§ 7.45 p.m.
Read a third time.
Clause 8 [Meaning of "local authority "]:
§ Earl Ferrers moved Amendment No. 1:
Page 3, line 17, at end insert: ("(bb) a county borough council,").
§ The noble Earl said: My Lords, in moving the amendment I shall speak also to Amendment No. 2. These are purely technical amendments and arise as a consequence of the reorganisation of local government in Wales through the Local Government (Wales) Bill which is at present in Committee in another place. I beg to move.
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 2:
Page 3, line 20 at end insert: ("(3) Until 1st April 1996, the definition of "unitary authority" in subsection (2) above shall have effect with the omission of paragraph (bb).").
§ On Question, amendment agreed to.
§ Schedule 1 [Restrictions on Sunday opening of large shops]:419
§ Earl Ferrers moved Amendment No. 3:
Page 4, leave out line 9.
§ The noble Earl said: My Lords, paragraph 1 of Schedule 1 to the Bill provides a definition of the term "licensed premises". However, those words do not appear anywhere else in Schedule 1 and, therefore, there is not much point in leaving in a definition of something which no longer needs to be defined. I beg to move.
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 4:
Page 5, line 3, leave out from ("shop") to ("the") and insert ("which is at a farm and where the trade or business carried on consists wholly or mainly of).
§ The noble Earl said: My Lords, in moving the amendment I shall, with the leave of the House, speak also to Amendments Nos. 8, 10 and 14 which are also tabled in my name. It is usual practice that, where your Lordships have approved an amendment which has not been drafted by the parliamentary draftsman, the Government consider the drafting of the amendment to see whether it is in the best and most appropriate form and whether or not it requires amendment to tidy up the drafting. That is what the amendments achieve in respect of the amendments which your Lordships approved to exempt DIY shops and garden centres, motor supply shops and farm shops from the six-hour restriction that the Bill places on Sunday trading by large shops.
§ The amendments do not disturb in any way the intentions of your Lordships in approving those exemptions. The amendments merely provide consist-ency in the phrasing of the exemptions from the six-hour limit and make consequential provision. They will enable the Bill to leave your Lordships' House in a better state technically, whatever your Lordships may think about the substance of the provisions. I beg to move.
§ On Question, amendment agreed to.
§ The Earl of Perth moved Amendment No. 5:
Page 5, line 3, leave out ("wholly or mainly") and insert ("entirely or almost entirely").
§ The noble Earl said: My Lords, in moving this amendment, I wish to speak also to Amendments Nos. 6, 7 and 11. I am anxious that the six-hour limit for large shops does not get chipped away in one way or another through the exceptions which have been put into the Bill. I see the danger of just this happening in regard to liquor, farm produce, motor accessories, garden produce and do-it-yourself home improvement products. The activities of these large shops are qualified only by the words "wholly or mainly". The question is: what do these words mean? In the previous debate the noble Earl, Lord Peel, said he thought there was a precedent that had established the meaning of the words as 90 per cent. of the whole. The noble Earl, Lord Ferrers, perhaps wisely, concentrated on the word "mainly". He said it meant more than a majority. I understand that. But he said that even then it depends on how we judge the matter. He asked whether we judge it, for example, by value, by stock or by turnover. I believe he gave the example of Rolls-Royces and baked beans. I can see the problem but I still hope that we can obtain a little more 420 certainty as regards what "wholly or mainly" might mean or change that phrase, as my amendment proposes.
§ I believe that in the previous debate the noble Lord, Lord McCarthy, went too far when he tried to exclude any leniency at all in relation to the activities that these stores might carry on. My amendments seek to establish the concept of the 90 per cent. figure rather than the concept of a majority. I know that there is no legal precedent for my words. Nevertheless, if the Government in particular, and others, would support us in our attempt to define more clearly what this all means, I hope that would be of help if and when the courts have to decide the matter. I realise they would decide the matter on a case in question but they would also consider what took place in this debate.
§ As I have already said, there is no precedent for my suggested phrase; but the key word is "almost". If one says, "a glass is full or almost full" everyone knows pretty well what that means. I have tried to suggest the same meaning by using the word "almost" in my phrase "entirely or almost entirely" which is proposed as a substitute for the phrase "wholly or mainly". If my suggested phrase was accepted, I hope it would convey the suggestion of the noble Earl, Lord Peel, of 90 per cent. At the moment "mainly" is equated with "wholly". I realise that "wholly" comes before "mainly" in the Bill, and perhaps therefore it is the more important of the two words. However, the qualification "or mainly" is very unfortunate. I very much hope that the noble Earl, Lord Ferrers, will say—if my amendment is not accepted—that in his opinion "wholly" is more significant than "mainly". I beg to move.
§ Lord Elton
My Lords, I much regret not to be able to support the noble Earl, Lord Perth, in this endeavour, other than to hope that it elicits from my noble friend a helpful and more precise and influential definition of what "mainly" means.
I have to ask your Lordships not to support the noble Earl. I do so with regret because I sympathise with what he is trying to do, and I made that sympathy clear at the previous stage of the Bill. I so ask your Lordships for two reasons. One is, as the noble Earl has already said, there is no legal precedent for these words. Therefore there is complete uncertainty as to their effects, which could only be established in the courts and no doubt by more than one hearing. That is to no one's advantage. The second reason is that I regret that, much as I sympathise with the noble Earl, we were beaten on this issue at the previous stage—as near, as they say, as dammit. The words are different but the principle is the same. We were trying to restrict the categories which he is trying to restrict. The House made it quite clear that that was not its wish and I do not think it ought to be invited to debate that issue again. I hope that we shall elicit from my noble friend a more precise definition which may be of use to the courts, and leave it at that.
