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Select Committee on Enterprise and Economic Strategy debate -
Tuesday, 13 Jun 1995

SECTION 2.

I move amendment No. 2:

In page 4, subsection (1), line 16, after "area" to insert "and 'Dutch auction' means a sale of goods in which the price is reduced by the auctioneer until a buyer is found".

This section deals with the areas to be excluded from the provisions of the Casual Trading Act. One of the areas to be excluded is a Dutch auction, and I agree with that. My amendment seeks a more precise definition of a Dutch auction and to insert "and 'Dutch auction' means a sale of goods in which the price is reduced by the auctioneer until a buyer is found".

My proposal of the amendment derives from an experience I had in this committee during the consideration of the apprenticeship levy legislation. I proposed an amendment at that time which included the word "multiskilling". The then Minister informed me that I could not include that word because it was not suitable, would not be acceptable to the parliamentary draftsman and may be questioned later because it was too vernacular. If "multiskilling" is vernacular then "Dutch auction" could also ben deemed vernacular. For that reason we should be more precise.

If the vernacular has not visited the Office of the Parliamentary Draftsman or the vocabulary of the Supreme Court, we should use clear and classic English and that is what I am attempting to do in this simple amendment. The Supreme Court may have to interpret sections of this Bill, unless we are very lucky, and I do not want them to come back to us and ask what exactly we meant by "Dutch auction". We should state that and include it clearly in the Bill from the outset. That is what I am asking the committee to agree to. It is very simple.

Deputy Quill cannot be expected to recall what she said on 17 May 1994. On that date she advanced an identical amendment. The then Minister, Deputy Ruairí Quinn, agreed to take it on board. She indicated this was acceptable and the amendment was, by leave, withdrawn. I undertake to come back to this matter on Report Stage, as did the then Minister. This may short-circuit the issue. Her point is well made and I accept the thrust of it. My officials want to look at the precise drafting.

Amendment, by leave, withdrawn.

Amendments Nos. 3, 5, 6, a6a and 6a are related and may be discussed together.

My amendment is very specific and is smaller in scope than the others. It is worthy of separate consideration.

The amendments are listed this way for discussion because they are interrelated.

I move amendment No. 3:

In page 4, subsection (2), between lines 17 and 18, to insert the following;

"(a) selling of newspapers on the street or in such public place by a news vendor who is not the owner of a retail premises,

(b) selling of strawberries and such like seasonal home grown products.".

In this amendment my party and I seek to exclude the activities mentioned from the provisions of the Bill. The first is the selling of newspapers in certain circumstances and the second is the selling of strawberries and other home grown products.

This matter was the subject of discussion on the previous occasion in May 1994. The then committee made clear that it was in favour of the decentralisation of powers to local authorities and that they should have the say on what ought to be appropriate in their cases to be decentralised. One could envisage Wexford County Council deciding to exempt strawberries. Deputy Hugh Byrne agrees with this in the case of the sunny south-east. Mayo County Council may want to exempt the selling of rosary beads, scapulars or other religious objects.

The merit of the legislation is that it decentralises to local government the power to make the decisions most appropriate to it. This view was clearly expressed in the debate on the last occasion by Members of the committee. I hope this is still their view. If it is, the matter should be left to local authorities. There is no point in trying to sell strawberries on the side of the road in Achill because they do not grow there to the same extent as they do in Wexford. I suggest that we confirm this position.

I welcome the amendment and the Minister's reaction to it. Wexford strawberries are sold far beyond Wexford. I recently saw some being sold in Meath, Galway and Dublin. The local authorities in these areas would also have to accommodate our strawberry sellers. This business is mainly carried on by smallholders, is seasonal and lasts for three to four weeks. I agree with the thrust of the argument.

On a procedural point, I was informed we were beginning the Bill ab initio. I was asked if I had any amendments to table. I accept a good deal of this ground was already covered but we had a different committee and a different Minister at that time. I was asked by the Bills’ Office if I had any amendments to table and was given the clear impression we were resuming consideration of the Bill ab initio. I submitted this amendment, not for it to be dismissed on the grounds of what was said last year but to be considered fully by this new committee and to be responded to by a new Minister. I understood that was the way we were discussing legislation.

I have already ruled out this at a previous meeting. All the previous amendments fell with the lapse of the last committee. The new committee is obliged to re-enter amendments in the names of the same Deputies or of different ones.

That is satisfactory. I may come back to speak on my amendment.

I wish to raise a point of clarification about what the Minister has said. He naturally prefers if we could shortcircuit the debate. We spent about two hours in the last committee on this series of amendments. This discussion boiled down to the question of whether the committee wished local authorities to have the ultimate discretion of deciding on matters of importance to individual Members of the committee or whether it felt the Minister and the Oireachtas should exercise their rights and entitlements to make a decision on what areas were of sufficient importance to be included or excluded.

We had not come to a decision at that point, but there certainly seemed to be a momentum towards the view that local authorities were parsimonious in providing for the exclusion of certain areas from the provisions of casual trading legislation and that they wanted to batten down everything. Many Members felt their local authorities would not be generous in areas which are regarded as being of considerable importance, such as the selling of strawberries and newspapers. I do not know if any decision had been made on this. We could spend another two hours discussing this but would be faced with the same question of what should or should not be included. The general opinion the last time was that there was a desire for a greater number of specific areas to be excluded. This is the context of my amendment. It refers back to the 1980 Act and lists those which were considered appropriate at that time to be excluded, in the areas of horticulture, confectionery, fish and so on. I can see us going around this issue for two hours and not coming to——

Some of us are new to the Bill.

We all went through it before. It is the principle of whether we want the local authority to conduct the business or whether we want a larger list inserted into the legislation.

My memory is not as good as that of the Minister of State and I do not have the record with me. However, I remember what I said at the meeting of the previous committee. I was not thinking ahead as to how a local authority might act. I felt an obligation to represent people such as those selling strawberries in Wexford, newspapers ona street corner in Dublin or whatever. I have listed various categories, including people selling colours outside football matches to supplement their income, which is even more topical now than it was then.

