§ 2.8 p.m.
§ Viscount Brentford
My Lords, I beg to move that this Bill be now read a second time.
The aim of the Bill is quite simple: it is to increase the maximum penalty for offences against Part IV of the Shops Act 1950 from £1,000 to £50,000. The sum of £1,000 will be increased to £2,500 in October by the 519 Criminal Justice Act 1991, but it is still a very small sum. I would much rather be supporting a Bill being introduced by the Government at the present time, preferably along the lines of the REST proposals to reform the law of Sunday trading rather than bringing in this brief Bill on the enforcement of the Sunday trading law. I believe that the REST proposals are a fair and reasonable compromise between those, on the one hand, who want total deregulation of Sunday trading and those on the other who want to retain the present law or even to tighten it up more than it is. I understand that there are moves in another place to ask for leave to introduce a Bill along those lines next week.
Perhaps I may turn first to the present position concerning the Sunday trading law in England and Wales. I am sure that all noble Lords are very well aware of it. A number of the large supermarket chains, but by no means all, including Sainsbury, Asda, Tesco and Safeway, have decided to continue their campaign of law-breaking into the New Year. That is the present position which we are facing. That challenges the supremacy and authority of Parliament in 1992.
Perhaps I may next deal with the review of the legal position and what has been said both in this House and in another place in the past couple of months. It has been suggested that the intervention of European law is to blame for the current shambles that we face today. In my view nothing could be further from reality. In his Statement, repeated in this House, my right honourable and learned friend the Attorney-General confirmed that a reference to the European Court of Justice does not suspend UK law (Official Report, 27th November 1991; cols. 1348–9). In answer to questions from me my noble friend Lord Ferrers has confirmed that more than once.
In that case the contrary proposition which has been put forward by the law-breaking retailers is seen for what it is —that is to say, a deliberate and planned flouting of the criminal law for profit. The European Court at any time has hundreds of references outstanding from the 12 member states. It is absurd to argue that a mere reference neutralises, if I may use a neutral word, the laws of a country pending the court's decision. If that were the case there would be legal chaos throughout all 12 countries of the Common Market.
Three cases have already been brought to the European Court to test whether laws restricting Sunday trading are contrary to the Treaty of Rome. These cases came from France, Belgium and Britain, and in all three the court ruled that countries are entitled to make their own Sunday trading laws and that none is in conflict with the Treaty of Rome. Eleven of the countries certainly have laws restraining Sunday trading or Sunday employment. There is consensus that some restraint on Sunday trading is in the interests of the working population and also has wider social benefits for family life. Against that background for law breakers to appeal to Europe as a defence for their action carries no weight at all.
Perhaps I may now turn to the meat of the matter and the real reason why the Shops Act is currently 520 unenforceable. It is due to another decision by the Court of Appeal which requires local authorities to give a cross-undertaking for lost profits when seeking injunctions to uphold the Act.
§ Lord Simon of Glaisdale
My Lords, I am very grateful to the noble Viscount for giving way. As he is a lawyer, he will know that that is common form to people seeking an injunction in these circumstances.
§ Viscount Brentford
My Lords, it may be common form, but what I am stating is that in this case I do not consider that that should carry any weight for the reasons which I have given. The real reason why the Shops Act is currently unenforceable is because of the requirement of local authorities to give a cross-undertaking for lost profits when they seek this injunction to uphold the Act. Recently, the City of Hull council, in the run-up to Christmas, was faced with a demand in the court for a cross-undertaking for £2 million from Tesco. Not surprisingly, the authority could not risk local taxpayers' money and was forced to give way. The loser in this case was the rule of law. Local authorities currently face all the risks and the major retailers none whatever. My Bill seeks to adjust that gross imbalance.
I shall now set before your Lordships what I consider to be the options facing the Government today. First, the Attorney General could, if he wished, provide support to the local authorities to make enforcement feasible under current conditions by bringing injunctions himself, as only he and not the local authorities could possibly have Crown immunity. He has refrained from doing so. A second course of action would be for my right honourable friend the Home Secretary to bring forward a statutory instrument to include offences against the Shops Act within the list of offences for which a confiscation order may be made under the terms of Section 71 and Schedule 4 of the Criminal Justice Act 1988. This has been used for a couple of offences so far and is available for use against other offences where appropriate. No doubt when he replies the Minister will give the Government's reasons why these responses are not being acted on at present.
The third course of action would be to increase the fines that are payable under the Shops Act itself without any recourse to any other Acts. That is what my Bill purports to do. The total lack of action so far does not sit well. We have a Government who are totally committed to law and order, family life, the welfare of small businesses and to the environment but I suggest that all those aspects are suffering by the lack of action and the legal shambles which the country faces today.
I turn now to an example from the Common Market to illustrate what is happening in other countries equally bound by the Treaty of Rome. I am sure many of your Lordships will have read this in the newspapers. On Sundays 22nd and 29th December last the Virgin megastore on the Champs-Elysées in Paris opened illegally. Immediate prosecution followed in the local courts. Fines of approximately £50,000, based on the number of employees illegally engaged on each Sunday, were levied. Despite that 521 £100,000 liability, the store planned to defy the law again on Sunday 5th January until the French Government made it plain that if necessary further action to close the store would be taken by the police. Wisely, the Virgin management backed down.
Noble Lords will know that Virgin plc and its owner Mr. Richard Branson are leading supporters of the Shopping Hours Reform Council. I am a great admirer of all that Mr. Branson has achieved, both nationally and internationally, but on that occasion he met his match. Perhaps I may illustrate this disaster for Virgin by a few lines of doggerel, though I must admit that I am not a poet as will become obvious. However, noble Lords may be able to recognise the pattern on which it is based:There was a young fellow called Branson, Who decided to take all the Franks on, So he opened his shop, But the judge shouted, stop! And that was the end of his try-on".I only wish that the same could be true in this case.
The French case is interesting to me, primarily for three reasons. First, the French Government have already committed themselves to making modest changes to the Sunday laws this year, but they are determined that the changes will be made by the National Assembly and not by Mr. Branson or any other shops. Secondly, the law in France remains the law. The French Government see no need to await pending cases before the European Court of Justice and know full well that the court has ruled three times already on the compatibility of Sunday trading restraint with Article 30 of the Treaty of Rome.
The third reason involves me, and perhaps those noble Lords who are of a similar age to me and are not therefore extremely young, in making the most enormous mental jump. I was always brought up to think that laws were always enforced in England but not in France. In this case we have the law being enforced in France and not in England. I find that a difficult hypothesis to master.
With my next point I should like to answer those who ask why I am bringing forward the Bill today and why we are not leaving until the Shops Act is reformed the increase in penalties to be dealt with at that time. I have two reasons. The first is that we need fines that are sensible and appropriate today ready for when the European judgment comes and holds that the Shops Act is not unenforceable. Everyone from my right honourable and learned friend the Attorney-General upwards and downwards says that the fines are ridiculously low. If I assume that in six months' time that judgment comes through and that the courts will then administer the Shops Act properly, there should be a fine of up to £50,000 available for magistrates to use. If nothing happens today it will still be at best another six months after the European Court judgment or such other time as the courts decide they will operate. There will be a long delay and fines will by then be totally inconsequential. Let us put the law properly in operation today.
The second reason is that the local authority could bring an action after the passing of this law and before any judgment is made by the European Court. Then, 522 even if a case were adjourned sine die, as is happening many times now, the available fine when the case was later heard would be £50,000.
I shall make two brief points in conclusion. First, the British Government are a signatory to the 1990 Copenhagen declaration of respect for the rule of law and on co-operation to secure its enforcement. Copenhagen continues the process begun by the Helsinki Accord. My modest Bill enables the Government to act in support of its words.
Secondly, my Bill is a positive response to the invitation given to me and my colleagues by my noble friend Lord Ferrers at col. 1357 of the Official Report on 27th November 1991 to take action to pursue those who break the law. All I am doing is accepting his invitation and taking the necessary action. I trust that your Lordships will approve the Bill. I commend it to the House.
Moved, That the Bill be now read a second time. —(Viscount Brentford.)
§ 2.23 p.m.
The Lord Bishop of Liverpool
My Lords, I support the noble Viscount, Lord Brentford, in bringing forward the Bill. At the end of November the House briefly debated the Government's Statement which followed the announcement by Tesco that it was going to break the law. In his reply to me then the noble Earl the Minister said: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 … 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 he committed".—[Official Report, 27/11/91; col. 1353.]How are we to uphold the law and how are we to give proper support and protection to those retailers who remain committed to complying with the law?
In Liverpool, the three presidents of the Merseyside Churches Assembly, Archbishop Worlock, Dr. Newton and myself, wrote to the chairmen and managing directors of the stores in Liverpool which had announced at the beginning of December their intention of opening on the Sundays before Christmas. We said that it was very unjust to those companies which keep the law for some to steal a march on them by breaking it. We also said that the decision to open would put an intolerable strain on the conscience of a number of their staff who felt obliged to comply with their company's requirements. We mentioned the telephone poll conducted by the Liverpool Echo during the previous week in which 78 per cent. of callers expressed their opposition to Sunday trading in the Liverpool area.
Perhaps I may quote from the reply that I received from the group chief executive of one of the companies to which we wrote and which had announced that it would open. He wrote:The company's support for "Keep Sunday Special" has been our policy before and since deregulation of Sunday trading was defeated in Parliament and we too are opposed to unrestricted opening of shops on Sundays. However, we were placed in an unjust position last year when many stores opened on Sundays and we did not. This year with an even 523 greater number of stores opening, the threat to our business and the resulting job security of our staff has become a great concern to us".Another company chairman rang me and said precisely the same thing: companies were opening against their convictions, purely so that they should not lose ground to competitors who were breaking the law. That letter provides a perfect example of why we need laws: it shows exactly why laws must be enforced and it shows exactly why penalties should be heavy enough to deter powerful lawbreakers. I believe that the Bill of the noble Viscount, Lord Brentford, can help to re-establish the law in this matter.
The government Minister, Mrs. Rumbold, has spoken on occasions as though her only responsibility in finding a way forward was to bang heads together until all parties agreed about a policy. In your Lordships' House the Minister, the noble Earl, Lord Ferrers, said that there was a spectrum of views and that he knew that the noble Lord, Lord Boyd-Carpenter, was at one end of it while I was at the other. We have debated matters in the House on which I would accept that position, but I cannot do so on this matter. The noble Lord, Lord Beaumont, quite rightly intervened at that time to make it clear that the spectrum on the matter is totally free trading at one end and, at the other, the complete Sabbatarian position. That is not where I am; I am not a complete Sabbatarian, or anything like it. The Churches very largely support moderate reform based, for example, on the "open" or the "rest" proposals which I believe are workable.
The Government have a major share in the responsibility for the present state of the law, for it was they who brought in a Bill for total deregulation. It was defeated in another place five years ago. That underlines the responsibility that the Government have to bring in a Bill which can win wide support. Such a Bill must offer protection to shop workers against the very wide requirements to work on Sundays. It is very strange that appeal is being made to Europe in aid of total deregulation when it is clear that there is a wide consensus in the European Community that to restrain Sunday trading is in the interests of good family life.
The report of Durham University Business School on women and work shows the vulnerability that women feel in the employment market. It found a strong association between a woman's willingness to work unsocial hours and whether or not she had children. Of women with children, only 15 per cent. said that they would be willing to work regularly on Sundays. The Government want such women to be able to return to the labour market. Are they not concerned to protect their freedom to keep Sunday as a family day?
