HC Deb 28 June 1995 vol 262 cc865-71 1.59 pm
Mr. Seamus Mallon (Newry and Armagh)

I listened with great interest to the debate on the colours, sizes and textures of slates. When one debates an Act of Parliament that goes as far back as 1695, was introduced by a Parliament that has been extinct for a couple of centuries and is no longer operative in any part of Ireland except that which is under the jurisdiction of this Parliament, one might be tempted to wonder not only about the texture of the slates but about whether some were slightly loose, if not removed altogether.

I am talking about the retention of the Sunday Observance Act (Ireland) 1695 which was enacted by a Government of Ireland who, as we all know, no longer exist. The Act has been around for three centuries and has caused problems even to this very day. It is impossible to describe the Act except in terms of its own vernacular and terminology. It is informative to realise exactly what is the basis of that law in relation to the operation of district councils. Those were the terms of my application for the debate, which I am pleased to have been able to obtain.

All forms of sport are, in effect, banned on a Sunday in the north of Ireland. For the reason envisaged at the time, one can rely only on the wording of the legislation: by reason of tumultuous and disorderly meetings, which have been, and frequently are used on the Lord's-day, commonly called Sunday, under pretence of hurling, commoning, football-playing, cudgels, wrestling, or other sports". Forgive me for not being able to say what commoning is. I could venture one or two suggestions, but they would probably be wrong. I venture to suggest that I might know what cudgelling is. In the time that I have lived in Northern Ireland, I have never seen it practised—certainly not as a sport.

I have seen hurling played and have played it myself, but hurling as it is now known was invented in about the 1850s. Of course, in the Act it could be a generic term that takes in golf, hockey, what is now known as hurling and anything that involves the malevolent action of hitting a little ball—whatever it is filled with—along the ground with some form of stick. I assume that that is the hurling spoken of. It is banned within the north of Ireland. It is illegal by the Act of a Parliament that no longer exists. The vestiges of the Act were repealed in the rest of Ireland as late as 1962 but, unfortunately, they are still with us.

It is informative to look at the consequences of the sort of malevolent, disorderly, tumultuous meetings that would take place if we were allowed to kick a ball along the road or knock a round sphere with a stick. The Act states: no person or persons whatsoever shall play, use, or exercise any hurling, commoning, football-playing, cudgels, wrestling, or any other games, pastimes, or sports on the Lord's-day, or any part thereof is guilty.

That means that the Government, who are represented here by the Under-Secretary with responsibility for the environment—the hon. Member for Cambridgeshire, North-east (Mr. Moss)—are by definition guilty of breaking the law when they give financial assistance to leisure centres in the north of Ireland. In the case of Craigavon council, the centres are not open because of the Sunday Observance Act (Ireland) of 1695. It also means that every district council in the north of Ireland that opens its leisure centres is in breach of the law. Central and local government are, in effect, breaking the law in their operations in Northern Ireland. We must add to that the number of people, myself included, who, although no longer involved in hurling, are involved in an activity that I described as part of the generic term of hurling, the tumultuous game of golf on a Sunday. Tumultuous and disorderly golf never is; interesting it can be; good it seldom is—but, under the terms of the legislation, it is illegal.

Of course, one could go on for ever drawing conclusions from the legislation. Every country in the world has its anachronisms. Every country has pieces of legislation that lie there and do not matter. Every country in the world has elements in its constitution or corpus of law that may be as well left lying in the corner rather than risk raising the atavisms that surround removing them. The problem is that this anachronism is being used now.

