Amendment No. 10 is an alternative to amendment No. 9 and amendment No. 11 is related. Amendments Nos. 9, 10 and 11 will be taken together.
SECTION 3.
Amendments Nos. 7 and 8 not moved.
I move amendment No. 9:
In page 5, lines 12 to 17, to delete subsection (4).
I oppose lines 12 to 17 of this section because there is a principle involved. The State should always prove its own case and the onus should never be put on the defendant in circumstances where it is unreasonable or oppressive on the individual to prove the case against the State. It might be argued that the only requirement on the defendant is to produce a casual trading licence. I did not intend to pursue this issue because I simply wanted to draw attention to the principle. However, the Minister's proposed amendments make my case.
Up to now the local authority which had the detailed information about the designation of casual trading areas would give such information to the court and the court would make a decision. Under these amendments the situation is now reversed. I can speak from my own experience of attending court on numerous occasions with street traders. The individuals concerned, certainly in Dublin, would be people from disadvantaged backgrounds who would not be in a position to have the details or to make the case that is required. If the Minister's amendments are accepted the onus is put on people who are disadvantaged and who do not have the resources to produce such information.
I do not blame the Minister for these amendments. It appears that they have come directly from the local authority to his Department because the local authority does not want the bother of having to go to court and prove its case. That goes against what I consider to be the principles of natural justice. An individual charged with the offence will have to go to court and undertake that which the local authority had to do until now and which it has now decided was too unwieldly or bothersome. The onus is now on the individual. That is bad law. It is unreasonable and oppressive.
My reason for opposing that section through amendment No. 9 was based simply on the principle that the State should always prove its own case. I had not intended to pursue it other than to make the point. However, there is a more important issue at stake now. The Minister's amendments are unreasonable to individual street traders. One cannot envisage or predict the circumstances, but to remove the onus from the local authority to make details available — after all, it is the local authority that designates such spots and has all the information — and transfer that responsibility to an individual who would have no such information appears unreasonable and oppressive.
I note that Deputy Gregory wishes to make a point of principle. However, I cannot see the relevance if he seeks to build a case on the basis of my amendments. Amendment No. 10 is merely a redrafting, for the purpose of clarity, of what is already in the Bill. It is advised by the parliamentary draftsman. An examination of the words to be excised and the words to be inserted reveal that it is a tidier way of expressing the same intention. It has no significance beyond that.
The purpose of amendment No. 11 is to include a presumption in a prosecution for an alleged offence under section 3 (2) (a) that until the contrary is shown, the place where the casual trading is alleged to have taken place was not a casual trading area and that there is designated casual trading area in the functional area of the local authority in which the casual trading is alleged to have occurred. This approach resolves current difficulties in proving that the place where the alleged offence occured was or was not designated as a trading area by the local authority and consequently simplifies the procedure for taking such prosecutions.
The purpose of amendment No. 14 in the name of Deputy Gregory is to delete section 3 (4). This would undermine the essential enforcement powers of the Bill as it would be impossible to achieve successful prosecutions if there was to be no onus of proof on the person charged. I regret, therefore, that I am unable to accept the amendment.
The Minister suggested that I could not build a case around amendment No. 10. I did not attempt to do so. My case is provided in amendment No. 11. I am aware of the difficulties that local authorities claim they have had over the years in having to get officials to attend court and provide information as to which areas are or are not designated. The purpose of the Minister's amendment is to make it easier for the local authority by putting the responsibility on an individual who would not have the information. Only the local authority would have that information available to them.
Chairman, may I speak to the section?
I wish to deal with the amendments in the first instance. I will then call on you to speak to the section.
The difficulty is that Deputy Gregory's approach to the Bill is conditioned by specific circumstances in his constituency. However, the Bill is wider than that. There are others of us representing other constituencies who approach the problem of casual trading from a different viewpoint. For example, in my own constituency residents have been unable for years to get any relief from chip vans or food vans pulling up at any point in the street they wish and providing a service. This can cause untold nuisance to the people outside of whose doors or in whose cul-de-sacthese activities take place. All the young fellows in the areas gather around the chip van and it becomes a focal point for nuisance and botheration to those concerned. The people using the service do not give a damn about the situation; it is a service as far as they are concerned. The local authority is ineffectual in trying to do anything about it.
