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

SECTION 12.

Mr. Gregory

I move amendment No. 31:

In page 13, lines 1 to 5, to delete subsection (1).

The powers in subsection (1) are excessive and completely unnecessary. The powers granted to the Garda Síochána in subsection (2) are sufficient. The subsection I want to delete states:

A member of the Garda Síochána may, without warrant, arrest a person whom he has reasonable cause to believe to be contravening a provision of this Act at any place and may seize and remove any goods which he is selling or has in his possession for sale at the place.

Whereas, subsection (2) reads:

If a member of the Garda Síochána has reasonable cause to believe that a person is engaging in casual trading in contravention of this Act at any place he may require the person to remove himself and his goods from that place and, if the requisition is not complied with, may without warrant arrest the person and seize and remove any goods which he has in his possession at the place for the purposes of casual trading.

My views on, and approach to, relate to my experience in Dublin. The Garda Síochána in Dublin are regularly under pressure from large business interests and some political interests to "clean up the streets" and get rid of quite poor, disadvantaged people who go out, in what they see as a very honest way, to make some money selling flowers, apples, oranges, etc. In some specific instances, individual gardaí have been demoted and transferred to deal with this task. It is not the most sought after duty for gardaí. The Garda Síochána has difficulty in getting people to show any enthusiasm for this type of work. Recently I noted that gardaí who were demoted and transferred for various reasons are patrolling certain streets in Dublin, chasing women selling bananas from prams.

In that context, I would be very reluctant to give the Garda Síochána what I consider to be unnecessary powers. Section 12 (2) contains sufficient powers. If a garda has reasonable cause to believe a person is engaged in illegal casual trading, he may require the person to remove himself. If the person refuses, the Garda then has the power to escort him to the nearest Garda station. The Garda Síochána are currently under pressure from business interests and are operating a very heavy-handed approach in dealing with some casual traders. This would be facilitated by subsection (1). I do not want to see unnecessary powers given to the Garda Síochána to adopt an even more heavy-handed attitude to honest people who believe they operate within the law while making some extra money to supplement their income.

Will the Minister consider the amendment? I have been very accommodating with regard to the Minister's amendments. He might consider this in the same light and return to it on Report Stage, before unnecessary powers are given to the Garda Síochána to deal with, by and large, honest, decent people who are simply attempting to make some extra money.

Mr. Finucane

The Minister is attempting to strike a balance in this section under which the Garda Síochána cannot be heavy-handed. This must be considered in context. Recently a thriving business has developed in selling cut-price imported cigarettes in Dublin. The Garda Síochána seized such goods in the Dublin area. Business interests have to survive and pay rates. They are legitimate and have legitimate employees. I am in favour of giving the Garda Síochána certain powers. Many bona fide businesses — particularly those involved with food — are subject to restrictions from the health boards and this is as it should be.

In many cases casual trading businesses, such as chippers or burger vans, should not be allowed to operate. Where they are permitted to operate. the Garda Síochána should have the right in the public interest to intervene if the law is being contravened.

Mr. E. O'Keeffe

I do not see a problem with subsection (1). I do not want to seem too harsh on Deputy Gregory but he simplified it too much by talking about a woman with bananas in a pram. There are many rogue traders who have to be corrected from time to time. The Garda Síochána must use its discretion with regard to this. I share many of the sentiments expressed by Deputy Finucane because quite an amount of abuse takes place. My experience of Garda Síochána operations in relation to casual trading is that gardaí are usually very reluctant to become involved until a major problem arises. They would not consider it worth while to chase an unfortunate trader with bananas, oranges and apples in a pram. The problem is much larger than that which is why there is such a need for this Bill. I regret that the Bill has been watered down so much because we will hear more about this issue. Local authorities will have difficulty implementing it because they will not have sufficient power.

Mr. Gregory

I am not sure how much manpower the Garda Síochána utilise in apprehending the people about whom my colleagues are so concerned. If the Garda Síochána were showing any interest in these activities, perhaps this would not cause such major concern to my colleagues. It is inaction by the Garda Síochána, with existing powers, that is causing concern around the country. From listening to speakers, there appears to be inaction by the Garda Síochána in dealing with large operators who are flouting the law and making a great deal of money. I understand this from what colleagues have stated.

The activity in Dublin is completely the reverse. There is a major crime problem in Dublin and a major drug problem involving heroin in the centre of the city where drugs are sold on the side of the street. Some estimates say as much as 80 per cent of violent crime is related to it. In that context, it has always seemed extraordinary that so much Garda resources are directed against the women pushing prams selling bananas. The Minister can go down Henry Street, Mary Street, North Earl Street, Moore Street and Liffey Street any day and see the Garda resources deployed there: vans, cars and foot patrols — everything from superintendents to the bobby on the beat. It may sound unbelievable but a plainclothes Garda snatch squad is employed against these people because when they see a uniformed garda coming they move away. It is amazing the initiative of the Garda on this issue and the lack of innovation or initiative on more serious issues, like heroin. Plainclothes gardaí are used to go after women selling apples and flowers. It is ludicrous. In that context, powers available to the Garda are sufficient to deal with the big operators but for whatever reason, they are not used.

