LORDS AMENDMENT

HL Deb 30 June 1994 vol 556 cc926-43

9 Page 4, line 46, at end insert: ("(bb ) any shop which is a nursery, garden centre or do-it-yourself home improvement shop, or a combination of these, and where the trade or business carried on consists wholly or mainly of the sale of any one or more of the following—

1. (i) plants,
2. (ii) garden supplies and accessories, and
3. (iii) materials and tools suitable for use in the construction, maintenance, repair or decoration of buildings,")

The Commons disagreed to this amendment for the following reason:

9A Because the Commons do not consider it desirable to exempt shops of the kind described in the amendment from restrictions on Sunday opening.

MOTION MOVED ON CONSIDERATION OF COMMONS REASON

9B The Lord Hacking to move, That this House do not insist on their amendment 9 to which the Commons have disagreed for their reason 9A, but propose the following amendment in lieu thereof:

9C ("(bb) any shop where the trade or business aimed on consists wholly or mainly of the sale of—

1. (i) trees, shrubs, plants, bulbs or seeds;
2. (ii) garden supplies or equipment;")

Lord Hacking

My Lords, I beg to move Motion 9B standing in my name.

The purpose of my Motion is to enable the other place for the first time to consider as a separate issue the status of nurseries and garden centres under the provisions of the Bill. The other Motion, Motion 12B, is purely consequential and deals with cross-referencing to other clauses.

Perhaps I may remind noble Lords of the history of the matter. At no time, until the Bill reached us, did either Chamber consider the status of garden centres and DIY stores. As noble Lords will recall, the debate was on the choice of options to be taken as the fundamental issue on the Bill. On 14th April we went into Committee and at that stage there were three amendments before the Committee relating to garden centres and DIY stores. The first of those sought exemption for garden centres and nurseries; the second sought exemption for DIY stores; and the third was a combined seeking of exemption for both DIY stores and garden centres.

During our debate, a clear preference was shown for the combined amendment. For that reason and because a number of entities combine the functions of a garden centre and a DIY store, I invited the Committee to agree the combined amendment. As noble Lords may also recall, on a Division it was agreed.

On 21st June, the other place considered our amendments and, while accepting all the other amendments, rejected the combined amendment concerning garden centres and DIY stores. However, in the debate in the other place, Members from all sides of the House complained that they had not been given an opportunity to consider separately garden centres and if they had been given that opportunity, they would have looked favourably at a garden centres only amendment. Indeed, one Member in another place who was generally opposed to the relaxation of Sunday trading laws, urged the Commons to consider a separate garden centre amendment.

Therefore, my Motion is in response to the favourable view expressed in another place concerning garden centres and is in response to the invitation that the Commons should have an opportunity separately now to consider the position of garden centres.

I ask noble Lords to look at the terms of the amendment which, in my submission, have been precisely and carefully drafted. Your Lordships will see in subparagraph (i) that certain specific products of garden centres are identified: trees, shrubs, plants, bulbs or seeds. I do not think that noble Lords or anyone else reading the schedule would have any difficulty in understanding these definitions.

In the second part of my amendment there are identified in the schedule garden supplies or garden equipment. "Garden supplies" refers to such products as peat or fertilisers and other products that enhance the gardening process. "Garden equipment" refers to garden tools, lawn mowers and the like.

Under the schedule, the garden centre would not be prevented from offering for sale garden furniture or garden ornaments or the like, but should that garden centre attempt to sell any substantial quantity of items falling under the exempt products identified in the schedule, they would face the risk of prosecution and a fine of £50,000 under paragraph 7 of Schedule 1. Contrary to the advice of Mr. Charles Flint, of Counsel, the burden of proof under Section 101 of the Magistrates' Act 1980 would remain upon the defendant, the garden centre concerned.

We have already debated—perhaps too much—the words "wholly or mainly". I just remind noble Lords that the noble and learned Lords, Lord Hailsham and Lord Simon of Glaisdale, advised your Lordships that those words are fully justiciable. I also remind the House that in a case taken over 80 years ago in the Chancery Division by Mr. Justice Parker, the Hatschek patent case, the court firmly held that those two words "wholly or mainly"—the word used in this case was "exclusively" rather than "wholly", but nothing turns on that—should be construed in "close connection" one with the other, and that "disparity" between the contents of the goods in question had to be "substantial". The judge in that case, Mr. Justice Parker, specifically rejected the argument that a difference of 51 per cent. against 49 per cent. did not satisfy that test.

It is also important to take into account the current state of the law under which garden centres have been and are lawfully trading in their primary products of shrubs and plants under the proviso of Section 58 of the Shops Act 1950. That proviso permits the produce that has been produced at the garden centre to be sold lawfully under that Act. This applies to trees and shrubs that are dug from the land and it also applies to other products that have been cultivated: for example, in pots at the garden centre.

I therefore believe that it is a serious step in the Bill designed to clarify and relax Sunday trading law to take away existing rights relating to hours of trading and to trading on Easter Sunday. I remind noble Lords that the special position of garden centres was recognised by a number of organisations, including the Keep Sunday Special Campaign, who, in their option, gave specific exemption to the garden centres in a broader form, I have to tell your Lordships, than in the form in my amendment.

In summary, in moving the Motion, I do not seek any confrontation with the other place. On the contrary, I seek to provide a means for the other place to consider separately and favourably garden centres.

