Supreme Court of Ireland Decisions

1. This appeal is taken by the plaintiffs against the order of the High Court made by Barron J. on the 28th October, 1988, dismissing the plaintiffs’ claim for a declaration that such of the provisions of ss. 4 and 5 of the Casual Trading Act, 1980, as purport to empower the first and second defendants to refuse to grant respectively to the plaintiffs (a) a casual trading licence and (b) a casual trading permit are invalid having regard to the provisions of the Constitution, and for ancillary relief by way of injunction and damages.

2. In its long title the object of the Act of 1980 is described as being “TO PROVIDE FOR THE CONTROL AND REGULATION OF CASUAL TRADING AND TO PROVIDE FOR CONNECTED MATTERS”. “Casual trading” is defined in s. 2, sub-s. 1 as meaning “selling goods by retail at a place (including a public road) to which the public have access as of right or at any other place that is a casual trading area”. “Casual trading area” is defined in s. 1 as meaning land standing designated [by a local authority in its functional area] under s. 7 of the Act of 1980 as an area where casual trading may be carried on.

3. Restrictions on casual trading are provided for in s. 3 of the Act of 1980, the relevant provisions of which are:-

4. The grant of casual trading licences is provided for in s. 4 of the Act of 1980 which is central to this case. The relevant sub-sections are as follows:-

5. A casual trading licence remains in force for a period of twelve months and then expires (section 4, sub-section 7).

6. The Act came into force in the City of Dublin in 1983 (the date is not stated in the papers before us) and thereupon the first defendant designated the south side of Henry Street from the junction of Liffey Street Upper to the junction of O’Connell Street Lower as a casual trading area in the month of December to facilitate Christmas trading there – the distance between Liffey Street and O’Connell Street would be approximately 250-300 yards. A current licence and a current permit are necessary to enable a casual trader lawfully to trade in that area during the month of December in any year.

7. All fourteen plaintiffs are street traders who have been engaged in that activity for varying periods of years. During most of such time, as the learned trial judge found in his judgment (see:- [1989] I.R. 26), and as was admitted in the action, they have been trading in Henry Street in contravention of the relevant provisions of the Act of 1980. In respect of trading in the month of December in Henry Street, four of the plaintiffs have at no time had a casual trading permit; three of them were not granted a permit in respect of December, 1984, or December, 1985; five of them were not granted a permit in respect of December, 1985, and the remaining two had a permit in respect of December, 1985. In the period from the 1st December to the 24th December in each year each of them would earn approximately £50 to £60 per week. There are 85 “places” in Henry Street, and these have been allocated to traders who have both a licence and a permit. There are upwards of 900 applicants each year for these 85 places, with the result that there is a huge waiting list of those seeking permits in respect of Henry Street, including a large number who have never been convicted of any offence under the Act.

8. Towards the end of November, 1985, each of the plaintiffs applied to the Minister for a licence for the twelve months commencing the 1st December, 1985. As each of them had been convicted of two or more offences under s. 3 of the Act, each of these applications was refused pursuant to s. 4, sub-s. 6 of the Act of 1980. None of them was therefore able to apply for or obtain a permit for Henry Street for the month of December, 1985. That did not however deter them from trading in Henry Street in that month though without a licence or permit to do so. As was admitted in evidence at the trial, when trading without a licence or permit is carried on, they “keep a wary eye out for the guards”. When a garda or authorised officer approaches the area in which they are trading, they run away.

9. They again traded in Henry Street in the month of December, 1986. On the 9th of December in that year each of them was informed by Miss MacInerney, an authorised officer under the Act of 1980, that as they had no licence or permit, they could no longer trade in Henry Street and that any of them who attempted to do so would be removed by the gardaí. These proceedings were commenced on the following day.

