal traders easier. It will also improve competitiveness and level the playing field between casual and retail traders.
The Bill must be used to stop the blatant selling of stolen goods on the outskirts of towns and villages. This activity must be stopped to ensure that the provisions in the Bill are rigorously enforced. Control must also be enforced where special events are held, where people move in with vans, trucks and lorries and cream off spending power over the period of the events, whether they are held for a day, a weekend or a week. They then disappear leaving behind their rubbish. We are not saying this trading should be ended completely but it should be subject to a system of control.
We should recognise that casual trading is part of our culture and has a special appeal in different countries. When we go to European and other countries, one of the first things we do is look for local markets. Such markets encourage people to visit other countries. This type of activity fits in with the landscape. It is important not to kill off its potential. Different types of trading are suitable for different areas because of their hinterland and agriculture; an example is the selling of strawberries in Wexford. It is important that we keep this part of our culture and that the Bill is not seen to be killing off something which is good. The Bill also provides for development in this area where young people with ideas can create new products and sell them in the tourist market.
I congratulate the Minister on this Bill, which will serve the State well.
I commend the Minister for his diligence in being in the House so often over the last few weeks and I hope it does not become a permanent part of his life; I am sure he would not wish it to be. The Bill is necessary and regulation is needed. Perhaps we should have gone to Jerusalem or Tashkent to find out how they regulate such trading because they seem to be able to manage their affairs well with respect to these types of traders.
It is a feature of our life to have markets and casual trading in our towns and there is no doubt they can be sold as part of the overall tourist package. Those of us who grew up in the country can remember when there were tinkers; I am not using a politically incorrect term because the people about whom I am talking were tinkers who came to the door to take away pots and pans to mend them. When I was a child a person stayed in my house for a month and rebuilt our grandfather clock and bookcase. He did work of a quality which is now sadly gone. This was a good feature of country life. However, times have moved on and we have to regulate matters.
The Bill was improved in the Dáil with one notable exception, that is, the tax clearance requirement. The Minister said that casual traders do not have high powered financial advisers, detailed contact and familiarity with the State bureaucracy or professional, qualified accountants to administer their records and file their returns. This is true of many people trading in our small towns and villages and it is true of farmers. This is not peculiar to this community.
I can say with certainty that there are traders on the square in Kildare who pay rates and taxes and are less well off than some casual traders. It also correct to say that other traders there are significantly better off than some casual traders. This does not detract from the fact that there are people who are at a disadvantage because they pay rates and taxes. I can understand the difficulties involved but it is legitimate for ordinary traders in a town or village to say that everybody should be treated equally. There are two sides to this coin. One is that we abolish the RSI requirement for everybody. The other way is to have the same tax clearance requirement for everybody. I have tabled an amendment on this matter which we will consider on Committee Stage. I await with interest what the Minister has to say.
He pointed out that he has replaced section 4 with an administrative system. I want to know a great deal more about how this system will work before I will be satisfied because I do not see it mentioned in the Bill. I refer to column 284 of the Dáil Official Report of 9 March 1984, when the then Minister for Employment and Enterprise, Deputy Ruairí Quinn, now the Minister for Finance and who has a function with regard to the collection of taxes, said, when introducing the Bill:
Section 4 also provides that a local authority shall, subject to certain specified circumstances, grant a casual trading licence to an applicant who pays the fee fixed by the local authority under that section and who fulfils certain conditions, including tax clearance. The latter issue will no doubt be of some concern to some traders. There was a specific requirement contained in the Government decision approving the general scheme of the Bill and is a reflection of the Government's determination that the tax burden should be as equitable as possible for all sections of the community. In this regard I have been advised by the Department of Finance that suitable arrangements to ensure that no casual trader, except for exceptional circumstances, will be refused a tax clearance certificate. Therefore, this new requirement will not be an obstacle to new or existing casual trading applicants for licences.
The Minister for Finance has replaced section 4 with this administrative system. It was in the explanatory memorandum and the original Bill but is now gone. Why?
