HL Deb 20 November 1997 vol 583 cc670-81

4.35 p.m.

The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs)

rose to move, That the draft order laid before the House on 28th October be approved.

The noble Lord said: My Lords, I bring to the House today an order which introduces provisions broadly in line with those now in operation in England and Wales following the enactment of the Sunday Trading Act 1994. It may be helpful to your Lordships if I comment briefly on the order and then say a few words about the detailed provisions.

The purpose of the draft Shops (Sunday Trading &c.) (Northern Ireland) Order 1997 is to provide an urgently needed reform of the Northern Ireland shops law. It provides a modern, clear and enforceable code, replacing the existing unsatisfactory Shops Act (Northern Ireland) 1946.

The order broadly repeals and replaces the Sunday trading provisions of the 1946 Act to remove its restrictions on the goods which may be sold in shops on Sunday and allows small shops (those with a relevant floor area of not more than 280 square metres) to trade at any time on Sunday.

It restricts most large shops (those with a relevant floor area of more than 280 square metres) to a maximum of five hours trading between 1 p.m. and 6 p.m. on Sunday (other than Christmas Day or Easter Sunday). Similar shops in England and Wales may open on Sundays for a maximum continuous period of six hours between 10 a.m. and 6 p.m. The order allows certain large shops to trade without restrictions on Sunday.

District councils are responsible for enforcement of the existing shops law and continue to bear this responsibility in relation to the Sunday trading provisions of the order. It also gives district councils powers to prevent undue annoyance to local residents from deliveries to certain large shops early on Sunday mornings.

The order importantly provides employment protection measures for shop workers in relation to Sunday working which apply irrespective of age, length of service or hours of work and aim to ensure that shop workers are not compelled to work on Sundays if they do not wish to do so. Enforcement of the new employment rights will be by way of a complaint to an industrial tribunal.

The order also repeals the other provisions of the 1946 Act, such as weekday closing hours and conditions of employment now considered to be out of date.

The order departs from the law in England and Wales in relation to the provisions in the 1994 Act which allow a large shop, operated by a person of the Jewish religion and closed on the Jewish Sabbath, to open without restriction on a Sunday, subject to certain conditions. Similar provisions have not been included in the order because they would be contrary to Section 17 of the Northern Ireland Constitution Act 1973. Section 17 renders void any Northern Ireland legislative provision which discriminates against any person or class of persons on the ground of religious belief or political opinion.

The order goes further than the 1994 Act in allowing large shops in holiday resorts designated by district councils to trade at any time, on up to 18 Sundays (other than Easter Sunday), between 1st March and 30th September in any calendar year.

The order also goes further than the 1994 Act on two minor points in relation to the list in Article 4 of those types of shops to be exempt from the restrictions on Sunday opening of large shops. Shops in bus stations have been included and the exemption for airport shops has not been restricted to those with a substantial amount of international passenger traffic, as is the case in England and Wales.

The decision to reform the Northern Ireland shops law was taken following a public consultation exercise in 1995 which resulted in a majority in favour of the changes. There is, however, a body of opinion in Northern Ireland which is opposed to the changes. This was also apparent in the majority of respondents who opposed the proposal for a draft order when it was published for comment in March 1996.

In recognition, however, of the concerns of those for whom Sunday is a special day, the Sunday trading hours proposed for most large shops have been reduced from a maximum of six continuous hours between 10 a.m. and 6 p.m. to a maximum of five hours between 1 p.m. and 6 p.m.

The Government have decided to proceed with the order because of the urgent need to reform the 1946 Act and the clearly demonstrated demand for Sunday shopping. In coming to this decision, the Government are aware that there are many people in Northern Ireland who have genuine concerns about the relaxation of the restrictions on Sunday trading. The order will, however, provide freedom of choice for those who wish to shop or work in shops on Sunday and for those who do not. I beg to move.

Moved, That the draft order laid before the House on 28th October be approved.—(Lord Dubs.)

4.40 p.m.

