§ 5.37 p.m.
§ House again in Committee on Clause 1.
§ [The EARL OF LISTOWEL in the Chair.]
Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. B1.
Page 1, line 5, after ("Shall") insert ("subject to such decision or modification as the appropriate local authority shall determine")
The noble Lord said: In speaking briefly on Amendment No. B1, I should like the leave of the Committee to speak also on Amendment No. 18A which is in the same terms.
Amendment No. 18A: Clause 2, page 1, line 12, after ("shall") insert ("subject to such decision or modification as the appropriate local authority shall determine")
§ The Auld Committee pointed out several times in the report that conditions of trading vary greatly throughout the United Kingdom, and in paragraph 219 of their report it is indicated that shopping seemed to them to be one area where a reasonable case might be made for local discretion. The object of these two amendments therefore was to bring the local authorities back into some sphere of influence in these shopping activities.
§ The noble Lord, Lord Glenarthur, has been most helpful in his reply to my Amendment No. A1 in which he dealt at length with the position of the local authorities. Therefore I should like to read carefully what he has to say and reserve the right to bring this matter to the attention of the Committee again as I think fit later on. In these circumstances I do not propose to move these two amendments.
§ [Amendment No. B1, not moved.]
The Lord Bishop of London moved Amendment No. 1
Page 1, line 7, leave out ("Part IV of that Act")
§ The right reverend Prelate said: Before I speak briefly to this amendment, may I just say how much I regretted that, owing to illness in my family, I was unable to be present for the debate on the Second Reading of this Bill. Of course I have read the proceedings very carefully and it is in the light of that that I have put down this amendment and a subsequent one. It seems clear to me that the real issue is between those who believe that total deregulation of Sunday trading is the only possible way to deal with the present admittedly chaotic and unsatisfactory situation, and those who believe that some reform is not only desirable but possible.
§ I spoke to your Lordships on that aspect of the issue during the debate on the gracious Speech and nothing that I have heard or read since then has led me to change my views. I believe that the Government seriously underestimate the effect on the life of our 574 society which total deregulation would have. As I said then, the effect of liberalising legislation is very seldom that which its sponsors think it will be. I am certain that if the Bill passes in its present form the nation as a whole will gradually but assuredly take it to be a signal from the Government that Sunday is no different from any other day. The pattern and rhythm of our life will be lost.
§ At this point let me just say that I was very disturbed to hear what the noble and learned Lord, Lord Simon of Glaisdale, said about freedom for people to shop, and so on. None of us enjoys total freedom. The freedom that we are privileged to enjoy is always at the expense of somebody else's. We are concerned here with a question of balancing out the needs and the desires of those who wish to shop on Sundays and those who, in my judgment very properly, put great weight upon the fact that there is one day in the week when there is general rest. That has its effect in many ways which I believe have not been adequately taken into account by the advocates of the Bill. I referred yet again in the debate on the gracious Speech to what the Commissioner of Police for the Metropolis had said to me about the effect that it could have on the demands made upon our police.
§ In summing-up the debate on Second Reading the noble Baroness, Lady Trumpington, said that it must be up to the English people to make their choice. I agree, but if people are to make a choice they must have a framework in which they are free to do so. If one looks back at the words of the noble and learned Lord, Lord Simon, or those of the noble Baroness, it is a question of balance. How are we to ensure that we all have as much freedom in this matter as we can properly enjoy and should enjoy, and again have the framework provided by the law which enables us to exercise that freedom by power of choice? It is, I believe, difficult to exaggerate the importance of a society recognising corporately the need for a day of rest. It is part of the natural order, and I believe that we ignore that fact at our peril.
§ Your Lordships' House has not shrunk in the past from considering what legislative solutions are possible to highly complex and difficult problems, and has not attempted to avoid those problems by the kind of solution which is proposed here. A great variety of options are presented to your Lordships in the amendments which are before the Committee. They should be debated with all the care and examination which your Lordships customarily give. I am advised that if any of the amendments should be passed, the necessary amendment on the lines of that to which I am now speaking—namely, the omission of the words "Part IV of that Act"—can be considered on Report, and I shall not be pressing this amendment to a Division.
§ I do not want to ask the Committee to make a decision on this point before your Lordships have had an opportunity to consider all the possibilities which will be put before you and argued out—possibilities which afford a way of compromise between leaving the situation as it is, which as far as I know nobody wants, and total deregulation. In this situation I believe that the proper and honourable way forward is for this Committee to seek a via media. It is with that in mind that I beg to move the amendment.575
§ Lord Simon of Glaisdale
Your Lordships will have regretted not to have heard the right reverend Prelate on Second Reading, will now even more regret it, knowing what kept him from our deliberations, and will be glad to have his contribution today. I fully expected that this amendment would be grouped with others. Obviously that is the general intention of the right reverend Prelate. But it is not grouped, and so we can only speak and come to a decision on the amendment as it stands.
What this amendment does is to say that Part IV of the Shops Act 1950 and the Fifth Schedule which depends on it shall remain part of our law. We had a far-ranging debate at Second Reading on the amendment moved by the right reverend Prelate the Bishop of Birmingham, to the terms of which, and their significance, already today I have ventured to draw attention. I certainly do not intend to reopen the matters that were fully discussed on Second Reading and on that amendment. But this amendment, I respectfully submit, is quite unacceptable.
The one matter on which your Lordships were united in the Second Reading debate was that the present law was unsupportable; that it was widely disregarded; that it was derided; and that it brought the law generally into contempt. The Auld Committee said in paragraph 28:it brings the law, and the criminal law at that, into disrepute".That was spelt out by the right reverend Prelate the Bishop of Birmingham when (at col. 1069) he said:It is of course common ground that there are many outdated and inappropriate anomalies in the Shops Act 1950".That was put even more strongly by the noble Baroness, Lady Seear, who said, speaking towards the end of the debate (at col. 1159):the present legislation is completely indefensible".I know that the right reverend Prelate, because he indicated such, has an ulterior intention in moving the amendment, but what it does is to ask us to confirm the present legislation, which is "completely indefensible" in the words of the noble Baroness. I submit that, whatever view one takes of the Bill, there can be only one answer to the amendment.
§ Lord Glenarthur
The right reverend Prelate has explained that the amendment is effectively to act as a peg on which to hang the various alternatives which are to be put to us later, and so I do not think that it is necessary for me to speak at length in answering some of the points that he has raised in the speech that we did not have the benefit of when, sadly, he could not be here at Second Reading.
I respect the view of the noble and learned Lord, Lord Simon, on this. I feel myself that since the right reverend Prelate has explained it in that way, it might be better for me not to go into the detail now but merely to say that I am perfectly content with that suggestion if it is procedurally correct. I do not believe that it is procedurally incorrect. I understood the right reverend Prelate to say that he is going to withdraw the amendment. If so, I am content and we will deal with the detail in due course.
