Sunday Trading Laws

HL Deb 27 November 1991 vol 532 cc1346-55

5.17 p.m.

Earl Ferrers

My Lords, it may be for the convenience of your Lordships if I were to repeat two Statements made in another place this afternoon. The first is that of my right honourable and learned friend the Attorney-General who in his independent capacity as a Law Officer replied to a Private Notice Question on the steps he intends to take to prevent breaches of the Sunday trading laws. With the leave of the House, I shall now repeat his Answer. He said:

"Parliament has placed on local authorities the primary responsibility for enforcing these provisions. Two ways are open to them. They can prosecute traders or they can ask the civil courts for injunctions ordering traders not to break the law laid down in these provisions.

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

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

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

"It remains the responsibility of local authorities to decide their own course of action. For my part, any decision that I now take is my sole responsibility as Attorney-General and not a decision of the Government. Matters of political policy are not for me but for my right honourable friend the Home Secretary.

"If I were now to bring civil proceedings myself, I would have to bring a very large number of actions. Those actions would be no less affected by the Community law point and I believe that I, too, would in the circumstances have to give undertakings as to damages.

"The law is not suspended. Local authorities can continue to apply for injunctions. Moreover, any trader who trades on a Sunday relying only on the present uncertainty remains liable to criminal proceedings.

"In the light of these and all other relevant considerations I have decided not to intervene. Naturally, I will keep developments under review".

I should now like to repeat the second Statement on Sunday trading, which has been made in another place by my right honourable friend the Minister of State at the Home Office. The Statement is as follows:

"As the House knows, I have held an intensive programme of discussions with a wide range of major and conflicting interest groups on possible ways of reforming the law on Sunday trading. These discussions are continuing, although I must report that at this stage the common ground is limited.

"In 1985 Parliament endorsed in principle the conclusion of the Auld Committee that total deregulation is the only sensible reform. Although our subsequent measure was approved in another place, it was not passed in this House. Since then we have made it clear that we should be prepared to consider measures which fall short of total deregulation of the Sunday trading laws if they would be workable, enforceable, command popular support and would be accepted by this House. Despite our continued efforts and encouragement, the form of such measures remains widely disputed.

"The current uncertainty in relation to Community law to which my right honourable and learned friend the Attorney-General has referred is also a factor. It would not be sensible to settle policy on the merits of proposals for continuing to restrict trading in types or classes of goods until the compatibility of such measures with Community law has been determined. It is our intention, therefore, to bring forward proposals for reform once the legal position is clear".

My Lords, that concludes the text of the Statement.

5.21 p.m.

Lord Richard

My Lords, I thank the Minister for repeating the two Statements made in another place this afternoon. Perhaps I may first make this comment to him: these Statements are not about the law on Sunday Trading. In other words, whether we agree with the existing law is not, frankly, the issue with which the Government are faced today. They are faced with a much simpler issue in many ways; it is not whether we agree with the law but whether the law should be enforced.

I found the Statements, taken together, bland almost to the point of being meaningless and disappointing in the sense that the Government propose to do absolutely nothing. Perhaps I may sound a word of warning to the Government. This is not a one-off issue in relation to trading over Christmas only. If it is permitted to continue, and does continue and is successful, that is the end for practical purposes of the Sunday trading laws in this country. I do not think that either House, Parliament as a whole or the people of this country wish our legislation to be so radically changed and almost totally abrogated in such a capricious way.

Perhaps I may ask the Government a question. What on earth do they expect local authorities to do? As the Court of Appeal has said, once you reach the stage at which there must be undertakings in relation to damages, it is almost impossible for local authorities, which are inevitably over-conscious at the moment of the cash limits that the Government are imposing on their expenditure, to go to the courts. For example, is the Minister aware that it cost Hull, which took a supermarket, B&Q, to court, £1.2 million? Do the Government expect local authorities throughout the country to repeat that type of expenditure against the background of a situation in which the defendant in the proceedings can always take the precise Community law point, which will probably mean that they will not get the injunction that they seek?

