Draft Shops (Regulation of Opening and Deliveries) (Jersey) Regulations 201-
Report
These Draft Regulations provide a mechanism for shops with a retail sales area in excess of 700 square metres to trade for a period not exceeding six hours on Sundays throughout the year and on Good Friday and Liberation Day. They also clarify the rules affecting shops that sell road fuel.
Background
Prior to 2011, Sunday trading (and trading on Good Friday, Liberation Day and Christmas Day) was regulated under the Shops (Sunday Trading) (Jersey) Law 1960. It did so by restricting the type of goods that could be sold and via a parish-administered permit system.
By the turn of the Millennium, the goods-based method of regulation was becoming unsustainable. Whereas food shops and newsagents needed a permit to open on a Sunday, hairdressers and launderettes did not. A permit could authorise newspaper and magazine sales on a Sunday but not DVD movies. When, in 2007, the States adopted an amendment to allow all shops to sell cut flowers, one States Member asked why the clause did not seem to allow for the sale of small potted plants as an alternative.
The Shops (Regulation of Opening and Deliveries) (Jersey) Law 2010 and the subordinate Shops (Regulation of Opening) (Jersey) Regulations 2011 (‘the Shops Law’) retained the efficient parish-based system of administration but established a new framework for the regulation of trading on Sundays and on other specified days, i.e. –
a) Good Friday
b) Liberation Day
c) Christmas Day and
d) 26th December (‘Boxing Day’).
Easter Sunday was not specified. As such, it is treated in the same way as other Sundays.
Goods-based restrictions were replaced by a new control based on the size of the retail sales area within a shop. The definition of shop was drawn broadly, so as to include car boot sales, car dealers and cinemas, as well as the more conventional supermarkets and retail stores. Those with a retail sales area of 700m² or less (small shops) were given scope to open on most days of the year, whereas those with a larger retail sales area (large shops) were only permitted to open on up to 9 Sundays per annum.[1] This limitation[2] was introduced in recognition of the greater potential for large shops to generate nuisance impact or other disruption in the locality.
At the time of introduction, it was estimated that somewhere in the region of 30 shops would be classified as large shops with a retail sales area above the 700 m² limit. The remainder would either be eligible for the general permit and therefore in a position to open on most days (with the exception of Christmas Day) or would be entirely exempt from the provisions of the Law. In 2014 the States were asked to sanction a trial that would have relaxed the restrictions on large shops for an 18 month period (P.76/2014 refers). This proposition was rejected.
In August 2015, the Minister for Economic Development made an Order declaring a further two Sundays before Christmas as special occasions, thereby increasing to 11 the number of Sundays and other specified days on which larger shops could open each year.[3]
The Current Position
The 2010 Law and 2011 Regulations remain in force today. They prohibit shops from opening on Sundays and on the other specified days unless –
(a) the shop falls within an exempt category or
(b) the occupier of the shop has obtained a permit from the relevant Connétable that authorises opening.
The list of exempt categories of shops is found at Schedule 1 of the 2011 Regulations.
For shops that do not fall within the scope of Schedule 1, the 2011 Regulations currently provide for three types of permit -
• a general permit – which may be granted to small shops and also to certain large shops that focus on service provision but which have a small retail sales area (e.g. a cinema). A general permit may authorise opening on Sundays, Good Fridays, Liberation Day and 26th December, or any combination of those days. It cannot authorise opening on Christmas Day. The application fee is currently £50 and the permit expires on 31st December of the year of issue.
• a single permit – which may be granted to shops of any size but which may only authorise opening on a single Sunday, Good Friday and / or Liberation Day. A single permit cannot authorise opening on either Christmas Day or Boxing Day. Each shop may benefit from a maximum of 5 single permits per annum. The application fee is currently £50.
• a blanket permit – which may authorise any shops or shops of a specified description to open on Sundays that have been designated by the Minister as special occasions. Such designations are made by Order. A total of 6 Sundays per annum are currently designated as special occasions via a formula set out in the Shops (Regulation of Opening) (Special Occasions) (Jersey) Order 2015. These align with the well-established Fête dé Noué. For 2019, the relevant Sundays are –
24th November
1st December
8th December
15th December
22nd December
29th December
Blanket permits are issued by the Connétables by way of a Gazette notice. Individual applications are not required and there is no application fee.
