Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 12 Nov 1980

Vol. 324 No. 2

Supplementary Estimates, 1980 - Casual Trading Bill, 1980: Second Stage.

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to provide for the control and regulation of casual trading and for connected matters.

For some years past trade interests, local development associations, local authorities, trade unions, consumer interests and others have been making representations that the operations of both street traders and occasional traders have resulted in unfair competition; that the jobs of shop assistants were threatened; and that these classes of trading were unfair to the consumer.

The Restrictive Practices Commission carried out a study and they recommended new legislation to regulate both street traders and occasional traders. Initially we proposed to have a single Bill but it was discovered that there would be special problems in formulating provisions to deal with street trading and for that reason we went ahead with a Bill to deal with sales from temporary retail outlets, the Occasional Trading Bill, and this has since been enacted. The Occasional Trading Act, 1979 is achieving its objectives. Notwithstanding this, a loophole in it has been discovered and I propose to remedy this by way of an amendment contained in this Bill. I will deal later with the problem in question.

We are now considering the Bill to regulate roadside and street trading. The majority of submissions to the Restrictive Practices Commission were that roadside and street traders have an unfair advantage over established traders. It was alleged that they do not pay rent, rates, taxes and do not have other overheads which have to be met by shopkeepers. In some respects, the allegations were exaggerated but there is no doubt that the selling costs of street traders are lower and they do offer very severe competition.

Trade union interests have complained that the employment prospects of their members have been jeopardised not merely because of the higher overheads which have to be met by shopkeepers but also because street traders do not observe the statutory and reasonable negotiated conditions of employment of shop assistants. I accept that the trade unions have grounds for complaint.

Additionally, and as we are all aware, there has been widespread concern about the traffic and other environmental problems created by some outdoor traders.

I have merely touched on some of the arguments for better regulation of outdoor trading, but since Deputies on both sides of the House have made representations about the inadequacy of the existing law, I feel I have gone far enough. The form of control suggested in most submissions to the Restrictive Practices Commission — especially submissions made by local authorities — was for a more effective system of licensing subject to certain conditions, linked to designated areas and with penalties which would be a deterrent. There were suggestions for licensing at national level and at local level and for a combination of both.

The Bill goes along with the majority of the submissions made to the Restrictive Practices Commission. It proposes a system of licensing both at national and local level, the designation of trading areas by local authorities and the detailed regulation of trading by the authorities. Very wide powers are proposed which will enable local elected representatives to confine trading to the places where it will be a service to local communities rather than the nuisance it now often is.

Casual trading is defined as retailing at a place, including a public road, to which the public have access as of right or at any other place that is a designated trading area. For example, a local authority will be empowered to acquire land and designate it as a trading area.

It is proposed that, with a few exceptions, anyone engaging in casual trading will have to have a national licence issued by the Department of Industry, Commerce and Tourism and the fee will in general be £100 per year, but this will be reduced to £5 in respect of a person selling fish, horticultural or agricultural produce, other than meat, or a family selling their own manufactures. In addition to the national licence, where local authorities have designated an area, casual traders will have to have a local authority permit costing £20 per year to trade in such an area. A separate local permit will be needed for each trading area.

The few classes of trading which we propose to except from the Act are those which either do not create the problems we are trying to resolve or which could not reasonably be confined to designated places. As examples, a farmer selling his own produce at a public place does not pose the problem the Bill is designed to deal with; and the breadmen, the milkmen and other door-to-door salesmen provide a service which could not reasonably be regulated in the manner proposed in this Bill.

There are provisions relating to the granting of licences and permits and the refusing and revocation of these in cases where the Act is contravened. It is proposed that conditions may be attached to permits and licences.

If a member of the public has any complaint to take up with a shopkeeper there is no problem in contacting him but the same is not true for roadside traders. Consequently, we propose that a casual trader shall display either a national licence or a permit wherever he traders so that any interested party can note the number of the permit and the trader's name and address.

Very wide powers are proposed to enable local authorities to designate the places in their functional area which will be set aside for outdoor trading and they will be empowered to make by-laws to regulate trading.

Authorities are being empowered to acquire market rights some of which are at present in private ownership as a result of Royal Charters and Letters Patent granted centuries ago. There are provisions for appeal to the Circuit Court against the decision of local authorities.

It is proposed that the legislation will be enforced by officers from the Department of Industry, Commerce and Tourism, local authority officers and the Garda. The proposed powers of authorised officers are in general the same as those they exercise under the Occasional Trading Act and prices legislation. It is proposed that the Garda will have the same powers as authorised officers and, in addition, powers similar to those they enjoy under the Street Trading Act, 1926. It is felt necessary that the Garda should have the power to arrest without warrant any person contravening the Act and seize and detain any goods, containers or vehicles being used in connection with the business.