§ The Lord Bishop of London
I am most grateful to the Minister for his understanding reply. I should like 576 to make one comment in reply to the noble and learned Lord, Lord Simon of Glaisdale. I do not want to raise again a matter that was debated earlier today, but what he said is only valid if no amendments at all are going to follow. Only if no amendments were to follow would we be placed precisely in the position of having the existing legislation. I have indicated that I see this as a paving amendment. I have indicated my purpose in moving it. I now ask leave of the Committee to withdraw it.
§ Lord Harmar-Nicholls
Before the right reverend Prelate does withdraw the amendment—that course will no doubt be acceptable to the Committee—we should not allow to stand unanswered the general atmosphere that the right reverend Prelate introduced into his few words. He said that the result of the situation as it now stands would mean that Sunday would be no different from any other day. If, when we discuss future amendments, we are going to have in our mind that the risk we are trying to avoid is Sunday being made the same in every respect as any other day, then the prejudices in support of some of the amendments may lead us down the wrong path.
No one wants Sunday to be the same as any other day. If the Bill is left as it is without amendment, there is no question of its being the same as any other day. The ones who will make Sunday different from any other day are the people themselves, all the Christian believers, covering the whole country. We should not discuss any future amendments with the suggestion left by the right reverend Prelate that what we are trying to do is to remove the real meaning of Sunday. We want to remove the nonsense of bringing the law into it. It is weakening the appeal of the Sabbath if the law is left as it is.
§ Lord Mishcon
I am awfully sorry that the noble Lord, Lord Harmar-Nicholls, has chosen to speak at this juncture. The right reverend Prelate delivered, as one would expect, a most helpful speech that was respectful to the Committee. It was dealt with, with his usual understanding, by the Minister. To have introduced another debate right at the end of what was a very diplomatic exchange was not, in my view, helpful to the Committee. Many of us could get up and speak about the way in which Sunday might be altered—altered for policemen, transport and shop workers and so on. I propose to keep silent and to deal with the matter as it was so gracefully dealt with by the right reverend Prelate and by the Minister.
§ Lord Harmar-Nicholls
The noble Lord is entitled to do just that. I do not believe, however, that he should feel that people who have a reaction to what the right reverend Prelate said should remain silent. The right reverend Prelate created an atmosphere in the Committee when he used the words that the Bill as it stands would result in making Sunday the same as any other day. That is not what we should have in mind in proceeding with the amendments.
§ Lord Glenarthur
I should like to say to my noble friend that I rather hope that the view that he puts will be brought forward certainly by myself and I expect by other noble Lords when we debate the individual amendments. That is what I think the right reverend 577 Prelate is trying to achieve. I hope that we might be able to proceed on that basis.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ Lord Graham of Edmonton
I had previously given notice, as the Marshalled List shows, that I intended to move that Clause 1 do not stand part of the Bill. However, like the right reverend Prelate, I have taken advice on the complications that can occur if matters are pressed at this stage. Simply to demonstrate to those outside the House that we are not afraid to debate each of the issues separately on their merits, I have prepared a Clause 1 stand part speech which I could deliver at some length. But it would not be helpful to the House at this stage. There are detailed matters to discuss, there are time pressures, and the night is young. There are many more nights before us; there are many more speeches to be made. In view of this, now is perhaps not the time to speak on Clause 1 stand part. Whether or not noble Lords detect it in the future, my speech will be made at some other opportunity. I do not therefore intend to oppose Clause 1 stand part.
§ Lord Sandford
I had not intended to speak on the previous amendment or on Clause 1 stand part. I did not, of course, know what the right reverend Prelate the Bishop of London had it in mind to do. I was supposing that he would press the amendment. As he has not, I wonder whether I can ask for guidance from the Chair. The effect of Clause 1 unamended is to remove Part IV of the Shops Act 1950, which includes Clause 47 to which is appended Schedule 5. If we now move on from this position with Clause 1 intact, although a number of amendments can still be debated, I would suggest that Amendments Nos. 4, 6, 7, 8, 9, 10 and possibly 13 and 14 cannot be discussed because all relate to a clause in the Shops Act that is now no longer there.
§ Lord Simon of Glaisdale
I intended to follow the good example of the noble Lord, Lord Graham, but I wanted to ask a couple of technical questions on Clause 1 and to make a point on them. I wish to refer to the two Scottish Acts that are repealed by Clause 1, paragraph (b). The point of substance is this. Obviously, the critics of the Bill, those who fear deregulation, those who point to the hubbub and the riot that might ensue, those who feel that the character of Sunday might be utterly changed, that family life might be disrupted and the people demoralised, are met with the answer, "Look at Scotland". The right reverend Prelate the Bishop of Birmingham dealt with that matter to the obvious satisfaction of the noble Lord, Lord Mishcon, by saying that the trading in Scotland had never been regulated. The right reverend Prelate makes a sign as if he wants to intervene. I have the quotation here, although I think that I have paraphrased it fairly.
My question is this. First, are these two Acts that we are engaged in repealing not precisely Acts that control Sunday trading in Scotland? My comment was that they are consistent with a view that any commercial 578 activity including, for example, sheep-shearing or labouring, or any of those sorts of things, were also to be suppressed on Sunday. That was entirely consistent with the view of the Church in England at the time, at any rate, of the first Act. One has the records of the ecclesiastical courts. One finds that a woman who carded her wool on a Sunday was liable to have to sit on the stool of repentance or, in Scotland, on the creepie-chair. One found that a man who dug his garden might have to stand barefoot in a white shirt with a candle in his hand; and if he actually traded or ploughed his furrow on a Sunday he could be, and on occasion was, flogged. That is entirely consistent, as I read them, with what these two Scottish Acts seem to do.
The point about which we complain, and which the noble Baroness, Lady Phillips, put so cogently, was the tunnel vision which singles out retail trading, of all commercial and industrial activities, as something particularly deleterious. That is not done by these Acts. The reason that there is no regulation in Scotland is that the Scottish law on statute is different from ours. As long as something is on our Statute Book it subsists. But that is not so in Scotland. They have the doctrine which goes by the technical name of desuetude. I remember being surprised when sitting on one Scottish appeal case to find that apparently football was illegal in Scotand until 1907; and I was then reassured that there had not been massive evasion of the law but that a statute which is not observed—as these statutes on their terms were not observed—falls into desuetude and no longer forms part of the law. That is why Sunday trading was regulated in Scotand and is now, without any obvious ill effect, unregulated. The point, therefore, that is made by those who rely on the Scottish experience, in so far as it is safe to rely on any other culture or community's experience, is completely valid.
