Joe Costello (Dublin Central, Labour)
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It is with a heavy heart that I seek legislation to abolish the Smithfield horse fair. My colleagues and I in Dublin Central and my former colleagues on Dublin City Council have been dealing with the matter for a number of years. The Minister would have known about this when he was a member of Dublin City Council.

The fair in Smithfield has been in existence for centuries. Cattle, vegetables, hay and fruit were traded in Smithfield and the fish market was just down the road. All of this was an integral part of the area and the tradition of trading activity is a long one. The horse fair is a more recent feature but nevertheless has trading rights in the area.

Dublin City Council made major investment in the area through the Heritage Area Rejuvenation Project, HARP, which changed a derelict part of the inner city into an area with quite an amount of residential and retail property. The city council invested in the area and encouraged private investment to develop the area. At present, €5 million is being spent on further enhancement. Quite a number of residents live in Smithfield and there is an amount of retail activity.

However, the area has been dogged by certain difficulties, one of which is the horse fair. We sought to deal with some of these difficulties through the Control of Horses Act 1996. We sought alternative accommodation for the horse fair and set up an equestrian centre in Ballyfermot.

Nevertheless, the problem remains. The fair has degenerated to an unacceptable degree. There have been serious problems which pose a danger to life and limb and to animal welfare. The space is more constricted than in the past and will be further constricted by the enhancement works that are taking place. We must accept that one cannot have a major horse fair in the heart of the capital city, with horses streaming in from different suburban areas. Some come on foot along the streets and are taken away in the same fashion, with all that entails for the roads and pavements.

I ask the Minister to look at the possibility of finding an alternative site, although it is difficult to see where that alternative site can be found. It is time for this House to decide whether Smithfield is an appropriate location for horse trading, which is in itself a desirable activity and takes places in many parts of the country. If we decide Smithfield is not an appropriate location, and all the arguments seem to be to that effect, we should move speedily, introduce legislation and abolish the present horse fair in Smithfield.

Richard Bruton (Dublin North Central, Fine Gael)
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I thank Deputy Costello for raising this important issue today. As Deputy Costello has acknowledged, he and I have had some private discussions on this matter and also with Deputy Paschal Donohoe. This is a problem, but an extremely complex one, as the Deputy is aware.

The Smithfield market has existed as a market for some centuries. Its remit is under the Dublin Corporation Act 1890, which gave the Corporation powers to set fees and take tolls. The Act also set out the geographic limits of the market. The Casual Trading Act 1980 introduced a dual system whereby my Department issued a national casual trading licence and those local authorities who wished to regulate within their own functional areas could if they so wished issue a local casual trading permit. National marketing licences were regulated by the Department and local licences were regulated by the city council. It was decided in 1995 that a national Department regulating local markets was an anomaly and the Casual Trading Act 1995 devolved all operational matters relating to casual trading to the local authorities.

Section 2(1) of the Casual Trading Act 1995 defined casual and gave local authorities the ability to regulate. It was recognised in that Act that there existed so-called ancient market rights and these were treated differently. Section 1(1) of the Casual Trading Act 1995, defines a market right as, "a right conferred by franchise or statute to hold a fair or market, that is to say, a concourse of buyers and sellers to dispose of commodities". Many of these market rights arose prior to 1922 and many are contained in charters granted by monarchs or local nobility to individuals or to towns or cities. Others are statute based usually from the nineteenth century. Whereas the Act of 1980 excluded selling goods in public places pursued under a market right, the Act of 1995 brought this category of selling clearly within the ambit of casual trading legislation.

Given that the selling of goods in a public place pursuant to a market right was a special category of selling, casual trading legislation had special provisions to deal with them. In the case of trading in what might be termed ordinary casual trading areas the local authority can designate the trading pitches and likewise remove this designation once they comply with all the procedures in section 6 of the Act. The situation regarding trading in areas covered by the more ancient market rights is different. The legislation allows local authorities to regulate trading in areas covered by a market right but to remove or to extinguish this market right requires a special procedure. This is described in section 8 of the Casual Trading Act 1995. The most important provision of that section is that in order to extinguish a market right the local authority must provide "alternative facilities in the same vicinity as the market or fair to which the right relates and comprising or including facilities reasonably corresponding in all respects, having regard to all the circumstances, to the market or fair". Further, the local authority must publish notice of its proposal to extinguish the market right and must give notice in writing to anyone appearing to the local authority to have an interest in the right. Under section 8(5)(a) of the Act of 1995, any person aggrieved by the proposal to extinguish the market right can appeal to the District Court and from there to the Circuit Court. The extinguishment of a market right is a reserved function for the members of a local authority. Therefore it is clear that there is a procedure for extinguishing a right like that in Smithfield but in all cases the local authority has the legal competence to acquire that right either by agreement or compulsorily. If this happens the local authority can go through the process I have just described in section 8 to extinguish the market right and this is what can lead to a complication of the market in question.

The lord mayor of Dublin has written to me requesting me to introduce legislation to extinguish the market right at Smithfield and Deputy Costello has reiterated that request. However, it is clear that this law is complex and each market may have to be examined in its own right, bearing in mind the statute or charter under which it was established and the history of regulation of that market right over time. My Department has made a detailed submission to the Office of the Attorney General seeking advice on the matter and the Department's powers in this area. It is not open to me as Minister and I would not be the competent authority to find alternative sites under the existing legislation were the council to proceed in that way. The council would be better placed to identify alternative sites within its own remit than would my Department.

The legislation covering casual trading covers the sale of goods. However, there are other interests involved in the Smithfield market which concern other competent public bodies. The events at the market in early March were of a public order nature. There is also an issue of animal welfare. These events arose out of various public order offences. The policy on public order is a matter for my colleague, the Minister for Justice and Equality and on an operational basis for the Garda Síochána. Concerns have been expressed regarding animal welfare which is covered under the Control of Horses Act 1996 and the Protection of Animals Acts 1911 and 1965. These Acts provide considerable scope for the local authority to control all aspects of the behaviour of horses and their owners in urban and other areas. There may be another dimension by means of those Acts to pursue this matter. While it is clear that existing legislation allows for the regulation of the sale of horses in the market in Smithfield, and there is the power of extinguishment, this is on the basis of Dublin City Council finding alternative sites if it is initiating that power. I will wait to see if other dimensions to this legislation would allow some other solution to be sponsored through my Department. I look forward to receiving the advice of the Attorney General on this matter.