Lord Cope of Berkeley

My Lords, this is not a matter of party politics but of individual decision. Indeed, it is a difficult decision. We all remember the problems which the issue of Sunday trading law caused on a number of occasions while we were discussing the alterations to it in England and Wales, when the Conservative government tried to tackle the issue. It ended with the Sunday Trading Act 1994, to which the noble Lord referred. Indeed, some of us have the scars to remind us of those occasions, but I shall not dwell on that.

The starting point for this order, as indeed it was in England and Wales, is that the existing law is unsatisfactory. There is no doubt about that. But the reason for the longevity of the old law, which is repealed by this order, was the difficulty in agreeing to satisfactory change and the disagreements which existed about the way in which changes should be made. The existing law certainly has not lasted as long as it has because of its inherent merits or acceptability. The problem was the difficulty of finding an alternative.

Indeed, a prime reason for this order is said to be that the present law is disregarded and not enforced. That is probably the worst reason for proposing changes in the law, but it is a real one, nevertheless. In these post-Formula One days, we understand that practicability takes precedence over principle in government.

In practice, there is no doubt that the law needs changing and it is impossible to find a change which will please everyone. So far as I can judge, the Government have found a solution which has wide, although not universal, acceptance. I notice that the elected representatives of Northern Ireland in another place, while not entirely happy, certainly gave that impression and the Belfast Telegraph said that it was a sensible compromise. That sums up the situation.

It is a different and, in some respects, more restrictive law than in England and Wales but one would expect that, given that in Northern Ireland there is a much higher proportion of church-goers than there is on this side of the water. But I welcome the restrictions on large shops on Sunday mornings. I welcome the freedom from regulation of small shops. As a general point, I believe that we do not sufficiently exempt small shops from regulation. Their competitive position and weakened bargaining power means that the public needs less protection from them than from the great multiples.

I welcome also such control as there is on loading and, in particular, unloading on Sundays, although I should have preferred to see that control potentially last all day instead of only until 9 a.m. I have never been convinced that planning permission should be granted automatically, as it were, to shops just because they are no longer to be prohibited from trading on Sunday. It seems to me that future planning permissions may include restrictions for new or additional shops; for example, in relation to a shop near a church where there may be no permission to unload at all on a Sunday even if it were allowed to open.

In effect, this order, like the 1994 Sunday Trading Act in England and Wales, gives retrospective planning permission to all shops and prevents individual treatment which will be possible in future when planning applications are made. However, I must recognise that I could not convince my colleagues in government in that regard at the time that we were discussing the England and Wales Act so I do not press the matter too much now.

An important section of this order attempts to provide protection for employees who do not wish to work on Sundays, and the Minister referred to that. The Minister in another place seems to have been reluctant to spell out the experience of that protection in England and Wales. I believe that it is widely thought not to have been very effective. That is a cause for concern. It would be extremely helpful if the Minister could tell your Lordships how many cases in England and Wales have gone to tribunals and to what effect, because that is relevant to passing similar provisions for Northern Ireland, as we are doing in this order.

We know, of course, that cases which go to tribunals are the tip of the iceberg but they are at least the bit that we can measure. We can only guess at the size of the iceberg underneath which it is not possible to measure. More generally, are the Government sufficiently satisfied that the England and Wales protection is working to believe that the same protection will work in the case of Northern Ireland.

As I said, this whole order is a compromise. I have no doubt that it will give rise to anomalies in due course, although not so many as did the existing legislation; and it is an improvement in that respect. But it is also another signpost of the weakening of religious influence in our lives. It is no use increasing the freedoms and standard of living of our people if we depress the standard of conduct, and the Christian religion is our guide to that. That thought was expressed much more eloquently and effectively than I can manage in the passage of the writings of Lord Tonypandy that was read at his memorial service the other day. I believe it right to refer to that in the passing of this order. However, that is a deeper thought and I believe that we should let this order pass.

Lord Davies of Coity

My Lords, although I do not have any direct interest in this issue now, there was a time in the 1980s when my union and I were campaigning quite strenuously against the proposed changes to the trading laws in this country. We were supportive of the 1950 Shops Act. Noble Lords will remember that in another place on 15th April 1986 a decision was taken to reject the government's proposals, with something like 70 Conservative Members of the government not voting in accordance with the Whips.