The final question I wanted to ask is this. Why, is it necessary in these circumstances to repeal these Acts? So far as I understand, they have fallen into desuetude. When I was concerned with the Joint Consolidation Committee we repealed in a Statute Law Appeals Bill a number of obsolete Scottish Acts. These were apparently not among them.
I do not expect the noble Lord to answer this final point today, but I should like to have an answer at some time because it affects more than these Acts. I found great difficulty in relating the way in which they are referred marginally in the Statute with the Scottish Statute Book that is available in your Lordships' Library. That is a very minor point, but one which may arise in future when we try to scrutinise Scottish statutes.
§ Lord Glenarthur
The noble and learned Lord, Lord Simon of Glaisdale, has asked me three questions which I shall endeavour to answer. He is concerned about the relationship between the two Scottish Acts that are referred to in Clause 1(b) of the Bill. All I can tell the noble Lord is that they are pre-Union Acts. These Acts are still on the Statute Book, but as the noble Lord knows and describes, they are deemed to have fallen into desuetude, which is a purely Scottish 579 phenomenon, I gather, because for a very considerable period no prosecutions, or indeed floggings, have been brought under the Act. I understand that it is still necessary to repeal them even though they have fallen into desuetude. But I am afraid that I am unable to help the noble and learned Lord so far as relating this Act to the Scottish Statute Book is concerned. I certainly note the point that he makes. Perhaps I can correspond with him about that.
§ Lord Sandford
I wonder whether I could have an answer from the Chair to the question that I put when we started debating that Clause 1 stand part?
§ The Deputy Chairman of Committees (Lord Renton)
I must tell the noble Lord that that is not a matter for the Chair. The Chair has no power to rule on such matters. What the Chair does is, if necessary, to decide not to call an amendment. But I shall not anticipate what may be decided when another deputy chairman is in the chair.
§ Lord Glenarthur
I wonder whether I can help my noble friend. I am advised that my noble friend is correct in saying that if Amendment No. 1 has been withdrawn, then Amendments Nos. 4, 6, 7, 8, 9, 10, 13 and 14—I am not quite clear about Amendment No. 3, I do not think that comes into it—would be inconsistent with the decision to repeal Part IV of the 1950 Act, so those amendments cannot be moved. I must confess that I was not aware myself precisely how this stood until about a minute ago. But that is what I understand the procedure to be.
§ Lord Graham of Edmonton
Surely the situation cannot be as has been explained? The noble Lord, Lord Sandford, in facing the House with this problem, clearly must have had the matter put to him, as we have, only in the last minute. It would be inconceivable that the problem, as he explained to us, has been known not only to himself but to others, and not known to the Government Whips' office, the Minister or the Table Office, because all of those sources gave advice to the right reverend Prelate and myself on the procedure which led to the withdrawal of Amendment No. 1.
It is now said that if Amendment No. 1 is not proceeded with, there are consequences. Amendment No. 1 was deliberately not moved, as the record will show. The Minister nodded his head in order that we could proceed to debate the other issues. We are told—after all parties to the situation have worked along a certain course, ill-advised or ignorant, whichever one might say—that the right reverend Prelate not only did not move his amendment fully, and did not press it to a vote, but that it was not debated on a certain premise. Then we are told what the consequences will be. That surely is not the way in which we should conduct our business. If the effect of what we have done is to deny the opportunity to debate the other amendments then that is completely wrong.
The matter is not beyond recall. The amendments will certainly not be exhausted this evening. There are other ways in which amendments can be withdrawn. But I make an appeal to the Minister to use whatever good offices he can to ensure that the understandings 580 which we received in good faith are ones which will be kept. Otherwise the House will be guilty of witnessing a situation in which the right reverend Prelate, in the utmost good faith, has withdrawn an amendment which he certainly would not have withdrawn unless he had received the advice that he had.
§ Lord Mishcon
I wonder whether, to be helpful, I can speak at this stage, because I would very much appreciate, as I am sure the House would, any of the helpful observations that could be made by noble and learned Lords who have done us the honour of being present during this debate. Therefore, I should like to make my remarks now. I know that the Committee would regret it if what the noble Lord, Lord Sandford, has said were to be the case. The noble Lord has done a service to the Committee by pointing out a difficulty. I know that the noble Lord the Minister—who is nodding his head— with his usual sense of fairness would not want to exclude amendments merely on a technicality. Therefore, I have rushed in a manuscript amendment which I hope will fulfil the Committee's wish. My manuscript amendment is that Clause 1 shall stand as it is, but be amended by the addition of these words:subject to any following provisions of this Act to the contrary".In other words, Clause I will say that Part IV and the schedule to which reference is made go, but that they go only,subject to the following provisions of this Act",which will be contrary to that. Therefore, I believe that the amendments can be debated if there are no following provisions of the Act to the contrary. This means that the words could be deleted at the Report stage, and we can carry on. I would only, so disrespectfully, have stopped the noble and learned Lords from speaking because I wanted to put my suggestion. If I then said something which they wanted to correct, I should like to listen to them so that I could respectfully and humbly try to put the Committee in order.
§ Lord Simon of Glaisdale
Perhaps I may intervene, this time uncontroversially, because, looking at the matter in advance, it struck me that the noble Lord, Lord Sandford, must be right, although I thought that Amendment No. 3 would also technically be out of order. With respect to the noble Lord, Lord Graham, it was not the withdrawal of Amendment No. 1 which was significant, but the fact that Clause 1 had been ordered to stand part of the Bill; that states that Part IV and Schedule 5 of the 1950 Act shall cease to have effect.
When I considered what I thought was the entirely valid point made by the noble Lord, Lord Sandford, it struck me that all the subsequent amendments, though technically out of order, could easily be put right—they could be discussed in principle and the defects easily put right on Report by very small amendments to each of them. Whether or not that is a better way in which to proceed than that suggested by the noble Lord, Lord Mishcon, I do not know.
I am always distrustful of immediate drafting because I have experienced so many disasters in relation to 581 that. We now have the noble Lord the Chief Whip to advise us. However, I suggest that one or other method might be adopted in order for us to discuss the realities of the situation.
§ Lord Denning
This technicality ought to be overcome. My noble friend Lord Mishcon has put forward a good proposal, as has my noble and learned friend Lord Simon. We must in some way overcome this technicality and discuss the merits of the amendments.
§ The Deputy Chairman of Committees
I have to remind your Lordships that the only matter we are discussing at this moment is the Question whether Clause 1 shall stand part of the Bill. However, the noble Lord, Lord Mishcon, has asked whether he may move:Clause 1, line 5, at end add the following words ("subject to any following provisions of the Act to the contrary")".I am not prepared to put that amendment to the Committee if there is any substantial body of agreement against doing so. However, if there is no objection, I propose to enable the noble Lord, Lord Mishcon, formally to move that amendment.
