Sunday Trading

HC Deb 26 November 1992 vol 214 cc998-1007

4.1 pm

The Secretary of State for the Home Department (Mr. Kenneth Clarke)

With permission, I should like to make a statement on Sunday trading in England and Wales. My original intention was to come to the House once the judgment from the European Court was available but I now understand that, because of circumstances that have recently arisen at the Court, that is unlikely to be before January. I have therefore decided to let the House know how we propose to proceed.

The Government are determined to give Parliament the opportunity to settle the vexed question of the reform of the law on Sunday trading in England and Wales.

No body of opinion finds the existing law wholly satisfactory. Everyone—from sabbatarians to deregulators—is critical of some aspects of the Shops Act 1950. But there is a very wide spread of opinion about how it ought to be reformed. The House will wish to know how we intend eventually to ask Parliament to resolve the issue.

The question now is not whether there should be reforrn but what that reform should be. This is a matter upon which every Member of Parliament is likely to have his or her own views. Views cut across our usual party lines. It is the opinion of Parliament as a whole that must determine the issue. The Government would expect to give their supporters a free vote on the key issue of whether restrictions should apply to trading on Sunday and, if so, what they should be.

The Government will in due course invite Parliament to decide between the three main options: total deregulation; proposals put forward by the Shopping Hours Reform Council; and proposals put forward by the Keep Sunday Special Campaign.

Total deregulation would place the law in England and Wales on the same basis as the present law in Scotland. That gives complete freedom of choice and allows opening to be determined by commercial judgments of the wishes of the shopping public. To my constituents, I make no secret of the fact that that is my preferred option.

The Shopping Hours Reform Council proposes a quite different model, under which any small shop would be able to open at any time on a Sunday to sell anything that it chose to sell. Larger shops would be able to open only for a limited period of six hours. The council proposes a local authority registration scheme under which shops would inform the local authority of their intention to open on a Sunday.

The Keep Sunday Special Campaign put forward proposals that would in general prohibit trading on Sunday but exempt certain classes of shop—shops catering for recreation, emergencies, social gatherings and travel. Whether such a shop could open on a Sunday would be determined by what it sold. Whether some types of shops could open would depend on their annual turnover in a list of permitted goods. There would be a maximum floor size for some types of shop. Some shops wishing to open on a Sunday would have to register with their local authority, which would have the discretion to decide whether any shop should be permitted to open.

The Government have concluded that Parliament should fully debate all three options to see precisely what each implies for shops, what they can sell, and what their customers can buy. The House should then decide which option is to be preferred.

We have already begun to work on a Bill that will provide a mechanism for Parliament to make that choice. I have today written to the Keep Sunday Special Campaign and the Shopping Hours Reform Council inviting them to work with the Government in formulating their proposals for a Bill. The Bill presented to the House will contain all three models as alternatives. One will be chosen by the House and that model will then go through the normal refinement process in Committee and on Report. The result at the end of the debates in both Houses will be the preferred legislative solution.

We shall publish before Second Reading an explanation of the practical effect of each set of proposals. We will aim to draft each model, in collaboration with the groups that I have named, with great care to make it easy to implement, readily enforceable, and as free from anomaly as possible.

The Bill will contain Government clauses to provide protection for existing shop workers from being compelled to work on a Sunday if they do not wish to do so. However, we must remember that a great many people would positively welcome the opportunity to work on a Sunday, and their freedom must be protected, too.

Mr. Dennis Skinner (Bolsover)

Not in this House. Six weeks, holiday have been announced for this place.

Mr. Clarke

I agree with the hon. Gentleman. As far as I am aware, his offer to work on a Sunday does not feature in the Jopling report. We have important legislation in this Session which may alter the position. There are precedents, but that is where we are at present.

I cannot yet say when the House will be given the opportunity to settle the law on Sunday trading. Our proposals will need to await a judgment of the European Court of Justice. That court is considering several cases referred to it by some English courts, including the House of Lords, to establish whether our Sunday trading laws are compatible with the free trade articles of the treaty of Rome. The court will deliver its judgment soon.