The Government say that it is their intention to bring forward proposals to reform the law when the legal position is clear. As a matter of practicality, may I ask the Minister when they expect the European Court to give its judgment? All I know is that it is supposed to be some time next year. Does that mean that between now and the time that the court gives its judgment in Europe supermarkets throughout the country will be allowed to trade on Sunday? The matter is not confined to supermarkets. I suppose that any trader at any level throughout the country will now be entitled to break the law apparently without sanction.

One of the extraordinary points about these Statements is that there is no condemnation by the Government of the supermarkets' actions. There is not even a breath of criticism of what the supermarkets are doing in this situation. Do the Government approve or disapprove of what they are doing? If they disapprove of what they are doing, why on earth do they not say so rather loud and clear?

I shall conclude what I have to say to the Minister and to the House. I do not want to go on too long about this matter because the points are fairly clear. Whatever the merits of the existing law on Sunday trading, there is one principle on which I should have thought that we would all be able to agree; namely, that the existing law should be enforced. There cannot be one law for the supermarkets and another for anyone other than supermarkets.

The House will remember—noble Lords will no doubt forgive me, but as I speak from this side of the House perhaps they will expect me to say it—the ferocity with which the Government have approached people who did not pay their poll tax, sometimes for the most honourable of reasons; for example, because they disagreed with it fundamentally and in principle. Let us compare that ferocity with the way in which the Government are sitting down and allowing major supermarkets—major portions of British industry—to behave in this way.

It is an unfair and unprincipled way for the Government to behave. What lessons are people in this country supposed to draw from that situation? I shall tell your Lordships the lesson that they will draw.

It is very simple; namely, that there is one law if you are rich and powerful and another law if you are not. That is not the message that should go forth.

Lord Harris of Greenwich

My Lords, I agree with what the noble Lord, Lord Richard, has said. It seems to me to be a truly extraordinary situation. There was not a breath of criticism from the noble Earl, or from the Attorney-General or Mrs. Rumbold, who, I understand, made the Statements in the House of Commons, about what those powerful public companies have said that they intend to do.

Is the noble Earl aware of the statement made by the chairman of W. H. Smith, Sir Simon Hornby, at its annual meeting last month? He said: As far as breaking the law is concerned, I am afraid that we will have to continue to do so". As the noble Lord, Lord Richard, rightly said, Ministers have been quick to condemn, and rightly so, members of the Anti-Poll Tax Federation who have decided to ignore the will of Parliament. They have been critical of trade union leaders, and rightly so, when they have decided to ignore the law of this country. Why, when powerful public companies are concerned, do we find such an extraordinarily different attitude on the Government Front Bench? Does the noble Earl recall that, when a number of those companies decided to do this a year or more ago, to her credit, Mrs. Thatcher made it clear that she was firmly opposed to what they were doing? Why is there now such silence from Ministers?

Earl Ferrers

My Lords, I must thank both noble Lords for their contributions. However, I am surprised that they should have seen fit to attack the Government on this matter. The noble. Lord, Lord Richard, knows perfectly well what the position is: the law is uncertain. The noble Lord shakes his head even before I have divested myself of my thoughts. He knows perfectly well that the law is uncertain. The Government introduced the Shops Bill in 1986. It passed your Lordships' House, but was rejected in another place. Therefore, the position remains as it is until the warring factions at the two ends of the spectrum on Sunday trading can be brought into some sort of harmony. Until you alter the law in another place and in this place, the law remains as it is. We want to see the law altered and made reasonable, but we cannot do that until the opposing views in another place come to some form of agreement.

There have been cases in which it has been considered that our law is incompatible with Community law. Such cases have gone to the European Court of Justice, and that is the position at the moment. The noble Lord, Lord Harris, said that Sir Simon Hornby says that he will continue to break the law. If you are a purist, you might say that he must be a clever person because he obviously knows what the law is when it is perfectly clear that the law itself is uncertain. The noble Lord keeps on interjecting nonsense. I can only tell him that the courts do not know what the law is and the House of Lords in its judicial capacity does not know what the law is. The matter went to the European Court of Justice, which has not yet given its view. That is the position.

My right honourable and learned friend the Attorney-General thought that it was right in answer to a Question to say what the legal position is, and that is what he has done. I can only tell your Lordships in the generality that Parliament makes the law, the law must be obeyed and it is up to the prosecuting authorities to take such action as is necessary and appropriate. That is the position which my right honourable friends in another place sought to explain.

