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Sunday Trading (Horticulture) Bill [HL]

Volume 701: debated on Friday 16 May 2008

My Lords, I beg to move that this Bill be now read a second time. In doing so, I declare a number of interests. I am a landscape contractor, a member of the Royal Horticultural Society and a member of the All-Party Group on Horticulture and Gardening.

The issue of extending the hours of opening for large garden centres was last considered in Parliament in 1994 during the passage of the Sunday Trading Bill, where an amendment proposing that large garden centres should be exempt from closing on Easter Sunday was defeated on a free vote, as a number of noble Lords will remember. This was followed by a review from the then Department of Trade and Industry which started in 2006 and consulted widely on the broader principle of deregulating Sunday trading hours across the whole sector of large retail shops. The conclusion of the review was announced on 6 July 2007 and stated that there was to be no change in the Sunday Trading Act 1994.

However, when the Department of Trade and Industry reviewed the issue it looked at large retail shops as a whole. I instead ask noble Lords to consider the issue relating specifically to large garden centres, not linked to other large retail shops. I ask this as garden centres exhibit different characteristics to other large retail outlets and fit equally within the leisure industry as within the retail industry.

In the 1994 Act large garden centres fall under the definition and categorisation of large shops. This definition equates to an internal trading floor area of more than 280 square metres. The Act therefore limits the Sunday opening hours of these large shops to a maximum of six continuous hours between 10 am and 6 pm. It also prevents large shops—and, within that definition, large garden centres—from opening at all on Easter Sunday. In addition, all large retail units will continue to be subject to the Christmas Day Trading Act 2004, which prevents them opening at all on Christmas Day, an issue that this Bill will not address.

Under the current legislation a significant proportion of garden centres fall into the large-shop category purely because of the nature of the products they stock. There is little need to describe how display space for plants, shrubs and even small trees takes up a considerable floor space. Without doubt, products sold in garden centres tend to be larger than other fast-moving consumer goods to be predominantly found in other large retail units. Of course, there are other considerations: stock such as plants has special requirements that other retailers’ stock does not—for example, access to light and water to keep it alive—and that is before any thought has gone into how to make stock easily accessible to customers for purchasing, with many garden centres, in particular, keen to ensure that access is possible for the elderly and those who suffer a disability.

The very nature of garden-centre products leads me to believe that garden centres are unlikely to be competitors for neighbouring shops and other small retail businesses. Indeed, since 1994 when the Act was passed and during last year’s Department of Trade and Industry review, the Horticultural Trades Association did not receive notification from any small business or body representing small businesses regarding any concern about a negative impact on trade from extending the opening hours only for garden centres.

The need for large floor-space is further evidence that garden centres are no threat to other small businesses, their location often being remote in comparison to centres of population. In many cases, their only retail competition would be the local garage shop, which could only view visitors to garden centres as providing complementary trade as opposed to competitive trade.

As a consequence of gardening being one of the most popular activities in the United Kingdom, demand for garden centres is high. Indeed, the Horticultural Trades Association’s The Great British Gardener report published earlier this week tells us that an estimated 81 per cent of the UK population over 15 claim to have access to space to grow plants, while 73 per cent of the population say they have access to a garden. Thus driven by this country’s love affair with gardening, demand for the products and services provided by garden centres is continually high. However, the majority of sales are made during the period between early spring and early summer. As a consequence, it is this period when garden centres generate the majority of their sales for the year, estimated at about 60 per cent of total annual turnover. Any closure or loss of sales during that period can have a damaging effect on turnover and subsequent profits.

It is estimated by the Horticultural Trades Association that sales are reduced by as much as £90 million because of the current restrictions in the 1994 Act. Anything which can give garden centres more sales time during that period would significantly boost turnover and provide job security for those working in garden centres, especially in the face of stiff competition from the large supermarkets, which are beginning to show signs of moving into the UK plant-sales sector. Such an increase in demand during this period can lead to consumer dissatisfaction, especially given today’s hectic lifestyle, which means that the time available to gardeners to shop for plants can be limited to a brief period at the weekend. The six-hour period on a Sunday when garden centres can open limits this further and can mean families and gardeners diverting their attention away from something which can have large and positive benefits in supporting a healthy lifestyle and bring positive environmental benefits as well.

The Bill inserts relevant paragraphs into the Act which create the machinery for local authorities to set extended Sunday trading periods by resolution. The 1994 Act defines a local authority as a district or unitary authority. Therefore, where an authority has executive arrangements such as a Cabinet or an elected mayor, a new paragraph in the Bill will require a resolution to be considered by the whole authority, not just the executive. This will mean that broad consensus at a local level will need to exist before garden centres receive the power to extend trading for even short periods. That will assimilate the exercise of this power to other significant local authority powers; for example, the power to make by-laws.