It would be wrong to enact or seek to enact fresh legislation while we await that judgment. To do so would risk a new law, falling foul of Community law and therefore having to be replaced. But there is no need to delay the preparation of a Bill. I will be pressing ahead with that, seeking and expecting the co-operation of the Keep Sunday Special campaign and the Shopping Hours Reform Council so that, once we have the ECJ's judgment, we are well placed to take advantage of the earliest opportunity that can be found for legislation.

I have described a process which will enable Parliament to settle the issue on Sunday trading reform. I hope that we will be able to bring forward the legislative proposals without undue delay. I invite the House to endorse my proposals so that we can proceed, with the co-operation and assistance of the various interested parties, to draft the necessary Bill. I believe that that method of proceeding offers the welcome prospect of a conclusion to the uncertainty and anomalies of the present legal situation on the subject.

Mr. Tony Blair (Sedgefield)

I welcome the fact that the Secretary of State is introducing legislation on this issue and that there will be a free vote on it. Will he give an undertaking that the vote will be genuinely free and that the payroll vote will not be mobilised in favour of any one option or, indeed, any one issue within an option?

Does the Secretary of State agree that the challenge is to produce a lasting reform that ends both the present deregulation through anarchy and the anomalies of the existing law, which is clear and practical and commands public support, yet properly protects the rights of those who will have to work on a Sunday if others are to shop on a Sunday? Does he agree that that matter will be especially important since, once we have legislated, the legislation will need to be enforced? There will be a strong duty on the House to ensure that the proposals produced are capable of being enforced which the present legislation is not.

I suspect that we are about to be subjected to intense lobbying from groups of all persuasions. Will the Secretary of State ensure that the information and studies available to the Government are shared with Members of Parliament? Will he ensure that the information includes assessments of the impact on the local environment and quality of life of those who live close to the shops which will open on a Sunday? Will it also include an analysis of the current practice in Scotland, where Sunday trading is permitted, although in practice is somewhat circumscribed?

I come to the nub of the issue, certainly for the Opposition. The Secretary of State said that the legislation will contain the three main options canvassed publicly. At least two of the campaigners, the Keep Sunday Special Campaign and the Shopping Hours Reform Council, are heavily backed by employers. Will the Secretary of State ensure that the legislation contains specific provisions to protect existing employees who do not want to work on Sundays? All employees, both present and future, should be subject to the voluntary principle and entitled under law, or by agreement with employers, to the premium payments for such working to which many are now entitled.

Many hon. Members and many others outside the House believe that people should have greater freedom to shop on a Sunday provided that open on a Sunday for us does not mean exploited on a Sunday for those who work in the shops that serve us. Therefore, will the right hon. and learned Gentleman give an undertaking that all the options on employment protection will be in his Bill? Does he understand that it is hardly surprising that the Opposition are wary of the Government's promises on employment protection when they are abolishing that protection under the wages councils legislation for shopworkers and other groups?

If the Government are sensible in handling this issue, there will be a chance of achieving the necessary reform of Sunday trading in a way that is sensitive to those who are genuinely and rightly concerned to keep Sunday's special nature and allows the public greater choice to shop under the law, if they want to do so. Does the Home Secretary agree that sensible reform is surely long overdue?

Mr. Clarke

I am grateful to the hon. Gentleman for his final words and for some of his other comments. I assure him that there will be a genuine free vote among Conservative Members. There may be some surprising unanimity but I should be surprised if all hon. Members who usually form what is called the Government's payroll vote voted for the same option. I hope that the hon. Gentleman will make it clear that his party will permit a similar free vote. I trust that other Opposition parties will do the same.

I accept that enforcement of the legislation is extremely important. I hope that no one will vote against the Second Reading of a Bill which offers genuine choice. There is no clear scope for enforcing the Shops Act 1950, which has no friends left in the House or outside. The reason for asking outside groups to be involved at this stage in drafting the legislation is so that the skills of the parliamentary draftsmen can be brought to bear to ensure that what is drafted is in order and we do not become bogged down in technicalities. They will also ensure that the legislation is enforceable to the best of expert judgment.