There was widespread collaboration from the Christian Church, those who wanted to save Sunday, and from my trade union which wanted to protect the interests of its members working in shops up and down the country. We failed to have the 1950 Shops Act retained and, as my noble friend said, in 1994 the legislation was changed. But that campaign produced protection for shopworkers so that they would not be discriminated against in terms of promotion and employment if they refused to work on a Sunday. I am very pleased that my noble friend has included that provision in this order.

I was interested to read recently that despite the fact that there have been increased trading hours and days in England and Wales, the fact has now been confirmed, as we were saying at that time, that the volume of trade has not increased as a result. However, costs have increased. There have been changes to family life and indeed, as the noble Lord said, to the Christian way of life, which we hope will not be damaged. But I rise primarily to congratulate my noble friend on including in the legislation protection for shopworkers in Northern Ireland.

Lord Alderdice

My Lords, I should like to express my thanks to the Minister for his detailed explanation of the provisions contained in the order. As he and other noble Lords will know, the observance of Sunday is still particularly important in Northern Ireland. Therefore, people will be looking with some attention at the provisions of the order.

There was a time when things were very different in Northern Ireland. I can recall my mother telling me that, in preparation for Sundays, all the shoes would be taken out and polished and the clothes laid out on Saturday evenings so that Sunday was, as much as possible, a day not only of religious observance but also one of rest.

Times have changed, not only in the fact that less observance of religious matters is to be found but also that those who do observe religious matters have changed their pattern. For many of those who are most involved it is less a day of rest and more a day of considerable—indeed, in some cases, almost frenetic—religious observance. Perhaps a return to a quieter observance of Sundays might be in the interests of many. I speak as a son of the manse who, in times past, found a considerable busyness at such times.

I mention that because the view is sometimes expressed that the only change there has been over the years has taken place among those who do not make so much religious observance on Sundays. That is not the case; indeed, there have also been other changes. It seems to me that the point raised by the noble Lord, Lord Davies, regarding the importance of having at least one time which punctuates our weeks, which enables people to take a rest and spend some time with their families and friends, is an important consideration in the health and welfare of our community, our family life and of people in general. When that is combined with religious observance it is, to my mind, particularly valuable. But even for those for whom religious observance is less important I still believe it to be an important social contribution.

Therefore, I welcome the provisions included in the order to protect those workers who wish, whether for religious or other reasons, to observe a break and a punctuation in the week. That is extremely important. Like the noble Lord, Lord Cope, I would welcome some comment from the Minister on how that has been observed and what the results have been under the 1994 legislation.

There are two matters that I wish briefly to raise with the Minister. One relates to the definition of larger shops. On the face of it, it seems a little as though the particular floor area given was somewhat arbitrary. But perhaps that is not the case and perhaps the Minister may be able to indicate whether there was any specific reason for that floor area being adopted.

My second question is perhaps a more extensive one than the Minister is prepared to address on this occasion. However, given the degree of erosion of employee protection that has taken place, not only in regard to Sundays but also in other areas, perhaps the noble Lord can tell the House whether that has motivated the Government to look at the question of the incorporation of the European social chapter in order to give better protection. I appreciate that that is a wider issue and the Minister may not wish to deal with it today, but I would certainly find it helpful if he could at some point comment upon it.

In broad terms it is clear that our society has changed and, indeed, is still changing. It is important, therefore, for legislation to keep pace with those developments. It is also important for us to hold to those things which are not only tradition for the sake of tradition but which are good traditions that help to benefit our society and community. Indeed, the observance of a day of rest on Sunday is one of the more important of those traditions.

Lord Molyneaux of Killead

My Lords, I am delighted to follow my friend, the noble Lord, Lord Alderdice. I am grateful for his reminder of the strictures on boot polishing for Sundays. I was never particularly aggrieved by that restriction because I was never terribly keen on shoe polishing, not even during my six-year service in the Royal Air Force. That got me into trouble on many occasions.

I have never been impressed by the explanation in England and Wales that the previous law on Sunday trading had to be changed because the law had been broken, and defiance of the law could not be tolerated. The unfortunate impression then given was that, if even a segment of the population broke the law, the law must be changed. I cannot help feeling that the increase in lawlessness generally in many fields since the changes in the 1994 Act—but not related to that Act—may be due in some measure to that concession to law breakers and those who benefited financially therefrom.