I grew and harvested strawberries and raspberries and paid 50 pickers to pick two acres of them. If I went to Senator Quinn's outlet and was paid for my strawberries, claimed the expenses on my pickers and for growing my crop, made my returns on what I received from Senator Quinn and submitted that to the Revenue, I would be taxed on the profit, if there was one. The person who grows strawberries, Christmas trees or nursery stock is meant to be different from those who sell strawberries — sometimes represented as Irish grown although they are not — at the side of a dual carriageway. These people create a hazard to traffic with which the local authority has to deal. We should be clear about what we are talking about. There must be equity.
I have the utmost admiration for the person who starts off as a casual trader in a market town and winds up owning that town's supermarket or retail outlet or for a person who betters themselves or just makes a living, but it should be done on an equal footing. Could we end up with the door to door strawberry or Christmas tree salesman? That is another implication that I could take from the Bill. I want to know specifically how it is proposed to deal with this measure which the Minister describes as an administrative system. Nothing in the Bill gives me confidence that there will be equity.
To what extent are these people controlled or governed by the plethora of regulations, which come to us from the European Union, with which the ordinary retailer now has to comply? I could bore the Minister for some time about, and be very eloquent on, the free range egg, which is endangered. In County Cork there is, allegedly, a free range hen. It came from the field and crossed concrete to get into its shed and as a result, was designated by the European Union not to be a free range hen. However, if the person who owned the hen brought its eggs to the local supermarket, they might take them for several weeks but could then inform him that they could not do so anymore because he did not have a licence. I can produce free range eggs and I suspect I could sell them to my local market, but not to my local supermarket if I do not have a licence. There is layer upon layer of bureaucracy with which the person trading in the town and producing the product has to cope. It appears — I hope the Minister will correct me if I am wrong — that this type of regulation does not seem to apply in the case of casual trading. The Minister referred to hygiene regulations — of course they apply — and to other matters, but there seems to be an inequity there.
The other matters that arise deal with enforcement. The local authority is given this power and I welcome the fact that it now has some discretion. I can also see that putting extra categories of people into the Bill is not required because either the Minister or the local authority can designate those who might be restricted within the relevant section of the Bill. However, enforcement will come to the fore and there is expense to the local authority. My local authority has to maintain our courthouses, the Department of Justice does not have responsibility in this regard Therefore, the cost of maintaining the courthouses devolves on the person trading in the town and paying the rates.
We built a motorway through County Kildare — the Department of the Environment and the engineers in Kildare County Council are to be congratulated for this. However, lighting for that motorway, amounting to £150,000 a year, is levied on the County Kildare ratepayers and the retailers in the town. Who will wind up paying here? What sort of resources will the Government put in to ensure that casual trading can be regulated and is not paid for by those paying rates in their local towns?
As Senator Norris said, there have been representations from the Irish Retail Florists' Association, the Irish Flowers' Council and the garden centres and I agree with them. I tabled my amendment because they have a legitimate grouse in this area. Why was this provision in the original Bill removed and how is it that the numbers of the Labour Party, who could be so enthusiastic about tax clearance certificates when Deputy Quinn was Minister for Enterprise and Employment, are now absent or are not enthusiastic when the same Bill is being debated now?
Senator Farrelly mentioned that this matter could be dealt with under the Finance Act. If it was in the original Bill, I do not see why it had to be taken out of it. Give the people who are trying to run small businesses——
That is not what I meant. The Senator missed my point.
I apologise.
I said the small traders in the towns could be dealt with.
There should be equity. Let the small casual traders run and develop their small businesses and retain them as a feature of rural and urban life — it is an important and good feature — but matters should be put on a proper footing.
I welcome the Minister. This Bill needs to be updated and regulated in relation to casual trading as we have come a long way since the 1980 Act. The kind of lifestyle we now have as far as casual trading is concerned has changed dramatically. In 1980, this Bill might only have covered selling newspapers while now a wide range of goods come under the definition of casual trading.