We shall certainly place before the House all the research that we commission. However, I find that research does not make many people change their mind on any aspect of this problem. I shall seek to find an analysis of the position in Scotland—although I do not undertake to commission it—where there is regulation of hairdressers and barbers but not of any other trades. The position in Scotland has not led to widespread opening of all shops but to a settled situation which reflects the demands and wishes of people in each locality.

I said in my statement that the Government would produce clauses on employee protection and particularly on protection for existing shopworkers who took on their work on the basis that they would not work on Sundays and who need protection against being required to work on Sundays in future. We are not inviting outside bodies to help draft wide options on employee protection, because they are concerned solely with shopworkers.

There is nothing unique to shopworkers about working on Sundays. Many other employers and employees have to work or choose to work on Sundays. But that matter, as well as every aspect of the legislation, will be subject to amendment in the usual way. Undoubtedly people will propose amendments on that subject.

The abolition of the wages councils has not the slightest relevance to Sunday trading. They do not exist to regulate working on Sundays.

Mr. Robert Maclennan (Caithness and Sutherland)

Does the Home Secretary consider that spreading six days trading over seven days is unlikely to be profitable unless traders either cut wages or increase prices? Does he agree that there is therefore a risk that Sunday trading will lead to Sunday slaving? Does he accept that it is a mark of a civilised society that it can find for every member of that society one day of rest in the week?

Mr. Clarke

I do not accept the hon. Gentleman's analysis that there is a set amount of shopping, so that, if shops open for seven days rather than six, the same amount of trade will be spread over more time. The proportion of their income which people spend in retail outlets depends on the attractiveness and availability of those outlets. I believe that the effect of relaxation in the law will stimulate more retail activity and more employment.

I note the hon. Gentleman's views. They are the first of many that we shall hear on the overall impact of Sunday trading legislation. The hon. Gentleman represents a Scottish seat and I well remember that, when the Government last tried to sort out anomalies on the subject, the Second Reading was defeated by large numbers of Scottish Labour Members, who voted against it. This Bill will not apply to Scotland. Scottish law remains totally deregulated and I do not think that l have ever heard a Scottish Member propose to change the law in Scotland, but this is the United Kingdom Parliament and the hon. Gentleman is entitled to his views and to his vote on the measure.

Dame Angela Rumbold (Mitcham and Morden)

May I take this opportunity to congratulate my right hon. and learned Friend on the extraordinarily sensible way in which he has brought the proposal for the determination of this difficult problem to the House? I am glad to note that both Opposition and Conservative Members will be offered the opportunity of a free vote, which is important. Since the matter will not be brought before the House for resolution for some time, what advice can my right hon. and learned Friend offer to retailers who are opening on Sunday, especially in the run-up to Christmas, and to many people in work and in retailing in these difficult times, who would like retailers to be able to open on Sundays?

Mr. Clarke

My right hon. Friend conducted a wide-ranging consultation on the subject. She sought to achieve a consensus between the most interested parties on how it might be resolved. No one could have made more effort than she did, but it was impossible to produce any agreement. I am glad of her welcome for the way in which we have tried to resolve the matter by a free vote in the House.

The Shops Act 1950 remains in abeyance, because no one knows what the law is until the European Court judgment. We wait to find out whether that will make it clear how the Act might be enforced. Given that my latest information is that the court is not likely to give its judgment before January, it will be left entirely to those responsible for each retail outlet to decide what to do in the run-up to Christmas.

Mr. Patrick Cormack (Staffordshire, South)

I thank my right hon. and learned Friend warmly for what he is seeking to do. Will he reflect on what he said a few moments ago? Many people think that the law is not in abeyance. The law of the land is clear and certain and people are choosing deliberately to flout and confound it. When he presents the Bill, will he not seek unduly to advocate his preferred solution? Does he agree that, if subsidiarity means anything, it should allow a country to determine its Sunday trading laws?