10. In the High Court the action was tried by Barron J. It was accepted on behalf of the plaintiffs that the kernel of the case was the provisions of s. 4, sub-s. 6 of the Act of 1980. It was submitted in the High Court that

11. The learned trial judge dismissed the plaintiffs’ claim and refused the relief sought. In so doing, he concluded

12. From that order of the High Court the plaintiffs have appealed to this Court. No appeal was taken in respect of the conclusion of the learned trial judge relative to the construction of s. 4, sub-section 6. The remaining submissions in the High Court were repeated in this Court. In addition, it was submitted on behalf of the plaintiffs that:-

13. It is well settled that when this Court or the High Court has to consider the constitutionality of any law enacted by the Oireachtas, the impugned Act and each provision thereof is presumed to be constitutional unless and until the contrary is clearly established. That principle therefore applies in this case.

14. A large part of the argument both in the High Court and in this Court was concerned with the decision of this Court in Conroy v. Attorney General [1965] I.R. 411. In that case the plaintiff was charged in the District Court with the offence of what is commonly called driving while drunk pursuant to s. 49 of the Road Traffic Act, 1961. If convicted he was liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not exceeding £100 or to both fine and imprisonment. Pursuant to s. 26 of that Act, in the case of a first offence there was a consequential disqualification for holding a driving licence for not less than one year, and for not less than three years in the case of a second or subsequent offence. It was contended on his behalf that, by reason of the gravity of the offence and the severity of the punishment, the offence charged was not a minor offence fit to be tried summarily and that the provisions of that Act providing for summary trial were invalid having regard to the provisions of the Constitution.

15. Whilst in that case the Court considered the nature and effect of the statutory “right” to a driving licence (“right” in that context being used in contrast to “privilege”), and of the consequential disqualification from holding a driving licence pursuant to s. 26 of the Act of 1961, the ratio of the decision was that a punishment of 6 months imprisonment and a fine of £l00, which the offence under s. 49 attracts, does not remove that offence from the category of minor offences triable summarily, and that the consequential disqualification from holding a driving licence is not part of the punishment for the offence.

16. No issue as to mode of trial of any offence under the Act of 1980 arises in this case.

17. Accordingly, the Court, as it ruled at the conclusion of the submissions made on behalf of the plaintiffs, is satisfied that the issues which arose in that case, are not relevant to any of the issues which arise in this case.

18. The plaintiffs submitted that they have a right to earn a livelihood as street traders and that the provisions of s. 4, sub-s. 6 of the Act of 1980 effectively deprive them of that right. They claim that such deprivation is out of proportion to the nature of the offences committed by them or which might be committed by them under the Act, and that s. 4, sub-s. 6 is an unjust attack by the State on their right to earn a livelihood.

19. As to proportionality, they relied on what was said by the Court of Appeal in England in Reg. v. Barnsley Metropolitan Borough Council, Ex parte Hook [1976] 1 W.L.R. 1052. In that case, a stall holder in an ancient town market under an oral licence from the Council had his licence revoked by letter from the market manager. The reason for the revocation was that, on one occasion, after the market had closed and the public toilets were locked, he had been seen urinating in a side street by some Council workers and reproved by them. The matter was reported to the market manager who terminated his licence by letter at a few days’ notice. The stall holder appealed to two Council committees. His appeals were dismissed and he was barred from trading in the market for the rest of his life. The Barnsley Corporation Act, 1969, and the bye-laws made under that Act, which regulated the conduct of the market, contained no provisions in relation to the determination or revocation of a stall holder’s licence or the terms on which it was held. The stall holder applied for an order of certiorari.

20. It was held by the Court of Appeal that:-

21. In the opinion of the Court, none of the issues which arose in that case are of any relevance to the issues which this Court has to determine in the instant case.

