Amendments Nos. 32, 33 and 34 are related and will be taken together, by agreement.
SECTION 13.
I move amendment No. 32.
In page 13, subsection (1), lines 21 to 23, to delete "in the case of perishable goods not less than 12 hours and in the case of any other goods" and substitute "in the case of goods other than perishable goods".
Again, these amendments may relate to situations in other parts of the country where there are no public representatives prepared or interested enough to take up the issues. I have, from time to time, received correspondence from other cities around the country to indicate that it is not simply a Dublin problem. Dublin has one third of the population and a commercial centre close to disadvantaged areas. This is the context in which I have been treating this Bill.
I have been arguing throughout the discussion on these amendments for consideration to be given to people who are, by and large, existing on social welfare and living in extremely disadvantaged areas — people and communities whom the State has neglected for decades. When I see legislation being used to drive these people further into a poverty trap, I have to speak out against it. I have no doubt that the draftsmen and the people responsible for this Bill did not intend that the Bill would be utilised in that way. The experience is that it is against these very people that these powers are utilised, not against the big operators. I would love to see a breakdown of the number of convictions around the country and in Dublin since the introduction of the 1980 Act, if that information is available. I wager that the vast bulk are against individual people who were selling perishable goods or flowers — traditional street trading.
The problem with this section and the Bill is that, on the one hand, the State neglects to provide for people living in disadvantaged areas — those people close to the commercial centre of Dublin trying to supplement incomes received by and large from social welfare to make life a little more bearable and to provide for their children in a more reasonable way — and, on the other hand, it uses this legislation against them.
Moore Street is a legal designated street and the gardaí do not harass people there because they are all legitimate street traders. Those to whom I refer are, as the Minister pointed out, the people whom Dublin Corporation has failed to make provision for and allocate pitches. They are known in the media as "the pram women", the women of Henry Street, sometimes in parts of Moore Street, Cole's Lane, Liffey Street and other streets adjoining O'Connell Street. One will see them standing with a pram and a bread board on top of it. They are the tools of their trade which they use to sell a few strawberries or whatever. I am sure the rural Deputies will be delighted to hear that they are selling beautiful strawberries at present. These are the women that this legislation will be used against, not big operators — certainly not in Dublin. This is my dilemma with the whole issue.
If this legislation was being used against the big operator flogging videos and television sets that he acquired elsewhere, I would not be sitting here — I would be patting the Minister on the back and telling him to get on with it. The problem is that it is not. The Minister may say he is not to blame for the difficulties with the local authority and to lay the blame on the councillors he mentioned earlier as not making provision for these people. In my time on Dublin City Council, since 1979, there have been numerous attempts to make provision for them and the people who have opposed the provision are the big stores. We mentioned Cole's Lane in Henry Street at the last meeting.
The Deputy is moving an amendment and straying into a Second Stage speech. I have allowed the Deputy a decent amount of time.
To be fair, I am referring to points made a few moments ago by the Minister.
The Deputy is repeating them several times over.
He is taking us on a tour of the capital.
If the other elected representatives who will run to these women looking for votes at the next election were present to make the points with me perhaps I would not repeat them. I am repeating them because nobody else has bothered to come along to represent the interests of these people. The problem is that when the local authority has tried to provide positions, big business interests go to the courts and lobby to prevent it. Under this section, a woman selling flowers can have the flowers confiscated, as happens on a daily basis in the centre of Dublin. She is hauled off to the police station and told she can have them back if she pays for their transport. Just think how ludicrous it is; a pram with a breadboard of flowers is pushed into a police van and driven off to Store Street. The woman is then told she can have them back provided she pays for their transport to Store Street, their storage and their intended sale. As operated against these people that section is a nonsense yet, by and large, they are the only ones against whom it is operated. I thank the Chairman for letting me expand on that point. It is necessary that everybody here who deals with this Bill should know what the end result will be. That is why I have tried to explain it in as much detail as I can.
I listened closely to what Deputy Gregory said but he missed out the most important reason for asking the Minister to look again at section 13 (1) which proposes that:
Whenever any goods are seized and removed under this Act by a member of the Garda Síochána, a Superintendent may in the case of perishable goods not less than 12 hours and in the case of any other goods not less than 3 days after the seizure cause the goods to be sold and shall out of the proceeds of such sale defray all the expenses incurred in the seizure, removal, storage and sale of the goods and shall pay the surplus of such proceeds to the person who at the time of the seizure was the owner of the goods.
All of that process can be avoided if all expenses incurred are dealt with first. Section 13 does not refer to a conviction. There is a presumption that the matter is being dealt with and that the person is trading illegally. Nothing has come before the courts, no decision has been taken by a District Court or a judge and jury. Nothing has happened and yet this person's goods are taken away and disposed of in the market place to defray all expenses. There is a presumption of guilt, not a presumption of innocence. Can we dispose of somebody's property when he has not been convicted of any offence in relation to that property? This is quite unconstitutional. The Minister should look at it from that point of view apart entirely from the extremely valid arguments Deputy Gregory has made on the discriminatory operation of this legislation. Those of us who have been involved with the street traders know exactly in how discriminatory a way this section is used in the Dublin area as distinct from an area where there is trading of high-tech goods in circumstances which the original 1980 legislation was intended to cover.