I have no difficulty with casual trading — I like markets. Any time I go abroad, the first thing I do is go to them. It is lovely to wander around them, look at the goods on display and bargain with the traders. That should be part of our tradition in this country, as it is in every other country. The casual trader has had an unfair advantage over the regular trader over the years. I welcome the fact that the Bill gives the local authority power to deal with casual trading. It seems clumsy for the Department to issue a licence and the local authority to issue a permit. This would not work and I am glad the Minister recognises this from his experience on a local authority. It is time we gave full control to the local authority.
How can we implement the provisions of this Bill? We need considerable resources to get this off the ground and to assess people who apply for a licence, the type of fees involved and the designated areas. Previously, when a licence was granted, casual traders were able to set up shop on any side road, footpath or open space and the local authority had no control.
I welcome the fact that the local authorities will have control in this area because they will know what is involved, but I am worried that they will not have the manpower and resources to enforce the provisions of the Bill. I visited my local authority this afternoon and I mentioned this point to the officials. They said I should take it up with the Minister. However, in his speech the Minister did not suggest how this would be done. There is no point in passing this Bill if we cannot implement it. Perhaps the Minister could clarify if the local authorities will have the manpower and resources to implement this Bill.
We are talking about the casual trader versus the regular trader. We agree that the regular trader is experiencing problems at present. If casual trading starts beside a regular trader's small shop, his prices will be undercut from the beginning. People will buy goods from the casual trader because they are cheaper. They are able to undercut the regular trader because they do not have overheads and they do not pay tax or rates. That is not a fair system of trading.
This Bill will introduce fairness into the system. It will open up the market and it will keep the public informed about designated areas, environmental control and the problems of noise and traffic. Procedures are now in place to bring those who commit an offence to court and it is possible to confiscate the property. If the gardaí take a casual trader's property, how will they get it back and, if they do, will they be able to start trading again further down the road? There are many loopholes in this Bill.
Senator Dardis mentioned tax clearance certificates. Administrative procedures are now in place to assess those who should or should not be granted licences. I agree with Senator Dardis who said he did not know how this would work. We are introducing bureaucracy which will be time consuming. Why should these people not produce tax clearance certificates when the ordinary trader must pay PRSI, VAT and overheads? He also runs the risk of being put out of business because his prices are undercut.
Will the local authority decide on temporary designated areas for the sale of Christmas trees? The Minister did not mention this in his speech. Will it be left to the local authority to introduce a temporary designated area for seasonal goods? This matter should be considered.
Are on the spot fines, which are included in the Litter Act, 1982, included in this Bill? Can the local authority introduce such fines? This is the best way of dealing with offenders because if they are caught on the spot and charged a considerable fine, they will be slow to reoffend. If the Garda superintendent takes their goods and moves them on, the trader can come back 24 hours later and repossess his goods and plead his case. However, there is no way of measuring what is involved when he presents his case.
I am concerned that the local authority will not have the manpower or the resources to implement the provisions of the Bill. Tax clearance certificates are also important when applying for a licence. This is good legislation because it is 15 years since we did anything in this regard. However, there are many loopholes in the Bill. The Minister expressed concern in the other House about some of the issues I have raised and I am interested to know how he proposes to overcome those problems. Local authorities welcome this legislation and are pleased they now have control. However, they have reservations about temporary designations, tax certificates and on the spot fines.
This legislation must be welcomed as an attempt to regularise the area of casual trading. No one can disagree with its purpose. However, certain aspects must be taken into consideration. As Senator Ormonde said, markets and street trading are an essential part of the atmosphere and colour of a city. People come to Dublin and they visit Moore Street because they have heard and read about it. Molly Malone is a symbol of street trading, which is a fact of history and tradition. However, that does not mean that changes should not be made to its operation and organisation.