§ 6.15 p.m.
§ Lord Harmar-Nicholls
May I suggest that we would be setting a very bad precedent if we followed that course. We have a great deal of work to do on many other matters over many Sessions which will take up many years to come. I applaud the noble Lord, Lord Mishcon, on his quick thinking in providing what could be a solution if this was the only time that we would ever ask a Committee of this House to accept Clause 1 of a Bill. I agree with the noble and learned Lord, Lord Simon of Glaisdale, that this quick answer to a technical question may well put us in much more trouble in the future.
Fortunately for us, our parliamentary procedure is such that there is no need for the points in these amendments to go undiscussed. At the Report stage any discussion that is deemed to be warranted can be entered into in exactly the same detail as it would be now in Committee. I suggest to my noble friends that we would be setting a bad precedent if we took up this suggestion. Clause 1 is often the operative clause in most of the Bills that come before us, and if we accept a last-minute manuscript amendment, it could mean that Clause 1 in all our Bills would mean nothing. If this manoeuvre is accepted in this case, it will be taken up in many other cases. If my suggestion were to mean that we would not have the benefit of the discussion that could flow, I would not feel so confident about it. However, we have the Report stage and Third Reading and all the stages in the other place with which to deal with this. This is a precedent which we ought not to set, because I believe that, as workaday Parliamentarians, we shall live to regret it.
§ Lord Sandford
Perhaps I may comment again, since I am responsible for starting this rather awkward debate. When I read the Marshalled List I really thought that the right reverend Prelate would move Amendment No. 1 because so many other 582 amendments seemed to depend on it. I thought so all the more because the right reverend Prelates are present in such force. As we have reached the present situation, I think that there is only one thing which we can do, which is to put the Question that Clause 1 shall stand part of the Bill to the test by calling a Division. If that is carried and Clause 1 remains part of the Bill, as we have been advised, the amendments that I read out cannot be moved. However, they can certainly be moved at the Report stage, and there are plenty of other worthwhile amendments still to be debated. Therefore, I strongly recommend that the Committee addresses itself solely to the question whether Clause 1 shall stand part of the Bill.
§ The Lord Bishop of London
As I have been mentioned once or twice, perhaps I may say what actually happened so far as I was concerned. When I first saw the amendments I had exactly the same impression as the noble Lord, Lord Sandford: that it would be for me to move Amendment No. 1 and the others would follow accordingly. I was then advised by reputable authorities that, if we, first, made a decision on the first amendment, this would have the disadvantage of apparently anticipating all the decisions which were made on the other amendments. That seemed to me to be a very understandable objection and I asked what would happen if I had leave to withdraw Amendment No. 1 and these other amendments were agreed to. The answer quite simply was—and I think I can quote the words—"there was nothing unusal in having, as a result of the Committee stage, contradictions in the Bill as it then stands". I was told that these would be sorted out at the Report stage when the matter could be remedied.
I asked leave to wthdraw Amendment No. 1 entirely in good faith without having the slightest impression that it would prejedice any of the subsequent amendments. I should be deeply distressed if I have been wrongly advised and those amendments were not now to be moved so that they can be debated in the Committee.
Viscount Colville of Culross
I wonder whether I could suggest another course of action? I do so with the greatest humility. The Motion standing before the Committee is that Clause 1 stand part. If I were to move as an amendment to that Motion that Clause 1 be considered after Clause 2 of the Bill has been disposed of, we would then have all the opportunities to consider these amendments before we came back to the principle of Clause 1. I would be happy to move that amendment if it required any sort of agreement of the Committee.
§ Lord Glenarthur
The noble Lord, Lord Mishcon, made a helpful suggestion. My noble friend Lord Colville has made another which I am advised would be rather more in order. If my noble friend is happy to move that amendment, then I am advised that that is perfectly acceptable if your Lordships agree.
§ Lord Mishcon
May I express my personal appreciation to the noble Viscount, Lord Colville, for coming forward with a quite obviously better suggestion than my own. I am most grateful to him.
§ The Deputy Chairman of Committees
The Question is, That further consideration of Clause 1 be postponed until after the second clause of the Bill has been disposed of?
§ Moved accordingly, and on Question, agreed to.
§ The Deputy Chairman of Committees
We now come to the second amendment on the Marshalled List. I have to point out to your Lordships that there has been a manuscript amendment tabled in substitution for it, also in the name of the noble and learned Lord, Lord Denning. I have a duty to your Lordships' Committee to point out the difference between the amendment on the Marshalled List and the amendment in the manuscript form. It is that in the manuscript form, in subsection (2) of the proposed new clause and after the word "applications" in the fifth line of that subsection, the following words are inserted:for permission and determinations by local authorities and Secretary of State's powers".It is therefore my duty now to call upon the noble and learned Lord, Lord Denning, to move that amendment after Clause 1.
Lord Denning moved manuscript Amendment No. 2A:
After Clause 1, insert the following new clause:
§ ("Supervision by local planning authority.
§ .—(1) The carrying on of any retail trade or business on a Sunday shall be subject to supervision by the local planning authority.
§ (2) The granting or refusal of permission for Sunday trading shall be decided in the same way as the granting or refusal of permission for development under the Town and Country Planning Act 1971; and like provisions to sections 25 to 37 of that Act shall apply to applications for permission and determinations by local authorities and Secretary of State's powers and like provisions to sections 87 to 89 of that Act shall apply to enforcement.
§ (3) Permission of the local authority for Sunday trading shall be deemed to have been granted to any shop carrying on a retail trade or business on Sundays before the passing of this Act, and in respect of which proceedings have not already been instituted by the local authority under section 71 of the Shops Act 1950.").
§ The noble and learned Lord said: I am sorry that your Lordships have had this as a manuscript amendment. It was not really my fault; it was the copier's fault. I can explain it all later. It is quite a technical amendment.
In proposing this amendment may I perhaps help to clear up a little of the discussion which took place earlier. I am going to quote the statement of my noble friend Lord Glenarthur at Second Reading. He said:
The law has decayed. It must be replaced, and in replacing it we must not create new anomalies which would lead us back … to the present unsatisfactory state of affairs."—[Official Report, 2/12/85; col. 1063.]
I agree with every word of that. We must replace it.
§ There is not a word on the Government side, or in their Clause 1, for any replacing material. That is why I hope all of the amendments will be considered by your Lordships one by one because they are good propositions for replacing the bad law. But let me first emphasise the problem and the quandary we are in. It is true that the law has fallen into disrepute, it is full of anomalies, inconsistencies and absurdities, and that has been made the most of by many quarters. Further, 584 it has been categorised as creating a crime when there should be no crime.