The other important point is that I must emphasise that it would be a retrograde step in my submission to take away existing rights. Therefore, I look with friendship towards the noble Lord, Lord Stoddart, and my noble friend Lord Elton and others who participated in the debate and hope that that friendship will take the amendment through without discord.

Moved, That this House do not insist on their Amendment 9 to which the Commons have disagreed for their reason 9A, but propose Amendment No. 9C in lieu thereof.—(Lord Hacking.)

Lord Norrie

My Lords, at Committee stage I spoke about the real practicalities of the garden centre industry, having had 19 years' experience in the trade. At that time, this House accepted the principle that garden centres should be allowed to continue their existing trading pattern on Sundays. As the noble Lord, Lord Hacking, said, there is a great deal of sympathy for the position of nurseries and garden centres in relation to the Bill, as was shown in both debates in this House and the Commons. Again as my noble friend has just indicated, it was implied by Members of Parliament from all sides that they wished us to provide them with an amendment relating solely to garden centres.

Traditionally it has been accepted that nurseries and garden centres should trade on Sundays, even under the provisions of the Shops Act 1950. Without this amendment, garden centres will be worse off when the Bill becomes law. First, they will have restricted opening hours on Sundays; secondly, they will be forced to close altogether on Easter Sunday, probably the busiest day of their year. In practice neither of those restrictions exists at present.

Of the 2,000 garden centres in England and Wales the vast majority are family owned and run. Those are exactly the types of small businesses that we should be encouraging rather than hindering. Sunday is their busiest day, accounting for up to 40 per cent. of their weekly turnover. They have always opened early and closed late to allow supplies to be bought by gardeners when they need them most.

As garden centres have opened on Sunday for many years, I think that the public will be baffled and angry if we vote to restrict these well-established and accepted trading practices. The gardeners will not like it, the staff will not like it and the owners will not like it. If we do not pass this amendment tonight I believe that the pressure from the public and the nursery trade when they realise what we have done will be so great that we shall soon have to return to this issue again.

5.30 p.m.

Baroness Nicol

My Lords, I want to add very little to what has been said already, but there are one or two points that I believe need to be covered. I support what was said by the noble Lords, Lord Hacking and Lord Norrie, about the institution that the opening of garden centres on a Sunday has become. I feel that, above all other trading activities, it provides a family outing of the kind that we should not seek to curtail.

Sunday, as we have heard, is the busiest day for garden centres. The workers who are in them have become used to that and have established their working patterns over many years. Fewer hours for them (as indeed it would mean for others) would mean less pay. In some cases there will be actual job losses—and not only on Sunday. As most of the trading profits of the garden centres are made on Sundays the knock-on effect of lower takings on Sundays could affect jobs on other days as businesses seek to cut costs.

Some anxieties were expressed in another place about problems of policing if garden shops or centres were deregulated. I find it very difficult to understand that particular argument. I cannot really see why policing under the terms of this amendment should be any more difficult than they will be in any case. I have not had a single objection or representation from any local authority that suggests that they would find it difficult to work with this amendment. The only objections that I have received have been from other traders who foresee the increased competition that they do not wish to have. This has become almost a British institution. I hope that noble Lords will support the amendment and let it go forward.

Lord Boyd-Carpenter

My Lords, I hope, too, that your Lordships will accept this amendment, first of all because it makes general good sense to separate it from the other part of the clause which another place understandably removed. But the practical point is surely this. It is not, as I understand it, the purpose of the present legislation to extend the scope of control of sales. It has only been a matter of argument as to the extent of the increase in permission to sell which should be enacted.

This particular subject matter has always been free. It was free even under the famous 1950 Act. It could only be a great error, at a time when we are rightly reducing the area of control and restriction, if suddenly we were to impose—I suggest, largely by accident—this control on garden centres. Therefore it seems to me that we have an admirable opportunity on this Motion to tidy up the whole matter, to secure that garden centres continue to have the freedom to operate that they have enjoyed for many years and to keep the pattern of the Bill logical and tidy. Therefore, I hope very much that noble Lords will support the Motion of my noble friend Lord Hacking.

Lord Jay

My Lords, I should also like briefly to support this Motion. Garden centres are one of our few remaining expanding industries. Surely we do not want to kill anything of that species. Not merely are they expanding but they are expanding to the pleasure and benefit of almost everyone in the neighbourhood— certainly of the gardeners and the employees of the centres, and, judging by my experience, to the general welcome of those in the neighbourhood.

Their main selling days are Saturday and Sunday, and in particular Sunday. For Parliament to forbid centres to operate on Sundays is rather like forbidding footballers to play on Saturday, or indeed ministers of religion to carry out their services on Sunday. It would be absurd.

Lord Jenkin of Roding

My Lords, I should also like to support the Motion, and I shall do so extremely briefly. Anyone who has studied the effect in another place, which rejected the amendment that had been passed in this House, will recognise, as the noble Lord, Lord Hacking, said in his very compelling speech, that a very clear distinction was drawn by the other place between the DIY centres and the problems of distinguishing between those and other shops that sell identical goods. There was mention, on the one hand, of the problems of deliveries on Sunday and disturbance to neighbourhoods, and, on the other hand, the garden centres. I believe that the other place would very much welcome an opportunity to reach a decision on garden centres alone.