Although I have no difficulty with the issues as outlined in the Bill, I am concerned about their implementation. I am concerned about traders in the Dublin area, many of whom have been imprisoned, fined, etc. over the years for street trading. This makes many of us feel uncomfortable about the application of the law. There are 50 or more unlicensed traditional street traders in the Henry Street, Mary Street and Moore Street areas. They have in many ways been part of the Dublin scene for generations and we have a responsibility to ensure they are protected. However, if we introduce this legislation, are we in danger of further criminalising them, if they do not have access to trading areas and spaces? If I put forward an amendment — and I have not ruled out doing so — it will be to the Title of the Bill. It currently reads:
AN ACT TO PROVIDE FOR THE CONTROL AND REGULATION OF CASUAL TRADING AND TO PROVIDE FOR CONNECTED MATTERS
I would add the words: "outside the Dublin Metropolitan area". Will the Minister assure us that people will find spaces so they can continue their traditional street trading activities and outline how pitches and sites will be found for them? I am uncomfortable about passing legislation which, by virtue of the logistics of the lack of available space, would further criminalise these people. That is my overriding concern with the Bill. These are decent people and as the Minister said they do not give much business to accountancy firms or similar companies. They are doing their business as best they can.
It is important that the Minister reassures us that these people can be protected. Does the Minister have the power to pressurise a local authority to ensure space is created, that pitches are established and that trading areas are set out? Apart from giving them the power to do that, does the Bill entitle the Minister to insist that local authorities take that responsibility seriously?
In the inner city there is great support for the street traders as the Minister will be well aware. They are considered a focal point of the city and are also considered to be honest and decent. In communities that suffer from drug abuse, it is difficult to accept that street traders trying to earn a living will come under the full force and rigor of the law while other people appear to get off scot free. It is important to take time to explain what we are about to those who have a difficulty with it.
I am worried that the Bill would be seen as part of a continuing approach by the authorities towards what would be interpreted locally as the harassment of traders. I am certain that is the furthest thing from the Minister's mind. However, there must be satisfaction amid the frustrations for a Minister to hear, on the one hand, Senator Dardis level the criticism that the Bill goes too far on the side of the street trader, and on the other to hear me ask whether the Minister is protecting these people adequately.
Another aspect of street trading is that street traders provide a service. I do not know where people buy their Christmas trees but the vast majority can only buy them where they see them for sale at the side of the road. I do not know where Coillte has its selling points. I know the Minister in another capacity arranged for the collection of spent Christmas trees in various parts of the city of Dublin but I do not recall him being involved in the supply of Christmas trees at an earlier stage.
I would like to develop an issue raised by Senator Dardis. My understanding is that it is not intended that the Bill should be a charter for tax evasion for people who happen to be street traders. Listening to Senator Dardis, I got the clear impression that we may let these people off the hook and that if they were required to pay tax, they were not doing so. However, if the Minister's intention is to use the RSI number to check on the street trader to give the authorities a clearer profile to recognise whether the person should pay tax and that the matter is followed up on that basis, then I welcome it. That would be a much clearer arrangement. I have spoken many times on the issue of taxation. I am close to the views of Senator Dardis on the collection of taxation and I know the Minister, Deputy Rabbitte, has made similar assertions.
My understanding is that this is simply a matter of methodology. There is no point pretending street traders have the same level of accountancy procedures as the big stores in Henry Street. On the other hand, they must be required to comply with the tax laws like everybody else. I understand the Minister intends to use the RSI number and certificate as the method by which the authorities will decide how to approach the issue of taxation rather than the tax clearance certificate. I would like the Minister to respond to that.
Another issue here is that these people are not wealthy. People associate street trading with Arthur Daly, driving around in a Jaguar making lots of money. These people are barely making a living or are not making a living. They are topping up their income. Many people in the centre city, including street traders, would say that it is better to see people employed — in the narrow sense of the word — in street trading than doing nothing or being involved in some socially unacceptable activity. There are many aspects of this which must be considered. I do not disagree with Senator Dardis' precept about the need for everybody to be treated equally in terms of taxation but that does not mean that everybody must go through the same procedure. There are many features of taxation law. I said on many occasions in this House that it is time we had consolidated legislation in which we could all see exactly how the State deals with all approaches to taxation. I do not have any difficulty with a different approach as long it reaches the same conclusion.