To the background of this, for the authentic statement of the problem I should like to refer to the Auld Report at paragraph 25:
The result of the many flaws in the 1950 Act is that it is not generally enforced … Some authorities have adopted a policy of not enforcing the law at all. Many others act only in response to complaints. Others select certain traders for prosecution, frequently branches of the major national multiples … The reasons for such patchy enforcement of the law are obvious. Many local authorities are out of sympathy with it. It is being widely disregarded by shopkeepers all over the country to the evident satisfaction of Sunday shoppers".
That is the state of affairs which must be replaced. We cannot allow the law not to be enforced. We cannot allow it to fall into disrepute. Therefore, we must replace it, I would suggest, by one or other of these amendments which your Lordships are going to consider.
§ The first part of my proposal is to make it perfectly clear that we should trust the local authorities in enforcing the law. That is what the Shops Act itself did, and it made it their duty to enforce it. I am afraid that many of them have not done it, but it is a vital principle that it is the local authorities who should have control over shopping on Sundays.
§ I say that for this reason: they are there and represent the people of the district. You will know in the district councils how Winchester, for instance, not only looks after the city itself but 12 miles round it. The whole catchment area for shopping comes within the jurisdiction of the Winchester council. The same for Basingstoke. We have 100,000 people there, but the council considers the whole catchment area for 12 miles around. For Portsmouth and Southampton, they are the people to consider whether or not there should be Sunday trading allowed in this place or that place. They are the authorities which are the right people to do it. But I would say not by the criminal law, as has been complained of. I should like to see—and I have suggested it—that it should be like our planning controls.
§ If my amendments were accepted let me tell you how they would work. I would first take those cases where the local authorities have turned a blind eye to what is going on. They have turned a blind eye to the small shops. They have not sought to enforce the Act at all. They have turned a blind eye in some quarters to do-it-yourself and garden centres, and in some cases to street markets. They have turned a blind eye to all those and virtually permitted them. In respect of all those my amendment would say, "You have got deemed permission. You need not apply at all. You can carry on as you have been doing all these years, because virtually you have been given permission by the local authority". My proposal does not disturb the existing position at all.
§ However, my next point is this. Supposing someone in any of our districts wants to start up a new shop, or to turn his existing shop into Sunday trading when he has never done it before, or wants to turn his office into a shop, whatever it may be. If he has not done it before, then the procedure is quite simple. He can apply—as he would do for planning permission—to the local authority for permission to carry on trade on Sunday. There could be a notice put up, and 585 objections put in, either by the residents or by the local traders. After listening to objections the authority itself would decide, as it often does. In planning permissions, they do it every day, with no trouble.
§ In the rare cases where a trader wished to trade on Sunday and the local authority said, "No", then he could appeal to the Minister, to the Secretary of State. And the Secretary of State could enforce a uniform policy. That is in regard to people who want to start trading on a Sunday when they had not done so before.
§ 6.30 p.m.
§ With the third category, it is even more so. If any person is going to set up a new shop, or turn an office into a shop, or make a new garden centre, he must get planning permission anyway. Why should there not be annexed to that the question whether he could open on Sundays or not? We had a case years ago from Petticoat Lane, the street market, and the planning authority said it could be used on Sundays; and it was upheld. So you have all those categories which can simply be dealt with by the local authority.
§ I am as much in favour of keeping Sunday a special day as anyone. We must do all we can to keep our Sundays as a day of peace and quiet. But, surely, the local authorities can be trusted to know that as well as any of us. I would trust our planning authorities. The areas for concern, about which the Auld Committee pointed out that they were most anxious, were the local residents in and near these shops which are going to open on Sundays. They were most anxious about it. They said that they would like to be able to do something to help them but they did not think that they could. Again, there are the shopworkers. That gave them the biggest worry of all: the people who worked in the shops. "We should like to help you", it used to be said, "but we cannot". Is not this system, a new system which I propose, the answer?
Let me tell you how the Auld Committee did it. This is what they said. I have their very words. By the way, my proposal has not appeared in any of the Bills hitherto. They have been discussed through and through; but mine is a new one. The only place where this proposal is contained in the Auld Report is in paragraph 274. This is what it says:
Another proposal made was to submit all proposed late-night and Sunday opening to a procedure similar to that in planning control, involving rights of objection by local residents, the granting or otherwise of permission by local authorities after the holding of a public meeting, and rights of appeal from the decision of local authorities to the Secretary of State for the Environment.".
That was what they said and what was put before them in order to protect the local residents.
And this is how the Auld Committee disposed of that proposal. They mixed it up with applications to the Justices and all that sort of thing. And, in paragraph 275, they said, in regard to these:
In our view, these and all similar suggestions for judicial, quasi-judicial and administrative control in such cases would not work. In their various forms they would involve an expensive, cumbrous and time-consuming legal machinery.".
That is how they disposed of the suggestion. My answer is that they were completely mistaken in regard to my proposal. There would not be any legal machinery at all. It would not be time-consuming or
expensive. It would just be very similar to all the planning. Your Lordships, all of us, have had planning applications made for permission for this, that and the other turned down or granted. You must take your application to the local authority to see if there are any objections. They decide it. If there is real trouble, you can appeal. But there you are! I would say that the Committee are mistaken in talking about this time-consuming legal machinery.
§ So the objection made by the Auld Committee, it seems to me, is not satisfactory. Therefore I come back to mine and I hope that it will be seriously considered. As I have said, I would rely on the local authorities. The local residents will be there, the traders who want to open will be represented there; all those who objected will be there. The authorities will represent everybody there. At the moment, all these people go. The holidays resorts, the airports; all those still go on virtually by permission of the local authorities. I would submit that this is quite a good, new suggestion which has never been considered by Parliament before. It is well worthy of your Lordships' consideration. As to keeping Sunday as Sunday, I would trust our local councillors. They are good people who have it just as much in mind as all of us to preserve those Sundays. I beg to move.
§ Lord Simon of Glaisdale
I started my career at the Bar in the chambers of my noble and learned friend Lord Denning. We were subsequently, as heads of our respective divisions in the Supreme Court, close colleagues working together day by day. And I never remember a difference of opinion of any substance. I should like also to flatter myself with claiming personal friendship. Nevertheless, I am bound to say that this is the most extraordinary amendment that has been moved by my noble and learned friend. Of course, he has explained it with his matchless clarity so that it appears an entirely simple operation: the Auld Committee got it entirely wrong in thinking that there were any complications at all!