Allowing local authorities to make this judgment, potentially following an application from a garden centre for the right to trade for a greater number of hours on a Sunday for a limited period, will mean that decisions about access to garden centres will be made close to the communities they affect by local councillors with detailed local knowledge of their areas. It will be difficult for large retail centres to hoodwink local councillors, who will probably use these very same garden centres themselves, about their being wholly or mainly retailers of horticultural supplies when they are not. This will also give local people an opportunity to have their views heard about the potential extension of trading hours for garden centres serving their communities.

The Bill will extend to England and Wales and has the potential to allow Sunday opening similar to that already enjoyed in Scotland. We have considered the concerns of trade unions such as USDAW about the impact on families of any increase in retail opening on a Sunday, and suggest that, within the limited extensions that the Bill seeks to provide, any impact is expected to be minimal. If staff come in for six hours then their Sunday has already been interrupted, and I expect that their staying on for an extra two hours will possibly give them additional flexibility during the rest of the week. We will of course be prepared to engage in more formal discussions with Usdaw and other interested parties as the Bill progresses.

Any worry that the Bill would be used to extend opening hours outside garden centres can be allayed by Clause 1(2), which inserts into the 1994 Act a new definition of “garden centre” as,

“a large shop where the trade or business carried on consists wholly or mainly of the retail sale of horticultural supplies”.

That definition is inserted to ensure that the Bill is strictly limited to garden centres and is not available to other retailers.

That brings me on to the issue of Easter Sunday opening. Noble Lords are no doubt aware that in most years Easter Sunday will fall in the middle of the peak period of garden-centre activity, thereby possibly reducing the selling days available to garden centres during that period of high demand. I understand the concerns about keeping Easter Sunday special, and we would be prepared to follow noble Lords on this issue and to discuss it further. As it stands, the Bill would amend the Act to ensure that this decision fell within the responsibilities of the local authority, as I outlined earlier. I suggest that this approach would suffice, but I am keen to hear from other noble Lords on this point—which I am sure I will.

In addition to the sale of horticultural supplies, many centres also offer well used café facilities and free expert advice pertaining to garden design and upkeep, and showcase the best practice in gardening techniques. That means that an outing to the garden centre becomes not just a visit to stock up on horticultural supplies but a full-blown leisure activity, nurturing and encouraging participation in the nation’s favourite pastime, with millions of practitioners. I therefore ask noble Lords to consider the Bill as relating in part to leisure activities and not purely to retail services, as was considered by the 1994 Act. It is in that vein of thinking that I ask noble Lords to give the Bill a Second Reading.

Moved, That the Bill be now read a second time.—(The Earl of Courtown.)

My Lords, it is many years since I was associated with the passing of the original Sunday Trading Act, probably in the guise of my noble friend Lord Ferrers’s fag. At the same time I was Minister for Horticulture and therefore had a keen interest in what was going on in that Act. While I recognise that the chance of a paid Sunday job may suit some people extremely well, others do not feel the same about being compelled to work on that day. Will my noble friend Lord Courtown say whether the relevant trade union is satisfied with the contents of his Bill?

My Lords, I apologise for not having been alert to the arrival of this Bill. I was wrongly under the impression that it would be on the next sitting Friday, and therefore I gave notice only an hour before it started that I wished to speak in the gap.

I am concerned with the 1994 Act and with Sunday trading. The issues to which I hope to return in Committee are the effect that the proposals will have on the family life not of people bringing their children to the garden centre but of the people staffing it. I shall also want to investigate the extent to which this small opening of the door of the wall that was originally, by parliamentary agreement, set around working times on Sunday may lead to further extensions, not least among the supermarkets and DIY trading stores that are already getting into this market.

On the matter of Easter closure, the noble Lord is good enough to draw our attention to the fact that that could be changed by the Bill. I merely remind your Lordships that, in the Roman Catholic Church, Easter Sunday is formally a holy day of obligation, and it is informally so in the Church of England.

The idea of devolving responsibility for the decision to local authorities may seem to be a good way of giving people their say, but in Committee I shall examine the effect of different adjacent local authorities having different policies and the effect that will have on the trades concerned.

My Lords, I shall add a few words, stimulated by my noble friend Lady Trumpington saying that she acted as my fag—a most unsuitable description. She was frequently a great help.