I quote directly from a letter from the clerk of Craigavon council dated 24 May 1995 sent to each member of the council. It is headed "Sunday Opening of Leisure Centres" and states: It was brought to my attention on Monday evening that the provisions of the Sunday Observance Act (Ireland) 1695 were still operative and had never been amended or repealed. Under Section 3 of the 1695 Act, copy attached, it is unlawful for anyone to take part in any Sport on a Sunday. I sought the advice of the Borough Solicitor who has verbally confirmed yesterday evening that the Borough Council would be in contravention of the law if it opened the Leisure Centres next Sunday, 28 May, as planned. I am awaiting his written advice and will forward a copy to each Member immediately it is received. In order to safeguard the council's interests I have instructed the Director of Leisure Services not to open the three Leisure Centres until Council has had an opportunity to consider the legal advice. As a result, young, middle-aged and elderly people—all sorts of people—in the Craigavon area are denied the use of their leisure centres. What takes place in these leisure centres? Badminton, five-a-side football and indoor bowls. They are hardly of a tumultuous nature, yet that archaic, outdated legislation is quoted by the clerk of the district council when he overrules the decision of his council to open those leisure centres. He did that in the name of legislation that dates back to 1695 and is still operative.

Of course, there have been changes to the law in relation to cinemas, child adoption and the removal of penalties. However, essentially the Sunday observance legislation still applies, and it is illegal, as the clerk of the council says, to take part on a Sunday in the activities that I have described.

Mr. David Trimble (Upper Bann)

I thank the hon. Gentleman for giving way, especially as time is short. I want to clarify one point. He referred to the actions of the clerk of Craigavon council in my constituency. Is he suggesting that the clerk acted wrongly in following the legislation which is undoubtedly in force? Is he suggesting that it would have been right for the clerk to disregard the legislation once it had been brought to his attention?

Mr. Mallon

I make no judgment whatsoever about the clerk of Craigavon council—far be it from me to do so. However, to respond in terms of the hon. Gentleman's question, if the clerk in question were right, all other clerks operating leisure centres in the north of Ireland would be wrong under the law. Not only are district councils acting against the law, but so are the central Government and anyone who switches on a television set on a Sunday. If BBC Northern Ireland decides to show a football match on a Sunday or if UTV decides to beam in the rugby World cup final or semi-final from South Africa, they are most surely breaking the law as well. This incredible situation has been allowed to continue for a long time.

I hope that the Under-Secretary will be in a position to say that the Government recognise that the legislation is an anachronism and nonsense and that it has absolutely no place in the world in which we live. I hope that he will recognise that it has been used down the years for atavistic reasons by people who want to cater for their own specific entrenched point of view rather than the general view that would be adopted by the vast majority of people in the north of Ireland. I hope that that is what the Under-Secretary will tell me. I hope that he does not fudge the issue and make excuses about whether the core of the legislation can be tackled.

Of course, if the legislation affected golf clubs, it would be dealt with, as it would if it affected the racing fraternity of which, I confess, I am a member. I hope that the Government will introduce legislation to enable me to go to a race meeting legally on a Sunday and, when I get there, to place a bet legally. I hope that, when the race is over, I can legally collect my money.

The current legislation, however, affects people in every sector of the north of Ireland, whatever their leisure activity. It is crucial for the young person in a built-up area who has no motor car and whose only facilities are in a leisure centre. Parents know their children are safe and supervised by professional assistants in leisure centres. It is those young people who suffer from the nonsense of the 1695 Act. I hope that the Under-Secretary will refer to them when, as I believe he must, he tells me shortly that the Act is to be repealed in its entirety as it applies to the north of Ireland.

Sooner or later, our legislation must show the plurality of the people in the north of Ireland. Those who want to have a strict Sunday observance regime are entitled to do so, and I would defend their right to it. Those who wish to participate in sport, by active involvement or by watching it, also have their rights.

However, there are two overriding priorities in a society such as the north of Ireland. First, no legislation—especially not that which goes back to 1695—should be such that it can be used or trawled by a small section of the community to promote and further its own entrenched views at the expense of others and, most usually, at the expense of those least able to help themselves. That must surely be a priority for the Minister.

Secondly, we are trying to develop a society in the north of Ireland in which people adopt the attitude that, although something may be different from what we were brought up to believe, we can nevertheless, despite the deep divisions, recognise the views and, indeed, the prejudices of others.

I make no pejorative comments about Craigavon council or its clerk, but I do criticise the 1695 Act. It is unbelievable that such nonsense is still on the statute book. Above all, I would be censorious of a Government who kept that anachronism in place because of their reluctance to take on some of the dyed-in-the-wool attitudes that they know exist in the north of Ireland. Other people suffer for those attitudes, and it is time that those attitudes were challenged.

