HC Deb 27 November 1991 vol 199 cc913-8 3.30 pm
Mr. Ivor Stanbrook (Orpington)

( by private notice) : To ask the Attorney-General if he will make a statement on the steps that he intends to take to prevent the wholesale breach of the Sunday trading laws by Tesco, Asda and Safeway stores.

The Attorney-General (Sir Patrick Mayhew)

Parliament has placed on local authorities the primary responsibility for enforcing the provisions of the Shops Act 1950. Two ways are open to them: they can prosecute traders or they can ask the civil courts for injunctions ordering traders not to break the law laid down in those provisions.

Local authorities and others have asked me to take action in the civil courts because of the present uncertain state of Community law, which has recently been acknowledged by English courts, including the House of Lords. They say that this uncertainty impedes the ability of local authorities to get injunctions from the courts, and that to go to court puts too much of their money at risk.

The Community law point is this: defendant traders have been arguing in English courts that the provisions of the Shops Act are not compatible with our obligations under the treaty of Rome. They say that the provisions breach article 30—the free trade article—and are no longer part of the law of England. It follows, say the traders, that injunctions forbidding them to breach the provisions should not be granted. Both the House of Lords and a lower court have referred the relevant questions of Community law to the European Court.

Meanwhile, the English courts have made one thing clear—that any authority applying for an interim injunction will have to undertake to pay the trader's resulting losses if it loses the case in the end.

It remains the responsibility of local authorities to decide their own course of action.

For my part. any decision that I now take is my sole responsibility as Attorney-General, and not a decision of the Government. On the other hand, matters of political policy are not for me but for my right hon. Friend the Home Secretary. If I were now to bring civil proceedings, I should have to bring a very large number of actions, and those would be no less affected by the Community law point. I believe that in those circumstances I, too, would have to give undertakings as to damages.

The law is not suspended. Local authorities can continue to apply for injunctions. Moreover, any trader who trades on Sunday, relying only on the present uncertainty, remains liable to criminal proceedings. In the light of those and all other relevant considerations, I have decided not to intervene. Naturally, I will keep developments under review.

Mr. Stanbrook

Is not the law perfectly clear and enforceable as far as British courts are concerned? [HON. MEMBERS: "English".] Does my right hon. and learned Friend realise that the individuals concerned are directors of very large companies, who seek to enrich themselves at the expense of smaller competitors which wish to keep Sunday special for their staff, their families and the general public? Are not those people trying to bully the Government into abandoning the whole of the Sunday trading laws? I ask my right hon. and learned Friend to use his powers under the criminal law to take those people to the courts—[Interruption.]——

Mr. Speaker

Order. The hon. Gentleman has every right to speak.

Mr. Stanbrook

—to take those people to the courts and seek to get them bound over to obey the law until Christmas at least, on pain of imprisonment, which they richly deserve. When it comes to law breaking, what is the difference between a rich bully and a petty thief?

The Attorney-General

I—and the whole House—have known my hon. Friend long enough to realise, sympathise with and admire his concern for matters affecting the law. I wish to make it perfectly clear that the enforcement of the law in this regard is a matter for me as Attorney-General alone. It is not a matter, as my hon. Friend uncharacteristically suggested, for the Government.

My hon. Friend said that the law is perfectly clear as far as British courts are concerned. I have drawn the attention of the House to the fact that English courts have indicated some uncertainty as to the content of Community law. Article 30 creates rights in English law in respect of those injured by its infringement which are directly enforceable in English courts. That is why it is a relevant factor.

This issue—which is not an easy one—has absolutely nothing to do with people being bullied and absolutely nothing to do with people being rich or poor. It has to do with a law passed by Parliament, which places the principal and primary responsibility on local authorities. I have considered anxiously whether I should take action but, for the reasons to which I have referred, I have decided that it is not appropriate for me to do so.

Mr. Peter Archer (Warley, West)

Does the Attorney-General agree that an authority charged with the enforcement of the law, as he is, has a discretion whether to proceed in a particular case but cannot lawfully adopt a general policy of not enforcing the law at all? Is that not the effect of the Court of Appeal decision in ex parte Blackburn, and is not the adoption of such a policy the assertion of the suspending power denied to James II?

The Attorney-General

The right hon. and learned Gentleman quite rightly says that it is not for me to adopt a policy that binds me for the future. That is why I concluded my reply to my hon. Friend the Member for Orpington with the words, "Naturally, I will keep developments under review."

Mr. Tony Favell (Stockport)

What course is now open to the British Government to stop our European friends interfering with the British Government?

The Attorney-General

Equally, I understand the concerns that lie behind my hon. Friend's question. It is, however, the fact that, since 1972, directly enforceable Community law has taken precedence over domestic provisions and forms part of English law. That is the answer to my hon. Friend's question.