In the Durham survey, 56 per cent. of those interviewed said that Sunday was the main time that women employed in retailing had to spend with their families. Some large retailers are now said to be drawing up fresh contracts which will require staff to work on Sundays. Despite assurances that there is no 524 requirement by other firms, I hear of existing shop workers being brought under strong pressure to work on Sundays.
Do the Government themselves not have a view on the character of Sunday? I heard a Minister, Virginia Bottomley, on the "Any Questions" programme speaking on this subject. She said that she thought that most people wanted to find a middle way. I believe that she was right. I believe that many members of the Government would think that she was right. Why then is the only initiative that we have had from the Government a Bill for deregulation, which Parliament defeated?
A Bill which took a middle path would, I believe, now obtain agreement from those who believe that there should be some special character for Sunday. Until a new law is in place, existing law should be upheld, for this present flouting of the law brings all law in Britain into disrepute. The Bill could help to re-establish the law until a better one wins assent.
§ 2.30 p.m.
§ Lord Elton
My Lords, there may be differences as to whether Sunday should be a day of rest, but I think that we are all agreed that Friday should be a day of short speeches. If I merely say that I share the views of my noble friend Lord Brentford and of the right reverend Prelate the Bishop of Liverpool as to the need to mark Sunday out as a special and different day of the week, your Lordships can take it as read that I hold them with great enthusiasm. They have put forward a case that demands a coherent answer from my noble friend the Minister. I hope that it will also be an encouraging one. I shall just add that I believe that we were once a God fearing nation in a sense that we are now not. I do not believe that this or any other piece of legislation will change us back to what we once were and now should be, but we need urgently to consider what we can do to make it possible for that change to take place. I also believe that doing that will create and maintain a space in which the life of the family can recover its strength.
One thing we can do to achieve that purpose is to preserve a time each week when it can be, not just possible, but normal to attend places of worship and consider our lives from the spiritual rather than the material standpoint and to do so in the company of our families. That entails regulating commercial activity on one day a week; and that day is Sunday.
It is not necessary at this juncture to consider what the detail of that regulation should be. It is a necessary question and it is becoming increasingly urgent; but the Government have made it clear that they will not act until the European Court has declared whether the Shops Act 1950 is ultra vires, and no legislation can therefore be prepared until after that judgment is given.
The Bill is designed to meet a particular contingency that we think is likely to arise. It is that the European judgment, when it comes, will be that the Shops Act is not ultra vires and has force. That Act will then once again be the law of the land in reality as well as in name. We do not pretend that it is perfect. It is far from it. One can have great fun—many people 525 have had great fun on numerous occasions—in pointing out the inconsistencies in its provision; but it provides some sort of a regulatory framework and, like half a loaf, it is much better than none. That has been put beyond question for those of us who believe that Sunday should be a special day, available for the spiritual life and the family life of most of our people, by the effect of the reference to Europe and the consequent decision by the Court of Appeal in Kirklees Borough Council v. Wickes Building Supplies Ltd in May last year which has been referred to.
That ruling, although it has been appealed, means that no local authority can enforce the Shops Act by means of injunction because, even if an injunction were granted, the local authority would have to give a cross-undertaking in damages which is, in effect, an undertaking to pay at least the total of the profits forgone by the trader against whom it has moved. These are considerable and it would eventually fall to the ratepayers to pay them.
My noble friend Lord Brentford has confessed to not being a poet. I confess to not being a lawyer, though whether with as much justification your Lordships will decide later. Unlike some of my friends, I see no injustice in the Kirklees decision. The courts are there to interpret the law, not to take political decisions. Your Lordships' own House has declared that it does not know what the law is in the matter and cannot know in advance of the European judgment. The lower courts cannot therefore continue to behave as though they did know what the law was, nor can local authorities.
Some of my friends tell me that the enforcement of public law by local authorities attracts Crown immunity; that that immunity extends to cross undertakings and that the Court of Appeal has broken new ground in saying that that immunity appertains to the Crown alone.
It is further argued that the Kirklees judgment implies that the immunity of the Crown, and therefore its Ministers, is unimpaired and that the Attorney-General remains free to seek injunctions without subjecting himself, and therefore the taxpayer, to the enormous contingent costs of cross-undertakings on a national scale. I think that my noble friend was speaking on that assumption. On 27th November, my right honourable and learned friend the Attorney-General said that the Government would be subject to this disability. But much as I should like to see immediate enforceability of the 1950 Act, the difference of opinion seems to me to be of academic interest only.
It would surely not be right for my right honourable and learned friend, even if he were burning with zeal to keep Sunday a holy day, to say in effect, "Even though I don't know what the law is, I am going to make all shopkeepers behave as if it is still what we thought it was—and I bet that the European Court agrees with me in the end".
The injunction and criminal prosecution route is, therefore, to all intents and purposes closed off. It is also very unlikely that any court would award a fine in 526 a prosecution under the Act until its status had been made clear. We are now, therefore, I much regret, apparently entirely without regulation.
When your Lordships last attempted to change the law on Sunday trading in 1986, the other place, by a massive vote and many speeches, made it clear that it did not want any significant relaxation of trading law. It simply wanted it made logical and clear. That is an achievable aim, but it will be achieved only by way of something approaching consensus and that is something that successive Ministers have tried and failed to achieve for a long time. It will certainly take time, therefore, and it is important to have an enforceable system in the interim.
That system must of necessity be the Shops Act which we already have. To tinker with its provisions as to the categories of goods and service available for sale would lead to the waste of a great deal of parliamentary time, and we do not propose that.
What we propose is to prepare for one possible outcome of the reference to the European Court—in our view the most likely one—which is a declaration that the current Act is intra vires. If that happens, there will be an interval, possibly a long one, between the declaration and the bringing into effect of new legislation. In that case it is important that the Act, imperfect as it is, is easily enforceable. That means introducing penalties that are not derisory, as at present, but effective as proposed in the Bill.
The present maximum fine, as my noble friend has already explained, is utterly inadequate. The rewards for retailing on Sundays are at present considerable. I mention in passing that for grocers they would be less so if local authorities object—as an accountant friend of mine has pertinently suggested—to the renewal of their liquor licences on the grounds of misconduct and if the licensing magistrates agreed to their objection. It will be interesting to see whether they do that.
In the meantime, however, the weekly average takings in a 40,000 square foot superstore are, I am advised, about £400,000. The gross margin on that turnover is, I understand, likely to be about 12 per cent., giving a gross profit of £48,000. A maximum penalty of £50,000 would mean that a decision to open on the seventh day of the week incurred the risk of forfeiting the profits of the other six. That seems to me a practical way of ensuring that retailers conformed to the most recent declaration by Parliament on how they should conduct themselves on Sunday. That is why I support the Bill.
The need for it has become apparent because of the mess which we have suddenly got ourselves into. This has made us look closely at the operation of the law and leaves me, for one, with a very pertinent question in mind. The cross-undertakings we are talking about are devised to prevent a trader being deprived of profits if it later proves they would have been lawful. However, that is a constraint on only one party in the dispute and it rests on only one contingent result of the reference to the European Court. As a layman, I find that extraordinary. Is not the law supposed to be evenhanded between all parties, whether they be 527 individuals, corporate bodies or government? We have prided ourselves on that since Magna Charta. If there has to be a bias, surely it is to the status quo.
Certainly it is fair to say to the local authority, "You must pay the trader what you have made him lose if the law is not what you think it is". I can see the justice in that. But why does the law not also say to the trader that he must forfeit his profits if the law is not what he thinks it is? That would seem to me to be both evenhanded and to tend to retention of the status quo. Will my noble friend the Minister tell me whether, and if so by what means, that can be achieved under the arrangements we have at present? If it cannot be achieved, will he tell us what legislation would be needed to make it possible? I fear I have not given him notice of this question and I apologise for that. If, therefore, my noble friend answers by letter, will he please place a copy of it in the Library of your Lordships' House?
There are many fascinating topics beckoning me, but it is a Friday. If, as I very much hope, our noble friend Lord Cheshire is safe and well, he will be speaking in a debate he has tabled for later this month. Your Lordships may have seen on the tape that he was rescued earlier today from the roof of his burning house. I am sure your Lordships will extend their. sympathy and encouragement to him with mine. I shall put forward my views with enthusiasm in that debate later this month. I commend to your Lordships my noble friend's proposed legislation with all the enthusiasm at my command. My grounds are fractionally different from his, but my enthusiasm is there none the less.
§ 2.42 p.m.
§ Baroness O'Cathain
My Lords, at the outset I must declare my interests. I am a director of Tesco and have been since 1985. I am also a committed Christian. I therefore find that Sunday trading is one of the most difficult issues for me. In fact it would be much easier not to speak in the debate, but I am taking the opportunity afforded by this Bill to put some facts before noble Lords concerning the very difficult position of Sunday trading.
This issue has been building up for a long time; indeed it can be traced back to the 1950 Shops Act. The 1985 Bill—the Shops Bill—resulted from the Auld Inquiry Report which was presented to Parliament in November 1984. It in effect led to the principles of deregulation being approved in another place.
The 1950 Shops Act allowed certain shops, particularly confectionery, newsagents and tobacconists—they are known as CTNs in the trade—to trade on Sundays. But gradually, particularly during the 1980s, many of these shops extended their range of goods on offer and the hours which they worked. They expended the retail space to become, in effect, mini-supermarkets. High disposable incomes in the 1986 to 1990 period resulted in changes in lifestyle which opened up the market for convenience stores and these erstwhile CTNs became full blown grocery stores.
528 These stores traded on various slogans to the effect that they were open every day of the year, including Christmas day. They traded on slogans such as, "Late till eight" and "Seven till eleven". Sunday trading became the norm as these CTNs, which were now small grocery shops, were followed rapidly by DIY and furniture retailing and petrol station forecourts became mini-markets selling everything from bread and butter to flowers and fizzy drinks. By the autumn of 1990 it is estimated that some 100,000 units were trading on Sundays. Indeed if the housewife in my local area of Angmering completely overlooked the fact that people had been invited to Sunday lunch, she could nip down to the local garden centre and purchase a leg of lamb, potatoes, other vegetables, mint sauce and icecream. That is a long way from rose bushes and daffodil bulbs.
The size in terms of square footage of these kind of operations is also considerable. Yet these garden centres would be permitted to operate unchanged under the REST proposals. Because of the inexorable increase in the number of units trading on a Sunday, most of which were making substantial profits, the Association of District Councils announced in autumn 1991 that the present law was unenforceable and flawed. Like other major supermarket chains, Tesco felt unable to allow the situation to continue whereby its commercial progress and that of its 90,000 staff and 110,000 shareholders was being eroded—not to mention the inconvenience to its 10 million customers.
Objections to Sunday trading are well known and are constantly repeated. They are all objections which I understand and concur with, but there cannot be, in effect, one interpretation of the law for one set of traders and another for another set.
If there were no Sunday trading many of those currently trading would not want it. Many would not press for it, but as there is Sunday trading they feel they have no alternative but to safeguard their position by joining their competitors. Competition is what it is all about, not flouting the law for profit, as the noble Viscount, Lord Brentford, stated, nor having total disregard for the sanctity of Sunday.
Many millions of people already work on Sundays, ranging from bishops to farmers, journalists and printers of the Monday newspapers to policemen, supermarket store shelf fillers and distribution staff (to ensure that Monday's trading can go ahead) to newsagents; and in my own major area of activity, violinists to barmen. If we think about it long enough and deep enough we will realise that all of us to a greater or lesser extent rely on somebody else working on a Sunday—indeed some of us already work on a Sunday. Sunday is one of the busiest days of the week in the Barbican Centre.
