Sunday trading laws illustrate the tyranny of the status quo
Too late, I remembered our Sunday trading laws – which mean that stores with over 280 square metres of floor space can only open for six hours between 10am and 6pm. On Easter Sunday they can’t open at all. Smaller shops, however, can open at will.
Younger readers may not understand why this is so. Let me tell you, as I have some personal history with this.
Back in the 1980s, the Shops Act of 1950 was still in operation. It preserved in amber the attitudes and assumptions of the late 1940s, placing what to today’s younger generations are now scarcely believable restrictions on what could be sold on a Sunday, and who could sell it.
You could buy cigarettes or ice cream, but not frozen vegetables or fish fingers. Other anomalies reflected the type of retail outlet allowed to open: you could buy newspapers and porn mags, but not bibles, fresh cream but not evaporated milk. You could buy bicycle spares, but not a bicycle, have your shoes repaired but not buy shoelaces.
Incidentally, these laws only applied to England and Wales; Northern Ireland had its own rules, while Scotland had no Sunday trading restrictions at all. It still doesn’t.
There had been more than twenty failed attempts, mainly by private members’ bills, to reform Sunday trading laws when Mrs Thatcher’s government decided to take the matter in hand. However, its attempt at reform in 1986 was defeated by a Tory rebellion, when 72 backbenchers defied a three-line whip. This was the only major Parliamentary defeat in Mrs Thatcher’s time in office.
It was the result of lobbying by Keep Sunday Special, a bizarre alliance of trade unionists, traditionalists, Sabbatarians and some prominent food retailers and department stores. This was a classic illustration of public choice theory. Concentrated lobby groups with a strong commitment to a particular issue tend to dominate over more dispersed consumers (which opinion polls at the time showed to be clearly in favour of liberalisation).
But in this case the Parliamentary vote proved to be a Pyrrhic victory. The Sunday trading laws were now exposed as inappropriate for the kind of economy and society which was emerging in the late twentieth century. The laws were increasingly challenged as businesses went ahead and opened on a Sunday anyway – and were prepared to fight for the right to do so before magistrates where necessary. Often, though, it wasn’t necessary, as local authorities (responsible for enforcing the law) turned a blind eye.
Around this time, I became peripherally involved with Open Shop, a pressure group headed by B&Q’s Nigel Whittaker. DIY retailers and garden centres were amongst the keenest advocates of Sunday shopping, as you might guess.
Together with my late pal Terry Burke, I wrote a paper for the Adam Smith Institute pushing the arguments for liberalising the law; John Burton (still on the IEA’s Academic Advisory Council) produced a similar report for the IEA.
Terry and John also developed a line as ‘expert witnesses’, touring the country to appear in provincial courts to offer economic arguments in support of retailers which were in the dock for breaching the Shops Act. I didn’t get involved with this, though I did background research and made quite a few radio appearances pushing the case. One I remember involved a heated exchange with a representative of the John Lewis Partnership. The ‘partners’ (who had until recently not even opened on Saturday afternoons) perhaps unsurprisingly didn’t fancy Sunday working.
Eventually, under John Major, the nettle was grasped again, and the Sunday Trading Act 1994 was passed into law. Because of the continuing strength of the Keep Sunday Special lobby, it had to be the compromise we still have today.
The restricted hours were supposed to facilitate church attendance; there was a clause which USDAW wanted, saying that those who started work with a retailer prior to 1994 could not be required to work on Sundays; and the restrictions applying to large stores were to protect smaller family retailers.
The last 27 years have seen major changes in society and in the retailing sector. Church attendance is a third of what it was in the 1980s, and the ever-shrinking Church of England is no longer the Conservative Party at prayer (in Maude Royden’s famous phrase); only 6% of its clergy voted Tory at the last election. Unions exercise little power today. Consumers can now order groceries, food and all manner of goods online for delivery at any time, and bricks-and-mortar retailing declines in importance all the time.
Little shops survive, but many of them are just pocket-sized versions of the big grocery stores. With the big Sainsbury’s closed, I went down the street to the Tesco Express. I got more limited choice, and probably higher prices, but I wasn’t supporting a small family outfit but ironically contributing to the profits of an even larger retailer than the one I wanted to use.
The restrictions, then, no longer make sense even in their own terms. Those who agitated for them are dead or deep in retirement. If we had never had such laws, like Scotland, who would ever seriously advocate their introduction? But the rules have proved resistant to scrapping by private members’ actions, and two government consultations (in 2006 and 2015) have led to no further changes. The current government has neither inclination nor time to repeal them.
It is a relatively trivial matter. I am not seriously deprived by having to substitute Tesco’s yoghurt for Sainsbury’s on a Sunday evening, or having limited hours in which to purchase power tools or garden gnomes. Although abandoning opening restrictions might create a few more jobs, it is probably not worth a song and dance about. But it is typical of an economy which is regulated more and more every day, and rarely if ever deregulates even if the original reasons for regulation no longer apply.
In our ever-changing society, we should never try to freeze particular patterns of demand and supply by law. If we must have them at all, regulations which prevent or restrict economic activity should be time-limited. After twenty years, or whatever sunset period is thought appropriate, regulations should lapse. To renew them, Parliament should have to debate and vote again. We should not remain tethered to the choices of previous generations.