I feel that such operations should be excluded from the provisions of this Act. I do not see any contradiction between that and interfering in any way with or adding to the powers of local authorities. If we exclude some of these now and give local authorities the power to add to or take from the list in their area, they can do so. For example, newspapers were excluded and we are now saying that they should come under the Casual Trading Act. We are making a clear decision in relation to those people and we are not, as the Minister of State would have it, shoving it all onto the local authority.

If we ignore these amendments and accept the Minister of State's proposals, we will be changing the law and including categories such as the selling of newspapers under the Casual Trading Act. We are also allowing the local authority to then remove them if it so wishes. I do not see why we should include categories which up to now were excluded. If we wish to act in the interests of local democracy, local government and so on, then why are we doing that? Why do we not leave things as they are and let the local authority add to the list if that is the issue?

These amendments also bring to light a major difficulty which I have with this Bill, which is that it is totally indiscriminate. For example, some of these activities involve very big operators and there is also a whole legion of tiny operators. It is somewhat like the drink driving legislation where if one goes over the limit one is hit with a sledgehammer regardless of how much one is over the limit. The whole Bill is completely indiscriminate and makes no attempt to distinguish between a woman with a few punnets of strawberries and a man who comes into a town with a trailer, takes over the town and goes off with his profits without paying anybody. The Bill is flawed for that reason. I do not claim to be an expert on this and if what I am saying is not the case, I would like to hear the Minister of State present the other side.

I am all in favour of local government and I am a member of Dublin City Council. However, I was not elected to the Dáil to operate as a member of a local authority. We are making decisions here and we cannot cover over the fact that we are making them by saying that the local authority will decide whether to leave it that way. I hope that the mover of amendment No. 3 presses it because I intend to support it. My amendments are very similar and I will be pressing them.

The Minister of State said that it will be at the discretion of a local authority. I am worried that that could be on an ad hoc basis. Most of the roads concerned come under the National Roads Authority, which would have a say in that. There is a real problem in many areas and local authorities had to take strong action about the sale of gates, feeders, feeding troughs and so on. Local authorities acted under the 1993 Act and moved them from the road. However, I would worry about giving the discretion back to local authorities.

This committee is called the Select Committee on Enterprise and Employment. If one asks people who are trying to promote enterprise or generate employment about the greatest impediments to their activity, they will point to taxation and red tape and bureaucracy. I said on Second Stage that I support the general thrust of this Bill and I have stated the position of myself and my party in that respect. In overall terms I support much of what this Bill seeks to achieve. However, I believe that we are not doing anybody any favours by visiting too much bureaucracy on those who are trying to turn a shilling and create a job.

The national Government should set the headline in this regard and not leave it to the discretion of other bodies such as local authorities. We should seek to scale down bureaucracy wherever we can from the outset. Requiring people who sell strawberries on the side of the road for four or five weeks during the summer to apply for a licence under the Act and to display it in their place of business is an overdose of bureaucracy.

That is even more so in the case of those who sell newspapers on street corners and who, as I said in my amendment, are not the vendors or the retailers. I refer specifically to a group of paper sellers in my city of Cork who are known as the Echo boys. They start work at 14 years — some of them work until they are 64 years but they are still called Echo boys. They sell morning and evening newspapers to passing motorists and pedestrians for a pittance. To require these people under this legislation — and if the Bill becomes law in its present form this is what will happen — to apply for a licence and display it in their place of doing business is nonsense. It only serves to bring all law into disrepute. To think that we would even seek to put that into legislation drafted nationally reduces us to the level of a joke.

I see nothing wrong with seeking to draft a list of exclusions or exemptions, as has already been done in section 2. Selling by Dutch auction is exempted, for example. Other trading activities are exempt. The Minister did not think it necessary to give discretion on those items to local authorities. The Minister thought it was appropriate to include those exemptions in the Bill. I ask the Minister to exclude the items mentioned in my amendments in a similar fashion. If it does nothing else it sends out a strong statement to local authorities that we are not in the business of creating unnecessary bureaucracy which would stifle enterprise.

Assuming that the areas I seek to exclude are included and that it is left to the discretion of local authiorites to bring in by-laws, which the Minister might argue would look favourably on my amendments, there will inevitably be a time lag between the enactment of this legislation and the time when local authorities see fit to draft their by-laws. There could be a situation where the legislation is enacted and the different local authorities will move at different times and different paces and so people who sell papers, the Echo boys, will be required to have these licences and to display those licences in their places of work.

I know of no situation where a by-law can be made to come into effect on the day the parent legislation is enacted. For these practical reasons I appeal to the Minister to exclude street newspaper sellers and sellers of strawberries and such like seasonal products. By all means let other items to be dealt with by local authorities, but let us include these items in the Bill. My amendments make a lot of commonsense and I know of no sensible citizen who would think otherwise. I ask the Minister to accept my amendments and I ask the committee to support them.

Chairman, unlike the previous speakers who have been here before on this issue, I have not given it a lot of thought. I am only now catching up on the debate. If the Minister may by regulation amend, whether by the addition, deletion or alteration of classes, the classes of selling specified in subsection (2) then presumably the option is open to the Minister at any time to compile a list of alterations or additions to include strawberries, if he feels strawberries should be included, for Wexford. We should not pick on particular fruits, because if we do the raspberry growers will feel that the Progressive Democrats are being unfair to them by specifying strawberries. The corn on the cob sellers in Wicklow who are producing corn——

The amendment states "And suchlike seasonal home-grown products". The Deputy has not read it.