Overall, I welcome the idea of regulation. I also support the approach to taxation through RSI numbers rather than tax clearance certificates as long as that is not a licence for tax evasion or avoidance but simply a way to identify the people and discover their level of income, allowing for follow up by the Revenue Commissioners if need be. In the vast majority of cases there will be no need. Teachers of the children of these families and those who have dealt with them through the generations know they are not well-off and do not make large amounts of money in untaxed income. If there are any in that position they should be dealt with properly but it is not them I am talking about.
The legislation may be designed to apprehend people operating on a larger scale, which relates to what Senator Dardis said. If I were to find a fault with the Bill, it would be that it is more suited to people operating on a larger scale and has massive implications for people operating on a smaller basis.
Is there an implementation date for this legislation? Do all the provisions come into operation together or can each local authority decide when provisions will be implemented? Can a local authority put the implementation of a provision on hold until it is ready to enforce it? This is especially important in the Dublin area and I hope those local authorities ensure there is space for this activity before they begin implementing the detail of the Bill, because that could cause much hardship for these people, who work outside in all sorts of weather, day after day and year after year. Theirs is not a pleasant set of circumstances.
Apart from affirming the general principle of caveat emptor, let the buyer beware, I look at this as a trade union general secretary. If employees were required to work as these traders do, there would be an outcry. I am sure the Minister has sympathy for that point. We cannot say they are the same as everyone else because they are not. They have to pack their materials out of the way every night; they have to hustle for business; they have to stay out in all weathers; and they have to be on duty from the time they start in the morning until they finish in the evening. It is not a regular or ordinary situation. It is important that it be regularised but it is also important that their operation as street traders be protected so they can be knit into the fabric of the community and society in which they live. The Minister should also insist that the implementation of this Bill in local authority areas should only take place when the local authorities have ensured there are spaces and pitches available to carry out the activity in the regulated way he wishes.
I thank you, Sir, and all the Members who contributed in a reasonable, considered and informed way and did not engage in the flights of hyperbole I had to put up with in the other House — from all sides of the Dáil, let it be said, in case any Deputies read these remarks. That debate got out of hand because one Deputy wanted a headline and the disease spread. I was accused of killing off the "Echo boys" in Cork. When a Deputy from Wexford heard that, I was accused of stopping the sale of strawberries. Then a Deputy from Mayo said the banning of religious and pious objects from Knock was a disgrace and a Kerry Deputy mentioned Puck Fair in Killorglin. On it went, none of it with any basis in reality.
There were two key points in this evening's debate. First, to devolve or not to devolve, that is the question. If this House is in favour of devolution of powers to local authorities so they can handle what they know best — and Senator Ormonde, among others, argued that was a good and obvious thing to do — many of the arguments made in this debate are appropriate to individual county councils, corporations and urban district councils. Members should consider whether they think it efficient and correct that powers be devolved to local authorities to designate casual trading sites, licence casual traders, etc. It seems to me that decisions on whether Puck Fair should be held or whether "Echo boys" should continue to be a feature of the streets of Cork are for Kerry County Council and Cork Corporation respectively and not matters for the Department of or the Minister for Enterprise and Employment. This problem has been at the heart of the debate here and more so in the other House. There was an ambivalence on the part of some Members, who thought it was good that local authorities should have more power, and this power in particular, but on other issues they would rather it was a matter for the Government or the Minister.
The second problem which characterised the debates in both Houses was the confusion of casual traders and occasional traders. Some of the questions put to me are redundant in the narrow context of this Bill although I do not mind them being asked because they may have to be addressed in the context of a revamp of the Occasional Trading Act, 1979.
Senator Fahey made a reasoned contribution, but he followed Members of the other House in discussing "fly by night" traders who disappear when the Garda pursue them, changing their pitches, etc. Those are, by definition, not casual traders and are not encompassed in the Bill. They are occasional traders governed by the 1979 Act, the task of enforcing which rests with the Minister for Enterprise and Employment and is carried out for him by the Director of Consumer Affairs. Senator Fahey and others raised an important matter but it is to be addressed in the revision and updating of the Occasional Trading Act. It is not a matter for this Bill.
