Select Committee on Enterprise and Economic Strategy debate -
Wednesday, 21 Jun 1995

SECTION 16.

Mr. Gregory

I move amendment No. 38:

In page 14, before section 16, to insert the following new section:

"16. — Any person known by the local authority to be a traditional street trader shall not be regarded as having committed an offence under this Act until after such time as that person is offered a reasonable location from which to trade by the local authority.".

The principle behind this amendment has been raised on a number of occasions. I am trying to find a mechanism to protect traditional street traders, whose only crime is that they have not been offered a pitch by a local authority, from the provisions of the Bill until they have been offered a reasonable location from which to trade by a local authority.

The Minister may say this is a matter for local authorities but all sorts of constraints are imposed on them. It is not simply a matter of authorities designating areas. If it was as simple as this, Deputy Costello, Councillor Christy Burke, other councillors who have an interest in this issue and I would have done this long ago. Unfortunately, business interests in Dublin City have greater influence than the representatives of disadvantaged communities. This has been a fact of life for a long time. There are no incentives or recommendations in the Bill to deal with this problem.

I have been in Garda stations with traders when the superintendent told them to talk to their legislators because the Garda can only implement the law. We are enacting this legislation now and there is no point in talking about local authorities. We have an opportunity to exempt illegal street traders for a period. No illegal street trader I know in Dublin wants to be illegal. They are all on a waiting list for pitches and want to trade legally but they have not been given this opportunity. It is big business which is preventing them from getting this opportunity. They have borne the brunt of the penalties of the 1980 Act and will, undoubtedly, bear the brunt of the penalties proposed if this Bill is passed without in some way trying to cater for them. Will the Minister accept the amendment because it would assist them and perhaps result in them being treated with fairness and justice, which has not been the case until now?

Mr. Rabbitte

The amendment seeks to give a traditional trader immunity from committing an offence until such time as he is offered a reasonable location from which to trade by the local authority concerned. The question of what constitutes a reasonable location could prove extremely difficult from a local authority's point of view. No trader can be immune from the enforcement provisions if the Bill is to be effective. The Bill provides sufficient protection for the interests of traditional traders by ensuring that local authorities must take their interests into account while providing the local authorities with the necessary powers to ensure they can regulate casual trading properly in the interests of the common good. I regret, therefore, that I cannot accept the amendment. I fully accept that Deputy Gregory is using the opportunity to quite properly ventilate what is a serious problem in terms of the regulation of casual trading by Dublin City Council.

If I were in a position to construct the law in a fashion which would solve his problem, it would create a problem for the rest of us. What about the chip vans in my constituency to which I, the local authority and elected representatives look forward to having this law applied? If one were to talk to the owners of chip vans which have been in my constituency for as long as I have been in politics, they would argue they are traditional traders. Although they are a nuisance to the people outside whose houses or in whose cul-de-sac they are parked, they do not cause a headache to others in the estate who are happy to use them.

It is not fair of Deputy Gregory to say we are introducing the legislation now because we are not designating sites, we are devolving power to the local authority to designate the sites. It is a challenge for local government to deal and address the phenomenon which Deputy Gregory highlighted. I have sympathy with his case and with the unfortunate women who must flee each time they see the gardaí because they have not been given a pitch. It is a serious issue, but I do not know how I am supposed to deal with it.

Mr. Costello

I can tell the Minister exactly how to deal with it and solve his conundrum. The amendment refers to traditional fruit traders who have licences from the former Department of Industry and Commerce or the Department of Enterprise and Employment. They are in limbo because they have a national entitlement to trade but not a local one in that they have not been given permits or sites. In a sense they have half the imprimatur, but they lack the other piece to put the whole together.

Other sections which we are dealing with and including in the terms of casual trading to be decided on by the local authorities are not in the same position. They are not subject to the legislation and do not need to worry about any interim period, but will now be included in this Bill. They have been trading traditionally which is recognised by the fact that they have the licences which were given to them by a Government Department for a period of years. Under the 1980 legislation some would have lost them because of the way it was implemented. That is very different from the new sections which will be brought under this legislation.

The intent of this section is to emphasise the fact that the Government is devolving responsibility to local level. Local authorities should take cognisance of the sympathy Government had for these traditional traders, which it showed by granting them licences. The question arises to how they can take cognisance of these people without the Government Department divesting itself of the recognition it gave to them. There is nothing in this legislation which recognises that they are licensees and the local authority will simply go ahead and implement the provisions of the Bill since there is no reference to it.

There should be a way in which we could indicate through such an amendment that these prople have a certain entitlement which is recognised at one level but not at the other. Local authorities should make a special effort to find a way to accommodate them. There is a danger that we would go down the road Deputy O'Keeffe spoke about in that this legislation would be seen to be drafted for the settled business sector which claims that it must pay commercial rates. We must not forget that casual traders also pay commercial rates. They want to be regarded as casual traders and to be brought into the system. It is a question of how to do this and whether we can encourage local authorities to sympathise with them by removing them from this limbo.

Mr. E. O'Keeffe

It is a pity there is no Casual Trading Bill for Dublin inner city because we would have solved the problems.

Mr. Gregory

That is the answer.

Mr. E. O'Keeffe

Amendment No. 38 states: "Any person known by the local authority to be a traditional street trader shall not be regarded as having committed an offence". I understand the local authority is obliged to make sites available under the Bill. There is room for discretion on the part of a local authority. Those who have licences will be known. I believe that this will operate through compromise. If a known chip van owner, who is not involved in a big business, sets up shop in a residential area, the local authority has an obligation to act.