I am appalled to hear my noble friend say that he intends that garden centres should be open on Easter Day. I remember taking through the Sunday Trading Act 1994. We had a great battle over days when garden centres should not be allowed to open, and Easter Day was one of them. It would be a retrograde step if that were changed.

My Lords, I thank the noble Earl, who is a good friend of mine, for introducing the Bill, and congratulate him on his courage in doing so. You tangle with Sundays at your peril, and tangling with Easter Sunday might be regarded as leading with one’s chin. Still, the noble Earl is a big lad and he has taken his knocks before.

Noble Lords who have intervened in the gap today have put their finger on the whole problem of extending Sunday trading. Staff are the first issue. They need their one day off a week; any sane employer rests their staff when they can. Through May, June and July, we in this House get the idea that we are being overworked, tempers get frayed and we are not quite as good at the end of the day as we are at the beginning. Resting is important for staff, both for their home life and for their ability to work. Any extra pressure on them, even if it just another two hours of their time, should always be examined carefully. There are other bits of legislation and directives covering the number of hours worked, and so on. The noble Earl has said that discussions are going forward, but this is an area of genuine concern that needs to be looked at.

Then there is the question of who decides about this. Let us say that larger garden centres are part of a leisure pursuit. That can be quite a pleasant thing. However, I must admit that when I last chose a garden centre to spend some time and, let’s face it, quite a lot of money at, I chose it because it had a good restaurant—or the best restaurant available. My shopping basket when I left had some interesting local beer that was provided there and was for sale, one or two things for the garden, and children’s books got in there as well. I had a considerable number of things.

It would be interesting to see—and perhaps the noble Earl and the other supporters of the Bill will consider this—exactly what would be excluded from this measure. For instance, it would be quite acceptable to say that certain parts of the complex might not be used on a Sunday; that might make the proposal more acceptable, under the circumstances. Simply not opening one or two tills might make it a slightly more interesting concept, for some people. I do not make a stronger commitment to it than that. Certainly, that is the definition of what is going on. But the noble Earl is correct in saying that Sunday is your leisure day so, if you get hold of plants, you do not particularly want them to be sitting around for a long time, especially if the weather is hot. You want to get them into the ground. I can see that he definitely has a point there, but it is the balance that we are talking about—it is always the balance.

The noble Lord, Lord Elton, mentioned the big problem with local authorities: where does one authority begin and another end? But the fact that local authorities might have the final word on this is attractive. Anyone who speaks from these Benches, even when they are full—or empty, as they are now—has to bear in mind that it is an attractive idea that you can decide whether there is a small extension of hours. That is probably the most interesting and innovative part of the proposal.

I do not know what the Government might think about this. Are the civil servants behind the noble Lord, Lord Jones, saying, “No, at any price—never”? It is an interesting idea that you might have a small degree of control over one aspect of that. We all know that with Private Members’ Bills you need a bit of luck and persistence to get them through, and you need to listen. I hope that with that bit of luck and persistence we may be able to progress on this and see whether we cannot reach some form of compromise. Other than that, I listened with interest to what the noble Earl said and I certainly have no objection to the fundamental principle behind this.

My Lords, I thank my noble friend Lord Courtown for allowing us to revisit the restrictions on the types of business that are allowed to open on Sundays in England and Wales, which were relaxed by the Sunday Trading Act 1994—which has been referred to by those who brought it in. I thank him also for giving the House the opportunity to learn more about how the face of retailing has changed in Britain over time. He represents a retail-leisure industry that has grown hugely in popularity in our garden-mad country. I am sure that the exercise and peaceful pleasure, as well as the increasing food production that so many people are now enjoying in their gardens, will mean that this Bill has a sympathetic hearing today.

Sentiment aside, this Bill is based on the desire of a trade group to give local authorities the powers to exempt garden centres from the restrictions placed on large shops. Under my noble friend’s Bill, garden centres could open on a Sunday for a maximum of eight hours between 9 am and 7 pm. Local authorities would have the power to pass a resolution allowing garden centres to open during these hours and could specify whether garden centres in their area could open on a Sunday, on specific Sundays or on a maximum number of days.

We understand that the Department for Business, Enterprise and Regulatory Reform believes that the 1994 Act established a reasonable compromise between those supporting unlimited opening of all shops and those totally opposed to trading on Sundays. There are certain exemptions to the restrictions on large shop openings; farm shops, off-licences and pharmacies are exempt from the six-hour restriction. Shops with an internal floor area of less than 280 square metres—that is, small shops—are not restricted in the hours that they can open on Sunday. That explains why the little Tesco around the back of Great College Street amazed us all when it opened up by being able to open seven days a week, from 7 am till 10 pm.

