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Lord Bridges: My Lords, before speaking to the order, I should like to declare a recent past interest, having served for eight years as an independent member of the board of the Securities and Futures Authority, and, throughout that period, on its disciplinary committee.

Having read the account of the meeting of the Standing Committee in another place on this matter, and having read, in particular, the speech of the Economic Secretary, the substance of which has just been repeated by the noble Lord, Lord McIntosh, I have no doubt that it is right for us to assent to the order. At the same time, despite what the noble Lord, Lord Mackay, said, I cannot help feeling some mild surprise that this situation was not foreseen. It is not a situation that we wish to see repeated--that we proceed by order to ratify something which has already been in place since 10th November.

It is also pertinent to observe that the Financial Services Act 1986, under whose authority the order is to be implemented, is to wither away shortly. It is nearing the end of its life, given the announcement made by the Chancellor of the Exchequer--in May, I believe--of his intention to terminate the system of regulation established by the 1986 Act and to create a wholly new supervisory authority to be called the financial services authority. It is a matter of some concern to me that although the FSA is in the process

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of being set up--and many experienced staff are being transferred from the existing SFA--the new authority has no legal base whatever. I understand the Government's explanation that their legislative programme for the current Session does not permit the introduction of the necessary Bill until the next Session, but if discipline is to be maintained in the meantime, in effect under the auspices of the existing authority, there is surely a risk that some of those being disciplined when they have sufficient determination and resources to employ the requisite legal skills, may seek to have the disciplinary process overturned on judicial review on the ground that the new authority is acting ultra vires.

I urge the Government to obtain the necessary legislative cover for the new body to operate legally as soon as possible in order to avoid such a calamity. I would have supposed it possible that a single clause Bill might have been drafted, introduced and passed without controversy through both Houses of Parliament, but, from messages which reached the SFA from the Treasury, I understand that that was not possible. If nothing is done, I may find it necessary to return to the matter when we come to consider the Bank of England Bill, since it might be possible for such a clause to be inserted in that Bill. I am sure that the noble Lord, Lord McIntosh, will understand that I am speaking entirely as a private individual and I do not bear any message for him from the Securities and Futures Authority.

Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for their response to the order and for their welcome of it, with provisos. The noble Lord, Lord Mackay, is right: I made sure that I was briefed on the fact that he had introduced the extension of scope orders which were comparable to this order. If he had complained in the way that the noble Lord, Lord Bridges, has complained I should have been able to quote them to him.

The principle that we should not be introducing orders to Parliament after they have come into effect is sound. I will convey to Treasury Ministers the message that it is undesirable and should be avoided if at all possible. The sensitivity in respect of ratification of an order which has already come into effect was the reason why I introduced my exposition of the order's provisions by an elaborate, perhaps even over elaborate, apology to the House. I extend that apology to the noble Lord, Lord Bridges, who made perfectly valid points about ratification of orders which have already come into effect.

I can reassure him about the legality of what happened in the establishment of the FSA on 28th October. The FSA is a change of name from the Securities and Investments Board and has the same status in law as the board. Provided that it does not go outside the functions of the SIB, it is not at risk of acting ultra vires and therefore there is no risk of the judicial review to which the noble Lord referred.

The powers of the FSA will be extended progressively. When the Bank of England Bill now before the House of Commons receives Royal Assent, those powers will be greatly extended with the transfer of powers from the Bank of England. But even as at

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present constituted, it is a legal body. It is the same body in law as the Securities and Investment Board and we do not anticipate the risk to which the noble Lord has referred.

Having said that, and I hope having reassured the noble Lord, Lord Bridges, I repeat my gratitude for the reception to the order and I commend it to the House.

On Question, Motion agreed to.

Shops (Sunday Trading &c.) (Northern Ireland) Order 1997

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.

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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

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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

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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.


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