None of the arguments that has applied to DIY centres really applies to garden centres. It is perfectly clear what a garden centre is. The drafting of the Motion is quite simple on that matter. Therefore we should accept the Commons amendment to the extent that is indicated and accept the six-hour restriction on DIY centres, but we should give the other place an opportunity to think again about garden centres.

Lord Simon of Glaisdale

My Lords, the noble Lord, Lord Hacking, and his supporters have shown an enormous, almost excessive, enthusiasm for this issue. I myself have always been a complete deregulator. I took some active part in that direction when the previous Bill was before your Lordships. I was also formerly a very keen gardener and user of garden centres. Therefore I should have every predilection in favour of this amendment if it stood alone and had no history. If it were a matter of a garden centre attached to the Garden of Eden with no history, no geography and nobody outside to complain of unfair competition, it would be very hard to resist. But that is not so.

The noble Lord, Lord Hacking, went back into history, but very recent history. One needs to go back to the former Bill. Your Lordships showed every inclination after a hard struggle to vindicate the principle of total deregulation. But the other place would not have that and the Bill was lost. We went back to the notorious 1950 Act. The result was, as everybody had prophesied, widespread and flagrant flouting of the law.

Nearly 50 years ago, the Gowers Committee said that the 1950 Act was bringing the law into disrepute; and a decade or so ago the Auld Committee repeated that in slightly different words: it was bringing the law into contempt. So it was no surprise to find that immediately the big stores in London and elsewhere openly flouted the law and opened on Sunday whenever it was convenient.

If we lose this Bill, we shall be in danger of returning to that situation. It is far too late to go on pursuing this issue. At any rate, that is where one should start: with the 1950 Act and the loss of the Bill last time when it came before your Lordships.

But more recently, after that failure the Home Office did its best to reconcile the diverse interests. With every activity, every assistance and with vast experience, it failed entirely. In the end it was left to the group for which the noble Baroness, Lady Jay, speaks—the Shopping Hours Reform Council—with very great difficulty and careful balance, to find a compromise. We shall be in great danger if we go back on that compromise. We owe an immense amount to the noble Baroness and her colleagues. I hope that she will address your Lordships on this matter. No doubt your Lordships will pay great attention to what she says.

But there is more recent history to consider. It is very recent history—in fact it happened last night. With the deregulation Bill, last night your Lordships removed Section 1 of the 1950 Act. That means that a garden centre can open all day on Friday and all night as well if it so chooses; and it can open all day on Saturday and all night as well on Saturday.

The noble Lord, Lord Norrie, mentioned small businesses. But we are not concerned at all with small businesses. We are concerned with large garden centres. The small garden centres are not limited to six hours of opening. They can serve the public throughout the day and now throughout the night as well.

There is another point to raise on that issue. There are many large garden centres and adjacent small garden centres. The Shopping Hours Reform Council had to strike a compromise in two directions. In the first place it managed to reconcile the views of the Keep Sunday Special group with those who wanted complete deregulation. In the second place, it carefully balanced the interests of the small shopkeeper—and in this case the small garden centre—against the big stores. That was again a very careful compromise.

As to the other place, it was presented with a number of amendments proposed by your Lordships. It accepted all of them except one, which is this one. It was rejected by a massive majority. The voting was 160 to 293. It would be idle to speak of asking the other place to think again.

How it was presented to the other place was entirely up to those who moved the amendment in this House. Understandably, do-it-yourself stores and garden centres were lumped together—quite rightly and quite understandably, because they very largely overlap in their retail outlets. The other place did not consider the two establishments separately at all. It considered them as subject to the same arguments.

Those arguments were threefold. The first was that the provision was a derogation from a compact which had been agreed to over a wide field. The second was that garden centres, like do-it-yourself shops, could sell a whole host of articles in competition, say, with departmental stores, hardware shops and so on. Garden centres do not deal only in plants, shrubs and so on. They also sell cement, brickwork and garden furniture. All those items are sold in competition with departmental stores and other retail outlets. As I read the debate, it was strongly felt in the other place that it was quite unfair to allow that competition. That was the point made in your Lordships' House by the noble Baroness, Lady Young, when we last considered the matter. I recall that the noble Lord, Lord Stoddart, also raised that point. The third argument was an adjunct of the second; namely, that the words "wholly or mainly" opened the road further to unfair competition.

The noble Lord, Lord Hacking, after great research and with much care, found a Revenue case decided in the Chancery Division at the beginning of this century —or perhaps it was at the end of the last one.

5.45 p.m.

Lord Hacking

My Lords, it was not a Revenue case. It was a patent case and there is some significance in that.

Lord Simon of Glaisdale

At any rate, it was a long time ago and has nothing whatever to do with the issue before your Lordships. The noble Lord, Lord Hacking, was kind enough to refer to my concurrence with my noble and learned friend Lord Hailsham as to how the courts would approach the phrase "wholly or mainly". They would approach it in the way suggested by the noble Earl, Lord Ferrers: that in the end it was a question of fact for the jury or other tribunal of fact in which it would weigh a number of considerations such as the value of the stock, the rate of turnover of the stock, the price of individual items, the amount of showroom space that was taken up and the amount of warehouse space available—all those kinds of things. I say categorically that no sensible judge would bemuse the jury with the case found by the noble Lord, Lord Hacking.