I have read it. However, we do not want to get into academic debates about whether corn on the cob is indigenous to Wicklow. By specifying these fruits we are doing precisely what the Deputy has argued against, we are adding an additional layer of bureaucracy. Are we going to have turf wars as to the exact meaning of the phrase "local produce"? I would rather leave the Bill as it is and let the local authrities deal with exclusions to the legislation. I am amazed at the sense of fear of the powers of local authorities expressed by Members here, most of whom seem to be members of those local authorities. Many people have argued strongly in favour of the local authorities having more powers devolved to them, but now for some peculiar reason those people are balking at the idea of the powers being devolved. The Minister started by saying that he is a democrat. Deputy Gregory spoke in terms of enhancing the democratic process. Surely there is nothing more enhancing to democracy than devolving central authority powers to the local tier for them to bring in regulations or by-laws as they see fit.

The Wexford strawberries are very popular on the menu today.

I support Deputy Quill. I agree with devolution to local authorities. However, as I understand it, under this legislation the local authorities will issue the licences. That is the main thrust of the Bill. We are seeking to make it quite clear to the local authorities what is to be included and what is to be excluded. I can see that from time to time at national and local level a particular line could be taken about particular products, some of which are mentioned in these amendments. I support the amendments.

I take it that we are dealing with all the amendments listed, not just Deputy Quill's amendments. For the record, I have listed various other items such as newspapers, magazines, wrapping paper, printed matter. I want to give an example to some of the Deputies here who may not be familiar with inner city life in very poor areas of Dublin which are very close to the commercial centre of Dublin. This is the reality of this Bill, I want to try and get some sort of response from Government on it. At Christmas people living below the poverty line go out and sell bundles of wrapping paper. I am sure everybody here has bought his wrapping from these people on Henry Street or Grafton Street. It makes these people's Christmas a little more comfortable. This Bill would force those people off the street, it would force them to turn to something else. These are law abiding people who feel that what they are doing is within the law; it is honest, it is work, they are out in all weathers but they make their few shillings. I do not have to remind Members of the other side of life in the inner city, where people other than these decent people have turned to selling heroin and other drugs on the streets and are making fortunes. I have raised this since I came into the House and little or nothing has been done about it. This legislation will crucify women who are trying to make money by selling such items and that is not acceptable.

I had hoped that when this came to our attention these people could come here to tell us the reality of what happens to them when they are selling wrapping paper, which is that the police throw them in a van and bring them to Store Street. That is why I put down that amendment. I did not draw up a list of items which would look good as amendments, as Deputy Byrne seemed to think. There are specific reasons for all of them, but I used that one as an example. The selling of wrapping paper must be excluded from the Bill. It is an important part of life in the centre of Dublin for many people whom this State is not catering for under the social welfare system. Deputy Byrne was worried about bureaucracy. I would have thought the more we exclude from this legislation, the less bureaucracy we would have.

That is right, that is what I had in mind.

It is the opposite of what the Minister's colleague argued. He also suggested people like myself had a fear of devolving power to local authorities. As the Deputy is well aware, I am involved on a local authority and I have no fear of devolving power to it. I am making the case as clearly as I can; perhaps I am not as clear as I should be, or perhaps some people are not listening. I am not here as a local authority member. I am representing these people at this committee on this Stage of this Bill, which, as I said at the preliminary meeting, will affect them drastically.

I am open to correction on many of these matters because Bills are by their nature difficult to follow. The Minister referred to devolving power to local authorities. My understanding of the proposals in this Bill is that the Minister may by regulations amend by addition, deletion or alteration, under section 2 (3), whereas under section 4 a local authority may add to the classes of items. That does not appear to be a total devolution of power to the local authority, but perhaps the Minister will respond and explain when we come to that point. It does not seem to give the local authority the same degree of power as it gives the Minister, since he may add, delete or alter the various classes.

I mentioned some of the items I want excluded, but the proposed new subparagraph (g) of my amendment No. 5 provides that the Bill should exclude any person whom the local authority knows to be a traditional street trader until such time as that person is offered a reasonable location from which to trade. Technically, that may not be the best place to put in such an amendment, but presumably if it appears at that point it has been accepted to go in there.

There is a problem in the centre of Dublin in that people, mainly women, have for years, as they see it, been selling on the commercial streets around O'Connell Street. When the 1980 Act was introduced they were not given pitches from which to trade and consequently they are now what we call unregistered and what the corporation and the police can illegal. They are illegal by default, because they have not been given places from which to trade.

When the local authority tried to designate spots for these people, some big businesses unfortunately campaigned against them. They lobbied local authority members and used their power against people who are small in number, poor in circumstances and do not have the same influence. The result is that these people are not represented and that is largely the reason Deputy Costello, Councillor Christy Burke and I ended up in prison. I was not in the Dáil for the 1980 legislation but I am here for this Bill and I want that problem addressed in whatever way possible.

I mentioned the public representatives who went to prison; but, unfortunately, week in week out I call on the Governor of Mountjoy and the Office of the Minister for Justice to get women such as these released. People talk about overcrowding in Mountjoy and the huge crime problem in Dublin, while the resources and time of a large proportion of the gardaí in the centre of Dublin is spent constantly hounding women, bringing them to police stations, charging them, bringing them to court and taking them to Mountjoy. The job of the Governor of Mountjoy is made all the more insufferable as a result.

This is a total waste of resources and is completely wrong and we have an opportunity to address these issues in this Bill. While I do not wish to be in any way antagonistic to the Minister, I took exception to his earlier statement that this was a simple matter, because it is not for these people or for myself and the others who represent them. We can either ignore this, as many have done in the past and will choose to do now, but the struggle will continue and the opportunity——

I am anxious to call other Deputies and I have given the Deputy plenty of time. This is beginning to sound like a Second Stage debate.

I am grateful to you, Chairman, for allowing me to speak as long as I have, but I emphasise this is not a simple matter for many people. I hope the various amendments are not simply cast aside to let the local authority deal with everything. We are making decisions and we should deal with it in that light, rather than looking at what a local authority may or may not do in the future.