Connétables have scope to apply conditions to each and every permit to control such matters as opening hours and deliveries where necessary.
The Case for Change
There is now clear evidence of demand for a change in Sunday trading policy and legislation.
In 2018, Growth, Housing and Environment officials commissioned consultants 4insight to carry out a comprehensive retail consumer survey. 4insight surveyed a total of 1118 respondents[4] before reporting at the end of last year. Although the clear majority of respondents were Island residents, the survey included responses from 147 visitors. The survey found that 63 per cent of respondents were in favour of Sunday trading, with the Island’s working population expressing a clear preference for broad 10am – 4pm opening, all year round. This view is broadly consistent with that which Visit Jersey has received in recent years. During 2017, Visit Jersey commissioned Colliers International to conduct an audit of tourism products and services available in Jersey and how those related to the offer in other, selected, geographies within the British Isles. The resulting audit indicated that tourism would benefit if a greater number of Island shops were able to open on Sundays.
It is also increasingly clear that industry stakeholders are calling for greater flexibility on opening hours. Jersey Chamber of Commerce in particular has expressed support for a relaxation of the existing rules, having reviewed developments at home, in Guernsey (which fully deregulated Sunday trading almost 4 years ago) and elsewhere, as well as online.
Sunday trading debates in the Assembly have traditionally been punctuated with the suggestion that Sunday opening pressurises retailers to compete for broadly the same quantum of consumer spend over 7 days instead of 6 – thereby increasing their costs for little, if any benefit. For many retailers, the ongoing expansion of 24/7 online shopping may be rendering that argument obsolete. With the arrival of HelloFresh in Jersey (in partnership with Jersey Post), that expansion has reached the point where the Island’s supermarkets and other grocery stores face meaningful competition from a significant external online business for both fresh food and shelf-stable food products.
Giving all on-Island retailers the option to trade regularly on Sundays should provide them with additional scope to compete effectively with external online competition and maintain on-Island spending. These draft Regulations are intended to provide that additional scope.
Change is also needed to bring clarity to the road fuel market. The superseded Shops (Sunday Trading) (Jersey) Law 1960 allowed any business wanting to sell road fuel on a Sunday to apply for a permit. Post-2011, a number of garages have continued to trade on Sundays, notwithstanding that a small number operate with total retail sales areas that are close to or even beyond the 700m² restriction set by the 2011 Regulations. Anecdotal evidence collated since then tends to indicate consumer support for those larger garages being open on Sundays on the basis that they maintain the ready availability of a necessary commodity across the Island and they aid fuel price competition. Moreover, the number of complaints from the public regarding the opening of large garages is understood to be almost zero.
Specific Proposals
These draft Regulations -
(a) create a new Restricted Hours Permit, which will allow large shops to open on all ordinary Sundays, Good Friday and Liberation Day only and within the period 1000 hrs – 1600 hrs inclusive. For the avoidance of doubt, this new permit will not allow large shops to open on either Christmas Day or 26th December, notwithstanding that either of those latter dates could fall on a Sunday. Restricted Hours Permits will be available on an annual basis. They would be valid until 31st December each year, as is the case with the General Permit that is already available to smaller shops;
(b) include within the Restricted Hours Permit a provision confirming that road fuel sales (of any type – including electric charging points) on any Sunday, Good Friday and on Liberation Day may be permitted beyond the 10am – 4pm limitation on other retail activity on large shop sites;[5]
(c) delete the blanket permit with effect from 31st December 2019;
(d) delete the requirement for the applicants for a general permit to submit a certified plan declaring their retail sales area;
(e) increase the cost of general and single permit applications to £60 in accordance with the Retail Price Index increase since the permit was originally introduced;
(f) set the fee for a restricted hours permit application at £120
Regarding (b) above. it is worthy of note that these draft Regulations use the term ‘fuel or other source of power for motor vehicles,’ so as to allow for a potential increase in electric charging point provision and potentially other more environmentally sustainable road fuel options in future years.
With the exception of (c) above, each of these changes would come into force 7 days after the Regulations are adopted. As these Regulations will not be debated until the final quarter of 2019 and that removing the blanket permit in 2019 would create an administrative burden for the parishes and for large shops in the run-up to Christmas, it is thought appropriate to retain the blanket permit for one more festive season.