5.30 p.m.

The Lord Bishop of Liverpool

My Lords, the Churches are united on this matter. They accept that the law needs to be changed. We believe that there are workable and enforceable proposals which are in the public domain. Both the "rest" proposals and the "open" proposals allow smaller shops to open to cater for recreation, emergencies, social gatherings and travel. The law has always had anomalies. The rest and open proposals are workable. That is not what causes some people to reject them; it is because they do not propose total deregulation. At present companies have shown their contempt for the law and for the attempt to find some consensus. I do not believe that those companies seek that.

I was pleased that in the Statement from Mrs. Rumbold read by the noble Earl the Government stated: Since then, we have made it clear that we should be prepared to consider measures which fall short of total deregulation of the Sunday trading laws". That is a firm step towards the possibility of consensus. The Churches are unitedly opposed to unrestricted opening of shops on Sundays. USDAW, the shopworkers' union, stands with them in the wish to keep Sunday as a special and different day. The Government often express strong anxieties and views about family life and the spiritual values of the nation. We believe that to keep Sunday as a special and different day is a basic part of responding to those hopes.

The Government have asked the Association of District Councils to act as honest broker in seeking a consensus for modest change. Those genuine attempts to move forward are set on one side because powerful and wealthy companies announce in so many words that they will break the law. The Government appear to be saying: "I do not see how we can avoid that; the law is set on one side while an appeal is settled". They do not say that about other laws. Laws remain laws until they are altered.

Mrs. Rumbold is quoted on the tickertape as saying that she does not condone what the companies do. I hope that we may hear as much from the Government's Front Bench in your Lordships' House. The Government often express anxieties about family and spiritual matters. They also express many worries about moral matters. If we allow big business to break the law, how can we argue that poor or young people should not break the law?

Earl Ferrers

My Lords, I am grateful to the right reverend Prelate the Bishop of Liverpool for saying that his believes that there are workable and enforceable proposals in the public domain. I hope that there will he. However, there needs to be a great meeting of minds before the problem can be resolved. My right honourable friend Mrs. Rumbold is doing her best to bring people together to find a way through.

The right reverend Prelate said that the law is suspended. That is not so. As my right honourable friend the Attorney-General made clear, the law is not suspended. Local authorities can continue to apply for injunctions. Moreover, any trader who trades on Sundays, relying only on the present uncertainty, remains. liable to criminal proceedings. I am glad that the right reverend Prelate gave me the opportunity to reiterate what my right honourable friend the Minister of State said in another place. None of us in the Government condones the plans by some retailers to open on Sundays before Christmas. I commend those who remain committed to complying with the law. The right reverend Prelate is right. Those in positions of great authority—and big business commands great authority—who break the law give a very bad example to others. It is to the upholding of the law that we should all be committed.

Baroness Young

My Lords, is my noble friend aware that like other speakers I find both Statements unsatisfactory? I am grateful for his last remarks. However, it is unsatisfactory for my noble friend to state that the law is uncertain, and, as I understand the Statement from the Attorney-General, to state that the law is not suspended and that traders who trade on a Sunday are liable to criminal prosecutions. Those are two difficult and contradictory statements.

I believe it wrong that anyone should break the law, and wrong that we condone in any sense those who do, for all the reasons given. It puts those retailers who feel quite properly that they must stand by the law in an extremely difficult and unfair position. I ask my noble friend to consider carefully not only the general principle of upholding the law but the example that this position will set and the complexity that it will create for a great many people.

Earl Ferrers

My Lords, I understand the difficulties to which my noble friend refers. I understand that those who continue not to open on Sundays find themselves in a difficult position. The noble Baroness states that she finds the Statements unsatisfactory, but she will be the first to understand that the position is unsatisfactory. The only way in which one can achieve the right position is, first, by determining whether our law is compatible with Community law, and, secondly, whether between us we call, if necessary, find a way to make such alterations.

It is not for government to say what the law is; it is for the courts. It is not for government to prosecute; it is for the prosecuting authorities. That must be the position.