I support the amendments put down by Deputy Quill and Deputy Molloy. The Evening Echohas been sold in Cork for a long time; it is part of our heritage and is identified with the city. I support the amendment on selling newspapers on the street. It has a lot of merit and I support it as a Cork person from the more rural part of the county.

That amendment also mentions the selling of strawberries, which has been abused. The amendment refers to the seasonal selling of strawberries. When I stop along the road to buy strawberries I often find they are Spanish. We have van drops at those points. That is not in keeping with the spirit of this Bill because we are talking about selling strawberries, which is a seasonal home grown product.

Where are the boys of Wexford?

There is an abundance of strawberries at this time. This Bill is good, but the amendments are too generous. It is important to protect street traders and this is a matter for the local authority. Wexford County Council is influential in this area and it has legislated to help the strawberry growers. However, we are not helping the strawberry growers if we encourage foreign imported products. We must accept the guidelines under the Maastricht Treaty, but I am familiar with the abuses which exist in this area.

The amendment mentions "selling newspapers, magazines, wrapping paper and other printed material". This helps the local person who inherited the business from previous generations — like the turkey and goose markets — to make money at Christmas. They trade on a once-off basis and we must be generous in this regard.

I am concerned about the big operators who supply these people because they have a hidden agenda. The people who Deputy Gregory and Deputy Quill represent are genuine, honest and decent people. However, outside influences play a part and if the local authority does not have enough power and influence over the licensing area, it will be open to greater abuse. For that reason I urge the Minister to exercise caution.

Amendment No. 6 states: "any person whom the local authority knows to be a traditional street trader until after such time as that person is offered a reasonable location from which to trade". It is important that a stall is not set up in the sight of a trader or shop owner because that would lead to competition. The amendment is weak in this regard. It is unfair to allow a stall to compete side by side with a business in a trading area. That should not be allowed because the other man is a ratepayer who pays taxes and who probably employs people. It is not fair to allow a street trader to trade side by side with a legitimate trader. That is why I expressed reservations about this amendment.

Deputy Gregory had made the strongest case yet in support of the Minister's suggestion that powers should be devolved to the local authorities. He was right when he said that Dublin is different and that the problems encountered there are different from the problems which I or any rural Deputy would encounter in county towns, this measure would give discretion to the local authorities to examine in detail the difficulties regarding traditional selling to which he referred.

I agree with Deputy E. O'Keeffe about selling strawberries. We are talking about seasonal produce being sold on the side of the road. Someone correctly said that this happens for three or four weeks of the year. Since when did imported strawberries become a seasonable product in the month of November?

It would be a little cold in Ireland.

I do not see anyone selling them on the side of the road.

If people do not see this happening, they should not drive because they are either not watching where they are going or they travel on the train all the time.

They are sold on the train too.

As regards newspaper vendors, who determines who sells on which corner? It would be interesting to know the answer to this question because families have determined it in this city for generations and no one is allowed to move to the particular corner. The situation is not cut and dried. The local authorities should have power in this regard. The Minister must determine if it will be a reserved function or an executive function of the local authority. Deputies, like myself, who are members of local authorities would have no difficulties with a reserved function because they would be able to put forward their case as to what is or is not traditional selling in each town or city. Deputy Gregory made a strong case in favour of the local authority determining what is or is not traditional and what should or should not be sold.

There is general agreement that the last legislation dealt with matters in a way which was not anticipated. Some people were charged for carrying on their normal day to day business because it was deemed to be a crime. How far did we get the last day on Committee Stage?

As far as here.

It fell then.

Perhaps the Minister could give a better explanation of what he has in mind. I am not sure if he said the last Minister heard the Members' views and that he would consider changes on Report Stage. Is that correct?

He will now leave it to the local authorities.

That is what he is suggesting.

That is fine up to a point, but he has excluded some categories. The Minister is issuing guidelines to local authorities which will make people believe that he must have had something in mind when he put this on paper. They will then feel they must accept what is coming from on high because it is thought out in detail.

I am happy to allow local authorities to deal with this issue. Many of the points made show that each local authority may have different rules and regulations for different things. We need control in this regard. There is no point in criticising it from the point of view of bureaucracy. We are talking about Ireland and Dublin, not Bombay. One does not want peddlers to peddle their wares at every street corner or on every street. We must have control in this regard and we must have a balance between control and bureaucracy.

People mentioned strawberries. No one objects to people selling newspapers or wrapping paper. We would like to see them excluded. I am doubtful about flower sellers because in Dublin some flower sellers are not struggling to make——

Molloy Malones.

——money to reach the poverty level.

The Deputy is not familiar with that.

I would like to see some of their bank balances because they would be impressive.

Amendment No. 6 mentions "other printed material". That could cover a multitude of things. Any Member who is on Dublin City Council is aware of a proposal from a large department store, Arnotts, to control what it sees as a nuisance — those who engage in casual trading outside its shop premises. In this context, "other printed material" could take on a meaning which we could——

That was excluded under the 1980 Act.

It is difficult to pass a law which will make sense and stand up in every part of Ireland. In ten years' time people will say it was never meant to be twisted in such a way. I accept that Members are concerned when the Minister includes some exclusions and leaves out others. I am 95 per cent happy to allow the local authority to decide most issues, perhaps the Minister could explain why he included some exclusions and did not go a little further to alleviate our concerns.

This is close to the nub of the problem. There are three areas of exclusion under casual trading, and technically it appears to include everything else. It does neither. The definition of casual trading is, therefore, inadequate because it could be applied to virtually everything. Section 2 (1) states that casual trading means: "...selling goods [all trading is selling goods] at a place... to which the public have access as of right...". By and large, most trading can come under this definition. It thus creates confusion because it is not specific or adequate. It is the same definition as that contained in the Casual Trading Act, 1980, which was also inadequate.

