HL Deb 26 November 1992 vol 540 cc1067-76

4.19 p.m.

Viscount Astor

My Lords, with the leave of the House I should like to repeat a Statement on Sunday trading in England and Wales which is now being made in another place by my right honourable friend the Home Secretary. The Statement is as follows. "My original intention had been to come to the House once the judgment from the European Court was available. But I now understand that, because of circumstances that have recently arisen at the court, this is unlikely to be before January. I have therefore decided to let the House know how we propose to proceed.

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

"There is no body of opinion that finds the existing law wholly satisfactory. Everyone from Sabbatarians to deregulators is critical of some aspects of the Shops Act 1950. But there is a very wide spread of opinion about how it ought to be reformed.

"The House will wish to know how we intend eventually to ask Parliament to resolve the issue.

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

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

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

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

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

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

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

"We shall publish before Second Reading an explanation of the practical effect of each set of proposals. We will aim to draft each model with care to make them easy to implement, readily enforceable, and as free from anomaly as possible.

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

"I cannot yet say when the House will be given the opportunity to settle the law on Sunday trading. Our proposals will need to await a judgment of the European Court of Justice (ECJ). That court is considering a number of cases referred to it by some English courts, including the House of Lords, to establish whether our Sunday trading laws are compatible with the free trade articles of the Treaty of Rome. We are still hoping that the court will deliver its judgment soon. It would be wrong to enact fresh legislation while that judgment is awaited. To do so would risk a brand new law falling foul of Community law and therefore having to be replaced. But there is no need to delay the preparation of a Bill. I will be pressing ahead with that, seeking and expecting the co-operation of the Keep Sunday Special Campaign and the Shopping Hours Reform Council so that, once we have the European Court of Justice's judgment, we are well placed to take advantage of the earliest opportunity that can be found for legislation.

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

My Lords, that concludes the text of the Statement.

4.26 p.m.

Lord McIntosh of Haringey

My Lords, this is a fairly remarkable Statement in a number of ways. The first remarkable aspect of it is the timing. If it is now considered proper to make this Statement before the decision of the European Court of Justice, what on earth prevented the Government from doing it more than a year ago, when the matter was first referred to the European Court of Justice? What has been the benefit of the delay which the Government have permitted to take place?

There have certainly been disbenefits. Does the Minister agree that there has been considerable disruption caused for shoppers, those who work in the retail trades and local authorities by the confusion which perhaps has not been caused by this Government but has certainly been prolonged by this Government?

The second remarkable element of the Statement is the promise that Conservative Members of Parliament will be given a free vote. Noble Lords will recall that on this side of the Chamber we had a free vote on the Shops Bill. It is a matter of record and I do not wish to disguise the fact that I voted with the Government against most of my colleagues in favour of the Shops Bill at that time. I, like the Home Secretary, am a supporter of almost total deregulation. What has changed the Government's mind on this matter? Is it a change of conviction or is it a failure of nerve? I rather suspect that it is a failure of nerve.

The third remarkable aspect of the Statement is that it proposes a Bill with three options. Is it proposed that those options will be delivered raw, so to speak? Is it simply the opinion of the Shopping Hours Reform Council and the Keep Sunday Special Campaign that will determine the words which parliamentary draftsmen put into the proper form? Or will the Government have any say on that? The Statement makes the rather curious assertion that the Shopping Hours Reform Council proposes to have a local authority registration scheme. I am not aware that such a scheme has any prominence in the Shopping Hours Reform Council's proposals. Is that an indication that the Government will doctor the proposals of the Shopping Hours Reform Council before they come before Parliament?

The Statement refers to government clauses which will provide what seemed to be a very limited protection indeed for shopworkers on a Sunday, protection limited only to existing shopworkers or presumably those working in shops at the time when the Bill is either introduced or passed. Will the Government now go rather further in the protection of shopworkers and do what the Shopping Hours Reform Council certainly would wish and what I imagine many of your Lordships would wish to do; namely, to provide protection not only for existing shopworkers but for future shopworkers and to ensure that there are premium payments made for those who find it necessary to work on Sunday?