Your Lordships may be comforted to know that Schedule 4 to the 1994 Act contains employee protection relating to Sunday working. Even those who have taken up employment since August 1994 and whose contracts currently include Sunday working have the right to give notice to their employer that they are not prepared to work on Sundays. That seems to work well, and I hope that we will see no change there.

We have two questions for my noble friend Lord Courtown. What criteria does he envisage local authorities considering when deciding how many Sundays a garden centre should be open for? Secondly, can he confirm that a local authority resolution to permit extended Sunday trading by garden centres would apply uniformly to all garden centres in the local authority area?

My Lords, I got off a plane this morning from Abu Dhabi, where I was representing UK trade and investment in the Gulf this week. When I was there yesterday I was reminded that Abu Dhabi is one of those fabulous states that is really emerging into the globalised economy. It is doing very well and is a good friend of Britain—and it is greening. All the yellow is being moved to a land of green. It does the heart good, when you are banging the drum for British business, that some of the know-how from the companies selling the skill to develop grass and plants in a very arid part of the world comes from British businesses coming out of the horticultural sector of this country. Knowing what I was going to be doing after I got off the plane this morning, I thought that I should just remind noble Lords that this is another skill that this country has, which comes straight out of garden centres in this country. But I have to say that I do not think that opening on a Sunday is something that troubles Abu Dhabi.

The Department for Business, Enterprise and Regulatory Reform actively supports the aspirations of all British businesses. We welcome the opportunity to think creatively about what we can do to help the horticultural sector thrive. I personally have a reputation, which I am delighted to have, for being a free trader and for allowing businesses to operate in as deregulatory an environment as possible. Therefore, I come at this today looking for creative solutions and, I hope, a way forward, because to allow businesses to thrive and get on must be at the heart of competitiveness in a globalised economy. Indeed, I can assure the noble Lord, Lord Addington, that the answer is not, “No, never”. The door will always be open to creative ideas on this subject, which is under constant review.

I am also grateful to the noble Baroness, Lady Wilcox, for taking us through the current law, which is complicated and not very well understood by the shops of this country, let alone the consumers. I guess that Sir Terry Leahy is also extremely grateful at Tesco for her ad for the opening hours of Tesco in Great College Street.

There are more than 200 garden centres in the United Kingdom, represented by the Garden Centre Association. I understand that the most recent figures available indicate that the entire horticultural sector may have been worth just under £5 billion—about £4.9 billion—in 2006. Those are big numbers. Garden centres contribute significantly to that total, and I suspect that those consumers who made more than 140 million customer visits to garden centres in 2006 thoroughly enjoyed the pleasurable activity. However, I agree with the noble Lord, Lord Addington, when he said that in the baskets that people took away from those centres there were probably a fair few things that had precious little to do with gardens. That, of course, would cause disquiet in other shops that were not allowed to do the same sort thing.

I am therefore grateful to the noble Earl, Lord Courtown, for providing me with this opportunity to address the proposed effect of the Sunday Trading (Horticulture) Bill on the centres in England and Wales and to consider the wider effects of the Sunday Trading Act 1994.

I have listened with interest to the views of noble Lords. I recognise the perspective that the noble Earl, Lord Courtown, and his supporters take on the Bill. Indeed, a free-trader such as me has sympathy with certain areas of it. However, the Government consider that views aside from those of the Horticultural Trades Association should be taken into account before the Bill proceeds through the House.

Before I discuss the Government’s view on the central issue set out in the Bill, I must explain how the Department for Business, Enterprise and Regulatory Reform has looked at the matter in the past. During several months in 2005 and 2006, what was then the Department of Trade and Industry sought the views of large and small retailers, faith groups, trades unions and the wider public on the effectiveness of the Sunday Trading Act 1994. Since 1994, the Sunday Trading Act has regulated the number of hours within which large shops—those over 280 square metres—may operate on Sundays. As noble Lords may know, large shops can open only for six continuous hours on Sunday between 10 am and 6 pm. Large garden centres come within the Act. Two years ago, as a valuable complement to that DTI review, my ministerial colleague the Member for Croydon North debated Sunday trading with Members of the other place. He welcomed the openness of that discussion and the variety of views, many strongly held, that were set out.

The Government recognise that speakers on that occasion held a variety of views on Sunday trading. They seemed to agree, however, that a balance had been struck when the 1994 Act was drawn up in relation to the interests of retailers, consumers, shop workers and those who wished to preserve the traditional place of Sunday as a day distinct from the rest of the working week. I am grateful to the noble Lord, Lord Elton, and the noble Baroness, Lady Trumpington, for highlighting that there is a significant sector of our society to which Sunday is extremely special in many ways. We must not in the great quest for competitiveness and free trade ignore those views. A sense of community and what is right to certain communities matter in societies such as ours.