Despite all this trading, Sunday is different. Sunday is special. Sunday is the day when families can, if they wish, go out together as a unit, go to a concert, visit a stately home and take tea in the tea rooms there and buy goodies in the shop (very often grocery products). Sunday is a day when there must be freedom to worship for those who want to worship, freedom to partake of chosen leisure activities for those who wish 529 to do so and, although I prefer not to shop on a Sunday, freedom for those who want to shop on a Sunday, for example, Jewish believers who regard Sunday as a normal day, having had their special day on the Sabbath, namely Saturday.
The Government must try to clear up the current mess—deregulate or introduce universally enforceable regulations where there would be no Sunday shopping. Because of the changed nature of the businesses currently allowed to trade, the existing regulations, if enforced, would result in major distortion of competition.
One point is most important, namely, that the strongest possible efforts should be made to ensure that those who do not wish to work need not work, that no coercion is implied and that people's promotion prospects are not jeopardised if they categorically state that they are not available to work on Sundays.
I believe that the current situation is untenable and that something should be done—and done quickly. Although I welcome the fact that the Bill gives the opportunity to open up the whole unsatisfactory situation I cannot support this particular Bill because I believe that it is not possible to deal with one issue, namely the question of fines, while ignoring the very real problems which the current situation creates.
§ 2.47 p.m.
§ Viscount Caldecote
My Lords, I apologise to my noble friend Lord Brentford and the House for not being present when my noble friend opened the debate. I experienced a little local travel difficulty.
Although I fully agree with the views put forward by the right reverend Prelate the Bishop of Liverpool and my noble friend Lord Elton about Sunday trading, this is not a debate about the merits or demerits of Sunday trading, which is a contentious issue. It relates entirely to the problem of upholding the rule of law, which is the basis of our democracy, and to enforcing the laws which Parliament has enacted. Whether those are now good laws or whether they need improvement is irrelevant. Neither the upholding of the rule of law nor the enforcement of laws which Parliament has enacted is a contentious issue. They are straightforward and important matters.
There are two main factors which affect the ability to enforce the law: first, the resources available to detect offenders and to bring them to court; and, secondly, the penalty inflicted on those found guilty, which acts as a deterrent to others not to break the law. The fact is that there are many infringements of the laws relating to Sunday trading—we cannot get away from that—as those laws have been enacted by Parliament, whether they are as good as they seemed to be in the first place or whether they need amending or not, as I believe they do.
There is no difficulty in detecting and identifying the law breakers, nor in bringing them to court, even though there is an unfortunate reluctance by the authorities to prosecute. But that also is a subject for another day's debate. I am not so courageous as my noble friend Lord Elton in going into the legal whys 530 and wherefors of that position. Suffice it to say today that those obstacles to prosecution could easily be removed, as my noble friend Lord Brentford indicated.
The only major factor preventing the proper enforcement of the law—when it is clarified, if it needs to be clarified —is the ridiculously small penalties in relation to the rewards for law breaking and the financial resources of the law breakers. This Bill seeks to deal with that issue by increasing the penalties for those found guilty of breaking the existing law. It is a simple and effective measure. I hope that when he replies my noble friend the Minister will not use the doctrine of "unripe time" to oppose the Bill. I am confident that all those who support the importance of upholding the rule of law in this country will support this Bill. That must surely include every Member of your Lordships' House. I strongly support this Bill.
§ 2.52 p.m.
§ Lord Lucas of Chilworth
My Lords, my noble friend Lord Caldecote invited me to join him and other Members in upholding and supporting this Bill. He will not be at all surprised when I tell him that I cannot do so, that I shall not do so, and in fact that I shall positively vote against this Bill having a Second Reading. If I were a generous man I would describe the Bill as mischievous. Of course I am not a generous man and I describe this Bill as aggravating and politically pointed in a direction that I find totally objectionable.
My noble friend in his opening remarks picked out and named Sainsbury, Asda and Tesco as law breakers. He did not add the Co-operative wholesale movement and its retail outlets— supporters of KSS —nor Iceland. They were also law breaking within the terms in which the noble Viscount opened the debate. That is mean, and also mischievous. As my noble friend Lord Caldecote said, we are in danger of having a Sunday trading debate, and that is not what this Bill is about.
The right reverend Prelate said that he supported the Bill because this realistic penalty would re-establish the rule of law. He will forgive me if I say, "Sir, no". Adding a penalty to a penalty does not establish a rule of law. It may well frighten those people who may possibly be subjected to a £50,000 fine instead of an £X or a £Y fine, but it does not re-establish the rule of law. It only fixes a penalty.
I am pretty sure that it was my noble friend Lord Elton who discussed turnover. He suggested that there was a 12 per cent. gross margin on the wholesale take of a 40,000 square foot foodstore or supermarket (whatever it may be called). My information is that the gross margin is considerably less.
§ Lord Elton
My Lords, perhaps I may interrupt my noble friend to ask whether he agrees that the enforcement of the law is a very important factor in maintaining and upholding the rule of law.
§ Lord Lucas of Chilworth
I can only repeat what I said earlier, that adding a punitive penalty does not necessarily uphold a law. It may underline an aspect of the law. But the law will not be upheld by increasing 531 by 50 times the current penalty for a law which, as has been demonstrated, is unenforceable. Over the past five years the matter has been before Parliament on a number of occasions and it is now to be the subject of a European Court decision.
This is a mean, miserable little Bill which does not deal with the main problem. That main problem is not before the House this afternoon. My noble friend drew in the Branson French operation, which merely confuses the issue. One could bring into the debate the ALDI stores in Germany, other stores in Holland and so on. That argument does nothing to support a law which is already in disrepute and does not justify increasing the current penalty 50 times.
I am surprised that my noble friend Lord Brentford should have resorted to such a mean little tactic. This matter could equally have been dealt with in terms of an Unstarred Question, if he had wished to bring to the attention of Parliament the paucity of the fine for offenders against a law which cannot be enforced anyway.
§ 2.57 p.m.
§ Lord Monson
My Lords, I, too, submit that the Bill is both unnecessary and undesirable. I have no financial axe to grind either way, but a lot of nonsense has been talked about the actions of the big stores in question by people who ought to know better. For example, Hugo Young, writing in the Guardian of December 17th last, described the stores as "bully boys". It is as though couples, innocently strolling down Oxford Street on Sunday afternoon for a breath of fresh country air, are now at risk of being surrounded by thugs, rather like latter day press gangs, and forcibly bundled into department stores, there to be relieved of large sums of money in return for wholly unwanted goods. What a preposterous fantasy!
Shops which open on Sunday are also accused of wanting to make money, as though the landlords of pubs and the owners of restaurants, cinemas, stately homes, theme parks, zoos and similar places of entertainment are motivated purely by altruism, money being the very last thing to cross their minds. Strange as it may seem to some noble Lords, for many people shopping is a pleasurable form of activity. For them it falls into the same category as visiting the cinema. Why on earth should they be deprived of innocent, harmless pleasures?
To the extent that people tire of a novelty, as may happen in this case before too long, many shops will cease to open on Sundays. After all, that is what happened in Scotland, where only a small minority of shops open regularly, as those who have taken the trouble to study the matter will freely acknowledge.
Is opening a shop on Sunday a crime? We shall have to await the findings of the European Court. However, if it turns out to be a crime it is surely one of the most technical, victimless crimes imaginable. It is more victimless than parking on a yellow line, driving at 31 mph in a built-up area or driving at 71 mph on a motorway. I should be prepared to bet that at a minimum 90 per cent. of the supporters of the Keep Sunday Special Campaign at some point in their 532 lives have either parked on a yellow line, driven at more than 30 mph in built-up areas, driven at more than 70 mph on a motorway, or all three.
If it is not a crime, is it a sin? The "Wee Frees" in Scotland would say so. However, unlike the mainstream Churches, they are at least honest and consistent in banning not only shopping but also entertainment and travel on Sundays.
One hesitates to cross swords with the Bishops' Bench, but my understanding is that there is nothing in the New Testament which can be interpreted as being inimical to Sunday trading specifically. That is presumably why the Churches—I exempt from these strictures the right reverend Prelate who spoke today —have tended to fall back on quasi pagan arguments relating to natural rhythms, natural cycles and so on. There is nothing necessarily wrong with pagan arguments. They may from time to time be perfectly valid. It is simply curious that such arguments should be used by the Churches.
Let me freely concede that I too would be somewhat depressed if Sunday turned out to be just like any ordinary weekday. However, I differ from the Keep Sunday Special campaign on two points. First, I do not believe that the criminal law should be used for social engineering purposes. The artificial preservation of a semi-Victorian Sunday is surely a form of social engineering. More importantly, I do not believe that there is the slightest risk of Sunday becoming just like any weekday. The experience of Scotland and other countries where Sunday trading is permitted demonstrates that quite forcefully.
Despite the telephone poll referred to by the right reverend Prelate, our opponents are a minority of the population, as several more scientific opinion polls have demonstrated. One wonders whether those opponents would acknowledge that at the very least the whole of England and Wales ought to be declared a holiday resort in which shops would be allowed to open for, say, 18 Sundays a year. The Sundays in question would tend to fall in December, early January, June and July so that students—who, after all, are in dire need of the money—would be able to work in the stores on Sundays during those months, thereby relieving some of the pressure upon the married women to whom the right reverend Prelate referred. Such a change would be only acknowledging reality. It is silly to claim nowadays that people take their holidays only at the seaside.
However, as a libertarian I should prefer the criminal law to be kept out of the issue altogether. Some local authorities claim that large-scale opening of shops on Sundays would involve them in extra expenses in connection with traffic control, refuse collection, street cleaning and so on. If that is the case, let them be empowered to levy a surcharge of up to 10 per cent. on the uniform business rate: I refer only to large stores which open regularly on Sundays, not corner shops. All the proceeds would be retained by the local authority. That would more than cover the costs of the extra services that they would have to provide on Sundays. At the same time it would ensure that Sundays remained even quieter than they are in Scotland today.
§ 3.5 p.m.
§ Lord Newall
My Lords, I first ask for the indulgence of the House. I was given to understand that the debate would finish much earlier, as is usual on a Friday. I have an important appointment with the electricity authorities which I must maintain and therefore I may not be able to remain until the end of the debate.
The noble Viscount, Lord Brentford, has introduced a Bill to increase penalties for offences against Part IV of the Shops Act 1950. None of us in this House is in any doubt of the implacable opposition which the noble Viscount has put up for many years against any deregulation of Sunday trading legislation. We all admire him for his perseverance. I believe that he is set on a course which is against the march of time as history may well show. However, we are in total agreement about the appalling situation in which, with the flouting of the law that is taking place, we find ourselves today.
Everything that we have read and heard over recent weeks has demonstrated the amount of aggravation and irritation felt by many sectors of business, industry and sport about the present Sunday trading legislation. In the weeks before Christmas we saw how many of the major retailers decided to open their doors to their customers on Sundays and the resulting consumer demand for these opportunities. This week has seen an announcement by the Jockey Club that it intends to stage some racing on a Sunday later this year as an experiment without, I should add, in any way breaking the law. Who knows?—that may well spread into greyhound racing. However, we have concluded the debate on dogs so I shall not pursue that subject.