Mr. Clarke

I strongly agree with my hon. Friend's last question. I hope that that is the outcome of the European Court judgment, which depends on the effect of previous treaties and legislation in the House. When the legislation passes through the House, in so far as I take part alongside my hon. Friend the Minister of State, I have no doubt that I shall from time to time advocate my opinions and preferred solutions. I shall endeavour to distinguish clearly between speaking on behalf of the Government and speaking in my capacity as the Member for Rushcliffe, as I have when I have found myself in situations of this kind before. I merely speak as one who has one vote among 650, when I express my opinion or choose between the various options. I shall try to stick to that.

I have described what I think has been the position under the Shops Act 1950 for some time but I should make it clear that, as my right hon. Friend the Attorney-General explained in answer to a question in the House, local authorities can still issue summonses"—[Official Report, 11 May 1992; Vol. 207, c. 368.] In a written answer he said: The decision of the House of Lords in the Kirklees case means that local authorities can apply for interim injuctions against retailers in order to enforce the law without giving cross-undertakings in damages."—[Official Report, 15 July 1992; Vol. 211, c.707.] That is strictly the position. I regard it as unsatisfactory, and I hope that we shall soon enable Parliament to make it clearer.

Mr. Ray Powell (Ogmore)

The Home Secretary made a complex statement. I cannot recall in the years that I have been in this place a Minister offering the House three options relating to one Bill. I welcome hon. Members being afforded those options, because some of us have been waiting with bated breath since 1986 for the Government to introduce a measure on Sunday trading. The Government could have taken the opportunity at any time since that date to introduce legislation to resolve the problem of the Shops Act 1950.

The right hon. and learned Gentleman referred to the possibility of research changing people's minds. Having had six years in which to research the whole issue, it is clear that his mind has not been changed. I remind him that the House decided in 1986 by a majority of 14 to throw out the total deregulation proposed by the then Government, who had a majority of over 100 in the House. A whipped vote took place on that occasion, rather than the free vote that the Home Secretary has been kind enough to offer today.

It is clear from the right hon. and learned Gentleman's reply to his hon. Friend the Member for Staffordshire, South (Mr. Cormack), and to the comments of my hon. Friend the Member for Sedgefield (Mr. Blair), that the vote will not be all that free. I should like a free vote when we debate my Shops (Amendment) Bill on 22 January. I would be happy to give a copy of that measure, which has been examined by legal experts, to the Home Secretary so that he may read it and do further research tonight. The Keep Sunday Special Campaign—[Interruption.] This is a complicated issue—

Madam Speaker

Order. I hesitate to intervene in the hon. Gentleman's remarks, but he may have noticed that I was getting rather anxious. I remind him that questions must relate to the Secretary of State's statement. I appreciate that the hon. Gentleman is so immersed in the whole issue that he is anxious to get his points across. I urge him to complete his questioning quickly—we are all anxious to know what he wants to ask—so that I may call other hon. Members.

Mr. Powell

I appreciate what you say, Madam Speaker, and I was coming to my final question. During his busy day yesterday, the Home Secretary may not have noticed the press launch of a campaign about employment protection. That involved a Cambridge university research document by two professors who had looked into the effects of Sunday trading on employment protection.

I hope that the right hon. and learned Gentleman obtains a copy of that document to make sure that the proposals for total deregulation that he, in his capacity as Home Secretary, is prepared to support, contain provisions relating to employment protection that I hope hon. Members in all parts of the House want included in any legislation. Provisions giving such protection should apply to all of the three options that the right hon. and learned Gentleman is offering.

Mr. Clarke

My track record on this subject is rather blemished, because, in 1986. I replied to the Second Reading debate of the then Shops Bill and tried to persuade the hon. Member for Ogmore (Mr. Powell) and others that if they gave a Second Reading to that measure, the whole issue could be resolved then, if necessary by it being amended in Committee to produce a solution that the House preferred. In my opinion, the previous Parliament ducked its responsibility to change, with the result that we have had six more years of the Shops Act becoming ever more complicated.

We are now proposing the options as I describe them. We shall involve the Keep Sunday Special Campaign in the drafting. I appreciate that those involved with that movement have helped the hon. Member for Ogmore to draft his Bill. I hope that they will now discuss the matter with parliamentary counsel so that there may be no disagreement between parliamentary counsel and their draftsmen about the technicalities of the measure. We may by that means ensure that the measure is in the best possible shape, thereby avoiding the need for drafting amendments later. It may be complicated, because other amendments will no doubt be tabled to each of the options.