Mr. David Alton (Liverpool, Mossley Hill)

But is the Attorney-General seriously suggesting that, in the 600 cases awaiting decision by the European Court, those decisions should be set aside and that the law should remain unenforced until decisions are made—perhaps 18 months from now? When the question is asked, "Who runs the Government?", will not the truthful answer be Sir Basil Feldman and the Shopping Hours Reform Council? Is not the right and learned Gentleman embarrassed by the correspondence between the Prime Minister and the chairman of the Conservative party and B & Q, thanking it for sponsorship provided for the Conservative party conference? Is not the right hon. and learned Gentleman embarrassed? How much financial sponsorship has his party received this year from the big vested interests of the large stores—[Interruption.]

Mr. Bob Cryer (Bradford, South)


Mr. Speaker

Order. We do not need visual aids.

The Attorney-General

If the hon. Member for Liverpool, Mossley Hill (Mr. Alton) wishes to suggest that the Attorney-General has been influenced in this connection—[HON. MEMBERS: "Yes."]—by any question of any subscription that may have been made to the Conservative party or any other body, he should stand up and make that assertion openly instead of implying that in a question on this matter. If he does that, I shall answer him in terms that he will understand.

Mr. Alton

On a point of order, Mr. Speaker.

Mr. Speaker

No, I am not taking it now.

Several Hon. Members


Mr. Speaker

Order. I am on my feet. As there is great interest in this matter outside the House, I ask hon. Members to deal with it in a responsible manner. I shall take the point of order after the statement.

Sir John Wheeler (Westminster, North)

Does my right hon. and learned Friend agree that in this matter he has a very special duty to the House in his office of Attorney-General and that in his statement this afternoon he has discharged that duty admirably? Does he further agree that the issue of policy is not for him, but lies elsewhere and that, as is the case in the Chamber, there is a considerable division of opinion on this matter among the British public?

The Attorney-General

I am grateful to my hon. Friend for his opening remarks. There may well be a considerable difference of opinion, but, as he has rightly said, questions of policy—and especially how long these provisions remain on our statute book—are not matters for which I have ministerial responsibility. I have to decide whether to seek to apply for injunctions throughout the country—I could not take single cases alone. The primary responsibility has been placed by Parliament on local authorities. For the reasons that I have given, I think that it is right to leave that primary responsibility where it is. As I have said, local authorities are still able to apply for injunctions and to initiate criminal proceedings.

Mr. Donald Anderson (Swansea, East)

How does the Attorney-General seek to answer an ordinary citizen who is summonsed for not paying the poll tax when that person knows that the Government have leaned on the local authorities to pursue such summonses, but when that person also sees the Government rolling over like a poodle and conniving and colluding with the big interests—[[Interruption.]—and conniving and colluding in a breach of the law?

The Attorney-General

Questions of enforcement of the criminal law depend on whether the law is clear and questions regarding injunctions—[HON. MEMBERS: "Ah"] Wait a minute. Questions regarding taking injunctions to enforce the criminal law are, again, influenced by the question whether the law is clear or whether it is not. If the hon. Gentleman was listening—I am sure he was—he would have heard my reference to the fact that English courts have indicated that there is uncertainty about Community law. English courts have to enforce Community law. That means that it is a relevant factor in the question whether applications should be made for injunctions. I have given an account to the House of why I have decided not to apply at this stage for an injunction. That is not to say that local authorities cannot continue to apply for injunctions if they are so advised.

Mr. Patrick Cormack (Staffordshire, South)

Does my right hon. and learned Friend accept that no one who knows him could possibly doubt his personal integrity, but does he not agree that the people who made that announcement are behaving with a flagrant disregard for the law and are adopting an attitude which, frankly, is utterly unacceptable to many Conservative Members?

The Attorney-General

I recognise that it is very unacceptable to my hon. Friend and to many others that people should say that they will trade on Sundays. My job is to decide whether I should intervene to supplant the primary responsibility of local authorities, which Parliament placed upon them as long ago as 1950. For the reasons I have given, I do not believe that it is appropriate for me to take that action.

Mr. David Trimble (Upper Bann)

One appreciates that one of the difficulties in this situation is that the criminal sanctions that are available to local authorities are unlikely to be effective. Surely the Attorney-General realises that this is the right type of situation for recourse to an injunction, because we are dealing with what appears to be a flagrant conspiracy by a significant number of retail chains to flout the law deliberately on a massive scale. Surely the Attorney-General realises that it is not appropriate just to leave this matter to local authorities; potentially, this is a situation where the right hon. and learned Gentleman should act. His failure to act is likely to send a signal to local authorities that they should do nothing.

On the European law, although there may be colourable issues involved, is it not significant that another European Government are introducing proposals to make Sunday a compulsory rest day? That demonstrates that they do not consider that there is any significance attached to the European law argument.