The question then follows as to what is or what is not to be included? This is at the heart of the matter. What is not to be included is to be at the discretion of the local authority or of the Minister, who may amend the classes of selling specified in the Bill. The local authority may also add to the classes of selling specified in the Bill. Section 2 (2) (b) states that casual trading does not include: "selling to a person at, or at a place adjacent to, the place where he resides or carries on business,". Why should it not include this? Many hamburger vans and ice cream operators travel around the city selling at places where people reside or carry on business in employment. Should these not be licensed also? Why should they be excluded from the definition? Either everything is subject to the local authority or it is left open. Either we go back to the comprehensive list set out in the 1980 Act that nobody disputes, and which I propose to include again, or we leave it open to each local authority and to the Minister, as he or she deems fit, to determine what is appropriate to come under the designation of casual trading, be it licensed, regulated and so on.

This is the nub of the problem we face. Various Members will have serious matters of concern that they consider to be appropriate for exemption from casual trading, while others will believe that they should be included. The examples cited with regard to Dublin are serious. A huge category in our prison population consists of casual traders, unlicensed casual traders or casual traders who have received a permit from the Department of Enterprise and Employment but have no designated site from the local authority. The two are pulling at odds, resulting in people being criminalised through no fault of their own but arising from the manner in which we have conducted our business. It is very important, therefore, that we get it right this time.

I do not want to see us in a situation where we find ourselves once more with similar problems. For example, this morning, Deputy Gregory and I attended a meeting on Coles Lane, where the local authority had agreed that there be a designated site for another casual trader and where the local business community objected. A fire officer took measurements and the local business community obtained a recommendation that the site not be allowed. It had opposed every previous site, had gone to court and had people sent to prison. Eventually, it lost its court case and 12 designated sites have been established; but now the whole process is beginning again.

It is one matter if one could be satisfied that the local authority could do its business and that the wishes of the local community could be taken sufficiently into consideration. However, it must be remembered that with the local authority, it is the settled business community that will always take precedence. Where people trade from sites — there are approximately 500 designated sites in this country — one will find that there will be constant criticism from the settled business community because they will always perceive that every and any casual trader is a threat to their business and profit making. There are two opposed forces and the local authority, which obtains most of its income from the commercial rate, from the settled business community, will naturally be bound to take a specific position of support for and cognisance of the views expressed by this community.

This has been the experience to date. If, therefore, we leave it exclusively to the local authority, we will find ourselves in a situation where these conflicts will arise again. Warts will not be allowed in the system. There will be a tight organisation by the local authority and anything that interferes or is perceived to interfere with the business community will get the knock. Chairman, are we dealing specifically with amendment No. 3. Are we addressing the related amendments?

You can, if you wish, speak to any of the amendments that are grouped.

The provisions of amendment No. 3 are included under my amendment, which contains all the possible exceptions that are covered. With regard to the selling of agricultural or horticultural produce, including live-stock, strawberries are sold widely and not just in the areas in which they are produced. Approximately half of the counties along the east coast sell strawberries at a seasonal level. With regard to livestock, the terms of the Bill would effectively mean that any farmer going to the pony fair in Connemara to sell a pony must have a licence. Similarly for the fairs in Maamcross in County Galway or any of the other fairs. This does not include Smithfield, which is not a market site, as selling sites there must be established by statute or franchise. Is Smithfield exempt from the provisions of the Bill? It is not included under the terms of the original definition provided by the Minister——

It is becoming clear that the Bill will be the end of civilisation as we know it.

I have a fear——

Minister, I will have to give you a lengthy opportunity to reply. This is not a Second Stage discussion. We have spent one and a quarter hours on this amendment. At this rate we will be here until Christmas.

This is the nub of the Bill.

It is the central issue in the Bill.

There are more important issues to be addressed.

This is an important Bill, as the Minister is aware.

It is very complex.

The Minister said it was simple.

It is complex. One man's complexity or one woman's complexity is perhaps another person's simplicity.

We are broadening the Deputy's horizons.

One man's simplicity is another's man's complexity.

In the transaction involving the selling of an animal, the persons selling would be required to be licensed as a casual trader if the proposed legislation is now to cover all agricultural or horticultural produce, including livestock.

With regard to the selling of sweets, confectionery, cooked foods and all the items that can be sold from a tray, basket or trolley, such as football colours and fruit that might be sold outside Croke Park, or, indeed, at all the Gaelic, soccer and amateur league games that take place throughout the country, there is a constant selling of such items. Remember it is not just football, Gaelic games and soccer. In the summer season there are rafts of summer projects which have stalls of confectionery and ice cream and so on. Does all this now have to be licensed? Can we not exempt the selling of sweets, chocolate and the like? All of it is there now without condition.

In relation to (a) (6) (a) (f) and the selling of ice cream, biscuits, cornets, newspapers and periodicals, look what is happening today outside the Dáil. The Irish Press workers are selling a news sheet. They have been selling it for the last number of weeks. I presume they were not licensed. The Garda did not come near them. Effectively, they are now included in this legislation. With The Big Issue, which is on sale in various corners of Dublin and other areas, vendors who are homeless and unemployed get half the proceeds. Effectively, they will have to be licensed too along with casual traders. Therefore, there is a vast array of people involved. The Legion of Mary sell beads, scapulars and pious medals on the corner of North Great Georges’ Street every Sunday and the same occurs outside every church in the country. At the end of Mass, priests advertise magazines like The Tablet which are on sale outside the church.

The Tablet is a Catholic newspaper.

Pardon my ignorance.

You learn something new every day. Looking at (a) (6) (a) (g) ".... the selling of fish by the person by whom, or a member of the crew of the boat from which, they were caught....". Is there any harm in a few fish being sold at the quay rather than going to the market? If someone wants to go out and buy it fresh at the boat, must the vendor get a licence? Can the Chairman not drop down to Ardee some day and pick up a couple of herrings?

He prefers to go to Drogheda.

If I did that, they would be sending me to another institution in Ardee further down the road.