So that is the position. The other place by a decisive majority on this amendment alone rejected the amendment as it was submitted by your Lordships' House, which obviously they considered raised the same point as regards do-it-yourself stores and garden centres.

There is another matter that weighed greatly with the other place and will no doubt weigh greatly with your Lordships. We are being invited to renege on a compromise, a compromise of which we as deregulators have taken advantage. It was argued earlier that individually we were not parties to the compromise. Of course we were not. It would be impossible to have over 1,500 parliamentarians of both Houses milling round trying to achieve the very difficult compromise that was achieved by the noble Baroness and her colleagues. But the important point is that we took advantage of that compromise.

At the moment Parliament is not held in high repute. It will be very much a matter for your Lordships to maintain the reputation of Parliament and this House particularly. It would be deplorable if it were thought that your Lordships' House was behaving shabbily by taking advantage of a compromise and then going back on it. I hope that, in spite of the admirable arguments advanced with cogent thought, your Lordships will not accede to the proposal.

Lord McIntosh of Haringey

My Lords, I rise to make only three points and I shall make them quickly. First, in case there is any doubt on the matter, I repeat that this is a free vote on this side of the House and therefore in anything I say I speak purely for myself. Secondly, when the original amendment was moved, I voted for it and have not been convinced by any arguments that the original amendment was wrong or that the proponents of this amendment are wrong in matters of fact or judgment. Like the noble and learned Lord, Lord Simon of Glaisdale, I am a deregulator and I see this as a valuable extension of deregulation.

Thirdly, in our view—here I can say in "our" view rather than "my" view—there would need to be wholly exceptional circumstances for us to reject the considered view of another place on a second occasion. There would need to be some defect in the way that it considered the matter or some other constitutional reason which at present I cannot envisage. Therefore I cannot vote for the amendment.

Lord Rodgers of Quarry Bank

My Lords, I did not think it would be necessary to speak in this short debate though I support the Motion in the name of the noble Lord, Lord Hacking. However, I find myself disagreeing with the noble and learned Lord, Lord Simon of Glaisdale, on almost every point and for that reason I feel compelled to say something.

The arguments we heard from the noble and learned Lord, Lord Simon of Glaisdale, were clearly and firmly put, as always, on virtually all the amendments proposed both in Committee and on Report. The argument put forward by the noble and learned Lord —supported on both sides of the House—was mat a compromise had been reached by two bodies external to this House which, in so far as it had been supported in a vote on Second Reading, was not capable of further amendment.

I do not want to pursue that at greater length and have no wish to attract into the debate the noble Baroness, Lady Jay. We can now put those matters behind us and I mention them only because they were mentioned by the noble and learned Lord, Lord Simon of Glaisdale. But we went through that argument and considered whether it was appropriate, in view of the compromise, were there such, and in light of the view the House of Commons took, mat we should introduce any amendments at all. I hope that I do not misrepresent the noble and learned Lord, Lord Simon of Glaisdale, when I say mat he was against all the amendments which this House passed on the grounds that they either breached the compromise or would be offensive—I use that word only in a broad sense—to the House of Commons. But we have seen that for the most part they were not offensive to the House of Commons. Indeed, despite the commitment of the House of Commons to the compromise; despite the fact that it considered the Bill on Second Reading, in Committee and on Report; despite the warnings that we were falling out of line and were in danger of losing the Bill, when it came to a discussion in the House of Commons, as the noble Lord, Lord Hacking, said, all our amendments which we were warned against making were accepted in the other place. One of them was accepted on a Division; some were accepted even without a Division.

I do not believe therefore that it is right for this House to take into account the fact that the matter has been thoroughly discussed in another place as well as here and that at the last discussion in another place exception was taken to the amendment from this House. As the noble Lords, Lord Jenkin of Roding and Lord Hacking, said, when the House of Commons considered the amendments your Lordships had made this was one that the Members felt they could not support because it was bifocal—if I may use a term from another language. It dealt with two different matters—DIY centres and garden centres. Anyone reading the debate—here again I disagree with the noble and learned Lord, Lord Simon of Glaisdale—and knowing the commitment of some of the speakers in it, cannot but see, unless the Members were telling less than the truth, that they would have supported garden centres where they do not support DIY stores.

I ask any Member of this House to refer to any part of that debate where anyone committed against the whole idea of deregulation did not concede that this was a special case. That was the view taken in the Commons.

I shall not discuss the merits of the case except for one final sentence. I say only this. Does this House imagine that at this late hour, considering all the trauma that there has been, considering the huge commitment to the principle of the Bill, the large measure of agreement, the wish by the Government to put'the matter behind them, that to pass this Motion in the name of the noble Lord, Lord Hacking, would put the Bill in danger? That is nonsense. It cannot conceivably put the Bill in danger.

My second point is also a simple one. We know that this is not the last word. It is the penultimate word. We are seeking to respond—and it is good that your Lordships' House should occasionally seek to respond —to the perceived wishes of another place. Of course, our perception may be wrong. Perhaps Members in another place do not want to support garden centres. It will be within the power of another place to say no to garden centres. So we get into no difficulty of any kind by doing other than judging the Motion on its merits and within the context referred to by the noble Lord, Lord Hacking.

