Report
Lodging of the ‘Shops (Regulation of Opening and Deliveries) Law 200-‘(‘the Draft Law’)
Introduction
Sunday Trading is currently regulated under the Shops (Sunday Trading) (Jersey) Law 1960. The 1960 Law controls Sunday Trading through the issue of permits, which are granted by the Connétable of the Parish in which the business is situated. This Law limits the products which can be traded on a Sunday, Good Friday, Liberation Day and Christmas Day by way of a Schedule.
Controlling the sale of goods by means of a Schedule to the Law has presented a number of challenges. A recent example was the need to bring Regulations to the States to permit the sale of cut flowers, in order to remove the anomaly where such items could be sold on a Sunday at the place where they were grown but not from a garage forecourt or shop. Such rules are difficult to monitor and enforce.
Since the 1960s, there has been a growing demand to review and update the legislation, with the aim of making regulations governing Sunday opening more straightforward, logical and encompassing.
Scope of the Draft Law
The Draft Shops (Regulation of Opening and Deliveries) (Jersey) Law 200- is an enabling Law, which means that much of the precise regulation of Sunday Trading will be included in subordinate legislation rather than the Law itself. Once this new enabling Law has been sanctioned by the States and Privy Council, the Regulations governing this Law will be presented to the States Assembly.
Following the implementation of the new legislation, it is intended that applications will still need to be made to the Connétable of the Parish by businesses wishing to trade on a Sunday, and all businesses will retain the right to remain closed if they wish.
Limitations on Trading
The law establishes a proscriptive position, in that no business will be allowed to trade on Sunday unless permitted to do so by the Connétable, or unless exempt from the law (see below).
It is the Connétables’ firm view that trading on Sundays, Good Friday, Liberation Day and Christmas Day should be authorised by permit issued by the Connétable of the Parish. This new law enables the Connétable to impose any conditions considered appropriate, giving consideration to the timing and number of deliveries to the shop, traffic flows, noise and pollution thus enabling activity which causes a disturbance to the neighbourhood to be limited.
Also under this law, permits can be issued to shops to trade the goods that they normally sell, rather than a selection of government-approved items.
Currently, Connétables can only issue a single type of permit - which allows a shop to sell a list of goods every Sunday until 1st January of the next year. There will be more options under the new law, including provision to allow Connétables to issue temporary or limited permits, including permits to trade on one specific Sunday only. This will offer greater flexibility and some shops which communities would not want to see open every Sunday will be able to trade on special occasions, such as the week leading up to Christmas.
Sunday, Good Friday, Liberation Day and Christmas Day
The new Law limits the opening of a shop on specified days, Sundays, Good Friday, Liberation Day and Christmas Day. Although ‘Sunday Trading’ is used as a general term, it should be remembered that the 1960 Law, also treats Good Friday, Liberation Day and Christmas Day as ‘Sundays’ and limits Trading on these days.
There has been a creeping commercialisation of public/bank holidays and the majority of St. Helier shops are now open for example on the May and August bank holidays and many Christmas sales now start on Boxing Day. It was this creeping commercialisation that led to the States adding ‘Liberation Day’ to the Law in 1999 to ensure that this important day in the Island’s calendar was observed as well as Good Friday and Christmas Day.
The pressure from some of the major retailers to permit shops generally to open on Christmas Day has resulted in the United Kingdom government passing a Bill making it illegal for shops over 3,000 square feet (279 sq m) to trade on Christmas Day. This Bill received Royal Assent on 28th October 2004. Unless the nature of specific days is protected, then it is likely that many who work in the wholesale and retail sectors will not have the opportunity, like the rest of the population, to enjoy these as a common day off.
The new law offers better protection for these three special days, as it will allow Connétables, if they wish, to specify that a shop could trade on Sundays but not on Liberation Day or Christmas Day, for instance. This power is not available under the current law, which only allows ‘all or nothing’ permits.
Definition of Shops
There is an anomaly within the current law concerning businesses that deal in the provisions of services, as opposed to the sale of goods, such as hairdressers, barbers and tanning shops. It would appear that the provision of ‘services’ does not constitute the retail sale of goods under the 1960 Law and therefore a number of businesses regarded as ‘shops’ have in the past been able to open without restriction. This has caused difficulties, as the public perception is that such businesses are ‘shops’ and as such, should be covered by Sunday Trading legislation.
To avoid ambiguity, the scope of the new Law has been widened to include these businesses. The new draft law defines a shop as any premises, structure, vehicle or place used, whether permanent or temporarily, for any one or more commercial activities which includes the provision of goods and services.
Deliveries
Noise and disturbance caused by deliveries are a regular source of complaints to Connétables, particularly in respect of early morning deliveries on days regarded as a ‘day off’, i.e. Sundays and public holidays. Whilst it is currently possible for a Connétable to place conditions on deliveries to a shop granted a Sunday trading permit, there is no regulation of deliveries on Sundays to shops that are not open. The Connétables considered this to be an anomalous situation and therefore the draft Law provides for the States to introduce a scheme for the regulation of wholesale deliveries to any shops on the days specified in the Law, not just those granted a Sunday trading permit. It is to be hoped that it will not be necessary to introduce further restrictions but it is nevertheless prudent to ensure that action may be taken if required.