Quite clearly a section of the business community wants to get rid of the casual traders, particularly those who are licensed but do not have designated sites. A sledgehammer is being used against licensed people from poorer quarters of the city who are attempting to earn an honest living but who do not have designated sites from the local authority. The legislation allowed the local authority to give out permits and sites, but the local authority decided against giving them to some people who had been trading for many years. They were traditional traders but what could they do? They continued to practice the traditional trades their families had carried on for generations, but because there was a limited number of sites they were deemed to be trading illegally. We have to recognise that it is an extremely complex problem. It is not simply black and white between legal and illegal traders. The matter is compounded in this section which deals with perishable goods, a major part of the saleable product of unlicensed traders.
I remember what happened over the years. In one incident I was arrested and sentenced to 28 days in Mountjoy prison. Deputy Gregory was also arrested as was Councillor Christy Burke and others.
How long did you serve?
I served less than a week.
And Deputy Gregory?
Deputy Gregory succeeded in an appeal on that occasion but I got out under a habeas corpus. The court decided that the District Justice had acted somewhat irregularly. I mention this because it is an interesting situation. I was going down to Dunnes Stores on the anniversary of the Dunnes Stores dispute in Henry Street organised by IDATU over South African oranges and other produce. Women were being arrested and put into black marias. They were being charged £7.50 for the pleasure of a trip in the black maria with their strawberries on 19 July. The goods were left until they perished. This legislation is saying precisely the same thing — all perishable goods must be left for not less than 12 hours before they are disposed of. There is nothing to dispose of after 12 hours. In 1985, £7.50 was the going rate for expenses. This information is highly relevant to this section.
It may be relevant but every section is now becoming a Second Stage debate. This is Committee Stage and we should stick to the amendment and be brief.
The point I am making is extremely important. It has not been made before and it was not part of any Second Stage speech. The going rate at that time in terms of expenses, to bring somebody from Henry Street to Store Street was £7.50 per person. We can see what this will mean in real terms in 1995, ten years later. It will be impossible to defray those expenses. We are clearly talking about the destruction of perishable goods. That is the human dimension, but I do not believe it is legal to pass a section which authorises a Garda superintendent to sell goods belonging to a person on the presumption that they may be guilty of an offence in relation to the sale of those goods. Until that matter is clarified it would be inappropriate to agree this section. I would like to hear the Minister's response on the broader human issues, the discriminatory use of this and similar provisions in other legislation and the constitutionality of this section.
I have learned much from Deputy Gregory and Deputy Costello. I understand that in many instances these people are legal traders but do not have a designated area. The Bill is trying to facilitate designation. There is no point in rambling all over the place and questioning whether fruit or fresh flowers are the issue. There must be some discipline in the Bill. I support it but I do not seen any need to support the amendment.
I have been very sympathetic to Moore Street traders and others about whom Deputy Gregory is concerned. However, as far as I can see, there is illegal casual trading all over the streets outside the designated area. If this Bill is passed Deputy Gregory and Deputy Costello will have the power, at a corporation meeting in Dublin, to designate areas for the people about whom they speak. Then there will be no need to bring the gardaí into it. The best thing we could do is support section 13 of the Bill and get on with the business.
I accept that Deputy Gregory and Deputy Costello feel very strongly about this. They both point to the fact that they were arrested in connection with offences perceived to have been committed in relation to this section. I cannot offer any comfort on that except perhaps to say that illustrious predecessors of theirs, Members of the Oireachtas, were guests of the State for a period and it did not damage their subsequent careers.
The net point is that raised by Deputy O'Keeffe. If a person is not trading in a designated area, he or she is an illegal trader. The difficulty is that Deputy Gregory is asking me to draw a distinction between one category of illegal trader and another. If it was a question of sympathy and moral justification, of course there is a distinction to be drawn between the kind of trader Deputy O'Keeffe has been talking about since we started Committee Stage and the kind of trader about which Deputy Gregory is talking but I do not know how to give expression to that in law.
The first of the amendments relates to subsection (1) which excludes seized perishable goods from goods capable of being sold by a superintendent and enabling the gardaí to defray expenses. Amendment No. 3 to subsection (3) would have the effect of preventing a charge for any expenses incurred by the superintendent in any intended or attempted sale of goods seized before they are handed over to a person who satisfied the superintendent that he or she is the owner of such goods. Amendment No. 34, proposing the insertion of a new subsection (5), would have the effect of giving rise to a reduced level of expenses which could be deducted by the superintendent from the sale of goods seized.
The effect of subsections (1) and (3) of section 13 is that the prime, or more likely the only, offender against the Act would be obliged either to identify himself, thus enabling proceedings to be taken against him, or to suffer the loss of whatever is seized. The effect of Deputy Gregory's proposed new subsection (5) would be to impose a limited cost on the State in terms of the expenses incurred by the gardaí in the seizure, storage and so on of the goods. The overall effect of the Deputy's amendments appears to represent a considerable dilution of the deterrent effect of the seizure of goods and would reduce the powers of the gardaí, thus hindering the effective policing of the Act.
I listened to the arguments and I am prepared to look at the matter before Report Stage. However, I do not want the record to show that I laid the same emphasis on it as on Deputy Gregory's other amendments where I said I would look at them before Report Stage, meaning that it is my definite intention to bring some easement in accordance with his amendments. In this case I do not know. I have heard what has been said. Deputy Costello said this involves an arguable constitutional infirmity. I do not know if that is the case but I will take advice on it.
Is the amendment being pressed?
In view of what the Minister said, I will not press it. I will wait to see what he says on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 33 and 34 not moved.
Section 13 agreed to.
Section 14 agreed to.