On its merits I say only this. We all believe that gardens are a special part of England. I do not mean only the gardens attached to the broad acres that some noble Lords may be fortunate enough to possess, but also the small gardens in our towns, villages and suburbs. The Motion is our ultimate chance to help in a small way —I do not pretend any more than that—the gardeners of England. I can see no conceivable reason within the constitution or within our relationship with another place, that to help the gardeners of England in this simple way should be beyond the capacity of this House. I hope that your Lordships will support the Motion of the noble Lord, Lord Hacking.

Lord Skelmersdale

My Lords, what I want to say has been said already so I shall be extremely brief. It is clear to me that the House of Commons disagreed on an exemption for DIY shops but did not come to a conclusion about garden centres. Rather like the noble Lord, Lord Rodgers of Quarry Bank, when they do I shall rest content.

One point has not yet been made. An argument produced by the Minister of State in another place and repeated by the Shopping Hours Reform Council brief, which many noble Lords received, is that it is not possible to separate garden centres and do-it-yourself stores. It is clear from the debate in another place and from many of the speeches we heard in this Chamber this afternoon, that one can indeed make such a distinction. As my noble friend Lord Norrie said on the last occasion, everyone knows a garden centre and home improvement store when they see one. I certainly agree with that. A garden centre has plants as its raison d'être, and DIY shops have products for improving buildings as their main business. Of course, some products are common to both. Yes, we all know that, but I suggest that there will be much more unfair competition, if that is what is worrying the House, between a garden centre with a shop of 250 square metres and an acre of outside display area which is allowed to trade all the hours it wants to on any Sunday and one of 300 square metres with a smaller outside area which, if we disagree with the Motion of my noble friend Lord Hacking, will be restricted to six hours of trading. That is an extra reason why the amendment should be supported.

6 p.m.

Lord Monson

My Lords, I thought at the time that it was a tactical mistake to link garden centres and DIY stores; and so it has proved. Luckily, it is not too late to put things right. What no one has so far mentioned are the wishes of the general public. There is no doubt whatever that the overwhelming majority of the general public want garden centres to be open all day Sunday. In fact, I would guess that there is more support for garden centres being open for 12 hours on Sunday than there is for supermarkets being open for six hours on Sunday. By agreeing to this Motion we will give honourable Members in another place another chance to respond to the deeply felt wishes of their constituents. So in that respect we shall be doing them a great favour if we agree to the Motion.

Viscount Montgomery of Alamein

My Lords, like many who have spoken, I have every sympathy with my noble friend Lord Hacking, but my concern is one of tactics. I question whether my noble friend Lord Jenkin is right when he said that the House of Commons is all agog and desperate to have a debate about garden centres. Would that it were so, but I very much doubt it. I rather support the noble Lord, Lord McIntosh, when he implied that it would be dangerous at this stage to play ping-pong with a measure on which we have expended a huge amount of time and which is so near its conclusion. Therefore, with much regret, I think that the noble Lord, Lord Norrie, may well be right when he says that if we do not agree we shall have to come back to it at a later stage. That may well be the case. I am sure that the Bill, when it is passed, will be further amended in the years to come—and that may be the time to do it —but I feel that now is not the time. Therefore, rather like the noble Lord, Lord McIntosh, I feel that we must get on with it now while we can, and as soon as we can.

Viscount Brentford

My Lords, in urging your Lordships to reject this Motion I want to take up one point which was made by my noble friend Lord Jenkin of Roding. He said that it is always clear what a garden centre is. I do not agree with that statement and I think it is important that we realise that before we decide which way to vote on this Motion.

We are talking about only large garden centres which wholly or mainly sell garden produce. One Midlands town has three large garden centres. I am informed that one of them sells 52 per cent. non-garden produce; another 75 per cent; and a third 47 per cent. They are selling goods which are neither garden furniture nor garden produce. We are into big business. It is not clear and simple garden centres that we are talking about.

Lord Hacking

My Lords, I hesitate to intervene, but what on earth has that to do with our amendment?

Viscount Brentford

My Lords, it is a very good reason for rejecting the Motion that we should permit large garden centres to be open all the time. We are providing problems for local authorities which will have to vet them. I encourage noble Lords to vote against the Motion.

Lord Stoddart of Swindon

My Lords, the noble Lord, Lord Hacking, challenged the noble Viscount, Lord Brentford, on what his speech had to do with the amendment. His speech had everything to do with the amendment. He was seeking to show that large garden centres in a large part of their shopping area sell goods which are clearly nothing to do with garden centres. What he was saying was entirely relevant. Indeed, John Lewis examined the position outside Nottingham and found that non-garden centre goods were being sold in large amounts and accounted for a very good percentage of the total sales of the garden centres in question. I believe that the noble Viscount, Lord Brentford, had a very good point and I am glad that he put it.

We are in this position because, whatever the noble Lord, Lord Rodgers of Quarry Bank, says, this House is attempting to override a consensus which had been reached not merely in the House of Commons and Parliament itself but also outside as to which way we should proceed. The consensus was that we should not have complete deregulation; we should have partial deregulation. That is the way it went. We made relevant amendments. There is nothing to stop the House of Lords making relevant amendments. But it must understand that that consensus did exist. If the House insists on undermining that consensus the Bill may very well be delayed. One cannot get away from that. We should remember that there are people outside who want to run their shops and run their businesses and other people who want to shop in them. In those circumstances, and in the interests of good government, the sooner we get the Bill through in the agreed form the better it will be.