The DTI’s review was timely, as the Sunday Trading Act 1994 had been in place for more than a dozen years and the balance of stakeholders’ interests needed to be re-examined: it is a constantly changing environment. The Government needed to reflect on stakeholders’ thoughts and learn more about what appetite there was for partial, or complete, deregulation. The community of stakeholders with which the Government engaged to realise this goal included large and small retailers and community groups especially, as well as the usual vested interests. Close to 1,000 responses were received during that consultation. Many of the views expressed, as your Lordships may guess, were disparate.

The Horticultural Trades Association told the department that its members found themselves at a disadvantage because of the six-hour limit within which they were allowed to sell their goods on a Sunday. It believed that customers at garden centres were disadvantaged particularly when they turned up early, expecting their local garden centre to be open, and found that, as a consequence of the six-hour trading limit, it was not. Even worse, given that it is important to ensure that the customer always leaves a retail outlet with a good feeling, customers were on many occasions caught off guard by being asked to leave the sales area at a time which they considered to be early in the afternoon, again only because of the six-hour limit that garden centres face. One can almost hear now the assistant responding to complaints by saying, “Don’t blame me; blame the Government”.

While the DTI took those sector-specific views into consideration as part of the review, it recognised that the trades association was not able to provide evidence to reinforce them. After carefully considering all the views received during the consultation, including, I assure your Lordships, those of the Horticultural Trades Association, the then Secretary of State, Alistair Darling, announced in July 2006 that there would be no change to the existing Sunday trading law. He confirmed that the Sunday Trading Act had been in place for many years, that the Government should look at whether it was still appropriate, and contemplate changes if they were appropriate. The Government decided that that was not the right step to take at that time. It will come as no surprise, therefore, that the Government have issues with the Bill.

The House will appreciate that the Government need to consider a range of evidence from across the social and trading piece. The key principles of better regulation compel them to consider carefully the impact of proposed regulatory change before action is taken. Any such action should be proportionate to the need for change.

It is a principle of good government, therefore, that Ministers ensure that there is a compelling case for change. They should be sure that the interests of business, employees and consumers have been taken into account and that they can be met equitably if change is to be effected. When considering their position on the Bill, the Government had to consider the appropriateness of the existing regulatory framework. They also had to consider the evidence indicating that change was necessary.

I hope that the noble Earl, Lord Courtown, and other noble Lords appreciate why the Government, after giving the changes set out in the Bill the necessary consideration, are compelled to voice reservations about the change that the Bill advocates. We are being asked to consider the Bill without supporting evidence and in the absence of other relevant points of view, as I have just recited.

The Government’s view might of course be affected in future should the appropriate evidence be presented to them. As I assured the noble Lord, Lord Addington, this is not “no, never”. The evidence should indicate what impact there might be on employment, the economy, on competitiveness and wealth creation. Noble Lords may be assured that this Minister will always take those into account. The Government might reconsider their view also if they knew the views of all interested stakeholders and not just those of one trade association, no matter how right it may feel that they are. For example, we would be interested to hear the Garden Centre Association’s view of the Bill’s proposals, especially if it has some statistical information that might help quantify the scale of any disadvantage consumers experience due to the present Sunday trading regulatory arrangements.

It would be wrong to ignore or fly in the face of properly and honourably held views about the position of Sunday in our society. The noble, Earl Lord Ferrers, mentioned Easter Day, which has significance in the hearts of so many people in this country. However, it moves around—this year was the earliest Easter Day for nearly 100 years and I doubt whether many garden centres suffered much loss of trade in early March. The views of relevant employers and trade unions would also be relevant to us if we re-evaluate the present legislation.

Having given the House the news, I again thank the noble Earl, Lord Courtown, for the opportunity to discuss his Bill. I give the House the assurance that I shall, of course, ensure that the report of this debate is shown to the relevant Minister in the Department for Business, Enterprise and Regulatory Reform. I will also recommend that my officials follow the progress of the Bill through the House. I welcome the subject being aired one more time and encourage the development of more statistical evidence.

My Lords, I thank my noble friends for their constructive points—that is probably the best way of putting it. A number of points have been made and, if they excuse me, I will write to my noble friends with answers to all their questions. I was pleased that my noble friend on the Front Bench pointed out employment rights in the 1994 Act which had escaped my view. I also thank the Minister for his encouragement—a bit of a curate’s egg, I suppose. I thank all who took part in the debate.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at 12.49 pm.