Appeals
Currently any appeal against a decision by a Connétable to refuse to grant a permit must be taken to the Royal Court. The new law permits the Comité des Connétables to consider appeals, and still allows the matter to go to the Royal Court as a final stage if the applicant is still dissatisfied.
Guidance for Connétables
The law empowers the Comité des Connétables to issue guidance in respect of the granting of permits. This, together with the power of the Comité to consider appeals, will provide a measure of central control to the process, and will help to establish an Island-wide consensus to avoid contrasting policies being applied in different Parishes. At the same time it ensures that the local community is respected by retaining the Parish Connétable as the first point of call.
Exempt Transactions
Under Schedule 1 of the current law, the following transactions are exempt from a Sunday Trading permit, and will continue to be exempt. The Law Draftsman has been requested to carry these exemptions forward into the new subordinate legislation –
• medicines and medical and surgical appliances at the premises registered under article 74 of the Medicines (Jersey) Law 1995;
• post office business;
• any business carried on the foreshore under a concession granted by the Minister for Economic Development;
• any business within the Port of St. Helier or Jersey Airport.
Services
In the consultation draft the term “services” appeared to be too widely drawn to cover a range of activities that the Law was never intended to capture. It was intended to remove the anomaly where a small shop selling “goods” could not open but for example, a hairdresser’s salon could. It was also not intended that the new Law should bring into its scope service activities that were not covered under the existing Law and which did not have similar characteristics to shops that sell goods.
The definition of services, has therefore been narrowed to exclude the provision of services at a place that is not occupied by the person delivering the service, such as at the home of the customer or to a vehicle on a public road.
Permits for Events
The draft Law will cover the activities of car boot sales, fetes, festivals, crafts fairs and similar. It would not be practical or desirable for participants in such events to apply for permits on an individual basis. Therefore it is the intention to allow for a Sunday trading permit application to be made by an event organiser which would cover the activities of the whole event, notwithstanding that it may contain independent retailers.
It is intended that the Minister will, after consultation with the Comité des Connétables, be able to designate times around key festivals such as the Fête dé Noué * and the Battle of Flowers where Sunday trading would be allowed by permit for all shops. Provisions have been included in the Law for the Connétable of a Parish to issue a blanket permit so that shops can trade without each shop having to apply for a licence individually.
Public Consultation
Consultation was carried out across to States Departments, Parishes, external organisations, religious groups, visitor attractions and a wide selection of retailers. An announcement was also published in the Jersey Evening Post inviting responses from members of the public and the consultation documents were available online.
The aims of the consultation exercise were –
• To identify those most affected by changes to Sunday Trading;
• To identify what changes if any, should be proposed.
The findings which were published in February 2008, reveal that from 237 completed questionnaires, 57% of respondents were in overall favour of Sunday opening, of which 41% supported some form of restriction and 16% favouring complete deregulation.
Additionally, during 2006 the Statistics Unit published their Annual Social Survey, which included a specific “focus areas” regarding Sunday. The social survey received 1540 responses from over 3500 random households.
The survey revealed that eight out of ten people want some relaxation to Sunday Trading rules, with half of these favouring restrictions, a third no restrictions and a fifth not wanting any Trading.
Lastly, an investigation was conducted to ascertain if Public opinion on Sunday Trading varied in relation to residential proximity to an area which may be affected by the deregulation of Sunday Trading (the Supermarket Postcode Survey).
For this purpose a sample of eight supermarkets was identified, ranging both in size and location across the Island. Two radius “zones” were then placed around each supermarket, one at a quarter mile, the other at a half mile. Residential locations within each radius where then identified utilising postcodes with the aid of an external statistical organisation.
No major differences in opinion on Sunday trading between respondents near a supermarket and the Island population as a whole were identified.
For the full report of the findings of the Jersey Annual Social Survey, the Public Consultation and the Supermarket Postcode Survey see Appendix 1 of the accompanying report to the Shops (Regulation of Opening and Deliveries) Law 200-.
Conclusion
Further to the Public Consultation and the Jersey Annual Social Survey the majority of responses indicate that some relaxation in regulation would generally be acceptable. Sunday trading is a complex issue and considerable thought has been given to all the issues involved during the drafting of this Law and there has been a wide degree of consultation on the subject. It is hoped that the Law will meet with the approval of the States as, without such a framework, it will be impossible to progress a new scheme and there will continue to be considerable dissatisfaction with the current Law.
The Regulations under this enabling Law are intended to be presented to the States after the enabling Law has been approved and Royal Assent granted.
Retail Strategy Manager
16 June 2009
gov.je