In submission to the Restrictive Practices Commission reference was made to the fact that local authorities have difficulty in enforcing existing legislation against mobile traders because they had not powers to enable them to establish the ownership of goods. In the case of the Street Trading Act, the Garda do not have this problem. The Revenue Commissioners' staff also have powers to seize goods in connection with the enforcement of the tax laws.

All but one of the remaining provisions of the Bill are fairly standard in this type of legislation and I do not propose to summarise them. I will, however, refer briefly to the proposed amendment of section 2(2) (1) of the Occasional Trading Act, 1979. It was felt that that Act should not apply to sales from which no private profit was derived. We were thinking of such things as sales of work and jumble sales in aid of churches, schools, football clubs, foreign missions and hospitals. However, we have become conscious of the fact that it would seldom, if ever, be possible to prove it if someone was making some contribution to, say, a charity and was also taking a private profit. I am not saying that this has happened but, as drafted, section 2 (2) (i) of the Occasional Trading Act could be abused and we propose to bring it into line with the corresponding provision in the Casual Trading Bill — section 2 (2) (g) — which proposes to put the onus of proof on the retailer that no private profit is being taken.

The Restrictive Practices Commission concluded that the Pedlars Acts and the Hawkers Acts "relate to a commercial environment so different from the present that they are in effect obsolete and inappropriate to current problems". Other legislation is inadequate in so far as it is not capable of controlling adequately these types of trading. Quite clearly what was needed was one piece of legislation which would enable local authorities to decide the places where outdoor trading could be carried on in a disciplined way in the best interest of local consumers, established traders, casual traders and all other interested bodies. Central Government could not decide where trading should be permitted and what detailed conditions should be attached to such trading and the Bill is designed to give local authorities all the powers they could reasonably need.

I believe the Bill will stand the test of time and I recommend it to the House.

This Bill has been needed for a number of years. As the House is aware, the type of trading envisaged in this Bill has increased in volume over the past few years. At present on many of our main roads one can see ten, 20 or 30 mobile homes, with accompanying lorries, vans and motor cars and most of these people are making very considerable profits from this type of trading. Their contribution to the national Exchequer and to the country is minimal. Therefore we asked for some effort to be made to ensure that these people make some contribution to the Exchequer. Their contributions by way of value-added tax, income tax, PAYE, PRSI, rates to local authorities and so on are very small. They are making things very difficult for the ordinary shopkeeper and trader who has to pay all these taxes, as well as paying staff and keeping accounts. These people are engaged in unfair competition and their activities must be curbed.

I am glad to note that from now on officials of the Department as well as members of the Garda Síochána and the Revenue Commissioners will be in a position to demand that trading licences are produced. In fact, licences will have to be displayed from now on. A major factor in regard to casual or roadside trading is that in some instances the goods involved are "hot", their origins being either unknown or doubtful. The authorities were not in a position to cope adequately with that sort of situation because of the difficulty in tracking down the goods concerned. I am not saying that the sale of such goods was widespread but it was happening to some extent. I have had reports that such items as television sets, radios and blankets which had been stolen were being sold by casual traders. We hope that this Bill will eliminate such practices. The Garda will now be in a position to check invoices and so on in respect of materials that are being offered for sale. Without this legislation the probability is that increasing quantities of stolen goods would be offered for sale by roadside traders. We must ensure that the steps we are taking go far enough and will prove to be adequate in terms of eliminating the undesirable practices we are talking of.

Another point of concern in regard to roadside trading is the hazard to traffic when these traders are operating on national primary roads. Sometimes on a main thoroughfare one sees between 40 and 50 very good caravans surrounded by some very big cars where goods are being offered for sale. One might say that in such a case there is a market-like situation. This presents a very serious traffic hazard for road users because of the congestion caused and because of passers-by stopping suddenly on spotting the goods on offer. Pemission should not be granted by any local authority in respect of trading on a main thoroughfare. Planning permission in respect of building a house for instance, on a main road is very restricted. It is usually restricted to a farmer's son who is living on the farm. Therefore, there is no reason whatever for casual traders being allowed operate on our main thoroughfares.

Another point in regard to casual traders is the condition in which they leave the areas in which they have operated. We hear a good deal about keeping Ireland clean and beautiful but the task presented to local authorities in cleaning up an area that has been used by casual trades is very great because these people leave behind huge quantities of refuse such as big boxes and so on. In many instances we can assume that the situation presents health hazards. It should be a condition in respect of the issuing of a licence to trade that the area in question is left clean and anybody who fails to comply with that condition should not be granted a licence for the following year. We must be very strict in this regard.