Lord Elton

My Lords, as one who still aches from spending a day and a half cutting his hedges last week, relieved only by those too frequent occasions when he cut the flex, perhaps I may remind your Lordships that we are not talking about shutting large garden centres altogether on Sunday; we are talking about whether they should open for six hours or for more than six hours.

As has already been said by the noble Lord opposite, there is a question of size and operation. I should like to make the point—because I am sure that the noble Lord, Lord Hacking, will revert to it—that although my noble friend Lord Brentford was referring to cases in which the proportion was nearly or indeed over 50 per cent., there are many other cases where the figure is around 30 per cent. or 40 per cent. and the size of the operation means that it is a real and actual form of competition to people who are selling in the same market as that minority product. The fact that the noble Lord, Lord Hacking, says that this is a fully justiciable issue gives me no confidence. It merely means that the court will decide whether we are talking about 49 per cent. or 38 per cent. The noble Lord, Lord Hacking, shakes his head, but "justiciable" means that it is decided by the court. We have been told by a senior Law Lord that the court will consist of a jury in this respect — common-sense people applying common-sense rules of thumb. Your Lordships and I cannot decide in advance what that is. The fact is that it may well be, and probably will be, a substantial proportion.

I joined this argument somewhat reluctantly on the grounds of keeping Sunday special. That battle was lost long ago. I stayed in it because I believe that there is another aspect of English life that is also at risk. I refer to the survival of small units of retail trade. They will be at risk from this minority proportion of the trade—the very big garden centres—that the amendment would open up.

For those reasons, as well as those of the noble and learned Lord, Lord Simon of Glaisdale, and those of the noble Lord, Lord McIntosh, I hope that your Lordships will reject the amendment. I have to say that the pleasure of voting with people on the other side with whom I agree is only outweighed by the regret that I have to disagree with so many of my noble friends on this side of the House.

Earl Ferrers

My Lords, before coming to the substance of the debate, perhaps I may make clear one or two procedural points. The substance of what we are debating is in Amendment No. 9B. The amendment of another place, Amendment No. 12A, to Amendment No. 12 is purely technical and is consequential upon their rejection of Amendment No. 9. If my noble friend's Amendment No. 9C is not approved, and if your Lordships do not insist on Amendment No. 9, Amendment No. 12A should be approved. If either my noble friend's Amendment No. 9C were to be approved, or the House were to insist on Amendment No. 9, then my noble friend's Amendment No. 12B should be agreed to.

The original Amendment No. 9 which your Lordships added to the Bill at Committee stage sought to exempt garden centres and do-it-yourself shops from the six-hour limit which the Bill places on trading by large shops. Another place did not agree with the suggestion and it has asked your Lordships not to insist on the amendment.

However, my noble friend Lord Hacking now proposes to amend the amendment by in effect seeking to exempt garden centres and nurseries alone from the six-hour limit. I remind the House—as noble Lords will have become only too well aware with the passage of this Bill—that it is entirely a matter for your Lordships whether or not to agree with my noble friend in his amendment or indeed whether or not to insist on the original amendment. As I have frequently said, these are entirely matters for your Lordships.

Having said that, there are one or two points which I believe may assist in coming to a conclusion on these tricky matters. The reason which was given by another place for not agreeing with your Lordships in Amendment No. 9, is in Amendment No. 9A. Perhaps I may quote the words. Another place, do not consider it desirable to exempt shops of the kind described —that is, garden centres, nurseries and do-it-yourself shops—from the six-hour limit which the Bill places on trading by large shops.

Another place concluded this on a free vote by a majority of no fewer than 133. They did not seem to have too much doubt about that. I fancy that your Lordships might translate a majority of 133 on a free vote in another place as a pretty clear message that another place does not want to have Amendment No. 9 at any price, either. I thought that the argument of the noble Lord, Lord Rodgers of Quarry Bank, was a little curious. He said that all the amendments which your Lordships sent down to another place were accepted there other than this one, which was not wanted. Therefore, this amendment should go back again. That seemed to me to be the argument.

Lord Rodgers of Quarry Bank

My Lords, I appreciate the noble Earl giving way. He misunderstood me, so I could not have been clear. I was not pursuing that line at all. I was seeking to argue with the noble and learned Lord, Lord Simon of Glaisdale, that during our early debates it had been argued that all the amendments before your Lordships' House should not be passed because that would upset the compromise and make our relationship with another place more difficult—in other words, we were advised against them precisely on the same grounds as those advocated by the noble and learned Lord today. Yet we found out in practice that the Commons were willing to accept and were grateful for all your Lordships' amendments with this one exception. That was the argument. I am sorry that I did not make it clear. The noble Earl's remarks are therefore irrelevant in the context of my own.

6.15 p.m.

Earl Ferrers

My Lords, I apologise to the noble Lord if I misunderstood him. For all that, I do not believe that my remarks are irrelevant. The fact is that the other place did accept all the amendments other than this one. The noble Lord, Lord Rodgers, among some of his friends, wishes to give the other place another opportunity to consider it. As some of your Lordships foresaw, another place saw this amendment as one departure too many from the six-hour compromise which, after blood, sweat and tears, it had finally reached and in which your Lordships—thank heavens —also concurred.