In all of this there is a curious lack of reference to the role of local authorities. The "Keep Sunday Special" campaign proposes that local authorities should have considerable discretion and responsibilities in regulation and policing. The Government appear to believe that there is some such reference in the proposals of the Shopping Hours Reform Council. The question which must be asked is: what guarantee can the Government give the House that adequate resources will be available to local authorities for the additional work that will be placed upon them?

The Statement is strange in a number of ways. It is early days for us to make a judgment on it. I repeat that Members of these Benches will have a free vote on the legislation when it appears. I welcome the Government's belated conversion to a more rational approach to the vexed issue of Sunday trading.

Lord Harris of Greenwich

My Lords, I thank the noble Viscount for repeating the Statement. I also welcome the arrival of the noble Lord, Lord McIntosh of Haringey, to his new responsibilities on the Opposition Front Bench. We shall be spending many happy hours together. It is only right to express some regret at the departure of the noble Lord, Lord Richard, although he has been called to higher things. He spent many hours trying to improve legislation in relation to the Home Office. I express my gratitude for the help that he gave to Members on these Benches and to the House as a whole.

I turn to the Statement. I welcome the fact that the Home Secretary announced that there will be a free vote on this matter in the House of Commons. If on the previous occasion his predecessor but three had taken the same view the Government would not have experienced their humiliating defeat on Second Reading when they tried to pass the Bill on a whipped vote. Therefore, the free vote is a great improvement. As the noble Lord, Lord McIntosh said, Members on the Labour Benches had a free vote as did those on this side of the House. It is far better to allow Parliament to decide difficult questions with free votes rather than imposing the discipline of the party whips; all the more so when that proves to be ineffectual.

The next issue is the way the Government have chosen to proceed. Unlike the noble Lord, Lord McIntosh, I believe that what they have suggested is a sensible procedure. It gives Parliament the right to determine as between total deregulation, the proposals of the Shopping Hours Reform Council and those of the "Keep Sunday Special" campaign. Does the noble Viscount agree that Parliament's final decision and the efficacy of the legislation will be determined by two questions? The first is whether the law will be enforceable and the second is whether powerful interests will be prepared to obey the law. Is he aware that many of us, whatever our views on Sunday trading, find it deeply distasteful that powerful interests have chosen to ignore the provisions of the existing law? That includes a number of people who have spent a great deal of time talking about their support for the cause of law and order.

I assume that the Bill will be introduced in the House of Commons. Most of us take the view that that would be sensible because we spent many days debating the previous Bill only to have it flung out on Second Reading in the House of Commons. Obviously, it would be extraordinarily foolish to repeat that procedure. It would be far better for the elected House to make a decision on the principles involved and then for this House to act in its traditional role as a revising chamber.

Viscount Astor

My Lords, I welcome the support of the noble Lord, Lord Harris of Greenwich, and the somewhat guarded support of the noble Lord, Lord McIntosh. I think that the noble Lord welcomed the Statement although he was rather upset by the fact that we were giving choices. The Government are usually accused of being dogmatic. Here we are giving a choice and being criticised for that.

Everyone agrees that the present law is unsatisfactory. However, the problem of reforming it has so far proved impossible to solve, whatever the complexion of the government of the day. There have been many attempts to seek parliamentary approval for reform and all have failed. Since 1956 there have been 21 Private Members' Bills. The Government's 1985 Bill was passed by this House but was rejected on Second Reading in another place. Therefore, the Government have recognised the special nature of the problem and the need for a new approach.

On Second Reading in another place the Bill will contain all three options for reform. It will provide that only one will be brought into force and the precise details need to be worked through. Your Lordships will be offered the same three choices when the Bill reaches this House. Our proposals for reform will contain provisions for the protection of shop workers. This House will have a full opportunity to consider them in their proper context.

The noble Lord, Lord McIntosh, asked me about local authorities. Each scheme involving a local authority's registration is self-financing. Obviously no government legislation can be enacted before a European Court judgment. We expected the judgment to arrive sooner than now appears will be the case and therefore it is sensible that a Statement is made at this stage. We plan to introduce a Bill in the future.

4.35 p.m.