I suggest that those attitudes are challenged now, because no one reading the legislation could justify it in any shape, form or sense. The time is now right to deal with it once and for all, so that it does not crop up as it cropped up in Craigavon. We do not know what we shall be starting, but we do know that, if the clerk of Craigavon council is right according to the legal advice, all the other district councils in the north of Ireland are wrong. If the clerk of the council is right in Craigavon, the Government and others are breaking the law through their subventions to leisure centres and other recreational and sporting activities.

The choice is whether we have a pluralistic society and are prepared to work for it or whether we are to be hidebound by such nonsense as the Sunday Observance (Ireland) Act 1695, which was passed by a Parliament that is now extinct, which was created three centuries ago and which has helped to perpetuate the entrenched views of one small section of the community. The Government have an obligation to remove any source of authority for this type of legislation and the abuse of it.

2.16 pm
The Parliamentary Under-Secretary of State for Northern Ireland (Mr. Malcolm Moss)

I congratulate the hon. Member for Newry and Armagh (Mr. Mallon) on his success in securing this debate. I should like to start by putting him out of his misery and uncertainty by telling him that I believe the word "commoning" refers to marbles. He spoke at some length about the plurality of the society in Northern Ireland, and I should have thought that playing marbles was a tradition on both sides of northern Irish society.

I listened carefully to what the hon. Gentleman said about the effect of the Sunday observance regulations on district councils. It is, indeed, a topic that has a long history in Northern Ireland. Debate on legislative restrictions on activities that may be undertaken on Sundays is not unique to Northern Ireland. Recent changes in the law elsewhere in the United Kingdom prompted the Government to publish two consultation papers earlier this year to seek local opinion on Sunday-related issues.

One consultation paper was on Sunday racing, betting and sport. It sought comments on possible changes to the law in Northern Ireland: first, to allow Sunday racing on horse and greyhound tracks and to regularise the legal position of other sports—I emphasise the words "other sports"—already held on Sundays; secondly, to allow betting on Sundays on horse and greyhound tracks and in licensed bookmaking offices; and, thirdly, to provide employment protection measures for workers in the betting industry.

The second consultation paper, on Sunday trading and other changes to the Northern Ireland shops law, sought comments on possible changes to the law in Northern Ireland: first, to allow shops to trade in all goods on Sundays, while restricting most larger shops to six hours trading; secondly, to provide employment protection measures for employees who work on Sundays; and, thirdly, to amend or repeal other provisions in the Shops Act (Northern Ireland) 1946, now considered to be out of date. The proposals are very much in line with recent legislation for England and Wales. District councils have a particular interest in the Sunday trading paper because they are responsible for enforcing the existing shops law—the 1946 Act.

My ministerial colleagues and I are now considering the responses received to both consultation exercises, and announcements on the way forward will be made in due course.

If it is decided to relax the current legislative restrictions on these matters, some action may be necessary to repeal, amend or disapply specific provisions of the Sunday Observance Act (Ireland) 1695. There are already precedents on the statute book for disapplication or restriction of the 1695 Act. The hon. Member for Newry and Armagh mentioned two of them, but I shall go through them again so that we are clear.

The first amendment was the Cinemas (Northern Ireland) Order 1991, which allowed for the Sunday opening of cinemas, to which I think the hon. Gentleman referred. The second was the Adoption (Northern Ireland) Order 1987, to which I think he also referred. The 1946 Act amended substantial portions of the 1695 Act, and allowed the operation of shops on Sundays in accordance with the 1946 Act. The final amendment was the Fisheries Amendment (Northern Ireland) Act 1968, which again made changes to the 1695 Act. The precedent is that the Act has been changed on four occasions.

Rev. Martin Smyth (Belfast, South)

I appreciate the fact that the Minister has given way. I understand that the Government have been considering the responses. Is it possible for us to know how many responses were received and how they balanced out? The hon. Member for Newry and Armagh (Mr. Mallon) was talking about leisure centres, and I understand that market forces compel some councils to close them because they are not used on Sundays.