Another contradiction can be found in the criticism of the present Government for responding to representations from what is termed, "the Sunday observance lobby", which I know included our friends in the trade union movement. The same critics would pillory the present Government if they did not respond to pressure from what I term the "news industry", in this new and novel climate of mass hysteria and demands that something must be done, whether or not it be prudent or wise.

The reduction in Sunday shopping in respect of larger outlets to a period of five hours, starting specifically at 1 p.m. and finishing at 6 p.m., is much tidier and more readily understood than the earlier stipulation of six hours at any time of one's choosing between 10 a.m. and 6 p.m. As one would have expected, it is claimed that the greater degree of freedom granted to small shops will damage the giants and the multiples. I take the simple view that they are usually very well equipped to look after themselves. There is little evidence to support the assertion that they are in danger of being damaged, particularly in the light of the numerous mergers and takeovers in the recent past; and, indeed, even in the past week. That does not seem to me to display a lack of confidence in the future of those giants. In fact, a limited measure of support for small shops can, I feel, be justified by the drop in income caused by the development of giant shopping centres which has led to a complete distortion of trading patterns and practices.

Perhaps I may urge that the enforcement of loading and unloading regulations contained in Article 7 be more thoroughly and vigorously implemented than such provisions are in England. I should add that I have a vested interest of sorts, especially when I have to spend the weekend in London. I am sure that the 26 district councils will discharge these new responsibilities with their renowned efficiency. But they will need the support of the law and, most of all, of the Northern Ireland Office and its departments to a much greater extent than the support given to decisions of councils in regard to planning matters and roads, and various other services, for which the councils have been given added responsibility.

Finally, I welcome the clarification which will protect the rights of those who have a conscience about working on Sundays. However, I must say that I am greatly concerned by reports that some employers have already, in anticipation of this order becoming law, sacked people who have had, and still have, reservations about working on Sundays. This has happened despite the fact that those employees had received assurances that their conscience would be respected. The very thin excuse has been given that those assurances were given only verbally and not in writing.

I am aware that the unions have been consulted at all stages of drafting, but I should like to be assured that the Government will ensure that there is no wriggling out of commitments and undertakings given over the whole range of employment, including all of the shopping and ancillary occupations.

Lord Monson

My Lords, as someone who was very much involved in our deliberations on what ultimately became the Sunday Trading Act 1994, covering England and Wales, I am particularly interested in the order now before the House. It is, yet again, only an order: an unamendable order. That would not matter much if it only replicated a hypothetical Sunday trading statute covering England, Wales and Scotland, thereby harmonising Sunday trading more throughout the United Kingdom. However, it does not do that.

The Scottish law on Sunday Trading differs from that in England and Wales and the law in Northern Ireland will, in turn, differ from the two others. Yes, indeed, it does follow the wording of the 1994 Act very closely in many respects. One notices that, unlike that Act, it exempts shops at bus stations as well as railway stations, which is a welcome extension of consumer choice, as is the extension to airports handling domestic as well as international flights. Unlike the 1994 Act, it makes no provision "for persons observing the Jewish sabbath", and the noble Minister has explained why that provision is unnecessary.

The main difference with this order, as the Minister explained, is that large shops will open only for five rather than six hours on Sundays. The incidence of churchgoing in Northern Ireland, as has been mentioned, is much higher than it is in England and Wales nowadays, and therefore one can have little objection to the earliest permitted opening time being set rather later than it is on the mainland. However, the stipulated opening hours of 1 p.m. to 6 p.m., as opposed, for example, from 12.30 p.m. to 6.30 p.m., may make it uneconomic for many large shops to open at all.

I take the point made by my noble friend Lord Molyneaux, but, of course, many garden centres, of necessity, have to be classified as large shops in terms of floor area, although in no way could they be described as multiples and they are also therefore caught. Garden centres posed a particular problem when we were debating the law in England and Wales. The Minister said there had been widespread consultation and justified the five-hour limit on the grounds that there was a considerable body of opposition to the order being introduced at all. I wonder if the noble Lord can tell us roughly how many people—businesses, consumers and employees—were consulted and whether they were numbered in hundreds or in thousands. Can he tell us roughly what percentage were in favour of liberalisation of the law and what percentage were in favour of the status quo. Perhaps he can also tell us how those figures compare with the percentage in England and Wales who were consulted by means of opinion polls or by other means, let us say five years ago.