I am sure that your Lordships are all aware of the complicated situation we now face while we await the judgment of the European Court and in the light of the Home Office's reluctance to move until that judgment has been laid down. It is all very well for the Attorney-General to say that there is nothing he can do until the legislation has been interpreted and that it is up to local authorities to decide whether or not to enforce the 1950 Shops Act. In the meantime a great many businesses do not know how to react. They risk penalties if they open or further deterioration of their trading position if they remain closed. All this at a time of recession when many businesses, particularly small businesses, should be given the greatest encouragement by government to stimulate what we are told is much-needed consumer demand.
Last year I introduced the Sunday Entertainments (Video Supply) Bill in order to enable video rental outlets to remain open on a Sunday. That Bill passed your Lordships' House and it was taken up under the Ten-Minute Rule in another place, where again it received widespread support. However, it was finally given the coup de grâce by government hands. I make no apology today for introducing the subject once again because the problem has not gone away, in fact just the reverse: it has become even more critical during these past few months.
In contrast to major retailing groups, video rental stores, which are often run by a single shopkeeper, do 534 not have the resources to finance sophisticated legal proceedings. Indeed, the fine they currently face under a law enacted before the technology was invented is already punitive in the extreme and in certain areas renders opening impossible in spite of a strong demand. There does not appear to be any reason why other forms of the visual entertainment industry cannot operate on a Sunday. Theatres and cinemas may open on Sundays, and we are free to watch films on television on a Sunday, but in many areas this anachronistic legislation prevents us from renting a video.
Sunday is of course just the time when a great many people, including children, have time to watch a video and the weekend trade represents a very significant part of the video rental business. Every month that is lost whilst waiting for the wrangle to he resolved is another month of reduced or uncertain business.
The Government say that they cannot amend the Shops Act piecemeal, that any reform will have to await the outcome of the negotiations which are presently under way and that a consensus must emerge among all parties on the type of deregulation that will meet with widespread approval. They have constantly stated this position but I do not believe that their position is any longer tenable. If no moves are forthcoming here pending the European Court's decision, there is no other course but to amend the original legislation piecemeal. I believe that there is a great deal of support for just such a course of action. For that reason I intend to put down amendments at the Committee stage of this Bill and to try to put in place the reforms that my previous Bill would have enacted. I gather that the Keep Sunday Special campaign and those who support it do not see any problem as regards video rental on a Sunday. Therefore, once again, I am confident that my attempts will receive a great deal of support.
There is much familiarity with the problem and the imminence of a general election and the paralysis of the Home Office should not deter us from continuing our efforts to reform Sunday trading legislation. In conclusion, I must tell my noble friend Lord Brentford that I do not support the Bill. I believe that to increase penalties on shops which open on a Sunday is not the right way to proceed and I may well table amendments at a later stage.
§ 3.10 p.m.
§ Lord Ashbourne
My Lords, I rise to support my noble friend Lord Brentford and to thank him for introducing the Bill which seeks to increase the penalties for offences under Part IV of the Shops Act.
Noble Lords hold varying views on the issue of Sunday trading and I do not propose to go into those in any depth today because it seems to me that the real issue is, as my noble friend Lord Caldecote so cogently argued, the role of the state in upholding law and order. To put the matter in another way, has the state a responsibility to uphold the law of the land, which has been so painstakingly considered by noble Lords and Members of another place, when the legislation has evolved in Parliament, or is it in order for the Government to shrug their metaphorical shoulders 535 and watch powerful retailing groups deliberately break the law by trading on a Sunday for motives of greed, profit and commercial gain at the expense of law-abiding competitors?
Noble Lords will judge for themselves on that issue. However, I must say to the Minister who is to reply on behalf of the Government that I consider the failure of Her Majesty's Government to act on that issue to be extremely disappointing. In my judgment it will have caused the Government to lose credibility with electors. That may not prove to be wise in the run up to a general election.
What should the Government do? There are two possible courses of action which I should like to mention. My noble friend Lord Brentford briefly touched upon both in his opening speech. First, the Attorney-General could take out national injunctions against the offending groups of stores. Contrary to his assertions that many injunctions will be needed, some legal advisers advise that only one injunction is needed per company. Perhaps the Minister will be prepared to look again at that.
Secondly, as I understand it, the magistrates' courts are currently empowered to act against offences specified under Section 4 of the Criminal Justice Act 1988. That does not include offences under Section 47 of the Shops Act. Surely all that is needed is for the Home Secretary to bring forward the appropriate statutory instruments. Are the Government willing to take that simple step and, if not, why not? Again, I should be grateful if the noble Earl will answer that question when he replies to the debate.
Finally, if the Government really mean business they could make it known that law-breaking companies will be denied public recognition such as Queen's awards, development grants and local authority assistance. Indeed, directors of law-breaking companies should be denied public honours, positions of influence and invitations to public functions. Those already honoured should be informed that they are placing their honours in jeopardy.
Research on Sunday shopping on one Sunday before Christmas showed that one family in 20 did grocery shopping on that particular Sunday. That means that 19 out of 20 households did not. Perhaps noble Lords would care to reflect whether they feel it is right for the Government to stand idly by and allow a relatively small but powerful group of retailers to dictate a fundamental change in our way of life for the benefit of themselves and perhaps 5 per cent. of the population.
For all those reasons, I strongly support the initiative taken by my noble friend Lord Brentford and I have no hesitation in urging your Lordships to give the Bill a Second Reading.
§ 3.15 p.m.
§ Lord Harris of High Cross
My Lords, I have not had the pleasure of following the noble Lord, Lord Ashbourne, before. However, if I may speak plainly, I find the accusation of greed as the motive for people opening their shops and offering their wares to willing customers simply ludicrous. It is equivalent to saying 536 that all people who pursue their own businesses are simply concerned with greed. In a manner of speaking they are concerned with improving their own position by way of peaceful trade; but how absurd to import into a serious debate that kind of accusation.
I am glad to rise from the Cross-Benches, accompanied by others who equally strongly oppose this rather miserable Bill. My noble friend Lady O'Cathain is the only one among us who has experience as an entrepreneur with Tesco's and also at the Barbican Centre, which is an important retail outlet and, as she said, does most of its business on a Sunday. To have her on our side is powerful support.
In view of the passion generated by the noble Viscount, Lord Brentford, he may stand amazed at his own moderation in raising the penalty for opening on Sunday from £1,000 to only £50,000. I assume the noble Viscount is an abolitionist or else he may have thought the death penalty was more appropriate for such wickedness as offering one's business products and services to willing customers on a Sunday.
A large part of the case for the repeal of the Shops Act is based upon absurdities and anomalies. We know that we cannot buy baby's milk but can buy gin. Even the experts among us may not remember from our last debate that there was something in the schedules in regard to partly-cooked tripe. I do not know which way it goes, but one either can or cannot sell and purchase raw or partly-cooked tripe. It is certainly a serious cost for a lapse of memory that we may be faced with a £50,000 fine for selling the wrong kind of tripe on a Sunday.
§ Lord Elton
My Lords, perhaps the noble Lord will permit me to ask a question. It is possible for offences under an Act of Parliament to be either serious or not. Acts of Parliament provide a maximum penalty for the most serious offences. I would not consider a bowl of tripe to be a serious offence.
§ Lord Harris of High Cross
My Lords, I hope that the tripe eaters will take comfort from that observation. It is impossible to judge the expediency of the Bill, alas, without rehearsing the whole of the case against the control of opening hours and days for retail establishments. We have been through it all before. There are great arguments of principle. There are questions about the practical effects of the law and in the end, I am afraid, there are decisive political considerations.
It cannot be disputed that on grounds of principle we are faced with a dilemma. It is perfectly clear that opening on Sunday at present involves breaking the law. I do not take that lightly. However, as the noble Lord, Lord Lucas, said, the piling up of penalties to impose reluctant, grudging, unwilling acquiescence to a widely despised law is hardly the way to restore the law in the affections and faith of the population. I regret that the noble Lord, Lord Caldecote, appeared to be retreating to his bunker and contemplating using rubber bullets of ever larger-calibre in order to fight off the barbarian hordes who will not be contained by ordinary discouragements.
Guilt in this matter must be properly understood. If a particular law is widely judged to be absurd then 537 may we not say that the law has brought itself into disrepute? The guilt might then be borne by its most stubborn defenders among whom the last surviving relics are apparently to be found on the Tory Benches, and also perhaps on the Opposition Benches, in your Lordships' House.
In 1914 the great Austrian economist BöhmBawerk, whose name I cannot exactly pronounce, wrote a classic work entitled Power or Economic Law. It was a warning that legislation could not indefinitely prevail against market forces. That is a lesson vividly and seriously illustrated in the collapse of centralised state power in Eastern Europe and in the former Soviet Union. All the coercion of the police state—not £50,000 fines but life and death threats and all other penalties—were insufficient to subdue the instinct of ordinary people to exert their choices through buying and selling, first of all in black markets and then increasingly in newly-liberated open markets.
I now turn to the practical effects of the continuance of the Shops Act. We find the Canutes on Sunday trading oscillate between the high moral arguments and economic arguments about raising costs and prices. As a professional economist I have studied all the evidence on that. I believe that the fears expressed about the effect on prices and costs are widely mistaken and often perverse. Such commercial judgments are best left to free trading between competing suppliers and choosing customers. Someone has to say that people are not obliged to shop or to open their shops if this law were set aside.
The great case against regulation is that it obstructs shops responding to ever-changing conditions and opportunities, as the development of the DIY stores and the garden centres has vividly demonstrated. The trades unions and the retail opponents of repeal are much the same kind of reactionaries who fought the abolition of uniform resale price maintenance as, roughly speaking, the end of the world as we had known it, in 1964. Yet no one today would bring back resale price maintenance, the removal of which has brought about a cost-reducing revolution in modern retailing that would otherwise not have been possible.
In the end, alas, we come to political considerations. I wish to call attention to recent revelations under the 30-year rule. In 1961 a Tory Cabinet seriously considered the reform or repeal of the Shops Act which had been passed only a decade before. We read that the Cabinet minutes acknowledge that the laws were "antiquated and confused". That was 30 years ago in 1961! We read that Rab Butler, who was no revolutionary or anti-sabbatarian roughneck, prepared, as Home Secretary, a Cabinet memorandum offering alternatives from slight liberalisation, allowing shops in holiday resorts to stay open in the summer, to ending all restrictions.
"It seems pretty clear that in present-day conditions the restrictions are not needed"—I am quoting from the Cabinet records. Of course, the provision was defeated by that arch-politician, Macmillan, who decided that it was not politically expedient. He was right, judged in party terms. In 1982 the noble Baroness, Lady Trumpington, marched us voluntarily and cheerfully through the Lobbies, with no Whips, 538 and with a massive majority, including, as I recall, the then Lord Chancellor the noble and learned Lord, Lord Hailsham, and other heavyweights on the Tory Front Bench who were in favour of this Private Member's repeal measure. That measure went through this House and arrived at what is aptly called the Lower House where it was voted out. It was voted out purely on the basis of political pressure of constituents. It is not for the last time that the Lords—
§ Lord Harris of Greenwich
My Lords, may I ask the noble Lord a question? Does he regard it as particularly reprehensible that the elected House takes some account of public opinion?
§ Lord Harris of High Cross
My Lords, Members of Parliament have every right to "have regard", I think is the phrase, to their constituents' views. But when it is known that Keep Sunday Special conducted the most determined campaign to influence MPs by letter-writing that wholly distorted public opinion, then we must assume that MPs should look beyond their mailbags and see that the evidence of all opinion polls—I have not seen them lately—of those days in those debates showed 65 per cent. or 70 per cent. of the population in favour of Sunday opening. I pay tribute, as something of an amateur persuader myself, to the outstanding campaign of Keep Sunday Special. It has been, in my lifetime, one of the most effective examples of the perversion of democracy by a determined minority filling MPs mailbags with letters threatening electoral reprisals if they voted in favour of those things that the great majority of the population wished.