Is there any harm in that? Is there any reason why that should now be included in the list of exempted areas when it was included in the 1980 legislation?

There is a jinx on this Bill.

Finally, (a) (6) (a) (h) "selling that to market or fair, held in pursuance of a market right.'.". I have referred to that already. If that is now one of the areas to be again included, must we look at all the traditional fairs around the country — Ballinasloe Fair, Puck Fair in Killorglin, etc. — and will they go out of existence? How will that operate? Of the original list of exemptions that were included, the Minister has held on to three and deleted five further ones. If he retains the existing accumulation of exemptions, it will cover the concerns being voiced here today.

What about your own?

A conflict arises for local authorities. Rather than being in a position to be generous in these matters, they find themselves in conflict by virtue of the commercial rate in many cases.

In conclusion, this is one of the areas at the nub of the question of whether we should have a clean slate and leave it all to the local authority. That is one way of doing it. If that were the case, the Minister would want to further amend the areas he has already. He can exclude those or compile a comprehensive list along the lines of the 1980 legislation.

I support amendment No. 3 in the name of Deputy Molloy, the "....selling of newspapers on the street or in such public place by a news vendor who is not the owner of a retail premises,....". In order to illustrate my point, will the Minister enact the kind of law that will require the local authority to issue licences to 150Echo boys who operate on the streets of Cork? Will they now need licences? Will they be required to display licences?

Honestly, I got the question.

Will the Minister ask the local authority to designate 150 spaces?

This must be for "Oireachtas Report." I cannot think of any other reason why we are going on——

There should be 40 per cent women anyway.

I merely make the point to illustrate the absurdity of what is being proposed in the legislation that a local authority in a city would be required by law to designate 150 spaces to allow people to sell newspapers on the street, morning and evening. If that is not bureaucracy gone to lunacy, I know not what lunacy means.

I look forward to what the Minister has to say. If Deputy Costello assures the committee that amendment (a) (6) (a) is what was in the 1980 legislation, I encourage the Minister to amend the legislation. Deputy Costello seeks to extend the legislation as proposed by the Minister under section 2 to include certain areas. He asks for its extension to (d), (e), (f), (g) and (h) in order that casual trading would not include any of those items. I am particularly concerned about item (d) when he speaks of the selling of agricultural or horticultural produce, including livestock.

There is a place in Dublin called Smithfield and a lot of people are doing their best to have it closed down because of the unrestricted sale of animals there, from ponies and horses to chickens, hens, cockerels and the like. I cannot imagine the Minister intends to accept that amendment. It would remove the casual trading obligations from these people. Talking of lunacy. The lunacy of accepting this might lead to the Smithfield market, for example, selling not only ponies and horses, but also sheep, goats, cocks, hens, calves, bonhams and everything produced on a farm in an unrestricted area. It is crazy. I want the Minister to try to put the whole issue into context.

I regret saying the Bill was a simple one. In fact, I did not say that. I said it was a straightforward one but I regret even that. I have now been accused in the nicest possible way of everything from being easy on heroin pushers to attacking our heritage, to undermining the Connemara Pony Show. It seems we are in for a long hot June if Deputies who know better or ought to know better continue making speeches like that. I do not deny anybody their couple of seconds on "Oireachtas Report" or whatever they are playing for, but most of the arguments advanced here are appropriate to Dublin City Hall. That is where the discussion should have taken place; not here.

I am not soft on heroin pushers; I do not want to attack our heritage; I do not want to put the Evening Echo sellers off the streets of Cork; I do not want to terminate the Connemara Pony Show; I do not want to stop the Ballinasloe fair; I want the Puck Fair of Killorglin to continue; I want to see Irish strawberries on the side of the road, and if there are any priests giving out tablets, as some Deputy feared, they should stop it — enough of them are being given out around the city. I thank Deputy Noel Ahern for putting a dose of cold water on the matter and bringing us back to reality.

I did not say anything.

I made the foolish presumption that when people previously concluded they wanted to decentralise powers to local authorities, especially since some of those same people are here, I thought they might hold the same view as they did a year ago. If they are in favour of decentralisation then they ought to be in favour of the Bill as drafted. These questions are a matter for the local authority.

By definition, City Hall in Dublin cannot make a decision about the Echoboys on the streets of Cork, but Cork Corporation can. If it is a matter as fundamental to Cork as the Echo boys, they will be an exempt class. There is specific provision in the Bill under subsection (4) for the local authority to add any classes it thinks appropriate to its situation and then a licence is not needed. The long emotive contribution about my killing off the Echo boys is a nonsense.

This is all predicated on the belief that the committee believes in decentralisation. That is what the Bill is all about. If we do not agree on that principle, which was agreed on Second Stage, we have admittedly a new situation. If that principle is agreed, then the local authority is the place for it. I cannot make decisions about the Connemara Pony Show; that is appropriate to Galway County Council. I do not want to see anything done to impede the Connemara Pony Show.

A case has been made for Dublin at some great length. It is fair for Deputies to use the opportunity to ventilate the causes of their various constituents, especially in deprived areas of Dublin. It is not true that wrapping paper sellers will be put off the street.

That is a matter for Deputy Gregory, Deputy Costello and Deputy Eric Byrne as three councillors of Dublin City Council, if they have the guts to make the decision they ought to make, to use the Bill and implement it.

I am not disposed to accept any of the amendments. I agree with Deputy Noel Ahern — one cannot create Bombay conditions in Dublin or elsewhere in Ireland. Something which is endemic to our culture, whether it is trading in Moore Street or the Connemara Pony Show or the Puck Fair of Killorglin, can and will be protected under the Bill. There is no doubt about that.

Deputy Gregory asked if there is a distinction between the powers in subsection (3) and those in subsection (4). The powers are the same as the Minister's, and the local authority can add classes as it chooses.

They cannot delete the ones the Minister has already included.

Why would the Deputy want to delete them? We have spent all day talking about adding to them.