Viscount Tonypandy

My Lords, I always listen with the utmost respect to the noble Earl. Sometimes I find myself pleasantly surprised, but not today. I cannot express the indignation that I feel that Her Majesty's Government should in effect say, like Pilate, "We wash our hands of this. It is nothing to do with us"

Sunday is central to the life of this nation. Sunday is part of the Bible of this nation. It is an indication that at least we are a Christian nation by tradition. There has been no public clamour for opening on Sunday. Some men have said, "We haven't been doing well this year and therefore we shall open on Sunday". They are deciding the law of the land.

Earlier this week we debated the sovereignty of this land. We are now told that Parliament, the judges of the High Court, and the House of Lords are not able to pronounce without the kind permission of those people in Europe. If ever there were an indication that our sovereignty has disappeared, it is that. What I had considered the highest court in the land is a middle court, and the highest court is in Europe.

I ask the Minister at least to acknowledge that this action is a back door attempt to defeat the will of the High Court of Parliament in this land. The representatives of the people in another place made clear within the past two years that they were not prepared for the wholesale destruction of Sunday. The noble Lord, Lord Richard, is right when he states that a handful of men can change our way of life and an established system in our land unless there is some backbone in Her Majesty's Government.

Lord Houghton of Sowerby

My Lords, is this not a case—

Noble Lords

Minister!

Earl Ferrers

My Lords, perhaps it will be convenient if I try to answer each question briefly. I understand the anxiety expressed by the noble Viscount, Lord Tonypandy. The Government have not washed their hands of the matter. We tried to alter the law four years ago. The noble Viscount, who held that most exalted position of Speaker of another place, will know that if its Members do not agree with a proposal there is no way one can force it down their throats. Perhaps if the noble Viscount had then occupied that exalted position he would have guided the deliberations in a different way. I repeat, the Government are not washing their hands of the matter; the fact is that it was then impossible to alter the law. As a member of the Community we are subject to Community law. We cannot say that there is a supreme authority which tells us what to do; we must ensure that our law is compatible with Community law.

Lord Boyd-Carpenter

My Lords, is my noble friend aware that many of us resent the suggestion that the Government are to blame for the difficult situation now being faced by the country due to the present state of the law? It is obvious that the first fault lies with another place for wrongly and foolishly rejecting the perfectly sensible legislation which the Government put forward and which your Lordships adopted. The responsibility lies with another place for the considerable mess in which we have been placed.

Will my noble friend note another point, in particular in the context of the eloquent outburst of the noble Viscount, Lord Tonypandy? It is nonsense to say that if one authorises Sunday trading one is destroying the Christian character of the country. Noble Lords will recall that for many years the law in Scotland has permitted completely free Sunday trading. Any Scot will intensely resent the suggestion that Scotland is any less a Christian country than England. Indeed, I have enough Scottish blood in me to share the resentment. Will my noble friend indicate that as soon as the Government are free to move—I appreciate that they must await the decisions of the European Court, which are never quickly delivered—they will bear in mind that most sensible opinion wishes to feel that in this respect, as in many others, this country draws up alongside Scotland?

Earl Ferrers

My Lords, there was a nice sting in the tail of my noble friend's remarks. I had intended to thank him for coming to my rescue and being an ally in suggesting that the Government were not at fault. There are not too many friends to be found in respect of this subject. When one is in Government the arrows come from all directions and I was appreciative of that support. However, I was less appreciative of my noble friend's penultimate remarks. My right honourable friend has stated that it is our intention to bring forward proposals for reform once the legal position is clear. I cannot tell your Lordships what that position will be. I know that my noble friend Lord Boyd-Carpenter is at one end of the spectrum while the right reverend Prelate the Bishop of Liverpool and others are at the other end. Somewhere agreement must be reached.

Lord Beaumont of Whitley

My Lords, is the Minister aware that he cannot use the argument about there being two ends to the spectrum? At one end of the spectrum is totally free trading while at the other are the complete Sabbatarians. The bodies that have put forward proposals to the Home Office represent the middle of the road position and the consensus to which others should approximate.

Earl Ferrers

My Lords, I understand the noble Lord's strictures; he said that I could not use the argument of there being two ends to the spectrum. However, he promptly did so and included the middle part. All shades of opinion must be considered.