I underline those two points. Senator O'Toole said there was some confusion in the debate, with people thinking casual traders are "Arthur Daly" types. There was such a perception but there were also worries about the "Del Boy" phenomenon. Senator McGowan and others have raised the question of those who appear overnight and book the Neptune Centre in Cork or some large ballroom in Donegal. They come and go and are supposedly liable to get a permit from the Department but in some cases I suspect that may not even be done. Although it is done in other cases it is probably not an adequate supervision. However, they are matters which are appropriate to the Occasional Trading Act and its enforcement. Senator McGowan dwelt on matters that are a bit particular to that part of the country. I find it difficult to envisage how I or any Minister can cope with a situation where you are offered a load of white goods for sale on the basis that they are the product of a bombed out establishment, but the establishment will not be bombed until later in the night. It is difficult for me to respond to that, but I understand what the Senator is talking about, the phenomenon of people coming from another jurisdiction to do business in this jurisdiction. I am well disposed to giving the House a commitment that we will start work on revamping the Occasional Trading Act, which is probably in serious need of it, judging from the contributions.
The other conflict that I thought was posing an unequal challenge was the question of Moore Street versus big business. As Senator O'Toole has said, it is quite extraordinary that I am being pummelled on the one hand by Senator Dardis — in far more temperate language, admittedly, than I was in the Lower House — for giving unfair breaks to the casual traders, and being accused on the other hand of being on the side of big business.
No. It is not versus big business, it is versus little business.
In the other House, Deputy Gregory went out of his way to talk about how it was in favour of big business. It is very difficult to get it right. At the heart of Senator Dardis's argument about tax clearance certificates is the positing of these two equals — Moore Street versus the rest of the regular trading community. It is a major problem.
I welcomed the intrusion of Senator Norris, not merely for all the normal reasons that one would welcome his intrusion, but for the fact that he raised the particular problems posed in this city, as compared to the preceding contributions which concerned the real problems in provincial Ireland.
The Independent Senators are normally very close to the heart of the matter.
The problems are certainly different.
I do not think I ever mentioned Moore Street.
That is precisely my point. Senator Dardis did not mention Moore Street and that is why I do not think he fully appreciates the scope of the problems in trying to frame casual trading legislation that does not address Moore Street. With all due respect to the market square in Kildare, the retention of casual trading in Dublin is an essential feature of what we are. It is part of the colour and character of the city of Dublin.
And equally so in Kildare.
It cannot be argued that the retention of casual trading in Kildare is an essential feature of the colour of Dublin.
That is the Labour input.
I accept that it may well have something to do with the Kildare complexion. However, I have to address the situation of people who have plied their trade for generations in Moore Street.
I have been asked to explain the reason for the removal of the requirement for a tax clearance certificate. I am afraid that my assiduous and hardworking civil servants couched it in such sophisticated and elegant language that the point was missed. I do not want to give offence to anybody in describing why I took that decision, but the truth of the matter is that the people of Moore Street do not know what a tax clearance certificate is.
My small shopkeeper does not know either.
The small shopkeeper does not have to get a licence to do business and earn an income, which is not to say that the small shopkeeper may not have arguments about the amounts of tax paid.
He has to get a tax clearance certificate and he has the same problems.
Let us live in the real world for a moment.
We are in the real world.
I do not know about Senator Fahey, but I know that the Leader of the Fianna Fáil Party, Deputy Bertie Ahern, certainly agrees with me that Moore Street ought to be preserved. If we agree that Moore Street ought to be preserved then we simply have to look at the practical questions posed by requiring the traders of Moore Street to produce a tax clearance certificate. They do not know what a tax clearance certificate is. I have met them and have gone through it. They have never been in the system and they ask for no more than to ply their trade in Moore Street for a very menial income. They are out in all kinds of weather. A separate problem is that, in some cases, they do not even have designated pitches.