22. In this case, the Oireachtas, in which is vested the sole and exclusive power of making laws for the State, has expressly enacted that the Minister shall not grant a licence to a person who was convicted of two or more relevant offences. Most of the offences created by the Act of 1980 are minor offences, and the indictable offences created by s. 3 may be tried summarily in the circumstances provided for in section 15, sub-section 2. Although they are minor offences they are by no means trivial offences. In Minister for Industry, Commerce and Tourism v. Quinn (Unreported, Supreme Court, 23rd January, 1981) Henchy J. giving the unanimous judgment of this Court, said at p. 10 that:-

23. The offence in that case was charging 1 d. more than the permitted maximum price for a pint of draught stout. The penalties provided by s. 8 of the Act of 1972, on summary conviction, were a fine not exceeding £100 together with a fine not exceeding £10 per day in the case of a continuing offence but not exceeding £100 in total, or imprisonment for a term not exceeding 6 months or to both such fine and imprisonment. That statement of Henchy J. is equally applicable to the offences created by the Act of 1980.

24. The personal rights guaranteed by the Constitution are set out in Article 40. Article 40, s. 3, sub-ss. 1 and 2 are in the following terms:-

25. The general guarantees in these two sub-paragraphs are not confined to the rights specified in the Article, and it is now well settled that amongst the unspecified personal rights granted by Article 40, s. 3 is the right to earn a livelihood. On behalf of the plaintiffs it was alleged that their right to earn their livelihood is a property right protected by Article 40, section 3, sub-section 2. This claim however was not developed in the submissions to the Court during the hearing of the appeal - indeed no argument was addressed in support of that claim.

26. However, assuming, without deciding, that the right to earn a livelihood is a property right, the question which arises is whether s. 4, sub-s. 6 of the Act of 1980 constitutes an unjust attack on the rights of the plaintiffs to obtain a licence to enable them to trade. The right to trade and earn a livelihood is not an unqualified right. In modern times there must be few professions, occupations, trades, or industrial or commercial undertakings which are not subject to what Costello J. in Attorney General v. Paperlink Ltd. [1984] ILRM 373 referred to as “legitimate legal restraints” (p. 384). This Court in Moynihan v. Greensmyth [1977] I.R. 55 in its judgment delivered by O’Higgins C.J. at p. 71 said:-

27. The stated object of the Act of 1980 is to provide for the control and regulation of casual trading. In enacting the legislation, the Oireachtas, having regard to the requirements of the common good, has to strike a balance between the legitimate rights and interests of those who may be affected by the legislation. These include-

28. In the opinion of the Court where the Oireachtas has to legislate for the control and regulation of casual trading in a public place to which the public have access as of right or on land occupied by and in the functional area of a local authority, and designated by that authority as a casual trading area, it is open to the Oireachtas to provide for strict control and regulation of that trading having regard to the exigencies of the common good. This the Oireachtas has done. In the Act of 1980 the Oireachtas has made provision for how and where casual trading may take place, for the restrictions imposed on those engaged in such trading, for the grant of licences and permits, and for the offences that may be committed by those engaged in such trading both with and without a licence or permit. These are all matters which are peculiarly within the competence of the Oireachtas, in whom the legislative power of Government is vested by the Constitution, and the courts cannot intervene at the behest of casual traders who have temporarily lost the right to obtain a licence unless an injustice is thereby done to such traders. Section 4, sub-s. 6 of the Act of 1980 makes perfectly clear the circumstances in which the licence granted in pursuance of that section may be lost, and those engaged in casual trading can be under no misapprehension as to the consequences of failure to comply with the provisions of the Act, and of conviction of two or more offences under the Act. In respect of such convictions the Oireachtas has provided what amounts to a statutory disqualification for obtaining a licence for the period fixed by that sub-section.

29. In the opinion of the Court, where a person engaged in casual trading has been convicted of an offence under the Act of 1980, it is neither unjust nor unreasonable to deprive that person of the right to obtain a licence under the Act by reason of his having been convicted of a second or further offences under the Act. The Court is therefore satisfied that the plaintiffs have failed to establish that the impugned provisions of s. 4, sub-s. 6 of the Act of 1980 are an unjust attack on their rights protected by Article 40, s. 3, sub-s. 2 of the Constitution.

30. This action accordingly fails and the appeal stands dismissed.