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Seanad Éireann debate -
Tuesday, 11 Jul 1995

Vol. 144 No. 8

Casual Trading Bill, 1994: Committee and Final Stages.

Section 1 agreed to.
SECTION 2.

I move amendment No. l:

In page 4, subsection (1), after "area" to add "and includes traders who visit the State on occasions to sell their goods on stalls or in the market place.".

I am not satisfied; far from it and that is why I proposed this amendment. The distinction the Minister made between casual and occasional trading has further confused me. He pulled this new distinction out of the hat and will further confuse those who will implement the legislation.

Those implementing this legislation have additional powers but the Minister did not mention extra funding. A man came to my house and offered to paint my barn for £600. I had previously received a quote for £1,200. He had a £38,000 Landrover and a telephone in the cab and I asked him for his address, his tax number and a sample of his paint. He pulled out a leaflet from an English company — this leaflet could be picked up in any shop. The name of a very reputable company and the tax number were printed on the bottom of the leaflet. This Bill will not legislate for those people and the Minister is signalling a further way out for the many people who do business this way. These people are driving a horse and cart through the legislation.

There is a grave need to legislate for people who come to this State with lorry loads of carpets, televisions and other goods. No restrictions are placed on them, they trade on the side of the road with their televisions piled high and they advertise new sets at half price. Those televisions are guaranteed by people who do not have an address in the State. The Minister should explain that to business people in Letterkenny, Ballybofey and other towns in Donegal who are struggling to pay their tax, rates and bills.

The Minister says the casual trading legislation covers occasional traders over whom the Garda have no authority. I am asking the Minister to amend the Bill. There is no point in telling me that it already covers these traders because I know it does not. I am looking for legislation and for a positive response. We are in agreement on the necessity for this Bill; and I am looking for the Minister's co-operation to bring major traders within it. We are not talking about the person who sells a few daffodils, bananas or strawberries; we are talking about a much bigger type of client. The Moore Street traders and others covered in the legislation are small fry in comparison to the traders I am talking about.

If the Minister dismisses me and says that this is a fringe trading element that comes across the Border occasionally, he is not living in the real world. I suggest the Minister drives back tomorrow through Carrickmacross to see what "occasional" or "casual" trading means. I am shocked at the fact that the Minister dismissed my proposal so lightly and I ask him sincerely to include provision to control those who come to this State with lorry loads of merchandise and trade freely. The Minister should not let them off the hook by saying they are occasional traders, because he is giving them an out and confusing the Garda and the local authority. This Bill will not have served its purpose if he ignores what I am asking him to do.

I raised this matter earlier and I was satisfied with the Minister's response. He distinguished casual trading from occasional trading. The type of person Senator McGowan was speaking about has to be classified as an occasional trader because he has no pitch or licence, but if he decides to go to Navan or Kells he must look for a licence and then he would become a casual trader under the Bill.

I agree with the Minister that the Occasional Trading Act, 1979, needs to be updated on the basis of what has been said during the debate. I do not believe anyone is objecting to the type of situation to which Senator McGowan referred. It is dealt with under different legislation. I would like the Minister to clarify this issue. I thought he had already done so.

I take the distinction between "occasional trader" and "casual trader". The Minister explained it quite comprehensively in his Second Stage reply. However, there are traders who fall into the category to which Senator McGowan referred. I have seen people in Drogheda who own a Mitsubishi Pajero with English registration plates, selling carpets in the market. I do not know if these people are English or Irish or what is the origin of the vehicle they are driving. However, there are people who are trading casually who fall into the category referred to by Senator McGowan.

What is the difference between casual trading and occasional trading? There is a tradition in the south-east of selling strawberries by the side of the road. They are only sold during a six weeks to two months period. I presume that such trading comes under the description of occasional trading and that the strawberry growers can continue with it. Is that interpretation correct?

I assure Senator McGowan that the last thing I want to do is dismiss his argument and it is unfair of him to say that I did so. I am merely trying to point out that this Bill is about casual trading not occasional trading. I have stated that I will begin the process of revamping the Occasional Trading Act, 1979. There would be no point in my sending the Senator back to Letterkenny to tell the local Garda superintendent that, under the Casual Trading Act, he may proceed against some of the characters mentioned earlier, if when the superintendent arrived at the District Court he discovered that his actions were futile.

It is not easy to provide Senator Townsend with a definition which will apply in all cases. As Senator Dardis stated, some of Senator McGowan's points are included and are, therefore, addressable under this legislation. The strawberries example the Senator gave falls into the area of casual trading and is covered by the Bill. That will be a matter for his local authority to deal with and regulate as it sees fit. The Bill devolves the authority on the local authority.

To return to Senator McGowan's argument, if a person offered to paint the Senator's shed or hay barn for a sum of £600 — when, perhaps, it should be £1,200 — that person is not selling a product within the meaning of this Bill, he is selling a service. From a legal standpoint a contract for services is involved, which raises different issues. I acknowledge the point made by the Senator but I also acknowledge that some fairly unique circumstances are involved. I will see if it can be addressed under the revision of the Occasional Trading Act.

Amendment, by leave, withdrawn.
Section 2 agreed to.
Section 3 agreed to.
SECTION 4.

I move amendment No 2:

In page 5, subsection (1), after line 51 to add the following proviso:

"Provided that, a casual trading licence shall not be granted by a local authority unless a tax clearance certificate in relation to that licence has been issued in accordance with section 242 (as amended by section 6) of the Finance Act, 1992."

This matter was fully debated on Second Stage and the Minister has replied comprehensively. The amendment seeks to restore the original provision in the Bill in respect of the tax clearance certificate. The same wording has been used as appeared in the Bill as initiated. I apologise that I have allowed the "in relation to" disease to creep into the amendment but I took the wording from the original Bill which states "a tax clearance certificate in relation to that licence", when it should state "a tax clearance certificate for that licence".