Of course it is bad for the law to be brought into contempt. It is also bad for the law to seek to impose prohibition against conduct which the overwhelming majority of the population does not consider wrong. If we think people are wrong in this matter we should rely—particularly the right reverend Prelates on the Bishops' Bench—on teaching and preaching and not try to use coercion and escalating punishment.
We live in a period of unprecedented and continuing change in economic and social developments. If the Tory Cabinet in 1961 considered the Shops Act 1950 to be antiquated and confused then, we might think 30 years later that it is even less defensible. As my unpronounceable Austrian, BöhmBawerk, predicted, political power will in the end accommodate "market forces", which is only a way of describing ordinary people peacefully going about the everyday business of life. So long as the law continues to frustrate mutually beneficial trade between willing buyers and willing sellers it will perpetuate tensions and evasion, and in the end the misuse of statutory prohibition will be swept away by economic and social change.
§ 3.28 p.m.
§ Viscount Montgomery of Alamein
My Lords, it is always a great pleasure to follow the noble Lord, Lord Harris of High Cross, and I must say that I agree with almost everything he said. That is often the case. I also admire most profoundly the sincerity and persistence 539 of my noble friend Lord Brentford who has pursued this issue with great vigour over many years. However, unfortunately on this occasion I profoundly disagree with him, as indeed he well knows because we have discussed the issue both inside and outside the Chamber on many occasions.
Today my noble friend has used the device of a Second Reading very wisely, in the same way as did the noble Lord, Lord Houghton, to air the subject of Sunday trading. Although we have a Bill before us which provides for a special clause—a single clause —in fact, the debate has developed very clearly along the lines of those in favour of Sunday trading and those against. The score so far is five for, and five against this Bill. I am firmly in the latter category—that is, in favour of Sunday trading—that we do not need this Bill; we need to do other things.
The Bill brought forward by the noble Viscount, Lord Brentford, is aimed largely at the big stores and ignores all the small people who operate on Sundays. These have been mentioned by the noble Baroness, Lady O'Cathain, and others. That is a very serious matter because Sunday trading at the moment provides employment for about 100,000 families and if the anti-Sunday traders have their way those people will be deprived of an important part of their livelihood. That must be wrong.
I do not see anything incompatible between churchgoing and shopping. Indeed, I indulge in both activities on Sundays. That is perfectly reasonable for a broad spectrum of the population and has been proved so in Scotland. Scottish laws on Sunday trading were reformed some time ago and have worked effectively. Those laws should have been extended to England years ago. We tried to get a sensible Bill on the statute book but it was, unfortunately, thrown out in another place.
I suspect that my noble friend on the Front Bench will hide behind what is happening in Europe and will do nothing. That is reprehensible and deplorable. This matter is long overdue for reform and should be in the manifestos of both parties in the forthcoming general election. Everything suggested today and the Bill put forward by my noble friend Lord Brentford would merely tinker with the issue. The Shops Act 1950 should be repealed in its entirety. If anything is put in its place it should be a simple measure which conforms with whatever is to happen in Europe. But we probably need no measures at all.
In this matter the noble Lord, Lord Harris of High Cross, was quite clear. It was proposed 30 years ago that the Shops Act should be repealed. Since then we have been messing around with the issue, doing nothing and not grasping the problem at all sensibly. It is high time we addressed the issue, repealed the Shops Act 1950 and had a proper, liberal trading system whereby people could enjoy going to church and enjoy freedom of expression and shopping when they wished.
§ 3.32 p.m.
§ Lord Cochrane of Cults
My Lords, my noble friend Lord Brentford has introduced a commendably short Bill. He has explained his views clearly and suggested more general reform at a later stage.
As your Lordships well know, the law on Sunday trading is in a state of great confusion. By the 1930s it was apparent that earlier Sunday trading legislation, principally that of the Shops Act 1912, itself a consolidation, was no longer serving its purpose. This was partially dealt with in 1936 in a Bill promoted by the Early Closing Association and duly passed. In 1947 the Gowers Committee reported and recommended reform of shops' law because there were too many exemptions and law was contained in too many Acts. In 1950 the present Shops Act came into force, but it is merely a consolidation of earlier legislation. No further reform was ever undertaken, as the noble Lord, Lord Harris of High Cross, pointed out. Bearing that in mind it is not surprising that Rab Butler thought it was antique, because it was really a consolidation of the 1936 laws.
With this Bill we are concerned only with the Shops Act 1950 —Part IV and Schedule 6—which describe what shops may or may not do on Sunday. After some study of Halsbury's Laws of England it is obvious that there is not much certainty in the Act for practical purposes, as a good many local authorities have now found to their cost when attempting enforcement. The whole thing is riddled with exemptions which apply here and there. Perhaps I may attempt to answer the question of the noble Lord, Lord Harris of High Cross. I understand that if the tripe has at least been dipped in warm water and can be classified as partially cooked or cooked, it is exempt, but I have not been able to ascertain whether it would be exempt in an uncooked state were it sold in a butcher's shop, which might be allowed, under a different section of the Act, to open. I think we can leave that matter now.
The Shops Act is widely disregarded and is unpopular with many of those to whom it applies, both shopkeepers and the general public. The law has fallen into such disrepute that shopkeepers openly flout what are reasonably thought to be its provisions because such is the confusion that nobody—even your Lordships' House—can say definitely what the law now is until, in about two years hence, the European Court makes its ruling on the matter. In brief, as a layman, that is how I see the law stands now.
That is the legal side of the matter. The other problem is the moral issue, amply subsumed in the slogan "Keep Sunday Special", a cause to which my noble friend Lord Brentford has devoted much energy and wisdom. However, starting from the same premises—namely, the scriptures—different Christian faiths or sects in England and Wales (and this also applies much wider) have by prayer and thought arrived at entirely inconsistent views as to the purpose of Sunday and how, if at all, it is to be kept holy. On the one hand, Quakers regard every day as equally holy. For them, no Sunday has any unique importance. But others regard Sunday as unique in the opposite way, insisting that all that need not be done that day be put off until Monday. Every party to the 541 dispute is well armed with biblical and other authorities which it advances in support of its opinions.
The general public is unmoved by the latter and wishes to go peaceably about its business on Sundays with freedom to shop. As was said earlier, since 1950 no reforming Bill of any significance has succeeded. With the law in its present state of uncertainty, it is wrong to seek power through the Bill introduced by my noble friend Lord Brentford to impose a huge fine on offenders against Section 59(1) of the 1950 Act.
I see that Clause 2 of the Bill applies only to England and Wales. That means that Scotland will be outwith its reach; that is, if the Bill is ever passed. While the 1950 Act applies to Scotland, its effect is almost entirely negated by Section 66 which exempts Scotland from Part IV of the Act. Therefore, there are very few specific provisions relating to Sunday trading in Scotland; basically you cannot be a barber nor can you sell alcoholic liquor except within permitted hours.
Agreement between the commercial and moral interests involved appears impossible. Therefore it is now the duty of the Government to lead with a reforming Bill. As it works well in Scotland and has evolved from total closure throughout the country to a state which I should like, but I hardly dare to describe as "market clearing opening"—with which I hope that the noble Lord, Lord Harris, will agree—no social pressures for reform have built up. That has led to a peaceable state of affairs.
Given the fact that it has worked well in Scotland, I advise that, for a start, a Bill should be introduced to exempt England and Wales from Part IV of the 1950 Act, as was in fact advocated by my noble friend Lord Montgomery of Alamein, and that then such other small reforms as are patently necessary should be added to the legislation. By that means certainty would again reign where chaos now rules. Moreover, from that position, we would be in a far better state to advance arguments to the EC as to why our ideas should be incorporated in such a directive as may eventually take effect, after perhaps many attempts. That is how we could advance peaceably, profitably and for the good of the country.
§ 3.38 p.m.
§ Lord Simon of Glaisdale
My Lords, those of us who oppose the Bill can at least go some way towards its proponents. But, first, on a personal basis I should like to say that we can and do respect the sincerity that lies behind it and acknowledge the single mindedness. We also fully share the view that the flouting of law on a widespread basis is quite deplorable. What is more, it has repercussions. The flouting of the Shops Act which has gone on for many years has been mirrored recently by the flouting of the Act imposing the community charge. More recently, we have had the lamentable incident of the so-called parliament called by Dr. Siddique in which he calls on his fellow religionists to flout the law whenever they think that it is incumbent upon their consciences to do so. So far we can go with the proponents of the measure.
Where we have some reserve is that there has been 542 no acknowledgment that the vociferous agitation against the Government's attempt to reform the law five years ago has led us into this deplorable situation. It was not only predictable; it was predicted, and not just in Parliament. It was first predicted as long ago as the late 1940s when the powerful Gowers Committee said that the legislation was bringing the law into contempt; 40 years later that was repeated by the Auld Committee, which said that it was bringing the law into disrepute.
A law which is in contempt, a law which is disreputable, invites defiance. We can none of us approve of it, but there are always two courses. One is the swingeing penalty to enforce it, and the other is abrogation of a law which has ceased to command public confidence. There is in fact a halfway house which is not on the agenda at the moment. That would be a measure such as this, coupled with a rationalisation of Schedule 5 to the 1950 Act. I believe that that was the course favoured by the right reverend Prelate.
The snag about that course is that no one has been able to find a compromise—a central position—which is free from gross anomaly. Many were canvassed in your Lordships' House five years ago when the Shops Bill was under discussion. All of them again had been scrutinised in great detail by the Auld Committee. None was found workable; so in the end we are faced today with the bare alternative—not on the face of the Bill it is true but in fact—of swingeing penalties to try to bring the lawbreakers to heel or to adopt the course that was recommended by the Government five years ago; namely, to abrogate the law.
As for the swingeing penalties, what the Bill does is to increase the penalty under the 1950 Act, as updated by the automatic increase in penalties in line with inflation, and to multiply the penalty fifty-fold. The alternative, as I said, is total deregulation. In choosing between such alternatives, a number of considerations fall for measure. The first is obviously whether the existing legislation commands widespread general assent as to its social benefits. I doubt whether anyone can claim that of this body of law.
The second consideration is whether it has internal consistency. There have been many references today and on other occasions to the absurd anomalies thrown up by Schedule 5. There is also the astonishing anomaly that it is illegal to sell a soft pornographic magazine on a Sunday but not a Bible. I suppose that I ought also to mention that fresh meat cannot be sold on a Sunday. Anyone who seeks to buy it will be told that he cannot do so because of the schedule, but he may under the schedule if he wishes buy an aircraft.
The third consideration is whether it is externally anomalous. Surely it is. I wonder how many of the proponents of the Bill refrain from travelling on public transport or even in private transport on a Sunday. Certain people of strict religious views go that far. How many of the proponents of the Bill refrain from reading a newspaper on Monday because it has been printed on a Sunday? I very much doubt whether there are more than a handful.
The fourth consideration is whether there is another part of the kingdom that manages to get on 543 with deregulation which has not called for swingeing enforcement without incurring social harm. As has been pointed out, Scotland has done so perfectly well and I fancy that Sabbatarianism is more observed in Scotland than in this country. Thus, on all those counts the remedy of swingeing enforcement is highly undesirable.
There is another point that one ought to consider: how easy, how respectable will enforcement be and will it lead to other social ills? Enforcement under this body of legislation has relied consistently on provocative agents. I am sure your Lordships will agree that that is highly undesirable. Increase the penalty fifty-fold and the incentive to the work of provocative agents, the encouragement of corruption by them and blackmail are enormously increased.