A precedent was the embryology Bill, which was a way of resolving a more difficult issue. It was exceedingly complicated and I hope that this matter will be slightly more straightforward. Whatever individual Members may have thought about the outcome, the House agreed at the time that the parliamentary proceedings on the embryology Bill were a model of how to proceed on these difficult social subjects.

I am aware of Cambridge university's research, which is based on a grand survey of 35 retail outlets. However, I shall study it with care and compare it with all the other research that will flow in upon us in the next few months. We all know the high level of interest in the subject.

The private Members' Bill is a matter not for me but for the House on the day when the hon. Gentleman presents it.

Mr. Michael Jopling (Westmorland and Lonsdale)

Is my right hon. and learned Friend aware that his proposal is a novel but distinctly odd way of legislating? Will he resist the temptation to refuse to answer a hypothetical question and tell us what would happen if the House decided that it preferred his first option with 40 per cent. of the vote, with 30 per cent. going to each of the other two alternatives? If the majority of 60 per cent. then decided to vote down the first option, which he said he preferred, what on earth would we do?

Mr. Clarke

My right hon. Friend is extremely experienced in procedural matters and has asked a shrewd Chief Whip's question. First, I must satisfy the House authorities that that form of Bill is in order. Obviously, it will be drafted with that in mind. Secondly, we must make sure that the issues are presented to the House so that they can be voted on in good order and in sequence. My right hon. Friend the present Chief Whip and I will be happy to consult my right hon. Friend on how best to sort the matter out.

The alternative is to do what we did in the embryology Bill—put down one preferred option, and then have amendments and vote in sequence. However, I expect that however we proceed it will give rise to some controversy and I hope that we shall have much discussion in the House about a satisfactory method so that we agree an acceptable way to proceed by the time we debate the Bill.

Mr. George Stevenson (Stoke-on-Trent, South)

Will the Home Secretary give us a little more information about employee protection? His qualifications following his initial statement about employee protection will fill many people with anxiety. We need an assurance that employee protection will be absolutely guaranteed. Furthermore, what is the Home Secretary's view on the position of local authorities like Stoke-on-Trent, which have sought to implement the law as it stands? It has cost local authorities a lot of money to do so. Because the Government have ignored the law, will he consider recompense for those local authorities that have simply tried to enforce the law?

Mr. Clarke

The views on what type of shop should open and what they should sell seem to cut across party lines. Although opinions vary, there is obviously a more philosophical division between the two parties about the extent to which the law should provide, in great detail for employee protection. The hon. Member for Sedgefield (Mr. Blair) even suggested that we should stipulate rates of pay for particular workers on particular days. The Government will produce proposals on employment protection and hon. Members will have to debate them when they see them. I invite the House to consider employee protection in the context not just of shops but of all the arrangements that have long prevailed for public transport workers, doctors, nurses, the police and others. The Government's instinct is not to go in for tightly regulated employment provisions for the category of people working in shops on Sundays.

Sir Ivan Lawrence (Burton)

On subsidiarity and whether this nation state should be able to decide whether it wants to trade on Sundays, is my right hon. and learned Friend saying that, if the European Court decides against us on the existing legislation, we shall nevertheless be tied in future legislation to the European Community's wishes? Will he assure us that, if the European Court decides in our favour on the existing legislation, it will not be able to tie us on future legislation which the House decides it wants to introduce?

Mr. Clarke

My hon. and learned Friend seems to agree with the hon. Member for Stoke-on-Trent, South (Mr. Stevenson). When local authorities start litigation of any sort, they take the usual risk and must assess their prospects of success and the likelihood of having to hear the cost. There is no provision for the Government to step in to compensate local authorities for that cost.