One notices also that the holiday resort exemptions terminate on the last Sunday of September, which can be as early as 24th September, despite the fact that in the first fortnight of October the weather can often be beautiful—the Indian summer phenomenon. There may be a valid reason for the limitation to the last Sunday in September, but because we are dealing with an order and not a Bill no one can move even a probing amendment on the matter. Considering how many long and passionate hours we spent debating the Sunday trading law in England and Wales—and I dare say the other place did as well—it is strange that we have no Bill so far as the law relating to Northern Ireland is concerned. I look forward to the Minister's replies to this point and the others I have raised.

5 p.m.

Lord Dubs

My Lords, I thank your Lordships for the very positive and supportive comments that have been made about the order and I shall do my best to deal with the points that have been raised. I am grateful to the noble Lord, Lord Cope, for his supportive comments and also for taking us through some of the tortured history of previous legislative attempts to reform Sunday trading. I very much share some of his memories as to how that happened. He did ask, as did the noble Lord, Lord Alderdice, how many cases had been taken to industrial tribunals in England and Wales. My information is that only about 30 such cases have arisen since the 1994 legislation came into force. Nevertheless it is our judgment that there are not many concerns about the effectiveness of the legislation. We think it is working pretty well. We do not believe, as a government, that there are many people working in this area who have a sense of grievance which has not been expressed to an industrial tribunal. In other words, we are reasonably satisfied that we are providing effective protection for shop workers and therefore we are, as it were, using the England and Wales experience as a basis for this order in respect of Northern Ireland.

The noble Lord, Lord Cope, referred to planning considerations. As I understand the position in Northern Ireland, it is this: Article 25 of the Planning (Northern Ireland) Order 1991 allows the Department of the Environment to impose conditions on planning consents. Planning consents can restrict opening hours even when they are otherwise lawful, provided there are relevant land-use reasons, for example, noise disturbance. From that I conclude—and here I must be careful because I have to deal with individual planning permissions on occasion—that where there is a particular local situation where noise disturbance would have a particularly damaging effect on people living locally, I argue that that would be a relevant consideration to be taken into consideration before planning permission were given under the Northern Ireland planning order. That also deals with the point made by the noble Lord, Lord Molyneaux.

My noble friend Lord Davies, who speaks from a great deal of experience of protecting the rights of shopworkers, referred to the Government's defeat in April 1986 in another place. I say to my noble friend: I was there, I remember it well. But on that occasion we were dealing with a plan to achieve total deregulation of shopping hours. There were many objections to that, based not on a wish to tame the law as it then was but on a wish to see partial deregulation, which in fact resulted in legislation for England and Wales, and indeed in this legislation. However, I thank him for his support for the measures which both he and I believe will protect shopworkers.

The noble Lord, Lord Alderdice, referred to the tradition in Northern Ireland that Sundays are better observed, or observed by more people, than in England and Wales. He also referred to the need to protect shopworkers, to which I have already referred. He asked about the definition of large shops and whether the 280 square metre definition is an arbitrary one or not. I am not sure whether these things are done totally by science and I know that he, as a scientist, will understand that a totally scientific approach does not always work. However, I think he would agree with me that it is necessary to have a limit which is clearly understandable and easily enforced in order to maintain a level playing field throughout Northern Ireland. In setting the limit of 280 square metres, we followed the law in England and Wales in respect of the 1994 Sunday Trading Act. The noble Lord may well ask: how did that legislation get there? I have to say that I am not aware of the limit causing any difficulty in England and Wales and I have therefore no reason for wishing to see it departed from in Northern Ireland. It is perhaps worth commenting that two of the campaigning organisations concerned in trying to influence parliamentary opinion in recent years—the Keep Sunday Special campaign and the Retailers for Shop Act Reform—were both supportive of the 280 square metre definition. That is not a scientific answer to the question but that is how definitions are made, and I believe it has some logic.