Another place considered that the amendment would make the Bill less enforceable because do-it-yourself shops and garden centres are not easily distinguished from other types of shop. They considered that the amendment would be unfair to retailers—like electrical and furniture shops and department stores—who sell many of the same products as do-it-yourself shops and garden centres but which would not enjoy the same exemption.

I believe that my noble friend Lord Hacking has accepted the fate which another place has decreed for do-it-yourself stores. But, with relentless ingenuity, he now says "All right, we will accept that do-it-yourself stores cannot be exempted; but let's have another shot at garden centres and nurseries". I am bound to say that I fancy that course will prove no more successful in another place than did the original amendment.

I say this for three reasons. First, while it is certainly the case that some of those who spoke in the debate in another place said that they would have agreed with an amendment if it had been restricted to garden centres, that was by no means the case in respect of all those who spoke in that debate. I fancy that a majority of 133 will not be easily overturned by the conversion of what one might call a few green-fingered, repentant souls.

Secondly, another place, in setting out their reason for objecting to your Lordships' amendment, drew no distinction between do-it-yourself stores on the one hand, and garden centres and nurseries on the other. Another place has said that they do not consider it desirable to exempt any of these shops from the six-hour rule. It would have been perfectly possible for a Member of another place to have moved an amendment there to distinguish between garden centres and do-it-yourself stores, but not one did.

Thirdly, and most importantly, it would in fact be neither workable nor sensible to try to distinguish between do-it-yourself stores and garden centres.

I would remind your Lordships that we are not talking about ordinary nurseries, where people like to browse on a Sunday. These can be open all day under the Bill. Even the big stores will be open on Sundays, but restricted to six hours. We are talking about these huge great garden centres whose covered area alone is greater than 3,000 square feet. These garden centres sell plants, but so do do-it-yourself stores. They sell other things, too. I have been advised that garden centres and do-it-yourself stores can have as much as 40 per cent. to 50 per cent. of their product lines entirely in common.

I do not want to irritate the noble Lord, Lord Rodgers of Quarry Bank, again. He did not irritate me. He said that he wants to support this measure for the good gardens of England. He likes the gardens of England. I understand that.

When I was told that 40 per cent. to 50 per cent. of the product lines were entirely in common, I found that very surprising and I daresay that some of your Lordships do, too. Therefore, I made it my business to investigate a little as to what these large garden centres do commonly sell other than plants, shrubs and flowers. They sell books —not just gardening books but cookery books, travel books and story books, too. So much for the gardens of England! They sell garden furniture—but not just garden furniture, but book cases and dining room furniture too. So much for the gardens of England! They sell, barbecues, paving slabs and bricks. They sell lawnmowers and strimmers, creosote and paint; and sand and cement. They sell pictures, paintings and prints. So much for the gardens of England! They sell T-shirts; shoes and boots; anoraks and body warmers; trilbies and caps; toys, balloons and jigsaw puzzles; glassware and crockery; vases and earthenware jugs; china dogs and china cats; Christmas lights; even bean bags for dogs to sleep on. So much for the gardens of England! That is a funny kind of garden equipment. Even the noble Lord, Lord Rodgers of Quarry Bank, would find it difficult to believe that all that has to do with the gardens of England.

A garden centre of that size really cannot be considered to be on a par with a nursery just selling flowers or plants for the home gardening enthusiast. Indeed, that sort of nursery would not be affected by the six-hour restriction because it probably would not have a building of greater than 3,000 square feet.

My noble friend Lord Hacking said that garden centres are allowed to trade under Section 58 of the 1950 Act anyhow because they grow their own produce. That is perfectly true. Nurseries often do grow trees and shrubs, but some of them buy them in. By and large, garden centres do not and they hardly ever, so far as I know, grow their own lawnmowers, paving slabs and insecticides.

These large garden centres have become more like general stores which sell plants as well. I suggest to your Lordships that the reason why the sponsors of the original amendment linked garden centres and do-it-yourself stores together in the first place was because they knew that it would be impossible to draw any workable distinction between the two. Indeed, no less a person than the chairman of the Conservative parliamentary horticulture committee, the person who is the parliamentary consultant to the Horticultural Trades Association, the honourable Member for Broxbourne, Mrs. Marion Roe, agrees with this. She said in the debate on Amendment No. 9 in another place that she had been asked why DIY stores and garden centres were linked in the amendment. Her reply was that the answer was simple. It was her view that, in practice, there were inextricable links between the two types of store. Many garden centres sell DIY items and most DIY stores have garden centres. And that is it in a nutshell.

As I have said, this is entirely a matter for your Lordships and I would not seek to persuade you either way—

Noble Lords

No!

Earl Ferrers

I am merely trying to help your Lordships in coming to such conclusions as you may choose. But it does seem to me that my noble friend's amendment, Amendment No. 9C to Amendment No. 9, would in practice be no different from the original Amendment No. 9 itself. Both garden centres and DIY stores will seek to trade at any time on a Sunday by virtue of this exemption.

If the amendment were agreed to, local authorities may well decide not to go through the pain and anguish of trying to prove where a garden centre ends and where a do-it-yourself store begins. To do so would involve them seeking to show, for example, that a brick was a gardening supply when it was used for building a garden wall but it was a DIY product when it was used to build a bunker to contain coal.