Mr. Moss

Taking the second point first, that is a valid argument. That has, indeed, been the case in some council leisure centres, but I think that the majority would keep them open, given the choice. On the first question, I believe that we had more than 1,000 responses against any changes to Sunday trading and more than 1,000 for a change, so the consultation process brought an even match on either side of the argument.

I turn now to the leisure and sports centres operated by district councils in Northern Ireland. In the 1940s and 1950s there was a debate about whether swings, roundabouts, slides and so forth in local parks should be chained to prevent children playing on them on a Sunday. Then came the provision by local councils of swimming pools, followed some time later by leisure centres, when the whole debate about Sunday opening came to the fore again; indeed, it is still going on, albeit to a more limited extent.

The pros and cons of Sunday opening have been hotly debated in council chambers, with councillors fervently putting across their points of view. I would fully accept that a great many of the arguments against Sunday opening were based entirely on an individual councillor's personal convictions. In other instances, councillors believed that there was nothing wrong with people engaging in leisure activities on Sundays. In a great many other cases, however, I suspect that the decision to open or close the facilities had more to do with party politics than with councillors' personal convictions about the matter.

Mr. Mallon

I thank the Minister for giving way. Lest we do not arrive at the opportunity, will the Minister confirm that, under the 1695 Act, those councils that operate leisure facilities on Sundays are, in the words of the clerk of Craigavon council, "breaking the law"? If that is so, can he give us an assurance that he will totally remove that legislation from the statute book?

Mr. Moss

The 1695 Act covers a number of different Departments in the Northern Ireland Office, and I could not instigate any policy from my Department to change the whole Act, so I cannot give the hon. Gentleman an assurance that we will repeal the entire Act. I am, however, in consultation with the Minister of State, my hon. Friend the Member for Devizes (Mr. Ancram), to seek a way forward with his Department of Education, to find out how we can amend the Act so that sports that take place on Sundays can do so legally.

I have sought proper legal advice on whether leisure centres are breaking the law by opening on a Sunday, and I am advised that they could technically be in breach of the 1695 Act. I am also told that the chances of a successful prosecution, particularly under sections 1 or 3 of the Act, are considered remote.

Mr. Trimble

As the Minister has introduced the subject of the legal advice that he has received, would he be so good as to make that advice available to others, especially to councils that are anxious to remain within the law? As the Minister must appreciate, there is either a breach of the law or there is not. It is meaningless to say that there is a technical breach of the law. It is important, therefore, that all councils should be given the benefit of the advice that the Minister has received. Speaking for Craigavon council, I am sure that it does not wish to do anything unlawful.

Mr. Moss

I hear what the hon. Gentleman says, and I agree that the councils are perhaps in an invidious position, in not knowing where they stand in relation to the law. I am sure that their legal opinion would be the same as that given to me—there is a very remote chance of any prosecution as a result of the 1695 Act. I will agree, however, to forward that legal advice to all councils, not just Craigavon.

Whatever views anyone holds on the question of Sunday observance, I believe that we must recognise that times change. People's attitudes today on any number of issues are not the same as they were 30 or 40 years ago. If that were not the case, we would still be labouring under the 300-year-old Act as regards Sunday activities, which has recently been reported in the press. I am referring, of course, to the Sunday Observance Act (Ireland) 1695. To emphasise the point, perhaps I should quote a few of its provisions.

One passage states: no person or persons whatsoever shall publickly cry, shew forth, or expose to sale any wares, merchandizes, fruit, herbs, goods or chattels whatsoever upon the Lord's-day…upon pain that every person so offending shall forfeit the same goods so cried, or shewed forth". We recognise that the language of that Act is out of date and, if I am to proceed from the two consultation documents into legislation, we will have to take on board carefully the requirements of necessary amendments to that Act. I give that undertaking to the hon. Member for Newry and Armagh.

2.28 pm

Sitting suspended.

2.30 pm

On resuming—

It being half past Two o'clock, the motion for the Adjournment of the House lapsed, pursuant to Order [19 December].