Lord Boyd-Carpenter

My Lords, will the Minister say when the European Court might come to a decision and how long will the present unsettled position be allowed to continue? In that context can he give some guidance to local authorities about their duty in attempting to enforce our out-of-date legal system which is still the law? Can the Minister give some guidance to local authorities because it is ridiculous that, on the one hand, a state of law can continue while, on the other hand, the law can be allowed to lapse? Is my noble friend aware that the matter is urgent because during the weeks before Christmas many shops open on Sundays? Is it not the duty of local authorities to prosecute those which open?

Furthermore, why is this a matter for the European Court? It is a wholly domestic matter; that is, domestic to this country. Will the Minister indicate why it is assumed that a decision of the European Court, wise or foolish, should be binding on this country? In that context will he indicate whether if the decision is to be binding in England, it will be binding in Scotland? In Scotland deregulation has worked happily and successfully for many years and has caused no difficulties for anyone. Is the European Court to be allowed to interfere with that too?

Viscount Astor

My Lords, my noble friend Lord Boyd-Carpenter made an important point about enforcement. We do not believe that the European Court judgment will arrive before January. Of course, questions of enforcement are not for the Government but for my right honourable and learned friend the Attorney-General acting in his independent capacity as a law officer of the Crown. The Attorney-General explained in his Answer on 11th May that local authorities can issue summonses if the courts decide that the Shops Act is compatible with Community law. Any summons issued can be carried through to whatever result the court considers appropriate. Further to that the Attorney-General said in his Written Answer on 15th July that: The decision of the House of Lords [in the Kirklees case] means that local authorities can apply for interim injunctions against retailers in order to enforce the law without giving cross-undertakings in damages".—[Official Report, Commons, 15/7/92; col. 707.] The House of Lords acting in its judicial capacity has concluded that our Sunday trading laws are unclear. It has, therefore, referred them to the European Court of Justice to clarify whether they are compatible with European Community law. Until the European Court of Justice gives its ruling to the House of Lords the fundamental question is whether the relevant provisions of the Shops Act 1950 remain the law. Therefore, it would be wrong to insist that the law should be obeyed when it is not clear what the law is.

Lord Boyd-Carpenter

My Lords, will my noble friend answer the point about Scotland?

Viscount Astor

My Lords, as your Lordships know there is Sunday trading in Scotland except, I believe, for hairdressers and barber shops. But that is not the point. The 1950 Act does not refer to Scotland, and the question about referral to the European Court is on the 1950 Act.

Lord Gallacher

My Lords, in replying to questions from both Front Benches the noble Viscount seemed to indicate that there would be three options in the Bill, and that each House would then have the opportunity of choosing one of those options. Did I understand him correctly? If I did, how will the Government deal with a situation that is perfectly possible in which one House opts for option one and the other House opts for option two or three? It is important that this aspect of the Bill should be clarified. I trust that the noble Viscount will reflect on what he said so that at some time he can give us an assurance as to what the procedure will be.

Secondly, options two and three—that is to say, those from the Shopping Hours Reform Council and the Keep Sunday Special groups—whatever their merits may be, would, if they became the finding of Parliament, produce a law relating to Sunday trading in England that did not coincide with the law in Scotland. That would not be a recipe for solving the problem. Ultimately, Parliament must decide, but whatever is the view of Parliament as regards England and Wales in the interests of peace and quiet it may need to apply also to Scotland, failing which we will never solve this problem.

Viscount Astor

My Lords, the noble Lord makes a particular point about Scotland, which of course he knows well. Scotland is not included in this Bill. He quite rightly asks what will happen if another place choose one option and your Lordships' House choose another. The answer is that the position is exactly the same as for any Bill that arrives in this House which is amended by your Lordships and sent back to another place. It is the same situation. What is important is that your Lordships will have the same three choices in this House as in another place.

Viscount Whitelaw

My Lords, it seems to me that my noble friend has produced a form of procedure that I do not think can conceivably work. Surely if the Bill starts in another place and comes here as a Bill that it has reviewed and an option inserted, I do not see how this House can do other than perform its role as a reviewing Chamber and review the Bill as received from the other place. I do not see how we could have another Bill that must go back again, when the other place had already passed it and given its option. I do not think that that is a possible form of procedure.