The noble Lord also asked about the social chapter. I am grateful to him for having given me warning that he would raise this matter. It has enabled me to give him an answer now which he may not have expected, judging by the comments he made when speaking earlier. The Government did agree at the Amsterdam conference to opt into the social chapter. There are two directives which will apply to the United Kingdom: the parental leave directive and the works council directive. It is hoped that these will be incorporated into domestic legislation within the next two years. I trust that this meets the noble Lord's wish to see the social chapter incorporated. That is the method by which it is to be done.

The noble Lord, Lord Molyneaux, also made some comments about the importance of Sundays in Northern Ireland, and I welcome his support for the hours of 1 p.m. to 6 p.m. rather than the more open-ended commitment contained in the England and Wales legislation. He asked about the power to enforce protection for shopworkers. Let me try to deal with that. First, a shopworker with two years' service is in any case protected from unfair dismissal by virtue of provisions in the Employment Rights (Northern Ireland) Order, and such persons may take a claim to an industrial tribunal. In addition, if a shopworker feels that he or she has been discriminated against, whether or not they have been working there for two years, he or she may take a claim to the fair employment tribunal under the fair employment legislation. I believe that there is a fair measure of protection for shopworkers. I hope that the noble Lord will feel that those measures are adequate.

Lord Molyneaux of Killead

My Lords, I am grateful to the Minister for giving way. My main concern was as regards those employers who, having read in advance the drafts of the order, concluded that Parliament might well approve the order, and took the precaution of dismissing those employees whom they knew had a conscience clause. I understand that a recent tribunal held that the employer had a perfect right to dismiss the employee because the assurance was given verbally and not in writing.

Lord Dubs

My Lords, I am not familiar with the details of that instance. I shall be happy to look into the matter and write to the noble Lord. My understanding is that before the order comes into effect, a two year period should provide protection. I assume that the noble Lord is talking about employees who have not been working for two years. However, I shall look into the matter and get in touch with the noble Lord.

I also welcome and agree with the noble Lord's comments about whether large shops would be adversely affected by the more liberal opening hours for small shops. I agree with him that large shops are unlikely to be so adversely affected that their operations would be uneconomic. I receive occasionally applications for planning permission. Indeed, the number of large supermarkets seeking rapidly to open in Northern Ireland—suggests to me that they believe that the Northern Ireland market is a promising one for them and are not deterred by the proposed legislation which will have the 1 p.m. to 6 p.m. limitation.

The noble Lord, Lord Monson, regretted that the procedure for these orders in Northern Ireland is by unamendable orders. I have some sympathy with that proposition. But we therefore consult more than would be the case in England and Wales. Therefore the orders are the result of information and opinions from many people and organisations in Northern Ireland. Indeed, the supermarkets coming into Northern Ireland would surely have been fully aware of our proposals through consultation. I think that I have met representatives from all the supermarkets in recent months. I am not aware that they regard that as a problem as regards their commercial operations.

The noble Lord also asked about the results of statistics after consultation in England, Wales and Northern Ireland. Perhaps the noble Lord will allow me to write to him. It will be complicated to go through all the figures. I am not sure that I have them at my fingertips.

He also asked about the exemption for large shops in holiday resorts: ending the summer holiday period on 30th September. We have to make a cut-off point somewhere. With the climatic changes that seem to be under way, if we continue to have warm autumns we would be under pressure almost to allow a holiday exemption throughout the year on climatic grounds. We need to arrive at a balance between those people who legitimately want Sunday to be a particular kind of day, and the wish to have some shops open on Sunday. If we are to extend the period, we should be undermining the balance. I believe that from March to the end of September is a reasonably long period as a definition of holidays. It is intended to give shops in holiday areas a sufficient economic basis for their operations, since they are particularly dependent on the summer trade. I think that we have the balance right; that is the reason for it.

In conclusion, I am grateful for the supportive comments made in the House today. I believe that when the order comes into effect in Northern Ireland it will be widely supported. I think that we have got the balance right. I commend the order to your Lordships.

On Question, Motion agreed to.