As for the European Court, my right hon. and learned Friend the Attorney-General has been arguing strongly on behalf of the British Government that the Shops Act 1950 is perfectly compatible with European law, and the matter should be returned to the British courts. I hope that that is the outcome. The judge advocate's opinion has, so far, broadly supported the proposition—that the court should not be bound by that. When we receive the judgment from the European Court we shall have to see whether it imposes inhibitions on us, so that when we draft future legislation we can ensure that we are not taken back to the European Court.

I do not think that any hon. Member wants the matter to depend on European judgments. It is, self-evidently, a matter that touches on the social mores of England and Wales, and should be determined by this Parliament.

Mr. Jeff Rooker (Birmingham, Perry Barr)

In the 118 years that I have been in the House I have hardly ever before heard a statement from the right hon. and learned Gentleman with which I almost wholly agree. He has introduced sensible procedural arrangements, and I am confident that it will be possible for the House to make a decision on a choice of the three options that will not necessarily lead to the barmy position of all options being excluded.

I have changed my mind over the past year, and the proposals of the Shopping Hours Reform Council are now my preferred option, although they were not a year ago. A central plank of the reform council's procedures is that there should be some flexibility in the contract of employment arrangements for new employees. If the House were legislating to set up transport on a seven-day basis when previously there had been no public transport on that basis or to open hospitals on a seven-day basis when they had never been opened on that basis before, we would build in contractual arrangements for the employees in those industries. It is right to consider doing that as it is a central plank of the arrangements.

We are legislating for a key sector of social and cultural activity in this country which is virtually unique. That is why we have been unable to find a policy to succeed the 1950 legislation. Therefore, in the circumstances, a case can be made for special arrangments. If the Shopping Hours Reform Council has that policy as its central plank and it is to form one of the options, it would be ludicrous to exclude consideration of it from the arrangements. I ask the Home Secretary, not necessarily to totally reverse his procedure, but to have an open mind on the issue.

Finally, I urge the Home Secretary not to make the same mistake as the then Home Secretary did in 1986 when, on Second Reading, he said from the Dispatch Box that there would be no guillotine on the Bill. That promise lost the Bill its Second Reading vote; the vote had nothing to do with the Bill's content.

Mr. Clarke

I am glad that the hon. Gentleman and it can agree so much on the means of proceeding. I am sure that he and I agree that, unless the House can find a way of resolving such issues, it never gets round to considering the subject at all. Important social issues are put off because nobody can devise a method of handling such topics that completely cut across traditional party divisions.

I do not agree entirely with the hon. Gentleman's analysis of the position with respect to employment protection. We shall reflect on what he and others have said while we are drafting the Bill. We are proposing arrangements that will be addressed once the Bill is before the House and its provisions are being discussed.

As for guillotining, it is too early to start talking about timetabling a Bill of this sort. When I was winding up the debate on the last occasion we discussed the subject, I well remember spending most of my time trying to explain that I was sure that my right hon. Friend had not said, in such terms, that there would be no guillotine. In my experience, if one promises no guillotine on a Bill, its progress through the House never ends at all.

Mr. Quentin Davies (Stamford and Spalding)

I join in congratulating my right hon. and learned Friend on presenting a statesmanlike solution to the problem of how the House should handle such a difficult issue. In order that we can have as well-informed and comprehensive a debate as possible—fully worthy of the procedure that my right hon. and learned Friend has just outlined—will the Government prepare in advance some facts and figures on the additional cost to public funds that will ensue if we decide on total deregulation? I have in mind the cost, for example, of parking enforcement, extra policing, refuse collection, and so on. Those may be subsidiary issues but they are important issues none the less, of which the House will wish to take account when the debate comes.

Mr. Clarke

I appreciate my hon. Friend's welcome for this method of proceeding. My initial reaction to the specific points that he has raised is that retailers, for example, pay for the cost of taking away their own refuse and other things. I will certainly undertake to put before the House the results of such research as the Government commissions. I do not intend to commission enormous amounts of such research, because it is my experience that nobody comes up with agreed and objective factual data that in the end have much conclusive effect on individual Members' opinions.

Several Hon. Members

rose—

Madam Speaker

Order. We must move on now to the second statement. We shall be returning to this subject before too long.