For all those reasons, I imagine that your Lordships will as usual give a Second Reading to the measure, but I hope it will not go out as having the seal of approval put on it by your Lordships' House.
§ 3.48 p.m.
§ Lord Milverton
My Lords, I apologise for not having my name on the list of speakers but I was not sure whether I would be here this afternoon. I support the Bill in principle. I have not spoken much when the matter has previously been discussed. It is not easy. The Bill has much relevance and interest for each one of us in our morals and principles, but basically I support the Bill. I agree with those who have spoken in support of it such as the right reverend Prelate the Bishop of Liverpool, the noble Lord, Lord Elton, and others.
It is surely imperative that the loose law on trading on a Sunday should be clearer and tighter so that it can be upheld. The law at present is often quite contradictory and not at all clear as regards what we can or cannot purchase on a Sunday.
I shall now refer to the big boys, by which I mean the big firms. I admire those large firms which have stated they will not open on Sundays until this matter is cleared up. In spite of the reasons that some large concerns give to try to justify their Sunday opening, I do not think they are helping the situation. What about the smaller concerns? Would they be able to escape the law if they were challenged? They most probably would not escape. However, the big boys can escape the law as they have clout.
I return to the matter of the small firms. They may not wish to open on a Sunday as their employees have worked hard all the week. However, if the larger concerns open on Sundays, the smaller concerns will be forced to do the same. There is something not quite right about the present position and about how the big boys are taking advantage of it. The ideal course—this has already been suggested—is that only shops selling essential commodities should open on Sundays. We are aware that in this land it is not just a matter of taking into account the Christian religion. There are other faiths. The holy day in other faiths may be Friday or Saturday. However, surely Christians can let it be known in a reasonable, humble and meek way 544 that Sunday is our holy day. In Holy Communion Christians remember the most essential factor of their faith.
On Sundays people should be able to enjoy healthy leisure, pleasure and family life. I believe safeguards will be written into the legislation to protect employees as regards Sunday working. However, how sure can we be that those safeguards will be adhered to? How sure can we be that those men and women who do not wish to work on Sundays will be allowed to hold that view? I am particularly worried about the big boys in this respect. There may be those who say that some families like to go shopping on Sundays. That is all well and good but—
§ Lord Milverton
My Lords, I appreciate that it is considered essential to produce some things on Sundays. The noble and learned Lord has said today that it is up to individuals whether they buy a paper on Mondays. That example shows why this is such a delicate matter. However, I wonder whether it is the case that shops would fall down if they did not open on Sundays.
The Churches have a responsibility in this matter. I hope that somehow we can give a lead and that people will respect the concept that Sunday is a day on which they can rest and find moral, spiritual and physical refreshment. It is important that as far as possible services are available on Sundays for people to attend if they so wish. We should try to provide as many as possible. It is sad that in some places Evensong has had to go, but the Roman Catholic Church is very good at ensuring that there are many services on Sunday for its people.
One can think of Monday newspapers which have to be produced on a Sunday, of travel, restaurants and so on. However, somehow we have to manage affairs so that Sunday is seen to be different and that only those places which offer essential services are open. It is a complex issue. I like to be able to enjoy watching cricket on a Sunday. If one goes to watch a game of cricket one has to pay. Do the cricket authorities arrange matches purely to gain money? I would not say so, although one pays one takes pleasure and leisure in watching the game.
I support the Bill in principle. The issue will have to be gone into so that it can be seen more than is generally realised that Sunday is a special day for all those men and women who uphold the faith. Apart from any legislation, it is for them to show by the way they live what Sunday means to them. Those of us who have come from a clergy house or a manse, as some have, are even more aware of the deep conflict. Perhaps I should not do so because it may not have been noticed, but I apologise—I have only just realised that I forgot to put my collar on this morning.
§ 3.57 p.m.
§ Lord Harris of Greenwich
My Lords, we forgive the noble Lord.
I should like to begin by saying what the Bill is not about. Despite the speeches of the noble Lord, Lord 545 Monson, the noble Lord, Lord Harris of High Cross, and the noble Viscount, Lord Montgomery, it is not about whether we should or should not abandon controls over Sunday trading. In any event, as we are all well aware, that issue was decided by the elected House when it rejected the Government's Bill on Sunday trading. The issue before us today is a great deal simpler. It is the point identified by the noble Viscount, Lord Caldecote—whether we accept the rule of law; whether powerful men and powerful interests can defy the law of England with impunity.
In my judgment it is absurd to argue that because an appeal is before the European Court of Justice the current law has no effect. That was made absolutely clear by the Attorney-General in his Statement in the House of Commons on November 22nd when he said (at col. 913 of the Official Report):The law is not suspended".He added that it was clear that anyone who traded on a Sunday remained liable to criminal proceedings. That is quite clear.
Those who are now opening their supermarkets on Sundays—Tesco, Asda, Safeway, Sainsbury, and, to put the mind of the noble Lord, Lord Lucas of Chilworth, at rest, anyone else who is doing so—are doing it in the full knowledge that they are deliberately breaking the criminal law of England and Wales. They are prepared to do this because the fines to which they are exposed, if convicted of such unlawful conduct, are, as the noble Lord, Lord Elton, said in his speech, derisory—a mere £1,000 maximum. It is this issue to which this Bill is addressed. I should perhaps add that we are in fact imposing substantial penalties on the law-abiding. It is an extraordinary situation that Marks & Spencer, who observe the law, have had to produce leaflets in their stores explaining that they have decided to obey the law of England.
I have no particularly strong feelings on the issue of Sunday trading. Like the right reverend Prelate the Bishop of Liverpool I am not a severe Sabbatarian. Indeed, when the Government's Bill was before the House I think I voted on only one occasion. But I have strong views on the question of whether people should obey the law, and that is the principal reason why I support this Bill. The penalties should be set at such a level that they will deter the calculated law-breaker.
I think at this point it would be helpful to remind the House of what the Attorney-General said on this particular matter in the House of Commons on 27th November. Mr. David Trimble, the Member for Upper Bann, said at col. 916:the criminal sanctions that are available to local authorities are unlikely to be effective".The Attorney-General in reply said:I have some sympathy with what the honourable gentleman says about the criminal sanction that is available to local authorities under the provisions of the Shops Act 1950.
§ Lord Harris of Greenwich
My Lords, perhaps I may just finish this quotation. I shall just finish this point, then I shall gladly give way to the noble Lord. In reply to Sir Hugh Rossi, who said at col. 917, 546is it not a factor in the present situation that the fines that can be levied under the Shops Act are not a deterrent to the kind of people that the House has in mind todaythe Attorney-General said:I agree—
My Lords, is the noble Lord aware that he is able to quote the Minister in another place but not a Member in another place?
§ Lord Harris of Greenwich
My Lords, I am well aware of that. I have been in the House quite a long time. I could not explain why the Minister said what he did without putting the question that he was answering. I think that is fairly self-evident. The Attorney-General said:I agree with my honourable Friend that the maximum fine is low.That was the Attorney-General's clearly defined position, and I hope that what he said on that occasion will be reflected in the speech of the noble Earl. I shall now give way to the noble Lord, Lord Monson.
§ Lord Monson
My Lords, I simply wanted to refer to the noble Lord's law-breaking, as it were, in quoting a Back-Bencher in another place.
§ Lord Harris of Greenwich
My Lords, as I tried to point out, to give an answer by a Minister without explaining the question that he is answering is a rather difficult operation.
My Lords, I think that the correct version would be that the noble Lord, Lord Harris of Greenwich, should have paraphrased the Back-Bencher but quoted the Minister.
§ Lord Harris of Greenwich
My Lords, I am much obliged to the noble Earl. I have no doubt that that would have been even better, but as I have done it in the particular way that I have, I have at least avoided the charge that I have in any way inadvertently misrepresented anybody. I hope we may agree on that.
§ Lord Harris of Greenwich
My Lords, with great respect to the noble Earl, I have given way on a number of occasions. I think it is now reasonable for me to proceed.
That was what the Attorney-General said on that occasion. But there is an even more important issue before us today. It is whether we are prepared to tolerate a situation in which a number of public companies simply indicate that they are prepared to ignore the law of this country as determined by Parliament. There are a number of precedents for political lobbies announcing that they are prepared to indulge in organised law-breaking. Indeed, the noble and learned Lord, Lord Simon of Glaisdale, gave a number of examples, including that of the appalling Dr. Siddique and his Moslem parliament.
The noble and learned Lord also mentioned the views of the Anti-Poll Tax Federation. The poll tax was deeply unpopular, even with Members of the present Government. That is why they repealed it within the lifetime of a single Parliament. Many of the 547 points made by the noble and learned Lord could equally have been made about public attitudes towards paying the poll tax. But it was made quite clear by my honourable friends in another place and indeed by the majority of the Labour Party that there was a duty on people to obey the law of this country. In fact, as we all recall, there was one Member of Parliament who decided not to pay and was prepared to go to prison rather than do so.
At that time Ministers denounced the organisers of the campaign. They said that it was outrageous that Members of Parliament were prepared to associate themselves with such systematic law-breaking. I wholly agree with them. It is deplorable that people who make laws choose to defy them. However, I wonder why Ministers have taken such a different attitude toward the law-breaking that we have seen so far as it concerns large supermarkets. Remarkably more restrained language has been used.
As I said on another occasion—I believe it was when the noble Earl, Lord Ferrers, repeated the Attorney-General's Statement in this House—I very much welcomed the fact that, when Mrs. Thatcher was Prime Minister and a suggestion was made that a number of supermarkets intended to break the law in exactly the way that they have now done, she made it clear that she would be strongly opposed to such a course of action and the matter was dropped. I very much regret that her statement was not repeated on this occasion. I am sure that the noble Earl will tell the House, as he did on the last occasion, that Ministers do not condone the behaviour of the supermarkets. It would be extraordinary were they to do so. I very much hope that he will use similarly emphatic language when dealing with these particular examples of law-breaking.
What can one say about the vigorous attacks by Ministers on those law makers who conspired to break the law? There is in this House a Member with a respected name who has been involved in this matter. It is regrettable that he has chosen not to be present this afternoon in order to justify the action which his stores have taken. It is wrong that Members of either House should place themselves in a position of voting on issues affecting the law of this country and then, whenever their commercial interests dictate, choose to defy the law themselves. I believe that that is wrong.
This House has often debated issues on which Members from all parts of the Chamber have expressed deep concern about what they believe to be increasing lawlessness in society. There have been lamentations about the behaviour of the young, and sometimes not so young. There have been harsh criticisms of those whose behaviour or statements have been said to have encouraged or provided some justification for such misconduct. Today we are discussing just such an issue. The central question before us in my view has nothing to do with the Shops Act. It is about whether powerful interests can ignore the rule of law. I believe that such conduct is unacceptable in any parliamentary democracy and I hope that this House will make that clear today.
§ 4.10 p.m.
§ Lord Richard
My Lords, in some ways it has been an unusual and fascinating debate. I begin by congratulating the noble Baroness, Lady O'Cathain, at least on turning up. Unlike the noble Lord, Lord Sainsbury of Preston Candover, she did at least come to face the music. I listened to her speech with respect and great interest. However, she will recognise, as would any of us who have practised in criminal courts, that her speech was essentially a plea of guilty and a speech in mitigation. It was not a justification in law for the attitude that Tesco has taken. It was saying, "Yes, perhaps we have broken the law but it's not a very nice law anyway, people don't really agree with the law and, in any case, my Lords"—making a plea to the Bench—"I was not on my own. I was led by others. I was forced into it". Her speech had all the elements of a successful plea in mitigation and to that extent I admire her.