It is not simply that they do not have expert tax advice available to them. They have never been in the system. They are not unique. There are citizens of this State — for example, from my own part of the country, Senator Fahey's area, and down in Kerry and other places — who are in receipt of considerable grant assistance from the European Union, through this State, who do not produce tax clearance certificates either. I do not hear anybody making an argument that before they get headage payments they should produce a tax clearance certificate. They produce, or ought to produce, an RSI number.
That is a totally different issue.
It sounds like game, set and match.
Some of these people will not even be able to supply an RSI number because they do not have one. If they do, I am assured by the tax collection authorities that there will be no difficulty in policing the system. Furthermore, as Senator Norris pointed out, the local authority is required to advise the Minister for Social Welfare where a licence is granted. If vigilance and supervision is the issue, I am 100 per cent in agreement with Senator Dardis about stamping out tax evasion. However, if I were to be asked in the witness box to indicate where I would start stamping out tax evasion I would not choose Moore Street. A number of other streets would occur to me first. I had to deal with the practical situation.
Senator Dardis put some serious questions to me and he is entitled to answers. Why does he think the Bill was abandoned 17 months ago when it first raised it head? It was abandoned on this issue because it was simply not capable of being implemented. Nor, I suggest, is Senator O'Toole's half-intended amendment which he waved in front of me to induce me to tell all. If we were to excise the Dublin metropolitan area that would not work either, because there are parts of that area, other than Moore Street, where, as Senator Ormonde will know, it is urgent that this legislation should be implemented. That is the thinking behind it.
Senator Norris read with great flourish a letter written to The Irish Times for publication by an author describing himself as an old friend of mine. Having regard to the contents of the letter as I heard it, with friends like that I certainly do not need enemies. However, it is true that the author is an old friend of mine, Seánie Lambe, and I am disappointed that he chose not to make any reference to all the changes I made in the Bill at his and his organisation's behest. This brings me to Senator O'Toole's question about the lot of the trading women — and they are predominantly women — in Moore Street: will they be in a worse state as a result of the enactment of this legislation? Certainly not.
There are a number of important changes. The first and most important is the amendment which gives these women an amnesty. At the moment if a person has committed more than two offences, she cannot get a licence. Street traders are regularly dragged off and landed in Mountjoy when others should be put there. Even if there is a new system of licensing, they cannot get access to those licences because they have two or more convictions. In answer to Senator O'Toole, they are operating illegally at the moment so they cannot be worse off. They now have an amnesty and can start with a clean sheet.
It is not true that a woman with a barrow full of bananas, as Senator Norris put it, will be fined £10,000. If he looked at the Bill he would see that she will be fined £50, or more correctly up to £50. I appreciate that if I was lodged in the cooler in Mountjoy for a period, I might be liable to engage in exaggeration as Deputy Gregory did in the other House. I know he will not mind me giving him honourable mention here; he would want me to do it as frequently as I can. He claimed they were all being fined £1,000 and £500. I checked and found that 92 per cent of persons convicted between August 1992 and May 1995 were fined £50 or less. If Seánie Lambe is listening in, I will respond to the letter in The Irish Times when and if it emerges.
I do not think it has been published yet.
I urge the editor to publish it because otherwise, like the ghost of Banquo, it will haunt me if I do not get the opportunity to clear it up.
They were going to publish it until Senator Norris reported it.
There are other changes which improve the lot of the people about whom Senator O'Toole is concerned. These include the requirement to display only the number of their licence. I understand Senator Fahey's point but the change was made following representations to the effect that requiring people to publish their home addresses and names on the licences could lead to their homes being vulnerable to break-ins while they were doing business in Moore Street. These are some of the realities of life in parts of urban Ireland. I am not saying it would apply in Gort, Dingle or Mallow but it is a real consideration for these people. That is why they need only display the number of the certificate. This is adequate and it will also be the situation in Donegal that one will have to produce the number of the certificate and the Garda can then chase the real owner of the licence.
