Sunday Trading: A Drama in Five Acts
| Date | 01 May 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01952.x |
| Published date | 01 May 1994 |
May
19941
Sunday
Trading
defence. (iii) Although the principles articulated by the majority produced a fair
result on the facts, the arguments of doctrine and precedent employed to justify the
principles were not persuasive. (iv) The decision has permitted a critical ambiguity
in the scope of the Bowmaker rule
to
linger on. The
'unruly
horse' of public policy
continues its blind gallop through the doctrinal forests of illegality.
Sunday Trading:
A
Drama in Five
Acts
Catherine
Barnard*
Parliament has finally spoken: after years of delay, prevarication and protracted
legal challenges,
MPs
have at last made up their minds about Sunday trading in a
late night Commons vote last December. The story of the legality of trading on
Sunday is
an
intricate tale with byzantine twists and
turns,
from
which neither the
British legislature nor the European
Court
of Justice have emerged unscathed. The
most recent decision of the Court of Justice in
Council ofthe City
of
Stoke-on-Trent
and
Norwich City Council v
B%Q
plc'
was
an
attempt to resolve some of the
problems which have arisen concerning the compatibility of national law
on
Sunday trading with Article
30.2
However, in order to understand the
significance of this decision it is important to appreciate the legislative and judicial
history of
this
case.
Act
I:
The Background
to
the Drama
(i)
The
Shops
Act
1950
Section
47
of the Shops Act
1950
states that:
Every shop
shall,
save
as
otherwise provided by this Part of this
Act,
be closed for the serving of
customers on Sunday.
Shops may, however, serve customers on Sunday with any of the items listed in the
notorious Fifth Schedule to the Act. These items include intoxicating liquors,
*City Solicitors'
Educational
Trust
Lecturer
in
Law, University of Southampton.
I should like
to
thank
Patrick
ooodall
and
Dr
Nicholas
Emiliou
for their advice.
1
Case
C-169/91, [1993]
1
All
ER 481. The judgment was conveniently
handed
down
two
days before
the end of the legal term
so
there was little
time
for any further legal action
to
be taken in an effort to
frustrate lucrative Sunday trading
leading
up
to
Christmas.
2
'bee
cases
were actually referred
to
the
European
Court, of which
Srok-on-7kenr
was the
third.
The
first, C-306/88, concerns proceedings brought by Rochdale Borough Council against Stewart Anders
who was charged with
opening
his shop unlawfully on Sunday. Rochdale BC also applied
to
the High
Court for
an
injunction restraining
Anders
from
opening
on Sunday. The High Court asked whether, if
the Sunday trading ban contravened Article 30
and
was not justified under Article 36, it was totally
unenforceable against a trader
in
the Member State
or
only unenforceable
to
the extent that it
prohibited
transa&
'OM
involving
goods
manufactured in
or
imported
from other Member States. The
second,
Case
C-304/90, involved
20
informations laid by
Reading
Borough Council against Payless
DIY
Ltd,
Wickes Building Supplies
Ltd,
cfreat
Mills
(South)
Ltd,
Homebase
Ltd
on the one
hand,
and
B&Q
on the other. The
parties
agreed that the rules on Sunday
trading
constituted a
measure
having an
equivalent effect
to
a quantitative restriction on trade within the meaning of Article 30, but
the
Magistrates referred questions to the
European
Court
as
to
the interpretation of the
European
Court's
judgment
in
Torjiuen,
Case 145/88, [1989] ECR 3851.
0
The
Modem
Law
Review
Limited
1994
449
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