One can defeat a Bill by a vote on Second Reading, whether direct or by a critical amendment; one can disembowel it by refusing to let the operative clause stand part; one can amend it spoilingly. But there is another way and that is to prevent its operation by tying up its operators in miles of red tape and smothering them with a blanket of bureaucracy. That is what this does. It applies the Town and Country Planning Act. That Act runs to 379 pages of the statute book; it consists of 295 sections; it has no fewer than 25 schedules. That is put forward with the memories of Stanstead, Okehampton and the Archway Inquiry fresh in your Lordships' minds. Quite apart from the fact that subsection (3) gives an advantage to those who heretofore have been trading illegally, I ask your Lordships to say that that sort of bureaucracy applied to this Bill is quite out of place.
If we are going to have freedom to trade on Sunday, do not let each transaction—and they go to the scheduled transactions, too—be such that any willing buyer who wants to buy a box of matches on a Sunday from a willing seller has to be subject to all this paraphernalia of the Town and Country Planning Act. I hope your Lordships will have nothing to do with it.
Viscount Colville of Culross
Quite apart from the points made by the noble and learned Lord, Lord Simon of Glaisdale, I wonder whether I can draw to the attention of the Committee some rather technical problems, which the noble and learned Lord, Lord Denning, has not really addressed. He seeks, as he said, to attract the whole of the code which appears under the Town and County Planning Acts so as to apply it to the fairly narrow question of whether or not an existing shop, which has not previously and illegally been open on Sunday for trading, shall be allowed to do so.
I do not know whether the noble and learned Lord has thought deeply about this aspect, but at the moment he is not making it at all clear in the amendment what sort of criteria should be in the minds of the local authority, upon whom he places such reliance, or indeed in the mind of the Secretary of State if there should be an appeal—because of course the jurisdiction is the same. He has attracted the planning Acts, and they have a basic criterion for all the decisions whether or not planning permission shall be given. It is this: you have to have regard to the provisions of the development plan, which nowadays is the structure plan and any local plan approved under it, and any other material considerations.
The noble and learned Lord, when he sat in this Chamber judicially, and on quantities of occasions I think in the Court of Appeal, has had to consider what is meant by a condition or consideration which falls in the latter expression, "any other material consideration". It has been made abundantly plain by the courts over the past 30 years or so that only pure planning considerations can come into that exercise. For instance, it would be quite improper to consider the welfare of the workforce in shops. It would almost certainly be entirely improper to consider whether or not the local authority likes the idea of trading on Sunday. Those would be instantly struck out by the Court of Appeal, and they would have been by the noble and learned Lord when he used to sit there, because there they are not planning considerations.
So what is one left with? It is possible, I suppose, that there is the point about disturbance of the neighbours. But that would be a very difficult point to raise I think because what the noble and learned Lord has done is to allow to continue all those shops which are trading in areas where they have been doing so, legally or illegally, in the past and where presumably the maximum impact on the neighbours has already taken place. He would, however, put through the various planning hoops any owner of an existing shop who wishes to open on Sunday in areas where this has not previously happened and where for the first time therefore the whole question of impact upon the neighbours may become an issue. I do not know how one is to judge whether or not it would be an acceptable impact when you apply it only to those circumstances where the point has never previously arisen and deny anybody jurisdiction to consider it where the point already has arisen because the shops have been open. It is a very difficult exercise.
Another point, too, very often comes up and it is a proper planning consideration as regards shopping considerations and requirements: that is the impact of the turnover. There are two problems here. First of all, 588 the noble and learned Lord has only applied this new code to shops which have not previously opened on Sunday and therefore one tends not to know very much about the extent to which in that area they would draw trade from other days of the week or from other areas nearby.
There is an even worse consideration, which is that under the planning law if you once have a permission—and this is drafted as being a permission under the planning law—then it will inure for the benefit of the land for ever after unless it is revoked: and that is an expensive exercise. So if you try to consider an applicant for a planning permission to open on Sunday and you look at the trade he is doing and the effect that might have, either in terms of upsetting the neighbours or in terms of the impact on the turnover of the total shopping public in the area, you cannot in the least gurantee that the following day after permission has been given the shop will not be sold to another retailer who will use the shop in an entirely different way with a wholly different effect on the neighbours and on the economic impact on the area.
Those are very serious difficulties and the noble and learned Lord in his amendment does not really provide any criteria at all, upon the basis of which the exercise could be carried out. I would, however, say to him that in all the experience I have had, it would be very difficult indeed to use the small number of genuine planning considerations that would be available and to discard all those which would certainly be inappropriate and come to the sort of decision that I think he wants.
Therefore, unless the noble and learned Lord can explain in very much greater detail and clarity to me what criteria he thinks ought to be imported into the adaptation of this code so as to get over these difficulties, I really do not see how the local authority can do it or how the Secretary of State on appeal can do it: nor indeed do I think it will be possible for the local authority or the Secretary of State, if an enforcement notice was served to try to stop somebody from trading on Sunday who had not got permission—I do not see how they could do it either, because into consideration of that there automatically comes an appeal to continue the use that is sought to be enforced. I think this Committee is in very great difficulty at the moment, on the basis of the information the noble and learned Lord has given about how this is to work. I certainly would not be happy with it as it stands.
§ Lord Mishcon
When I listened to the opening words of the noble and learned Lord, Lord Simon of Glaisdale, I must confess that I was much reminded of the speech of Mark Antony, and I would beg the noble and learned Lord, should I have the privilege of entering another world before he does, please not to participate in the funeral orations!
I find myself in this difficulty in listening to the debate so far. I thought the noble and learned Lord, Lord Denning, made a very important point when he said that the happy compromise very possibly was one where local authorities, with local people to judge, should decide in regard to their own areas what should 589 happen to retail trading on Sundays. It had an appeal to me. The more one can strengthen local government in this field of deciding what should happen in a locality, the better; and the more I think that your Lordships and this Committee might go away from our deliberations feeling a little easier in your consciences, this seems to me to be a possible way. I say "easier in your consciences" because there is one thing that presses upon us more than any other. Pass this Bill as it stands and you have done something for all time. It will never be changed back. Pass this Bill with an amendment and you might in future, in the light of experience, have further amendments one way or the other.
Therefore I favour the argument about the local authority. But then I heard the noble and learned Lord, who puts his arguments as once he did as a great advocate, and who judges things in the way that he did in the Court of Appeal, with consummate skill. Nevertheless, like the noble Viscount who has just spoken, when he limited or defined the powers of the local authority within the ambit of the planning authority and the planning Acts, I found myself wondering how this could ever work, The noble Viscount. Lord Colville, is absolutely right. The considerations in regard to planning would have nothing to do, I fear, with the considerations that this Committee would want a local authority to employ in coming to a judgment on these matters. This Committee, I am afraid—and I think the noble and learned Lord, Lord Denning, himself—would not want this to be dealt with upon the basis of: Do we have enough shops in this area open? Do we have similar shops already open?—on the assumption that they had permission to do that before this amendment came into force. These are considerations which I believe, on reflection, the noble and learned Lord himself will realise limit this amendment.