Many of the complaints about casual trading come from residents rather than the business sector. Casual traders can be a nuisance to residents in rural and urban areas. As a public representative, I have received more complaints from ordinary people than from business people, they did not lobby me until the Bill was published. These people are entitled to protection. The greatest offenders outside Moore Street are chip van owners who move around as they wish. Local authorities are obliged to take action. I am not happy with Deputy Gregory's amendment. I accept the spirit of section 16.

Amendment put.

The Select Committee divided: Tá, 1; Níl, 12.

Tá.
Gregory, Tony.

Níl.
Bell, Michael.	Finucane, Michael.
Boylan, Andrew.	Fitzgerald, Brian.
Broughan, Tommy.	Fitzgerald, Francis.
Byrne, Eric.	Rabbitte, Pat.
Costello, Joe.	Ring, Michael.
Creed, Michael.	Sheehan, P. J.

Amendment declared lost.

Section 16 agreed to.

NEW SECTION.

Mr. Rabitte

I move amendment No. 39:

In page 14, before section 17, to insert the following new section:

17. (1) The Occasional Trading Act, 1979, is hereby amended:

(a) in section 2, by the substitution of the following subsection for subsection (3):

‘(3) The Minister may, by regulations, amend (whether by the addition, deletion or alteration of classes) the classes of selling specified in subsection (2) and that subsection shall have effect in accordance with any such regulations.',

(b) in section 4, by the insertion of the following subsection after subsection (13):

‘(14) Upon the grant of an occasional trading permit, or as soon as may be thereafter, the Minister shall notify the Minister for Social Welfare in writing of the name and address of the person to whom the permit was granted and the conditions (if any) contained in the permit, including the duration thereof.', and

(c) in section 9

(i) by the substitution of the following subsection for subsections (1), (2) and (3):

‘(1) A person guilty of an offence under section 3 (1) of this Act shall be liable

(a) on summary conviction, to a fine not exceeding £1,000, or

(b) on conviction on indictment, to a fine not exceeding £10,000 together with, in the case of a continuing offence, a fine not exceeding £500 for each day or part of day on which the offence is continued after the first such day or to imprisonment for a term not exceeding 6 months or to both the fine or fines and the imprisonment.', and

(ii) in subsection (4), by the substitution of ‘£1,000' for ‘£500'.

(2) Regulations under subsection (3) of section 2 of the Occasional Trading Act, 1979, in force immediately before the commencement of this section, shall continue in force after such commencement as if made under the said subsection (3), as inserted by this section, and may be amended or revoked accordingly.".

The purpose of this amendment is to maintain consistency between the Occasional Trading Act, 1979, with regard, in the first instance, to the power of the Minister for Enterprise and Employment, by regulations, to amend the classes of trading which may be exempted from the 1979 Act, secondly, the provision of information to the Minister for Social Welfare relating to licences issued and thirdly, penalties. In addition, the amendment under subsection (2) proposes to save regulations already made under section 2 (3) of the Occasional Trading Act, 1979, to bring it into line.

Mr. Gregory

We have addressed these issues, for example, with regard to fines and the notification to the Minister for Social Welfare. In some instances the Minister said he will return to the matter on Report Stage and I presume that holds for this section as well.

Mr. E. O'Keeffe

The Occasional Trading Act needs updating because much of the problem is associated with that area. Traders may set up shop in a local hall or hotel and trade in competition with legitimate traders. Regulations or laws must be introduced to tighten up that area. A substantial amount of imported goods may come in under the guise of bankruptcy or liquidation sales. They create major problems for legititmate traders and for casual traders who have traded legitimately in the past. That area must be examined and I ask the Minister to give some thought to it and draft amending legislation to the Occasional Trading Act.

Mr. Rabbitte

It is my intention to do that.

Mr. Costello

The Minister has put in the requirement to notify the Minister for Social Welfare in writing of the name and address of every person who gets a permit. This sets a precedent in that it is the first legislation where such a requirement has been inserted and I hope this precedent will be continued throughout legislation.

Amendment agreed to.

Chairman

Amendment No. 40 is the Minister's amendment, amendments Nos. 41, 42 and 43 are consequential on it and all may be discussed together. Is that agreed? Agreed.

Mr. Rabbitte

I move amendment No. 40:

In page 14, line 37, to delete subsection (1) and substitute the following:

"17. (1) The following are hereby repealed:

(a) the Act of 1980, and

(b) section 6 of the Dublin Corporation (Markets & c.) Act, 1901.".

These amendments are necessary to regularise a problem faced by Dublin Corporation regarding casual trading in the Thomas Street area. It appears an Act promoted by Lord Iveagh, the Dublin Corporation (Markets & c.) Act, 1901, casts legal uncertainty on casual trading in and around the Iveagh Market, to the extent that Dublin Corporation has been unable to issue permits for trading in that area under the 1980 Act. Amendments Nos. 40 to 43, inclusive, remove this uncertainty.

Amendment agreed to.

Mr. Rabbitte

I move amendment No. 41:

In page 14, subsection (2), line 38, to delete "Subsection (1)" and substitute "Subsection (1) (a)".

Amendment agreed to.

Mr. Rabbitte

I move amendment No. 42:

In page 14, subsection (2), line 44, to delete "subsection (1)" and substitute "subsection (1) (a)".

Amendment agreed to.

Mr. Rabbitte

I move amendment No. 43:

In page 14, subsection (3), line 46, to delete "Subsection (1)" and substitute "Subsection (1) (a)".

Amendment agreed to.

Section 17, as amended, agreed to.

Section 18 agreed to.

Title agreed to.