Viscount Astor

My Lords, the plans in another place are that there will be three distinct clauses, each with an option, and the other place will be voting on those clauses. This is not new. Your Lordships did exactly the same with the Human Embryology and Fertilisation Bill when we passed one option in this House. It then went to another place which was able to have that same choice of two options, and the option it chose at that stage was the same as your Lordships chose. It is not an entirely new procedure.

Lord Elton

My Lords, my noble friend has not entirely resolved the issues raised by my noble friend Lord Whitelaw. The prescription he first gave was of a Bill that arrived with three options in it, but in reply to my noble friend Lord Whitelaw he said that there would be a Bill from which two options had been removed. Is my noble friend saying that the Government will table alternatives that we shall be able to insert, or how are we going to proceed from that point?

When the European Court has reached its decision and we have decided to change our law, whatever the decision of the European Court we are, as it were, faced with a tabula rasa; so does not this whole matter become a question of subsidiarity? As my noble friend Lord Boyd-Carpenter said, surely it is something that we can decide ourselves, and that definition of subsidiarity will presumably then at last have been agreed upon.

I am glad that there will be a free vote. I am sure it is right. It means that for once I can vote against some of my noble friends with a clear conscience. I question whether in fact it is always a good thing for Scotland to do exactly the same as England, because so often we gain from Scotland's precedent when it does something different.

Viscount Astor

My Lords, I apologise to my noble friend Lord Elton if I was not entirely clear. He is quite right in that there will be three options in the Bill introduced to another place. When that Bill arrives in your Lordships' House it will have one option. However, the Government will ensure that the other two alternatives will be available as amendments so that they may be debated in your Lordships' House.

I agree with my noble friend Lord Elton that Scotland has many different laws on many different subjects. With regard to the question of Europe and the European Court, I cannot really say anything about whether this is a matter for subsidiarity until the judgment arrives from the European Court of Justice.

The Earl of Onslow

My Lords, I must obviously declare an interest, as I have interests in a garden centre at home. Whether or not we have actually been total obeyers of the law I leave to your Lordships' imagination. I have never heard a Statement in this House where the Government have come up with something by saying, "We don't know what we want to do. We don't know when we're going to do it. We have three options, some of which can be amended and some of which can't. We don't know when it is going to come into effect, and we don't know when we are going to do it". This could not by any stretch of the imagination be described as the smack of firm government. It is a wobble of immense wobbliness.

We know perfectly well that the only option in all logic is the Scottish solution. I ask my noble friend to grasp the thistle, if that is the right analogy, and show some logic and moral courage to produce a Bill that sets the shopping laws the same as they are in Scotland. The morality in England seems to be no worse nor better than it is on the banks of the Clyde.

Viscount Astor

My Lords, my noble friend Lord Onslow seems to be suggesting that he should have a degree of choice but that no one else should have a degree of choice, unless of course it is his choice. It is important that in order for the reform of the Sunday trading laws to succeed that there is a free vote in another place, and that there are a number of options that can be decided on in another place. We have had a Bill that went through this House, passed from this House to another place, and was defeated in another place. We are attempting to do something to what is obviously an unsatisfactory situation. Of course it is always open, either in this House or in another place, for anybody to put down an amendment to any of the preferred options.

Baroness Oppenheim-Barnes

My Lords, does my noble friend agree that what thousands of shopkeepers, millions of consumers and many shop workers want more than anything else is simply to be able to choose whether to open or not, to shop or not, or to work or not? Above all, what they want to avoid is undue complication, undue delay, and unduly prolonged uncertainty, which is the case at present.

Viscount Astor

My Lords, my noble friend is absolutely right. It is not satisfactory that there should be this law containing strange rulings on what can be sold and what cannot be sold on a Sunday. We have received over 29,000 written representations in favour of greater Sunday trading and only 4,900 against. It is important that we try to reform this area of the law.

Lord Finsberg

My Lords, as the procedure proposed is somewhat unusual—not unique, but unusual—will my noble friend take back to his colleagues a suggestion that might be worked on here? It concerns these three weird options. Might they for once appear in plain English, not in draftsman's nonsense?

Viscount Astor

My Lords, we are always happy to have suggestions from my noble friend and I shall certainly pass on his comments to the draftsman of the Bill.