The Attorney-General

I must repeat that questions of political policy are not for me in this regard. I have some sympathy with what the hon. Gentleman says about the criminal sanction that is available to local authorities under the provisions of the Shops Act 1950. A more effective means of enforcing the law is a civil injunction obtained in the civil courts. The question is whether it is for local authorities to exercise their jurisdiction in their areas. It is a matter of speculation, but I think that it is likely that Parliament, in putting primary responsibility on those local authorities, wanted local circumstances to be taken into account by the enforcing authorities. Whether that is the case or not, local authorities retain that responsibility.

I have told the House that I would have to take a very large number of actions up and down the country and that I would have to give a cross-undertaking as to damages. I took those considerations into account when I came to my decision.

Several Hon. Members


Mr. Speaker

Order. I remind the House that this is an extension of Question Time. I shall take one more question from each side and then we will move on to the statement from the Home Office Minister.

Sir Hugh Rossi (Hornsey and Wood Green)

Following that answer, is it not a factor in the present situation that the fines that can be levied under the Shops Act are not a deterrent to the kind of people that the House has in mind today, whereas they can be extremely punitive to the corner shop, the small do-it-yourself or the small garden centre? They are the very people that the House might well be minded to exempt were new legislation under the Shops Act to be introduced. Does my right hon. and learned Friend agree that the question of the deterrent is a matter for him and is one upon which he could advise the Government to introduce urgent legislation?

The Attorney-General

I agree with my hon. Friend that the maximum fine is low. Therefore, I repeat that the most effective form of law enforcement is that of an injunction. An injunction against a big chain is no more effective than an injunction against a small retailer. If a court gives an order, it is an order that must be obeyed. It will be enforced by the courts, because to break it will be contempt of court. Whether the present Act should remain on the statute book is open to question and debate, but it is not a matter for which I have ministerial responsibility.

Mr. John Fraser (Norwood)

Will the Attorney-General confirm that there is little practical possibility of local authorities obtaining injunctions so long as they have to give an undertaking as to damages? The reason why the Attorney-General has been asked to take action is that he is not required to give such an undertaking.

Would the Attorney-General care to tell the House why he was prepared to spend millions of pounds going to court after court, in country after country, in the "Spycatcher" case, when the Government's interests were at stake, but is not prepared to take any action when many interests, which have been evinced by Members of Parliament, are at issue?

Will the Attorney-General also confirm that in the Torfaen case the European Court laid down that article 30 of the treaty of Rome does not apply to national rules such as Sunday trading, where the restrictive effects do not exceed the effects that are intrinsic to such rules? Last April, the European Court upheld the validity of national laws on Sunday trading as they apply to Belgium and France. Therefore, even in European terms, there is little doubt about the law. It is the sort of law that should be settled by domestic legislation rather than by a paragraph in the treaty of Rome.

Is it right that only those who are well endowed and can pay the price can have a European defence, so that we have one law for the rich and another for the poor?

Apart from action by the Attorney-General, could not the Prime Minister take the opportunity of Maastricht to redefine matters such as the Sunday trading laws, which should be entirely a matter of British domestic competence and on which the law should be domestic, clear, understood and enforceable?

The Attorney-General

First, on the question whether I would have to give a cross-undertaking to pay damages if I lost an action, I am advised that, in the circumstances with which I am dealing, I would have to give such an undertaking if I were granted an application for an interim injunction. I accept that advice, although the hon. Gentleman is right to say that the normal rule is that the Crown does not have to give such an undertaking.

The hon. Gentleman's second point was an ingenious reference to the "Spycatcher" case. That action was brought to enforce a life-long duty of confidentiality owed to the Crown. No circumstances in that case put the primary responsibility for enforcing such a duty on local authorities or anyone else, except the Crown and its representatives. The money involved was money well spent, because it resulted in the House of Lords declaring that a life-long duty of confidentiality was owed to the Crown by anyone who had been a member of the security services.

The hon. Gentleman then mentioned the Torfaen case and asked me to confirm that the European Court ruled that the Shops Act 1950 was compatible with article 30. The answer is, not entirely. As the hon. Gentleman knows, an obscure reference made at the end of that judgment has led the House of Lords—to which an appeal in the Stoke-on-Trent v. B & Q case has been made and is now pending—to refer the relevant questions of Community law to the European Court under article 177 of the treaty. That will allow the European Court to give a preliminary ruling so that the House of Lords can answer the very question whether the Shops Act is compatible with article 30.

That defence is open to everyone, not only the rich. It is now a matter of public knowledge, and those cases are well reported. Therefore, it is a factor to be taken into account—not necessarily a decisive factor—when considering whether to apply for an injunction. In my case, I would be considering whether to apply for an injunction in a very large number of cases, each time undertaking to pay the damages that would be incurred, if I lose, in the interim between getting that injunction and the ultimate hearing of the case. I have thought it right and in the public interest to take those considerations into account, and, among other factors, they have informed my decision.

Mr. Speaker

Statement—Mrs. Angela Rumbold.

Sir Peter Tapsell (East Lindsey)

On a point of order, Mr. Speaker.

Mr. Speaker

I shall take points of order later.