Deletion of the requirement for general permit applicants to submit a certified plan (see d above) would enact a red tape reduction proposal that was first suggested in 2014 as part of P.76/2014.
At present, the occupiers of any small shop that wishes to apply for a general permit must supply a certified floorplan to demonstrate that their retail sales area is no larger than 700m, in accordance with Regulation 8 of the 2011 Regulations. Those certified plans are an additional cost to the affected shop occupiers. Connétables and / or their officials are understood to have faced a number of cases where they were bound to demand that the applicant obtain and submit a certified plan, notwithstanding that the relevant new shop unit was known to be well below 700m.² Given that Regulation 9 of the 2011 Regulations already allows a Connétable to demand such a plan in marginal cases, it is considered reasonable to dispense with this obligation.
The remainder of the Regulations would be unchanged, save for some editorial revisions that are intended to make the Regulations easier to read. No substantive changes are proposed regarding the existing general permit, other than the deletion of the mandatory floor plan requirement.
The factors to be considered by a Connétable when determining an application for a restricted hours permit will similar to those for the general permit; i.e. the peace and tranquillity of the neighbourhood and the avoidance of nuisance to residents on the times and dates of opening. Given that all shops with a retail sales area above 700 square metres will have restricted opening hours relative to smaller shops, the scope for impact on the locality will have already been mitigated to some extent. A Connétable may nevertheless assess such factors as the delivery and warehousing facilities at a shop and consider whether these are such that conditions restricting deliveries might be required.
Application fees continue to be set at a level that should be sufficient to cover the cost of administering the application. These draft Regulations will cause the cost of a general permit to rise to £60 (an increase aligned with the rate of inflation since 2011, when the permit was introduced). Occupiers of large shops that apply for the new Restricted Hours Permit will be charged £120.
When the trial deregulation was proposed in 2014, the suggestion was that applications from large shops should incur a £250 fee, on the basis that applications for permission to open large shops would normally require greater consideration of the scope for impact on their localities. The proposal for 2019 is to mitigate this burden on parish administrations by requiring applicants seeking a Restricted Hours Permit to submit an operating statement as part of their application. This will need to explain how the occupier of the shop intends to mitigate the risk of nuisance or disturbance being caused.
The rules on determination and issuing procedure, and regarding rights of review / appeal against a decision of a Connétable in respect of a Restricted Hours Permit would be identical to those for the General Permit.
Employment Law Considerations
During the course of the 2014 debate on a proposed Sunday trading trial, some States Members expressed concern that changes were being proposed in the absence of an amendment to the Employment (Jersey) Law 2003 to provide a retail worker ‘opt-out’ provision, such as that which applies in England and Wales.
Consideration has been given to the concept of a retail worker opt-out in 2019. Such a provision is not thought to be the right approach at this time for the following reasons -
a) Retailers have for some time been facing a relatively tight employment market. In these circumstances, employers should be motivated to consult and respond to the needs of their existing employees regarding Sunday working or risk losing good staff to other employers.
b) Sunday working is already a reality in a large number of small shops. There has not been a call to impose an opt-out on smaller businesses that are already employing staff on Sundays. An opt-out that applies to the approximately 30 larger businesses only would be difficult to justify on policy grounds.
c) Applying a family-friendly opt-out to the retail industry whilst denying employees working in a range of other important economic sectors a comparable opt-out right seems less than equitable;
d) While Sunday has a recognised status for Christians (and Christianity is known to be the dominant religion in Jersey)[6], other religions with a presence in Jersey attach significance to days other than Sunday;
e) Competition from 24/7 external online retail is significant. A retail opt-out would be a further constraint for on-Island retailers and affect their scope to address that challenge. In turn, it may ultimately affect the number of jobs available in the retail sector in the medium to longer term.
Resource Implications
There are no direct financial or other resource implications arising from the adoption of these Regulations. It is anticipated that the administrative workload for the parishes will be broadly similar to current levels (i.e. a probable decrease in receipt of single permit applications and cessation of the need to administer the blanket permit but with an additional number of applications for the new restricted hours permit). The administrative overhead arising from the restricted hours permit will be monitored through the remainder of 2019 and 2020.
There will be a need to update the existing Sunday trading guidance and application forms published by the parishes. Government will make officer support available in September and October 2019 to assist the parishes with this work and to assist stakeholders with their understanding of the new rules.
gov.je