I really think that Parliament has exhausted itself with this matter and with all the permutations and combinations in dealing with what was before an intractable problem. A decision has been arrived at; the Bill has been through both Houses of Parliament; your Lordships asked another place to think again; another place did think again, and another place rejected your Lordships' advice.

Now my noble friend Lord Hacking says, "Let's have another go". I agree with the noble Lord, Lord McIntosh of Haringey, and my noble friend Lord Montgomery. I do not think that garden centres are what one might call "ping-pong" territory, and I fancy that my noble friend would be chancing his arm, as soldiers would say, both from the point of view of success and of good will, by bringing this matter back again and if he were to choose to press his case. As the noble and learned Lord, Lord Simon of Glaisdale, said, this would be an attractive amendment if it stood on its own, but it does not. Others will be affected by it.

Lord Hacking

My Lords, my noble friend the Minister has again entertained us with a witty, amusing and persuasive speech. It was not exactly marked with impartiality, but none the less all of your Lordships enjoyed it.

I have a sudden wonderment about the comments that have been made about the debate in another place. I shall not take your Lordships through the Hansard of another place, but time and time again leading speakers in another place, including Front Bench spokesmen for the Opposition, said in terms that they were not being given an opportunity to consider garden centres separately. That was repeated time and time again. In my submission, my noble friend Lord Jenkin of Roding presented the case correctly to your Lordships. The other place has given a clear indication of its interest in garden centres. Members there were not able to vote upon this—for whatever reason—and that is what I shall seek to invite your Lordships to do. As the noble Lord, Lord Rodgers, said, this is not the ultimate; it is the penultimate. All that I am asking your Lordships to do is to send the provisions back to another place so that Members there can reach a conclusion.

I am afraid that I did not find the name of the noble Lord, Lord McIntosh, listed as one of those who supported me in the Lobby on the last occasion that we debated this. His name was omitted from our Hansard, but if he was there, I am delighted to hear it The noble Lord spoke of exceptional circumstances. There are certainly exceptional circumstances. We are taking from our citizens rights that currently exist. That is an exceptional circumstance. It is also an exceptional circumstance to be invited by a Member of another place to place this issue before that place again. That is exactly what has happened and that is why I invite your Lordships to approve my Motion.

6.25 p.m.

On Question, Whether the Motion shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 80.

Division No.1
CONTENTS
Aberdare, L.	Malmesbury, E.
Addington, L.	McGregor of Durris, L.
Ailesbury, M.	Mersey, V.
Clanwilliam, E.	Monson, L.
Craigmyle, L.	Mountgarret, V.
Crickhowell, L.	Nicol, B. [Teller.]
Eden of Winton, L.	Norrie, L.
Erroll, E.	Pitt of Hampstead, L.
Greenway, L.	Rea, L.
Hacking, L.[Teller.]	Reay, L.
Halsbury, E.	Rodgers of Quarry Bank, L.
Harding of Petherton, L.	Selborne, E.
Howie of Troon, L.	Skelmersdale, L.
Hylton-Foster, B.	Strathcarron, L.
Jay, L.	Tebbit, L.
Jenkin of Roding, L.	Trefgarne, L.

NOT-CONTENTS
Annaly, L.	Kinnoull, E.
Archer of Weston-Super-Mare, L.	Lauderdale, E.
Ashbourne, L.	Leigh, L.
Attlee, E.	Long, V.
Balfour, E.	Lucas of Chilworth, L.
Beaumont of Whitley, L.	Lucas, L.
Boyd-Carpenter, L.	Mackay of Ardbrecknish, L.
Brentford, V. [Teller.]	Mancroft, L.
Brougham and Vaux, L.	Massereene and Ferrard, V.
Bruce of Donington, L.	McIntosh of Haringey, L.
Burnham, L.	Merrivale, L.
Colville of Culross, V.	Meston, L.
Colwyn, L.	Milverton, L.
Constantine of Stanmore, L.	Montgomery of Alamein, V.
Cooke of Islandreagh, L.	Murton of Lindisfarne, L.
Courtown, E.	Northesk, E.
Craigavon, V.	Orkney, E.
Cumberlege, B.	Rankeillour, L.
Denton of Wakefield, B.	Renfrew of Kaimsthorn, L.
Diamond, L.	Renton, L.
Dixon-Smith, L.	Richard, L.
Elis-Thomas, L.	Rochester, L.
Elton, L.	Rodger of Earlsferry, L.
Falkland, V.	Romney, E.
Ferrers, E.	Seear, B.
Flather, B.	Serota, B.
Gallacher, L. [Teller.]	Shannon, E.
Goschen, V.	Simon of Glaisdale, L.
Graham of Edmonton, L.	St. Davids, V.
Hamwee, B.	Stallard, L.
HolmPatrick, L.	Stewartby, L.
Hughes, L.	Stoddart of Swindon, L.
Jay of Paddington, B.	Strafford, E.
Jeffreys, L.	Sudeley, L.
Jeger, B.	Tordoff, L.
Kenyon, L.	Torrington, V.
Kilbracken, L.	Trumpington, B.

Turner of Camden, B.	White, B.
Ullswater, V.	Williams of Mostyn, L.
Wakeham, L. [Lord Privy Seal.]	Wise, L.

Resolved in the negative, and Motion disagreed to accordingly.