§ Baroness O'Cathain
My Lords, I thank the noble Lord. I am not well versed in the law, unlike the noble Lord. However, I certainly did not wish to seem to speak in the way that he indicates. I wished to say that Tesco is obviously in a serious position and that I did not feel I could support the Bill because I did not believe that it attacked the central issue. I believe that the central issue has to be attacked, and rapidly; otherwise we shall face a serious situation. Tesco was forced into that position. I hope that I made that plain.
§ Lord Richard
My Lords, again the mitigation is attractive. Were I sitting in judgment it would have an effect upon my flinty soul when it came to giving a decision on it. However, one has to recognise it for what it is, attractive though it is. It is a firm statement that Tesco took a firm decision to break the law. It may say that it was forced into it for many reasons. It may say that the law needs to be amended. All those statements are perfectly acceptable and may be true. In a moment I shall say something about them. However, as the noble Lord, Lord Harris of Greenwich, pointed out, the debate is not about Sunday trading; it is not about whether we on this side of the House accept the Shops Act. It is not about whether we want a sabbatarian Sabbath to come home to on a Saturday night. The debate essentially is about whether the way of life of this country and indeed the law of the country shall be changed, subverted or ignored for commercial interests by a small group of very powerful people.
The noble Lord, Lord Harris of High Cross, made a fascinating speech. He seemed to be advocating some form of civil disobedience campaign on the basis that it is a shocking law because it cannot distinguish between cooked and uncooked tripe—nor indeed spoken tripe too! Having said all that he then seemed to be saying, "If the law is in such a dreadful state it is right that people should be entitled to ignore the law". I do not accept that for a moment. It is a recipe for chaos. It is not a recipe for good government.
I emphasise at the outset what I wish to say. The issue is not whether we approve of Sunday trading. I 549 was brought up in a very Methodist part of west Wales. Indeed I come from a long line of Methodist divines. Therefore my upbringing and background is that of the somewhat puritanical sabbatarianism of my birthplace. If newspapers were in the house they were hidden before my grandfather came in because he was a preacher. If washing was done on a Sunday it was done indoors because one could not possibly hang it outside in case someone saw it. Although I have lived in a Labour seat with a majority of 34,000, the club with the biggest membership was the local Conservative Club because the pubs were closed on Sunday and the Conservative Club was open. I therefore have some knowledge of what we are talking about in this debate. I am bound to say to the House —I do not know whether or not it puts me out of court with the Keep Sunday Special campaign—that I look forward to a slightly more joyous Sunday than some of those I spent as a boy.
My view of Sunday trading is not necessarily that the Shops Act is right, that Sundays should remain as they are or that they should be as they once were. I certainly hope that Sundays will never be as they were when I was a small boy in west Wales. However, that is not the issue: the issue is whether the law should be enforced or whether it should be ignored.
How did that issue arise? It arose simply because some of the larger retailers believed that they saw an opportunity in their own interests to increase their profits by manipulating the reference to the European Court. It was a cynical, cold-blooded decision taken with a sober appreciation and cool calculation of the commercial interest of that firm, as the noble Baroness said. I shall give one example of the kind of attitude that we are up against. The chairman of WH Smith, Sir Simon Hornby, actually said:As far as breaking the law is concerned I am afraid that we will have to continue to do so".That is appalling. It is a shameful attitude for the head of a major public company to take and it runs through the main supermarket chains.
As the noble Lord, Lord Harris of High Cross, has said, there is nothing wrong with people looking after their commercial interests. I accept that view; that is what they are in business to do. On the other hand, one of the functions of government is to ensure that commercial interests, however well they are looked after, are not allowed to impinge or override the rule of law in this country.
Perhaps I may first deal with the European aspect. A reference to the court may be appropriate but two questions then arise. First, does the mere reference to the court (not the judgment of the court) override domestic legislation to such an extent that people are entitled to ignore the law of this country until the European Court has decided? I think not. Surely domestic legislation remains intact unless and until it is reversed or modified by the decision of the court. Although I am not quite so sanguine about the wording as the noble Lord, Lord Harris of Greenwich, I believe that the Attorney-General confirmed that view in his intervention in another place—
§ Lord Simon of Glaisdale
My Lords, I am obliged to the noble Lord for allowing me to intervene. He will 550 acknowledge that the difficulty is that no one knows what the law of this country is in view of the conflicting and confusing judgments which have emanated from the European Court.
§ Lord Richard
My Lords, with great respect, if we do not know what the law is until the European Court has given its decisions, the law of England must remain the law of England unless and until it is changed.
§ Lord Richard
My Lords, three judgments that the European Court has already given—in relation to Belgium, to France and to another aspect of this matter in the United Kingdom—held that it was not contrary to the Treaty of Rome for a nation to regulate its Sunday trading. If the position were other than that the law of England shall remain intact and enforceable unless and until it is changed by a decision of the court there would be a recipe for chaos. If every law that were referred to Luxembourg somehow went into limbo and abeyance, if we could forget about it and ignore it, if we need not consider it either in relation to our civil or criminal affairs or to the way in which we regulate our lives, there would be a recipe for total and utter chaos. I cannot believe that that is the position.
The problem as I see it is that if the law remains intact and enforceable unless and until we have the judgment of the court, why do not the Government help with its enforcement? Two problems flow from that. First, the penalty of the existing Shops Act—namely £1,000—is not sufficient to deter the major supermarkets. For the Sainsburys of this world it is a derisory penalty. No doubt they would take the view, as some retailers have in the past, that the publicity is well worth the —1,000 fine.
Secondly—and this is the other problem—the attempt to use the quasi civil procedure of injunction has proved to be impossible for the local authorities to pursue because of the necessity for a cross-undertaking as to damages. It is in relation to those two problems that the Bill is extremely important.
If every Sainsbury's store in the country were to be faced with a fine of up to £50,000, it may affect that cold assessment of where that chain's commercial interests lie and produce a different result. I believe that that result would be an almost unanswerable argument in favour of the Bill.
Not only do I not agree with the Government's attitude; I find it extremely difficult to understand. On 27th November Mrs. Angela Rumbold said:I make it plain that I do not condone the plans of some major retailers to open their shops on Sundays before Christmas". [Official Report, Commons, 27/11/91, col. 920.]Was that the maximum amount of pressure that the Government were prepared to bring on Sainsbury and Tesco? To say that they do not condone it is an open invitation to go ahead.
It seems to me that, if legal action is barred under the Shops Act because the fine of £1,000 is derisory and the civil aspect is difficult because of the cross-undertakings as to damages, extra legal and political measures should have been taken by the 551 Government. I believe that it was said by a director of Tesco—but the noble Baroness will know that better than I—that it would have taken a mere telephone call from John Major and the action would have been stopped at the outset. Why was that telephone call not made? When it became clear that stores were going to open on Sundays before Christmas, why was pressure not brought to bear? As the noble Lord, Lord Harris of Greenwich, pointed out, the last Prime Minister had no hesitation in using all of her not inconsiderable influence and powers in order to persuade the major retailers not to take such action a few years ago.
A vigorous campaign of dissuasion by the Government alongside a measure such as is proposed by this Bill may well have worked. One asks why on earth they did not do that. The only sensible answer that one can give is that they did not mind about it. They did not mind about it for a number of reasons. I suppose that they thought that the Shops Act is in a mess and if somebody could drive a coach and horses through it then the matter would be forgotten about. That would remove one difficulty for the Government.
It is always tempting to quote one's own speeches and I rarely do that. However, I am entitled to say that I warned the Government when this matter was raised on 27th November that this problem would not be confined to the period before Christmas. Your Lordships may remember that when the problem first arose it was stated that the stores would open only in the pre-Christmas period and then matters would revert to normal after Christmas. A pattern is now being established in this country. A major change is taking place in our national way of life. It is being sneaked through by extra-parliamentary and extra-democratic means. It is being done with the connivance of the Government and I believe that it is totally wrong.
If the law can be ignored in that respect, it can be ignored in other respects. I had a sentence in my speech saying that the Government are conniving at breaches of the Shops Act but are enforcing breaches as regards the poll tax. From today's newspapers it seems that the Government cannot even prosecute those who have evaded paying their poll tax with any great success, but perhaps that is not connivance but merely incompetence. This is a free vote and I should not dream of pressing any of my noble friends to vote in the way that I have indicated. I find this to be a useful Bill. I shall vote for it. It may have to be amended in Committee but at least it will give the Shops Act some teeth. If the Shops Act has some teeth and the Government have some guts, we may yet stop this problem.
§ Lord Monson
My Lords, before the noble Lord sits down, will he not agree that the purpose of the great majority of laws is to prevent individuals from injuring others or the state? That is why the poll tax law must be upheld; if some people do not pay, the burden is heaped upon the shoulders of others. The specific crime which the noble Lord has been attacking for the past few minutes is one of the few which is in all essentials a victimless crime and that is why there seems to be a good deal less urgency in enforcing it.
§ Lord Richard
My Lords, if I may say so to the noble Lord, Lord Monson, I am not so arrogant as to believe that my own personal opinion on the efficacy or desirability of any piece of legislation is such that I would be entitled to urge anyone else to break that law. If the law is bad, the remedies are clear; it must be changed. If it is to be changed, it should be changed by Parliament; it should not be changed by the action of a few private individuals.
§ 4.25 p.m.
My Lords, my noble friend introduced a Bill on the topical but thorny subject of Sunday trading. As is usual, the heavy armoury from both sides has been wheeled out and the barrels have been trained—I suggest incorrectly—on the Government. I shall come to that later.
I first congratulate my noble friend on his pertinacity, on his indefatigable stamina and on the clarity of his exposition. I congratulate him also on the brevity of his Bill. Without being mean, that just about exhausts my locker of congratulations to my noble friend on the Bill.
I do not propose to become involved in the arguments about trading on Sunday. As the noble Baroness, Lady O'Cathain, said, Sunday is special; we all know that. Some shops can open; some people—as she put it, even right reverend Prelates—have to work on Sundays. If no one worked the whole fabric of society would collapse. They are cogent arguments. We heard some of them today and others on other days. I do not consider it to be my responsibility to become involved with them, to comment upon them or add to them. My duty is simply to give Her Majesty's Government's view on my noble friend's Bill.
My noble friend Lord Lucas of Chilworth was right when he said that we were in danger of having a Sunday trading debate. He said that at the beginning of the debate and I think that at the end of the debate his words have proved fairly correct.
Before I comment on the substance of my noble friend's Bill it may be helpful to look at the broader context within which it must be seen. Your Lordships will recall that I repeated in your Lordships' House on 27th November an answer that was given in another place by my right honourable and learned friend the Attorney-General on the enforcement of the present law on Sunday trading in England and Wales and also a Statement which my right honourable friend the Minister of State at the Home Office made in another place on reform of the law on the same day. I fancy that your Lordships will not expect me to go over all that ground again today, other than to say this.
The noble Lord, Lord Harris, said, and it was echoed by the noble Lord, Lord Richard, that the Government had been quiet in condemning those who break the law. That is not so. My right honourable friend the Minister of State in another place, when the subject was discussed on 27th November, commented on the matter. I shall quote my right honourable friend's words because she is a Minister and I shall be in order in doing so. She is not a Back-Bencher and therefore I shall not fall into the same trap as the noble 553 Lord, Lord Harris of Greenwich, by quoting a Back-Bencher, which he should not have done. My right honourable friend said,I make it plain that I do not condone the plans of some major retailers to open their shops on Sundays before Christmas. I make it equally plain that I commend those retailers who remain committed to complying with the clear intentions of the law".—[Official Report, Commons, 27/11/92; col. 920.]That is perfectly plain. That is the Government's position. It was said then and I repeat that today with the force of the Government's views.