For example, the one to which Deputy Costello referred: "selling to a person at, or at a place adjacent to, the place where he resides or carries on business." That means business people are excluded and the local authority cannot interfere with a business.

I did not interrupt anybody for an hour and a quarter——

I am just trying to help.

Deputy Noel Ahern asked and Deputy Gregory is now asking in a different fashion, what is the rationale for three areas of exemption. The three areas of exemption are sensible and would have common consensus. I do not envisage any local authority wanting to include the first category, auctions, the second category, door to door selling, and the third category, charities. I do not see any dispute on that.

Are we to bring about a situation where the members of a residents' association could not go around door to door to sell tickets for the residents association? I do not think so. It is sensible that those three areas are exempt. A local authority that has a particular tradition in its area, like the strawberries in Wexford, will make provision for that.

That is the nub of the issue. On the one hand, we want to devolve powers to the local authorities and, on the other hand, we do not want to do that. Deputy Gregory has raised a number of good points — for example, that a number of street traders in Dublin do not have pitches provided by Dublin Corporation. I do not deny him his right to ventilate those points here, but that is a matter for his local authority. I am not in a position to make any decisions for Donegal, Cork or Dublin about appropriate designation of sites and so on.

I am not disposed to accept any of the amendments. I hope that is an adequate exposition of my views on the matter.

With regard to the question of devolved powers, is it executive or reserved functions?

Reserved functions.

Section 2 (b) refers to "selling to a person at [I note the Minister is to amend that by deleting "at a place adjacent to"] the place where he resides or carries on business." If an ice-cream van goes around a housing estate and stops at an individual house and there is a sale to a person at a place where he resides, is that included or excluded? What about a case where somebody has a night-club business in Leeson Street and has a hot-dog or burger van beside the business premises selling to a person at the place where he carries on business? Surely they are just two examples where the business community can evade or avoid having to have a casual trading licence, whereas specific amendments some of us have proposed would seem to be included. Yet, already the Minister is including a section which it would seem should be treated the same as a number of the other amendments.

Casual trading does not include selling to a person in his home, whether it is ice cream or——

At the place where he resides, not necessarily in his home but at it.

I do not mean to be smart, but the place where he resides is his home; if it is not he should be applying under the upcoming divorce legislation. I do not understand——

It could be inside his home. The Minister is implying that it has to be in his home.

As Deputy Costello mentioned, I have proposed an amendment on the question of "or at a place adjacent to". I will explain the reasons for that when we come to it. It is proper that general category or class ought to be excluded. The point about the night-club owner's chip van is a matter for the local authority. If they were not trading from a designated site they would be trading illegally. If a local authority decides to exempt them for whatever reason, that is a decision it would have to take by by-law.

It would seem that the legislation is specifically exempting them from having to have a casual trading licence and is, therefore, taking it out of the realm of the local authority.

How does the Deputy make out that they are exempt?

Casual trading does not include selling to a person at a place where he resides.

If I am the owner of a night-club in Leeson Street, I am not at the place where I normally reside.

But it is the place where the night-club owner carries on his business. An owner of a night-club could have a chip van, a burger van or a hot dog stand at the place. One could describe clients at night-clubs——

We are now starting to get into a hypothetical discussion. I do not think that this line of debate is going to get us anywhere.

The point I was making is that there is a degree of confusion on this issue. It could equally be claimed that at least some of the areas that are included in casual trading could be treated the same as some of the amendments we are putting forward. It boils down to the old question of whether or not the Minister and the Oireachtas should consider certain areas of sufficient importance to specifically exempt them or whether or not they should send them down the line to the local authorities. The Minister says that he regards these three as being so important that they must be included. I regard a few others as being at least equally important and I question the validity of one or other.

The thrust of the debate has been about why I am not retaining more of the exemptions in the old Act. This is one that I am retaining. I cannot see what the argument is, nor can I see any set of circumstances where, as in the case of the example given of the chip van outside a night-club, that would qualify under section 2 (2) (b). I cannot see how the person concerned can be deemed to be either residing in the night-club — he would have a different kind of problem — or that it is the place where he normally carries on business. That would be another unusual business. I do not see its application.

At this stage we have had more than a healthy debate on this issue and we are drifting into the hypothetical. We could go on giving examples until midnight.

Amendment put.
The Select Committee divided: Tá, 10; Níl, 12.

Ahern, Noel.

Nolan, M. J.

Brennan, Mattie.

O'Keeffe, Ned.

Byrne, Hugh.

O'Rourke, Mary.

Gregory, Tony.

Power, Seán.

Kitt, Tom.

Quill, Mairín.

Níl

Bell, Michael.

Dukes, Alan.

Boylan, Andrew.

Finucane, Michael.

Broughan, Tommy.

Fitzgerald, Brian.

Byrne, Eric.

Flanagan, Charles.

Costello, Joe.

Rabbitte, Pat.

Creed, Michael.

Ring, Michael.

Amendment declared lost.

I move amendment No. 4:

In page 4, subsection (2) (b), line 21, to delete", or a a place adjacent to,".

I propose to delete the words "or at a place adjacent to" in the exemption in subsection (2) (b). It has been brought to my attention by bodies such as Dublin Corporation, Dublin City Centre Business Association, South Dublin County Council and Listowel Urban District Council that these words, as contained the present text of the Bill, are too vague and uncertain as to their meaning and have the effect of giving carte blanche to unlawful trading on a widespread basis — for example, trading from caravans, housing estates and so forth. I therefore commend this amendment for approval.

I welcome this amenment. It eliminates some of the ambiguity in subsection (2) (b). I said earlier that it would be possible for people to sell in housing estates from ice cream and food vans, hot dog stands and so forth without being licensed or controlled. Would the Minister consider going a step further on Report Stage? There still is an element of ambiguity in the provision. I refers to selling to a peson "at,... the place where he resides or carries on business" as distinct from "in" the place where he resides. "At" is tantamount to adjacent to — it means in the vicintiy of. In order to be specific and to eliminate any possibility of abuse the Minister might consider subsituting the word "in" for "at".