This comes back to a question of equity. It involves, not the big trader, but the small trader — the garden centre, the market gardener, the florist and the person selling Christmas trees — attempting to compete with the casual trader. There should be equal treatment for both. There are two ways of dealing with this issue, one of which would be to relax the restrictions on people who are involved in "legitimate" activity. I do not suggest that casual trading is not legitimate activity.

I wish to correct something the Minister stated with regard to the RSI number and other sections of our community. I had the fortune — or misfortune, depending on how one looked upon it — to attend a large public meeting in Castlebar where a person in the audience asked why sheep farmers should be required to submit an RSI number. I told them that if a small builder in Castlebar tendered for a public works project he would be required to furnish a tax clearance certificate. I also advised them that this would be the case if they were in receipt of funds from the State. That statement went down like a lead balloon. My record on that particular issue will stand up to examination.

To return to the matter I raised regarding Deputy Quinn who, in his capacity as Minister for Enterprise and Employment, said on 9 March 1994:

This was a specific requirement contained in the Government decision approving the general scheme of the Bill and is a reflection of the Government's determination that the tax burden should be as equitable as possible for all sections of the community.

I do not expect Deputy Rabbitte to be bound by that constraint because he was not in Government at the time. However, it is curious that the person who is now Minister for Finance finds it necessary to support legislation of which he had a clear cut view when he introduced it. If this matter is put to a division, it will be interesting to see how the Labour Party Members vote as we go through the lobbies.

As Senator Dardis stated, we have adequately debated this issue. I do not believe there are two different points of view on it. I accept the Senator's reply on Castlebar and acknowledge it as the reason why his party and mine are unlikely to return a Member for Mayo West for some time. However, I must continue to try to make this Bill fit the reality.

With regard to any conflict between what my colleague, Deputy Quinn, may have stated previously and his current position, it was only after the publication of the Bill that the difficulties to which the legislation may give rise, particularly in places such as Moore Street, became evident. I have been very frank in admitting that this is, and always has been, the problem. We simply have had to cater for that situation. As the debate continues, the impression is being given that the requirement not to produce a tax clearance certificate is equivalent to tax exemption. It is not. No one is exempt. That is a matter for the Revenue Commissioners and the Department of Finance. Perhaps the Minister for Finance, Deputy Quinn, as Minister for Enterprise and Employment, was seeking to do something he can only now do as Minister for Finance. That is the best I can do to explain it.

I would like to raise an outstanding matter which the Minister did not deal with comprehensively in his reply to Second Stage. I asked about the administrative system he had in mind and I said I would need to be confident that it was adequate to deal with the situation.

I thought I dealt with that. An RSI number is effectively a tax number. Any vigilant authorities who want to supervise the correct implementation of the tax system have all the information they require to do so. I am assured by the Department of Finance and the Revenue Commissioners that this is a perfectly efficacious way of achieving the same objective. If, for example, one looks at the measures in the Finance Bill concerning tenants in private rented accommodation and the strategy which has been introduced to enable landlords to be tracked down, it too is a similar arrangement. It is essentially an administrative one and I hope it will produce results. I will be frank with the Senator and say that this stems from the Moore Street phenomenon. I am afraid it will not produce a tax yield of any significance anyway.

We have come to a sorry pass if we legislate for Moore Street. I accept everything said about it in terms of its inestimable value to the nation and its connection with Molly Malone whose statue was erected in Dublin, but we are getting into dangerous and muddy water if we go down to that level because, with respect, it is not the function of Government, which must think more of the generality than the particular. I accept what the Minister said about the RSI number and taxation but many of these people do not have a taxable income so the difficulty will not arise. Where there is taxable income, it should be the same for all citizens. Senator O'Toole dealt with this matter on Second Stage. There should be a unified tax system which would overcome many of these difficulties. It is unfair on people with small businesses. I do not want to go over this again and I accept the distinction but there should be equity in the Bill.

Senator Dardis mentioned the Labour Party. Would he require a 16 year old youth selling strawberries on the side of the road to produce a tax clearance certificate?

He would.

Everybody should have tax clearance certificates. I know an illiterate farmer who keeps his tax affairs in order and who has a good income.

He is not 16 years old.

I do not believe illiteracy is the issue. If I had a couple of hundred acres as distinct from a pram in Moore Street, I would probably manage even if I was illiterate. In reply to Senator Townsend, a tax clearance certificate would be required. As regards Senator Dardis's serious point about equity and that it is not the Government's job to base law on a minority or a sectional interest like Moore Street — perhaps it is not a desirable way to do so — equally it is not equitable to frame law which would trample on the pram ladies in Moore Street. They also have rights as they have plied their wares in the city for hundreds of years and we should seek to protect them. They do not ask for anything from the State. The records show that they are not in the system and, believe it or not, they do not draw social welfare in most cases.

If I was to introduce a programme for tax evasion, I would not start with the pram ladies in Moore Street. It is not as if Senator Dardis could argue — I know he is not doing so — that they are the only exception in the country; there are others. I instanced the case of headage payments to farmers getting substantial transfers from Brussels. Yet there was such a brouhaha when the notion of a tax clearance certificate was mooted that it was killed off. There may or may not be practical reasons for that, but I will not open that debate tonight. I do not believe the Senator should press an amendment which has been motivated by trying to protect part of what is considered to be the character of the city.

Amendment put and declared lost.
Section 4 agreed to.
Sections 5 to 18, inclusive, agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.

An Leas-Chathaoirleach

When is it proposed to sit again?

At 10.30 a.m. on Wednesday, 12 July 1995.

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