It so happens that there is another amendment to be moved, Amendment No. 4 to which I must not speak at the moment and to which I do not intend to speak, but which nevertheless has the benefit of the local authority without the limitation of the planning authority. Therefore, I wonder whether the noble and learned Lord, having heard the debate so far, would decide that possibly in the face of what has been said it might not be appropriate to proceed with this amendment—
§ Lord Simon of Glaisdale
Will the noble Lord allow me to intervene? He mentioned Amendment No. 4. I do not now have much confidence in the Marshalled List, but I think he must refer to some other. If he does, may we know so that we can follow the argument?
§ Lord Mishcon
I stand corrected, and I am most grateful to the noble and learned Lord for pointing out my mistake. I meant Amendment No. 5, and not Amendment No. 4. I hope, therefore, that on consideration the noble and learned Lord will put his not inconsiderable weight behind the subsequent amendment after withdrawing the present one.
§ Lord Sainsbury
I rise with trepidation because, following such learned Lords and one who has particu- 590 lar experience in planning matters, the noble Viscount, Lord Colville, perhaps a mere retired shopkeeper should make a contribution. Looking at the amendment for a moment from the viewpoint of what I consider very important people, the customers, the shoppers, would they not look at it possibly as an artificial, arbitrary geographical restraint, dependent on where they live? Would it not cause among shoppers a certain amount of confusion? Many shop in different areas from where they live and at different times. They would have to know the law for each area.
Turning to the shopkeepers, those with more than one shop face the possibility of some of their shops being allowed to open and others being forced to shut. Therefore, looking at it from a humble, practical point of view, I certainly find it very difficult to support this amendment.
Turning to the people who spent a long time considering the problems of the Shops Act—namely, the members of the committee—I should like to quote two paragraphs of the Auld Report. Paragraph 226 reads:But the major difficulty with a pattern of local variations, and it is one that would apply whatever the method of local determination, would be the lack of consistency inherent in the system, both geographically and over time. Policies vary from area to area, and the views of local authorities and shopkeepers in their areas are subject to change for political or other reasons. The inconsistency would perpetuate the lack of uniformity in the enforcement of the present restrictions, where traders subject to a regime of strict enforcement can lose business to their competitors across the local authority boundary.My second quotation is from paragraph 227, which reads:In our view, a system in which the restriction of opening hours became a matter of local choice would aggravate the variations that the present inconsistent enforcement of the law has produced. Moreover, in those areas where it was decided to continue restrictions on trading hours, local authorities would have no better way of overcoming the difficulties of enforcement than they do at present.Therefore, if this amendment is carried to a Division, I will vote against it.
§ Baroness Seear
I am extremely sorry to disagree with my very much more experienced ally, the noble Lord, Lord Sainsbury, but it really seems a pity to treat the Auld Report, with all its virtues, as if it were Holy Writ. It is perfectly possible to be critical of the findings of the Auld Report, and if ever there was a case for local decision it is this. Circumstances vary in different localities. One can well see that in a holiday resort it is desirable that they should have greater opening during the summer season than during the winter season, and that is a matter for local decision.
One can think of a great many other circumstances in which what is appropriate in one area is not appropriate in another. What is more, the people who are going to enjoy or suffer from the opening of shops are the people living in that locality. Are we becoming so centralised in our thinking in this country that we cannot leave it to local people to decide whether it is a good thing to have an additional shop open or shut on a particular day?
As for consistency, how much does it really matter if you find that in the next road, in the next area, a particular dairy is not open, when a dairy is open in your area? It is not a matter where consistency is of any 591 very great significance. Like other speakers, I have wondered about the suggestion of local option, and I would remind your Lordships of the extremely powerful speech in favour of local option made by the noble Lord, Lord Vestey, on Second Reading. It seems questionable whether it is wise—though I hesitate to criticise anything put forward by the noble and learned Lord, Lord Denning—to have a planning authority. Therefore, if the noble and learned Lord would consider withdrawing this amendment and favouring Amendment No. 5, which backs local option without having the complications which nearly all of us, except the noble Viscount, Lord Colville, do not understand, it seems that it would be a very good idea if it could be done in this way.
§ Lord Stallard
I want to support the principle of the amendment of the noble and learned Lord, Lord Denning. I do so with even more trepidation than the noble Lord, Lord Sainsbury, because I was not even a shopkeeper. But I was a member of a local authority for some years and I am very much aware of the problems in that same locality now because of the unruly expansion of Sunday trading at present and the difficulties that that is causing the local authority.
I am convinced that a safeguard must be written in. One of the obvious safeguards is that the local authority should exercise a discretion, perhaps more so than it does now, particularly under the planning laws. The arguments I heard from the noble and learned Lord, Lord Simon of Glaisdale, and from the noble Viscount, Lord Colville, are arguments for amending the planning regulations and the planning laws. I would be only too happy to involve myself in that exercise, too, but that is not to do with this Bill. What I am arguing for and what the noble and learned Lord, Lord Denning, was arguing for is a safeguard, some local authority control over what I consider to be one of the main objections to the unleashing of the terrible spread of social damage that will be caused by the complete deregulation of Sunday trading. The aspects of this social damage will be gone into in later amendments, but we know what they are. We know that it will mean more traffic wardens and more police. It will mean more cleansing services. These will all be loaded on to the local authority and this will mean increases in rates when such increases take place.
Perhaps I may give an example of one market in the area of the local authority which I know best. This market has grown until it is now almost totally out of control. Shops that were single retail outlets are now being sub-divided into four, six, eight, 10, 12 and up to 20 stalls. They are no more than stalls. They are put down as separate shops, all within the same premises. It is utter chaos. They are charging fantastic rents for the stallholders to trade on a Sunday in these conditions. Food is being prepared and sold in the open air and in all weathers. There are no precautions and no conditions whatsoever. The local authority, together with the local police, are trying to cope.
The traffic position has become absolutely uncontrollable. It is not double parking or treble parking, but total chaos for the whole of Saturday and Sunday. The police have been unable to control it, 592 despite many valiant efforts. They have produced one scheme after another. The local authority has bent over backwards, using its discretion under planning and public health regulations, to try to cope, but the whole thing has now become totally chaotic. It is obvious that there must now be some re-imposition of local control. There must be local enforcement of the regulations, be they planning or public health regulations, or both.
I hope that the Minister will take a more lenient view of this amendment. I shall certainly support it if it means that some control or discretion is restored to local authorities to prevent the kind of social damage that will be caused if total deregulation goes through in its present form.