I do not want to go back over the discussion we had about the difference between occasional traders and casual traders. Casual traders implies that they are a permanent feature of the landscape at a designated site on a regular basis. In their case this is more than adequate.
In a desperate plea to win Senator O'Toole's vote, I have made representations to City Hall about new pitches. This is a matter for Dublin Corporation, not for me. As both Senator Norris and Senator O'Toole said, about 40 people with no licences are trading illegally or are called unofficial traders. They are hounded day in and day out despite the fact that their grandmothers traded at Moore Street. They are in a catch 22 situation. They cannot win as the law stands. I have made vigorous representations to the county manager from whom I have correspondence. My officials have been in touch with officials in Dublin Corporation about designating new pitches for traders. They say it is easier to talk about it than it is to do it. The women say if they got approximately ten new pitches they could live with the situation. The provision of ten additional pitches is under consideration by Dublin City Hall and that is all I can say about it. The honest answer to Senator O'Toole is that there is nothing in the Bill that gives me power to require Dublin Corporation to do this. The more one thinks about that of course, the more correct it is. If this was not the case the Minister could require any local authority to do his bidding. The purpose of the Bill is to devolve powers to local authorities and allow them to make these decisions.
It is not just important culturally, as someone argued, that the colour, atmosphere and character of Moore Street be protected; it is also politically desirable. The leader of Fianna Fáil agrees that Moore Street should be protected as did former leaders of Fianna Fáil. If it ever got out of this House that anybody here wanted to adversely affect Moore Street, it would go down very badly in the wider political community. I am glad we are all agreed on that.
I surrender.
I understand the representations from florists' associations and so on but there is really no answer to Senator Norris's point. Flower selling in Grafton Street has gone on since Senator Norris was a boy, which is not that long ago, and it went on in his father's time as well. Somehow or other the florist association and that feature will have to coexist. Under the new Bill it is for Dublin Corporation to decide what happens in Grafton Street. It can make by-laws as suits it. It can even make by-laws in South Dublin County Council to provide for selling Christmas trees at Glenasmole.
It is a question of manpower.
I am quite sure that the council in particular will be exceptionally creative in applying it. On Senator McGowan's point, I have explained the display of licence numbers.
Before I reply to a point raised by Senator Reynolds I want to make it clear that all designations will only last until the existing casual trading licences and permits expire. After that local authorities will be required to make new designations under the by-law procedures in the legislation. If any new designations proposed are considered unacceptable, it will be open to the traders to appeal against the by-law proposal via the District Court. That meets Senator Reynold's fear that the existing designations only last for the duration of the existing permits. After that new ones are designated in accordance with local knowledge of local features. If somebody wants to appeal against that on behalf of, for example, the casual trading community, the facility is there.
Senator McGowan spoke about implementation. The 1980 Act provides that the Minister can appoint authorised officers. This is in addition to the powers of local authorities to appoint authorised officers for enforcement purposes. In practice, however, the Act is enforced by the local authorities and the Garda. The Bill does not provide for a continuing enforcement function by the Minister as this would be contrary to the decentralisation concept. In addition, the Bill does not impose new duties of any significance on local authorities beyond those imposed in the 1980 Act. This legislation gives them new powers and tidies up the situation.
The prosecutorial system will be more efficient, for example, as a result of a presumption in the Bill in section 3 (5). Members can see there is a presumption that a person was engaging in casual trading, unless the contrary is shown to be true. The local authorities in particular made recommendations about this. Significant additional powers have been given to the Garda under section 11 of the Bill which should meet the situation, as there are no additional impositions of any significance. Senator Farrelly's query relates to occasional rather than casual trading.
I have at least attempted to deal with the questions raised. This is not a controversial Bill; it is a sensible measure, devolving to local authorities powers of designation, licensing and supervision of the phenomenon of casual trading with which we all want to coexist. The regular trading community have rights in terms of their taxes and rates, but I do not think anybody would want to terminate casual trading. The Bill simply seeks to strike an acceptable via media between the two.
Question put and agreed to.
Agreed to take remaining Stages today.