Perhaps Deputy Gregory would rather the Bill was never born, I cannot claim paternity of it, but it is before the committee and it is necessary to regulate casual trading on a fair and balanced basis. I have taken some time to ensure that the Bill is fair and balanced. I have met all of the interests concerned on both sides of the argument and have made changes to the Bill of which Deputy Gregory is aware. Notwithstanding that, he intends to call a vote four times on the same amendment. In doing so he somehow believes that it will ultimately have a net effect. However, the only net effect is that it will keep us here all summer.
It is not unconstitutional to put the onus of proof on the alleged offender. It is a well known principle of law and a standard provision for evidential purposes. Deputy Gregory knows this. If we want to make the Bill ineffective and have the kind of Bill that is incapable of implementation, the way to proceed is to have local authority officials tied up all day in trying to prove things that should be a matter for the taking of evidence in accordance with the terms prescribed in the Bill. Regrettably, therefore, I must press ahead.
The Minister is correct when he says that I am approaching the Bill on the basis of my experience in the centre of Dublin. I am not approaching it on the basis of its implications for County Wexford, County Kerry or elsewhere. The difficulty is that casual trading in the centre of Dublin is a huge issue. It is part of the life of people who live in the centre of the city and it is a traditional way of life. Indeed, the Minister may, on ocasion, have sung "Molly Malone" following a burst of enthusiasm. I doubt if he will feel comfortable singing it after the Bill is enacted.
I accept that the Minister met delegations with me and has changed the Bill in a very significant way that has met the wishes of one section of stallholders. I am appreciative of this. I met the stallholders yesterday afternoon and they are also appreciative of the Minister's efforts in this regard and of his agreement that they have a just case.
Unfortunately, this does not mean that other aspects of the Bill can simply be let through without being addressed. I regret that the Minister takes it upon himself to predict how I intend to deal with the Bill and how many votes I intend to call. I do not intend to call votes where I do not feel that a vote is required. The Minister has drawn attention to the problem with the Bill when he says that there are other issues besides mine.
Deputy, we are addressing a specific issue. We are not on a Second Stage debate. You are repeating what you put on the record on the last occasion. We have dealt with this issue long enough.
I am responding to the points made by the Minister. He referred to the issue of chip vans and so on. However, the Bill does not discriminate; it does not attempt to deal with the fact that there are very large scale traders and small scale people. Unfortunately, when the Bill does not discriminate, I must pursue the issues that I consider to be important.
I support the Minister's comments on the need for the Bill to be actively operational. The onus cannot be put back completely on the local authorities. We have experienced this in some of the local towns along the N2. The local authorities found it impossible to deal with the situation as it was. Matters have improved slightly because the authorities obtained control of the trading rights in the towns. Prior to that the situation caused enormous problems. We must ensure, therefore, that the Bill can be operated. I take Deputy Gregory's point that he is looking after a specific sector, but the law must be bigger than one individual. I appreciate the Minister's effort to try to meet all interested sections.
The chippers have been part of the reason for the call for this Bill over a long number of years. The law needed to be strengthened or new legislation needed to be introduced. They have been a nuisance to residents in many residential areas, where there are generators working until 2 or 3 a.m. As late as this morning I had a representation from a little village in my own constituency where a chipper was causing a nuisance because they were abusing their concession, if there is a concession in that area. I welcome the Bill for that reason, particularly some part of it.
I recognise Deputy Gregory's problem in inner city Dublin. I only come to that part of Dublin on All-Ireland days when the red and white of Cork is showing. I recognise the difficulties of people involved in niche trading, and the Minister rightly pointed out last week that Mayo has rosary beads and Wexford has strawberries. Inner city Dublin is unique in its own way of life too, with its barrow boys. Many wealthy people came from barrow boys. They were brought up in the laneways, but they became partners in huge stores in the UK and other places and became famous.
The area that concerns me — and I am open to correction — is licensing. I understand a person needs one licence. For example, if I were a Cork casual trader I could trade in Limerick with the same licence. A casual trader should need a licence in each local authority area, because if he travels from one area to another he is involved in big business, as many of them are. The difficulty regarding the Bill is that the people Deputy Gregory refers to are not in the big business category. A person who can travel from Mitchelstown to Rathkeale or Listowel has good equipment. They drive around in an expensive Pajero or other high-powered vehicles. They have a method of hauling their goods and wares. These are the people who cause the difficulties for our citizens in towns, villages and the country in general. It should be more difficult. I have strong reservations about one licence covering two areas — the Kerry licence is valid in Cork and in Clare or vice versa. For that reason the Minister should reexamine the situation.