Lord Wyatt of Weeford

My Lords, is the Minister aware that there is also a problem in regard to Sunday sport. The laws relating to playing sport on Sunday have been regularly discarded and ignored. That applies in particular to the right reverend Prelate's cricketing friends who charge admission to cricket matches on Sundays. I wonder whether the right reverend Prelate has ever taken action against them.

Earl Ferrers

My Lords, I do not know whether the right reverend Prelate has taken action against anyone. I am sure that had he done so he would have been on his knees. The issue of sport is far removed from Sunday trading.

Lord Elton

My Lords, surely the argument of the spectrum is relevant. I am sure that my noble friend agrees that we cannot expect to achieve unanimity on the subject but that we must obtain a consensus among the majority. That is achievable on the basis of either of the packages that have been mentioned. Although we have been told that the law has not been suspended, it is disturbing to be told that it is too expensive to enforce. If it is too expensive for Her Majesty's Government to enforce how much more expensive is it for local government to enforce? If it is not enforced at all shall we not have seen the whole dam washed away and the traditions of this country changed willy-nilly without the consent of Parliament?

I sympathise deeply with my noble friend's difficulties which are not of his or the Government's making. However, a great effort must be made among those involved, including the Sunday traders. It would be most encouraging to this House and another place if, for once, the large corporate bodies which have announced their intentions of breaking the law in order to compete with each other joined in an alliance to obey the law so that none cuts the others' throats.

Earl Ferrers

My Lords, I am grateful to my noble friend for his sympathy and for saying that the problem is not of the Government's making. We all wish to see the matter resolved and there are two ways of doing so. The first is to find out exactly what the law is, and in that respect we must wait for the decision of the European Court of Justice. The second way is, as my noble friend said, for people to get together and to find a common course. My right honourable friend the Minister of State is prepared and willing to meet everyone concerned to find a solution.

Lord Houghton of Sowerby

My Lords, on a point of order, perhaps I may ask whether the noble Lord the Leader of the House is watching the clock in order that the rest of our business is not impeded?

Lord Waddington

My Lords, I can assure your Lordships that I am watching the clock most carefully. According to the Companion to Standing Orders and the agreement of this House we should bring the questions to a close in three minutes.

Baroness Ryder of Warsaw

My Lords, perhaps I may remind the House of a quotation by Sir Winston Churchill. He said: Sunday is a divine and priceless institution … the necessary pause in the national life and activity; it is the birthright of every British subject … and above all our great heritage, and one which is our responsibility, privilege and duty to hand on to posterity". What the superstores propose is an offence against the law. Within the past 12 months the High Court of Parliament has decided that Sunday is a special day. Do we give in to greedy people who want more money and power? Furthermore, what about those people who do not want noise and disturbance?

Almost five years ago I spoke twice in this House on the Shops Bill and once on Sunday trading. I then asked: What example do we give to young people, especially those who are disillusioned, undisciplined and unemployed, if they see materialism grow stronger and Sunday no different from any other day? … as a committed Christian I deplore their [the Government's] action and, equally as bad, the indifference which many, alas, express towards God and all that Sunday stands for. I remember with sadness that this was originally a Christian country but I rejoice to see our Jewish friends continue to observe their sabbath and day of rest". Perhaps I may read to your Lordships, as I did then, from the Ten Commandments: Remember the sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work: But the seventh day is the sabbath of the Lord thy God".

Earl Ferrers

My Lords, I understand the feelings of the noble Baroness, Lady Ryder, on this subject. They are shared by many people.

Viscount Brentford

My Lords, I am extremely concerned about one aspect of this breakdown of law and order. As a lowly solicitor I was always under the impression that the law remained in force until it was changed. Here we see that the law is being not suspended but put in abeyance. Is that a precedent for the future so that whenever any matter is referred to the European Court, UK law will be in abeyance? I am extremely worried about that and hope that the Government will take action.

Earl Ferrers

My Lords, the law is not in abeyance. It is as it is. It is not for the Government to say what is the law but for people like my noble friend Lord Brentford to take action to pursue those who break the law. I repeat that it is for the courts and not for the Government to decide what is the law. As I tried to explain, we shall do all that we can when the position with regard to the law is known and when the position with regard to another place is more flexible.

Lord Waddington

My Lords, I know that noble Lords consider this to be an extremely important subject but perhaps we should move on and stick strictly to our rules.