§ Baroness Phillips
I shall not speak at length, but I should like to point out to the noble Lord who has just spoken that this amendment would not help the situation that he described. I was extraordinarily shocked to hear the noble and learned Lord, Lord Denning, whom I admire very much, make the immoral suggestion that groups which should be allowed to remain and not be subject to the local authority are the groups which are already open. These groups are already open illegally. If ever there was an advancement for squatters' rights, it seemed to be given to me by the noble and learned Lord, Lord Denning. Because they had not kept the law so far, that would be all right and they could carry on, but if anyone else came forward, they would be subject to the law. I would only say, because somebody else is going to say it, that when the noble Lord, Lord Graham, was speaking against the same kind of Bill in the other place he actually advanced the argument that it would be inconsistent to have one local authority granting this and another local authority granting that. One problem is that if you speak too often in either place, your speeches are always liable to be quoted back at you. The noble Lord has obviously changed his mind in the meantime, and it might as well be me who tells him as anybody else.
However attractive the argument of the noble and learned Lord, I am very shocked that he should suggest that if you are already in place illegally, there would be no need for you to be considered. I take the point made by the noble Viscount because I happen to occupy a building which has been the subject of local government planning for about seven years. I am hoping that it will go on for another seven years, so that I can remain there as a tenant. That gives some idea as to the length of time a local authority can take when trying to deal with something under the planning provisions.
§ Lord Seebohm
I shall be very brief this time. I feel that somehow local authorities must be brought into this Bill. I am not quite sure how you do it, and I do not think that this amendment is necessarily right. I speak as somebody who lives in Dedham, one of the most beautiful villages in Essex. Since a covered market has opened there seven days a week it has been ruined. The traffic is terrifying. The market people have advertised all over East Anglia and now we can hardly get out of our front doors. One day there were 14 coaches in our tiny village, which is only a few 593 hundred yards long. It is occupied by residents—it is not all shops. I believe that 90 per cent. of the residents are horrified about this and some I know are absolutely miserable.
On Sunday, people came from far and wide to the old church at Dedham for the 11 o'clock service; but they no longer come to the village, because they cannot find a parking space anywhere near. This is not a religious or a legal point of view; it is an environmental point of view. I just pray that local authorities will have some authority to stop the kind of nonsense which has gone on in my village.
§ Lord Glenarthur
The noble Lord, Lord Seebohm, and indeed, to some extent, the noble Baroness, Lady Seear, have slightly widened this amendment, although the noble Baroness, Lady Seear, was suggesting that perhaps it would be appropriate to discuss the other planning provisions in connection with other amendments. I shall confine my remarks to those concerned with the planning considerations which form the meat of the noble and learned Lord's amendment.
The essence of it is to allow local planning authorities power to regulate shops opening on a Sunday through the mechanism of the Town and Country Planning Act 1971. I believe that this is an inappropriate suggestion because that Act deals with planning land use in the public interest, based on material considerations such as problems of the environment, of traffic, of noise and of disturbance. No one seriously expects Sunday to be as busy a shopping day as Saturday, when all these problems are far greater, and for which planning permission already exists. It would not be correct for a planning authority to refuse planning permission for a site because of environmental problems when it has already granted planning permission for the same site at times when those same environmental problems are far worse. There seems to be a lack of logic in that and indeed my noble friend Lord Colville pointed towards it.
By shifting some of the burden away from Saturday Sunday trading is regarded as beneficial in trading terms. The Government certainly appreciate the concerns that are expressed on many aspects of the Bill—whether they be religious, social or whatever—but the amendment proposed by the noble and learned Lord, Lord Denning, would not allow these considerations to be taken into account when the local planning authority decides on an application for Sunday opening. It would be concerned merely with the problems which I described earlier.
The granting of planning permission is a lengthy process, as the noble and learned Lord, Lord Simon of Glaisdale, so graphically explained. It can be expected that many shops will apply for planning permission even though they have no immediate intention of opening on a Sunday—or perhaps if they foresee opening on one or two days before Christmas. I do not think it is practical to suggest that local authorities should be asked to accept this burden. I am not sure whether the noble and learned Lord intends his amendment to have the effect, which, so far as I can tell, it will have, that if a shopkeeper wants to open his shop after the Act comes into effect, he will be able to 594 do so provided he already opens now. If earned, the amendment will encourage a wave of illegal opening as shopkeepers try to ensure that their position is made safe for the future.
One must consider the practical effect of this amendment. Is it really feasible to contemplate every shop in the country that wishes to open on Sundays, now or in the future, having to seek specific authority from the local council? Is it practicable for local authorities to undertake such a burden, and is it reasonable to expect a massive injection of resources for this purpose? Certainly that is the burden of the suggestion that the noble and learned Lord, Lord Simon, put forward. At the end of the day, would not a fragmented local determination end up with a policy determined by the Secretary of State and established through a lengthy and expensive abundance of appeals? I believe very much that such would be the case.
The noble and learned Lord referred to the Auld Committee, which he said had disposed of this problem too quickly. The reason why the Auld Committee said that such a system would involve expensive, cumbrous and time-consuming legal machinery was that it would never be as simple as the noble and learned Lord, Lord Denning, suggested. We really would be erecting the most amazing new and complicated machinery at local and national level. I do not believe that I can add to the words of both the noble and learned Lord, Lord Simon, and my noble friend Lord Colville, with his vast experience of this subject, in setting the scene right.
Our policy is to reduce the burden on small businesses. The amendment would place an intolerable new burden upon shopkeepers and discriminate against those who had acted lawfully in favour of those who had not done so. The amendment would bring Sunday trading under a new system of regulations but one that the Government believe would not produce either an acceptable or a fair system. It would impose an intolerable burden on shopkeepers and local authorities. For those reasons, I cannot support the amendment.
§ Lord Denning
I am afraid that my drafting may have been at fault. I did not mean to mix this up with planning applications or with planning law. As the noble Viscount, Lord Colville, said, we have all known a lot of those and do not wish to be mixed up in them. I really wanted to make it clear that the consent of the local authority should be an operative factor in deciding whether or not to give permission. As has well been expressed, the local authority is best placed to know what is happening in our countryside and, especially in representing the residents, whether or not there should be Sunday trading.
In view of the fact that the amendment has received very little support, I shall take the advice of the noble Lord, Lord Mishcon, and the noble Baroness, Lady Seear. I believe that my objection as expressed in this amendment will be better served when we reach Amendment No. 5, which seeks to give the local authority the right to decide in this matter. In the circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.595
§ Viscount Davidson
I believe that we have now reached a suitable moment at which to take a break in the Committee's proceedings.
In moving that the House do now resume, I suggest that the Committee returns to its deliberations on the Bill at 8 o'clock. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.