However, there are a number of points I should like to underline. My right honourable and learned friend the Attorney-General, acting in his independent capacity as a Law Officer of the Crown, clearly said that there was no question of the law on Sunday trading being suspended. Local authorities can still continue to apply for injunctions and any trader who trades on a Sunday, relying only on the present uncertainty concerning Community law, remains liable to criminal proceedings. That is the position which was clearly put by my right honourable and learned friend the Attorney-General. It is for local authorities themselves to decide their own course of action.
Your Lordships' House, acting in its judicial capacity, concluded in May last year that our Sunday trading laws are unclear. It has, therefore, referred questions to the European Court of Justice which are designed to establish whether the relevant provisions of the Shops Act 1950 are part of our law. Until the European Court gives its ruling to your Lordships, the fundamental question is whether the Shops Act 1950 remains the law and not whether the local authorities can enforce it.
I recognise that the prevailing uncertainty over this has caused a great deal of public disquiet. We have therefore asked the European Court for an early date for the hearing of this matter so that your Lordships' House can in its judicial capacity in turn proceed to give its judgment. Only then will the Government be in a position to bring forward proposals for the reform of the law.
My noble friends Lord Brentford and Lord Ashbourne referred to the Government's inactivity. Your Lordships and they know that we tried to change the law in the Shops Bill 1986 but another place did not agree to it, which was its right. That Bill did not become law. Your Lordships will also know that you cannot change the law when you cannot get agreement in Parliament. You will not get that agreement until there is reasonable agreement outside Parliament. That is the agreement which my right honourable friend the Minister of State, Mrs. Rumbold, is trying to find. That is proving somewhat elusive.
For those who say that the Government should bring in a Bill now to rectify the situation, I say that it is simply impracticable to change the law when the judgment of the European Court is expected. The Government are frequently accused of introducing hasty legislation. Earlier today the Government were accused of bringing in hasty legislation in the form of the Aggravated Vehicle-Taking Bill. The noble Lord, 554 Lord Morris of Castle Morris, used a somewhat unattractive expression when he said that the introduction of that Bill was a knee-jerk reaction.
The mind reels to think of the accusation that would be levelled against the Government if they decided to introduce now a Bill on this subject when a judgment from the European Court over this difficult matter has not yet been received and is actually awaited. The right reverend Prelate the Bishop of Liverpool said that the Government have a duty to bring in a Bill. We are determined to press forward for a reform of the Sunday trading law so that we shall have a law which can at the same time be both workable and enforceable and which will command both popular support and the acceptance of a majority in Parliament.
My noble friend Lord Elton was worried about the law not being even-handed. He said that if the local authorities have to give cross-undertakings for damages to businesses if they are found to be wrong, likewise businesses should have to give cross-undertakings to forfeit their profits if the law is shown to be not what they thought it to be. He asked what the Government proposed to do about that or whether there is anything that they can do.
My noble friend was also kind enough to say that he will be quite happy if I do not give him an answer now. Perhaps I may take up his offer of making him happy because I would prefer not to give him an off-the-cuff reply which might, even for me, turn out to be wrong or at least incomplete. I shall certainly seek advice on the matter and I shall write to him as he requested. I shall put a copy of that letter in the Library as he also requested.
My noble friend Lord Brentford is chairman of the Keep Sunday Special Campaign, as we all know. His Bill has been prompted by that organisation's concern over the present position of the law on Sunday trading. I understand that concern. As my noble friend made clear, the Bill provides for a considerable increase in the maximum fine which a magistrates' court may impose for a breach of Part IV of the Shops Act 1950. Under his Bill the maximum fine which could be imposed on summary conviction for an offence under Section 59 of the 1950 Act of breaching the provisions of Part IV would be raised to £50,000. The maximum penalty for this offence is a fine at level 4 on the standard scale. At present this is £1,000 but it will be increased to £2,500 when measures in the Criminal Justice Act 1991 come into force in October this year.
In his enthusiasm for the Bill the noble Lord, Lord Richard, seemed to have forgotten some of his legal knowledge, of which he has copious quantities. I must advise your Lordships that the fine proposed in my noble friend's Bill exceeds the normal statutory maximum of £2,000 which at present can be imposed by a magistrates' court. The Government do not consider that the offence in Section 59 of the 1950 Act fulfils its first criteria for an exceptional summary fine. The criteria are that the offences must be likely to cause serious harm to public health, serious harm to the environment or serious public nuisance. 555 Other than in exceptional circumstances where a defendant may be made liable to a particularly high fine, especially one of the magnitude which is provided for in the Bill, it is the Government's view that it is only fair the defendant should have the option, for which no provision is made in my noble friend's Bill, of having his case heard at the Crown Court before a jury.
I must also advise your Lordships that the Government do not consider that now is the right time to seek to increase the maximum penalties which are available to the courts for breaches of the Sunday trading laws in England and Wales, when there remains at least the possibility that the relevant provisions in the Shops Act 1950 may in fact prove to be incompatible with European Community law.
Much of the argument about the present position is that the law with its present penalties is not being enforced. If that is so, my noble friend Lord Lucas of Chilworth is right in saying that the Bill will do nothing to aid the enforcement of the law; all it does is to raise the penalties for action which, so the argument goes, is not being prosecuted at present.
The appropriate vehicle for considering the introduction of any increased penalties for breaches of the Sunday trading laws in England and Wales would be a Bill which sought to reform those laws as a whole; and we have made it quite clear that we intend to bring forward proposals for reform once the position in Community law is clear.
My noble friend Lord Ashbourne asked whether the Government will increase the fines or include the offence of illegal Sunday trading within the list of offences for which a confiscation order may be made. The answer is that we would not. It would not be sensible to increase the sanctions which are available to the courts for offences of breaching the Sunday trading issue either by increasing the present maximum fine or by enabling the magistrates to make an order confiscating the financial benefit made by the trader concerned when it is possible that those laws might be found, in the light of the judgment of the European Court of Justice, to have been superseded by European law.
My noble friend Lord Brentford in drawing attention to Mr. Branson's company, Virgin, in Paris, became so excited by what had happened that he was catapulted into verse in which he acknowledged that he was not an expert—and from which some of your Lordships may have come to a not dissimilar conclusion—especially when it comes to rhyme. As I always do on difficult matters I took advice on this verse. Not from the usual sources from where Ministers take advice, but from my noble friend behind me—none other than the noble Lord, Lord Elton, who is himself no mean dab hand at a bit of poetry. I can only reply to my noble friend Lord Brentford in his own metre. In those terms I would say that:The noble Lord Brentford, said 'I'm Not overly given to rhyme. Four lines out of five Is the maximum I've Been able to rhyme in the time.
§ Lord Elton
Will the Minister kindly give way?I'm most grateful it means I can say,He was not meant to quoteThat short rhyme which I wrote;Will he now give it back to me, pray?
My Lords, I am indebted to my noble friend for both pieces of magnetic poetry.
Your Lordship may have discerned from what I have said that I have produced some fairly cogent arguments why the Government are not enthusiastic about my noble friend's Bill. However, in good and parliamentary tradition, I shall retain a position of dignified neutrality. That in no way detracts from the importance of today's debate, which has given your Lordships another valuable opportunity to discuss the law on Sunday trading and also to express your Lordships' own diverse, and peculiarly adamantine, opinions on this very difficult issue.
§ 4.40 p.m.
§ Viscount Brentford
My Lords, I thank my noble friend Lord Ferrers for his eloquence. Much of what he said seemed to be in support of the Bill although he ended up moving in the opposite direction. I thank all noble Lords who have contributed to what has been a fascinating and illuminating debate. It seems to me that many of the remarks have been more general on the question of Sunday trading rather than on the question of the Bill. I am sure that I was the first offender to fall into that trap.
I wish to make one or two comments although I do not propose to comment on many Sunday trading issues. I fully accept that many of the traders now opening do so unwillingly and purely to retain their market share. Tesco falls into that category. I certainly do not wish to impugn any other unworthy motives. I am grateful to the noble Baroness, Lady O'Cathain, for what she said. It is, however, right to point out that the Big Five to which I referred—I did not refer to all the other chains that are opening—have a 62 per cent. share of the market. There is a great need to protect the smaller shops which are suffering from the law breaking of the larger shops. That is also militating against employment opportunities. My noble friend Lord Montgomery made that point with the law breakers in mind but it is also true from the point of view of the smaller shops that are being pushed out of business by this law breaking. The Bill is meant to help in that regard.
I do not see how one can keep the criminal law out of enforcing national law. All other branches of law breaking are covered by the criminal law and I do not see why this area should not be as well. I should like to comfort the noble Lord, Lord Harris of High Cross, by saying that I do not support the death penalty in normal circumstances. Being of a rather more generous nature than my noble friend Lord Lucas of Chilworth, I am even prepared to extend that exemption from the death penalty to those noble Lords who called my Bill miserable.
Perhaps I may make a point on opinion polls. If people are asked in an opinion poll whether they want shops open on Sunday, the majority will answer yes. 557 If they are asked whether they want all shops to be open on Sunday if it means increased costs, the majority will answer no.
As has been said several times, what is proposed is a maximum fine. I am confident that the magistrates are well able to differentiate between when £1,000 is appropriate and when £50,000 is appropriate.
I fully endorse what the noble and learned Lord, Lord Simon of Glaisdale, said about the need to support a sensible reform of the law. The law is being flouted at present and, as has been said, that gives a very bad example to the young and the not so young of the country. The law under the Shops Act should be a deterrent.
In conclusion, perhaps I may say to my noble friend Lord Ferrers that I should be very happy to include an amendment to give an option to a defendant of appealing to the Crown Court if he so wished. I have no problem with my noble friend's suggestion. I hope that the House will give the Bill a Second Reading.
On Question, Whether the Bill shall now be read a second time?
§ Their Lordships divided: Contents, 26; Not-Contents, 20.558
|Division No. 1|
|Ailesbury, M.||Portsmouth, Bp.|
|Ashbourne, L.||Prys-Davies, L.|
|Beaumont of Whitley, L.||Reading, M.|
|Brentford, V. [Teller.]||Richard, L.|
|Caldecote, V.||Robertson of Oakridge, L.|
|Elton, L. [Teller.]||Rochester, L.|
|Graham of Edmonton, L.||Runcie, L.|
|Harris of Greenwich, L.||St. Albans, Bp.|
|Lauderdale, E.||Seear, B.|
|Liverpool, Bp.||Thurso, V.|
|Milverton, L.||Underhill, L.|
|Mishcon, L.||Williams of Elvel, L.|
|Norwich, Bp.||Winchester, Bp.|
|Auckland, L.||Lucas of Chilworth, L. [Teller.]|
|Brougham and Vaux, L.||Merrivale, L.|
|Cochrane of Cults, L.||Monson, L.|
|Colwyn, L.||Montgomery of Alamein, V.|
|Denham, L.||Morris, L.|
|Harris of High Cross, L.||O'Cathain, B.|
|Houghton of Sowerby, L.||Simon of Glaisdale, L.|
|Killearn, L.||Strabolgi, L.|
|Kilmarnock, L.||Vivian, L.|
§ Resolved in the affirmative; Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at six minutes before five o'clock.