I am arguing against giving unnecessary powers to the Garda. These powers will end up being used, not against the people about which my colleagues are concerned but against the individuals, on whom we would not have believed these powers would be used — the woman selling a few items from a pram. In that context, will the Minister re-examine giving these powers to the Garda?

Mr. Rabbitte

It is very difficult to bring in legislation for Moore Street or Mitchelstown. When we legislate, it applies to the whole jurisdiction and it is very difficult to be particular. One of the merits of the Bill is that it confers power on local authorities to make bylaws and designate casual trading in accordance with tradition in an area.

This is not a devolved function and whatever decision is made in terms of the Garda applies across the board. When Deputy Gregory says there are adequate laws to deal with the phenomenon Deputy O'Keeffe raised, he is right, because this section is taken from the 1980 Act. I am not introducing anything more draconian here than that which exists within the terms of the 1980 Act and was included at the insistence of the Garda. It urged that the 1980 Act would be a limited deterrent unless it included the power of arrest, which is a standard deterrent in legislation.

We have this problem of how to cope with Deputy O'Keeffe's and Deputy Finucane's problem of "the big guys" — I call them "the Del boy spivs" — that locate themselves at the entrance of lovely towns like Mitchelstown, Mallow, Newcastle West and all the wealthy farming hinterlands which provide the burghers of these towns with a reasonably good living. How does one cope with that? It is not enough to say they had better move on, or else. This approach would be entirely ineffectual.

I draw Deputy Gregory's attention to section 12 (2). Any judge seized on an issue under this section would have to conclude that the person ought to be given the opportunity to move before section 12 (1) can be invoked. It is not reasonable to arrest the person without giving the warning provided for in section 12 (2). The Bill seeks to strike a balance between the conditions in provincial Ireland and conditions in Moore Street.

Deputy Gregory said gardaí are being transferred to Moore Street as a punishment for transgressions in other parts of Ireland. There are some famous politicians in the history of the country — most of them are no longer with us, sadly, in terms of the colour of Irish politics — who are reputed to have transferred gardaí but I never heard of anyone being transferred to Moore Street or being threatened with transfer there if he did not turn a blind eye to licensing hours or something like that.

Mr. Gregory

I do not say things which are half true. Specific individuals have been demoted, put back into uniform and put in charge of harassing women street traders in the city centre of Dublin.

I have no legal background but I would not have thought section 12 (1) is subservient in any way to section 12 (2). Section 12 (1) gives a member of the Garda Síochána a clear power and it is not open to the judge to suggest that the garda should have looked at section 12 (2) first. If that is not the case, I am not terribly sure why section 12 (1) is there.

I accept what the Minister says about the difficulty in framing legislation to cater for everything but that is the problem with this Bill and it will arise more blatantly in other amendments in my name. The legislation attempts to deal with a serious problem. I assume the legislation was not concocted as a result of pressure to deal with the problem in Dublin and that it is not a case of the business interests influencing politicians and the State to deal with the problem there. I assume the legislation has been updated to deal with the problems around the country to which my colleagues have referred.

The same argument was used in 1980. When the fines were then increased to £500, it was said they were for the big operators but they were used against the women to which I referred. That is a matter of record and it is the experience of the Act. However, we will come to that in a moment.

On designation, the Minister said we were starting afresh and we cannot continue existing trading areas. Yet in this instance, he says these powers are there already. The Minister cannot have it both ways. He is reintroducing these powers. I argue that they are excessive and unnecessary and I rest my case there.

Mr. Rabbitte

I make those points to draw attention to the fact that the Garda believe that without these sections, which are enshrined in the 1980 Act, the Bill will be ineffectual. I invoke the contributions of Deputies O'Keeffe and Finucane to bear out that there are circumstances that seem to substantiate that conviction on the part of the gardaí. I regret — if what Deputy Gregory says is true — gardaí being allocated to Moore Street precisely and solely for the purpose of harassing the women traders of Moore Street. I point out to Deputies Gregory, Broughan and Byrne, members of Dublin City Council and the executive and management that it is a dereliction of duty on their part if they allow that to happen by not providing pitches for women who have traditionally traded in Moore Street. It is incumbent on the local authority to make reasonable provision for people who have traditionally traded in Moore Street to continue to do so.

On the substantive point of the interaction of subsections (1) and (2), I assure Deputy Gregory it is the intention that a judge seized of any particular matter under this section would have regard to subsection (2) as well as to subsection (1). There is no doubt in my mind — and advice confirms my opinion — on that issue. There may well be circumstances where a "Del boy" arrives from Liverpool for a weekend or longer and sets up in major opposition to the regular traders. In so far as this is encompassed by this Bill, the judge would form a view, but otherwise he is required to ask if the garda acted reasonably, as subsection (2) requires, whether he had reasonable cause to believe that a person was engaging in casual trading etc., and whether he gave him a reasonable opportunity to obviate the necessity for being arrested. I have no doubt there is an obligation to reasonably interpret this section in total and that is what would happen in practice.

Amendment put and declared lost.

Section 12 agreed to.