I was contacted by an official yesterday evening at 6.30 p.m. in relation to this morning's meeting. I was told that some 14 Members of the committee had agreed to change the time from 4 p.m. to 11 a.m. There are three Members of the committee present. I am not sure if the general practice is to change meeting times with no intention of turning up themselves. To come here I had to cut short a meeting in the Department of Education about a matter of some importance. I want to put that on the record because I have no difficulty with the Minister wanting to get the work done. I have a great difficult with people who agree to change a time and do not bother turning up themselves.
This may not be relevant to the subject matter of the section, but I suppose it is interconnected. For the record, I had a request through the convenors to have the meeting brought forward to the morning because they felt it was too late commencing at 4 p.m. Likewise, I wanted to attend the funeral of the former Mayor of Drogheda this morning. I would have liked to have been there. He was a former colleague of mine. It did not suit me either, but I bowed to the wishes of the committee. It was formally put to the Members here in the course of a three and a half hour debate yesterday on the Estimate for the Department of Transport, Energy and Communications. It was agreed, with no dissenting voice, but I asked the convenors to ensure that each Member was contacted personally.
I wish to place on the record that in future, unless it is a national calamity of some sort, I will not change the agreed time of the meeting for any Member unless the committee formally votes to do so. It will have to be for a very good reason. I am giving formal notice to that effect because I cannot run a committee to suit everybody who wants to go to a funeral, a wedding, a horse race, a football match or whatever.
I was contacted by an official yesterday because our spokesperson, Deputy O'Rourke, cannot be here for other reasons. I am here in her place. I was at the Public Accounts Committee at 11 o'clock and I thought it was my duty to be here. I fail to understand why there is not a presence here. What constitutes a quorum for this committee? Is there a quorum?
The quorum is provided for in standing orders. I do not want to get bogged down now in technicalities. I clarified the point and it will not happen again as far as I am concerned as Chairman of the committee. There was a quorum when the committee commenced. Once there is a quorum, it stays in effect until the meeting is terminated that day.
It is not fair to the Minister, although I differ from him on many ocasions.
We are wasting time now.
He has been very helpful with a number of Bills.
The Minister to reply.
Chairman, you were letting me speak on the section.
The Deputy has spoken on the section. I am calling the Minister to reply.
Deputy O'Keeffe made the point that there are wide variations from city to county, county town and village. The purpose of the Bill is to try to encompass all of that. He misunderstands one aspect of it when he talks of the trader being able to travel from Listowel to Rathkeale etc. The licence is only valid for the functional area of the local authority that granted it. A casual trader cannot do that under the Bill. It is being tightened up.
On Deputy Gregory's point, I belong to a small minority of disadvantaged people in Ireland. I cannot sing. However, I want to make clear that I would not be uncomfortable with the Molly Malones. Deputy Gregory knows extremely well that far from in any way disadvantaging the Molly Malones, I have taken steps in the Bill to protect their position. I had to go to Government to get sanction to do so. I am not going to be dragged into that particular debate.
To be clear on this, if the Cork County Council, as a local authority, licenses Ned O'Keeffe as a casual trader, I cannot trade in Limerick without being licensed by the local authority there.
That is right.
Is that clear?
It is clear.
Is that the case for all casual traders?
Yes.
Are there any exceptions?
There are no exceptions.
Amendment put and declared lost.
I move amendment No. 10:
In page 5, subsection (4), lines 14 to 16, to delete "or any person of whom he was at that time acting as a servant or agent in relation to such trading," and substitute "or, if he was at that time acting as a servant or agent of another person in relation to such trading, that that other person".
Amendment agreed to.
I move amendment No. 11:
In page 5, between lines 17 and 18, to insert the following subsection:
"(5) In a prosecution for an offence under subsection (2) (a) where it is shown that a person was engaging in casual trading, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates—
(a) there was a casual trading area in the functional area of the local authority concerned,
(b) the casual trading was carried on in an area that was not a casual trading area, and
(c) the defendant or, if he was at that time acting as a servant or agent of another person in relation to such trading, that that other person was not the holder of a casual trading licence granted under section 4 (1) (a) (iii) for the time being in force.".
Amendment put and declared carried.
Section 3, as amended, agreed to.