I welcome this amendment if it means what I hope it means. I am a little confused with the double negatives.

There is a problem in my area with cars being sold on the public road by what is deemed to be a small garage. Every morning this operator appears with a dozen or two dozen cars and lines them up on the road. He sticks a sign in them or on the cars' roof racks. It appears that nobody can touch this operator. He seems to get away with the cars not being taxed or registered. Does this amendment mean that this operator will be in breach of the law? Until now the main legislation under which he could be tackled dates from about 1986 and deals with the Dublin area traffic plan. However, although it might provide for a "for sale" sign being put on a windscreen, it does not provide for such a sign being put on the roof rack. This is a huge problem in a residential area. It causes a great deal of hassle.

What exactly does this amendment mean? The section provides that casual trading does not include selling to a person at the place he carries on his business. Does that mean that it is legal for the owner of this garage to sell but not to buy or vice versa? Will it be against the law for this garage operator to wheel out two dozen cars in a residential area every morning? What exactly is the Minister saying here? I am getting caught up with double negatives. Where there is a garage in a residential area and the owner wheels out two dozen cars every morning, will that be against the rules?

I am trying to provide for that situation. That is the purpose of the amendment. I hope it does mean that.

I suggested earlier that the use of the word "at" is causing the confusion or ambiguity. Could that be clarified? Would replacing "at" with "in" his place of business or place where he resides overcome any possible abuse of this section? That excludes selling by a person at a place. Would it be better to say "in" the place?

I am prepared to have a look at what Deputy Gregory and Deputy Costello have said in this regard. It may be that "in" is a more precise term. Subject to taking advice from the draftsman, I am amenable to having a look at that for Report Stage. The purpose of the amendment is as stated. Living in or at a place adjacent to gives very wide scope and almost anyone could put up their hand and say that they were in an exempt category. If the inclusion of the word "in" rather than "at" makes it more precise, I am amenable to so improving it on Report Stage.

I wish to take up Deputy Ahern's last point. Is that man in breach of a planning regulation rather than the Casual Trading Act? If one has a garage one is liable under the local authorities legislation to have specific planning permission.

The experience in Dublin — I do not know about other local authorities — is that it is fairly ineffectual in terms of trying to impose any penalty that makes the difference between a person repeating the offence and not trading in future.

If we make the Casual Trading Bill an all-comers type of Act and include every little thing, it will be ineffective and hard to implement and operate. That is how I see it. If I have cars down the street with "For Sale" signs on them; I have definitely taken them out of a legal premises. The planning regulations are relevant and it is well outside the sphere of the Casual Trading Bill. I am not a legal person but that is how I interpret it.

What Deputy O'Keeffe said in correct, but I repeat that my own experience in Dublin is that it is extremely difficult to make that legislation stick. I do now know whether it relates to the penalties or enforcement but the phenomenon identified by Deputy Ahern goes on. The removal of this phrase is to give powers under this Act to act against somebody like that.

Amendment agreed to.

Amendment No. 5 has already been discussed with amendment No. 3.

I want to press the amendment.

But it has already been discussed with amendment No. 3.

I move amendment No. 5:

In page 4, subsection (2), between lines 29 and 30, to insert the following:

"(d) selling newspapers, magazines, wrapping paper and other printed matter,

(e) traditional stall-holders selling fruits, vegetables, flowers or other perishable goods,

(f) the selling of fish by traditional fishmonger stall-holders or the crew which catches them,

(g) any person whom the local authority knows to be a traditional street trader until after such time as that person is offered a reasonable location from which to trade.".

Amendment put.

Votáil.

The Select Committee divided: Tá, 8, Níl 12.

Ahern, Noel.

Martin, Micheál.

Gregory, Tony.

O'Keeffe, Ned.

Leonard. Jimmy.

Quill, Máirín.

Hilliard, Colm.

Walsh, Joe.

Níl

Ahearn, Theresa.

Broughan, Tommy.

Bell, Michael.

Byrne. Eric.

Boylan, Andrew.

Costello, Joe.

Finucane, Michael.

Lynch, Kathleen.

Fitzgerald, Brian.

Rabbitte, Pat.

Flanagan, Charlie.

Ring, Michael.

Amendment declared lost.

Amendment No. 6 has already been discussed with amendment No. 3.

I move amendment No. 6:

In page 4, subsection (2), between lines 29 and 30, to insert the following:

"(d) selling of ‘colours' etc., outside football stadia, matches, sporting events; by hand only and not from any vehicle.".

Amendment put.

As there are 21 Members present in the Chamber I am obliged to wait untiil the other Member turns up or until eight minutes has elapsed.

There are 23 present.

Was Deputy Lynch included?

There are in fact 22 Members present, so we can proceed. However, there is now a vote in the Dáil and under Standing Orders the Dáil vote takes precedence.

Can we vote now as 22 Members are present?

If you wish to proceed we can take the vote and then adjourn the meeting until Thursday. Is that agreed? Agreed.

The Select Committee divided: Tá, 9; Níl, 12.

Byrne, Hugh.

Gregory, Tony.

Hilliard, Colm.

Martin, Mícheál.

Nolan, M. J.

Q'Keeffe, Ned.

Power, Seán.

Quill, Máirín.

Walsh, Joe.

Níl

Ahearn, Theresa.

Finucane, Michael.

Bell, Michael.

Fitzgerald, Brian.

Boylan, Andrew.

Flanagan, Charlie.

Broughan, Tommy.

Lynch, Kathleen.

Byrne. Eric.

Rabbitte, Pat.

Costello, Joe.

Ring, Michael.

Amendment declared lost.
The Select Committee adjourned at 5 p.m. until 2.30 p.m. on Thursday, 15 June 1995.
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