While I have been critical of roadside traders there are instances where those people are giving value for money and people are able to purchase products from them which they cannot purchase as cheaply elsewhere. The Bill will legalise the position and will ensure that the people who are carrying on this legitimate type of business can continue to do so.

It is essential that the restrictions which the Minister is imposing are enforced rigidly. I can foresee some difficulty arising with regard to the issuing of licences. There may, for example, be 20 or 30 people involved in a particular grouping engaged in roadside trading and one person may say that he owns the particular vans, that he is in charge and he obtains the licence. What happens if that particular person breaches the regulations contained in his licence? As far as I can see all he has to do is allow the fine to be imposed. He may have made a very great profit in the meantime and losing his licence will not mean a lot to him. His brother can have the licence issued in his name the following year and the year after that some other relation can have it issued in his or her name. How does the Minister propose to tackle that problem?

Will the one licence issued cover the 40 or 50 people in a particular group involved in casual trading? The Minister may be tightening the procedure a little bit but it will not pay for the enforcement of the scheme if up to 50 people can get away with only having to pay for one licence. This may be a very convenient way round the issuing of a licence under the Bill.

The fines are pretty large in regard to anybody who contravenes the Bill but nevertheless people will endeavour to get around them. It says in the Bill: "a fine not exceeding £5000". I believe it will be very rarely that such a fine will be imposed. If only one person has the licence and the conditions are being broken by one person in the group how will the Minister get around that? It is important to tighten up that regulation. As well as the fine of up to £5,000 there is a continuing fine of £200 a day. This is a real deterrent and I hope that it is sufficient to ensure that the spirit of the Bill is complied with.

Section 7 deals with the designation of casual trading areas. It states in subsection 4:

The designating of land as a casual trading area shall be a reserved function within the meaning of the Cork City Management Acts, 1929 to 1971, the Local Government (Dublin) Acts, 1930 to 1971, the Limerick City Management Acts, 1934 to 1971, the Waterford City Management Acts, 1939 to 1971, and the County Management Acts, 1940 to 1972.

I regret that a final decision will not be left to the elected representatives. It seems to me that this will be a reserved function of the county managers.

It will be the function of the elected councillors.

Will it be the elected councillors as distinct from the county manager who will have the power.

Will the county manager not have the final say?

I am glad to hear that. It is important that elected representatives have a very definite say in the designation of land for casual trading areas. If the elected representatives have not a say in this matter public representatives will receive a lot of pressure. They should have a definite say in regard to the areas which will be specified as casual trading areas by the local authorities.

The licences issued for dance halls and casual licences are put up in a particular place in some instances but in most instances they are not displayed at all. They are not very legible and while they are supposed to be on display a person who wishes to see them has to take some time to find out where they are displayed. Will the position be the same in regard to the licences for casual trading? The licence should be displayed clearly so that people may be able to read it. In addition, the people engaged in trading should wear some kind of badge, or insignia, showing the number of the licence. It is absolutely essential that people should be able to read the number on the badge of the individual who is conducting the trading.

The main purpose of this Bill is to enable a consumer who considers he has been over-charged or has some other reasonable grounds for complaint to report the matter to the Department in the knowledge that action will be taken against the person responsible. The fact that he may report the matter to the local authority or to the Department is the strength of the Bill before us. I should like to put to the Minister the case where sales may be conducted in a number of caravans and where the permit is on display in one place only. I wish to know if it will be necessary to have a permit in each caravan. It appears from the Bill that one permit may suffice for a group of people and I suggest that this may cause problems for the purchaser where sales are being conducted in a number of caravans. I consider that people who are carrying on such sales should be obliged to wear a badge showing the number of the licence. That would provide some protection for the public.

I should like to compliment the Minister on the section dealing with the sale of agricultural produce, potatoes and so on. The licence fee payable is only £5 and this is a very good step. It is my view that we do not sell enough of our horticultural and agricultural produce and the Minister should be congratulated for encouraging people to sell such items. It will be possible, for example, to sell Irish potatoes in a casual trading area and it is my hope that any trader who wishes to avail of this provision will enjoy greater sales than his competitors who may be selling potatoes from Cyprus or elsewhere.

We should encourage people to sell our agricultural and horticultural products throughout our towns and villages. A very considerable amount of fruit, vegetables and agricultural products are imported and sold here. If people had initiative and energy they could ensure that many Irish items could be sold in the casual trading areas and this would be of benefit to the economy. I hope the Department, in conjunction with the Department of Agriculture, will make every effort to ensure that Irish agricultural and horticultural produce is sold not only in the casual trading areas but in all shops throughout the country.

Debate adjourned.
Business suspended at 1.30 p.m. and resumed at 2.30 p.m.