§ Lord Stoddart of Swindon
My Lords, I would like to support the amendments spoken to by the noble Earl, Lord Perth. I shall say a few words in support of them in a moment. First, however, I wish to make a statement.
421 During the debate on Report on Amendment No. 6 of the noble Lord, Lord McCarthy, I made comments at col. 1262 of the Official Report of 5th May relating to the attitude of the RAC and Halfords which gave the impression that both organisations were content that motor and cycle stores of over 3,000 square feet in floor area should be restricted to six hours' opening on Sundays. I was clearly misinformed and mistaken and both the RAC and Halfords have informed me that they are very much in favour of complete exemption for these motor and cycle accessory stores. I accept that that was always their position. It is right therefore that I should set the record straight. I trust that what I have just said does exactly that. I must express my regret for any difficulty or inconvenience that my remarks caused to the RAC and Halfords, to the noble Lord, Lord Brabazon, and of course to your Lordships' House itself.
I support the amendments spoken to by the noble Earl, Lord Perth, and I do so in the hope that, as he said, they will elicit some clarification from the Government. But as the Bill now stands, it clearly is not satisfactory that firms with a floor area of over 3,000 feet should be granted an exemption on what may very well prove to be a false premise. I think most of your Lordships would be quite content if, for example, garden centres sold even 10 per cent. of goods which were not related to gardens. But the fear that some of us have is that they could sell very much more—even up to 90 per cent. —of alternative products. That clearly would be unfair to other traders selling that particular type of goods. Therefore I believe that there is a case for this sort of clarification, perhaps through the words of the noble Earl, or indeed through the words or some assurance of the Government. I believe that some clarification is necessary, otherwise we will find in the future that there will be some real difficulties.
I accept that many firms have given assurances at the present time that they have no intention of selling more than a very small fraction of goods outwith their normal trade. However, all sorts of other things happen. Managements change and there are takeovers and other such matters. Therefore I believe that at this stage we should have some clarification either through the words of the noble Earl, Lord Perth, or indeed through some assurances or some statement from the Government.
§ 8 p.m.
§ Lord Lucas of Chilworth
My Lords, if my noble friend will allow me to speak the reason will be clear. I am most grateful to my noble friend.
In the absence of my noble friend Lord Brabazon of Tara, who would have wished to have been here, and who is my colleague on the public policy committee of the Royal Automobile Club, I wish to thank the noble Lord, Lord Stoddart, for his very clear statement. Both 422 my noble friend Lord Brabazon and I are most grateful to him for it. Knowing the noble Lord opposite well, we appreciate that he would not have wished to mislead your Lordships' House during the Report stage of our proceedings on the Bill. We are grateful to him for having set the matter straight.
Since our conventions do not allow me to rise twice to speak to the same amendment, perhaps I may say a few words on both Amendment No. 7 and Amendment No. 8, which has been agreed. I wish to thank my noble friend Lord Ferrers for making a technical correction to the amendment which was moved originally by my noble friend Lord Brabazon. As your Lordships will recall, that amendment was agreed at Committee stage without a Division, and by a substantial majority when we debated the matter at Report stage.
That takes me naturally to Amendment No. 7 in the name of the noble Earl, Lord Perth. I am not sure that the purpose of that amendment is merely to seek clarification.
Amendment No. 7 seeks to replace a well-established statutory expression with one which, so far as I can ascertain, has been used only once before in statute law. The words "entirely or almost entirely" appear just once, in the well-known provision found in English law at Schedule 7A, paragraph 1(7) (b) (ii), in the Taxation of Chargeable Gains Act 1992. So far as I am aware, the expression has never been used in Scots law. That may be of interest to the noble Earl.
By contrast, "wholly or mainly" is used regularly in criminal and civil law, and as was mentioned in earlier debates, it appears on no fewer than four occasions in the Shops Act 1950. Indeed, it appears in parts of that Act which will continue in force in relation to staff protection even after this Bill has been enacted.
Again, so far as I can ascertain, there has been no difficulty in practice in its interpretation or application. There is no record of its use having ever given rise to calls for the law to be amended. Indeed, during the Committee stage the noble and learned Lords, Lord Hailsham and Lord Simon of Glaisdale, pronounced their view on the subject with clarity.
The motor parts supply industry has enjoyed this exemption since the 1950 Act. In no case has any charge been brought against the integrity of that industry. It seems to me impossible that, having achieved by virtue of the exemption the conditions which it previously enjoyed, the industry would have any reason to usurp its position. It therefore seems to me that we can have absolute confidence in the expression "wholly or mainly" in this context, and that is the end of the debate. I hope therefore that your Lordships will not accept Amendment No. 7 in the name of the Earl of Perth.
§ Lord Northbourne
My Lords, before the noble Lord sits down, perhaps I may ask him this question. While he may be perfectly correct in saying that the expression "wholly or mainly" is clear in law, if it does not mean what the House wants the clause to mean would it not be better to find some other phrase?
§ Lord Lucas of Chilworth
My Lords, that may well be the case; but, since the use of "wholly or mainly" has not been challenged in relation to a number of other 423 issues contained within the Bill before your Lordships, there seems to be no good sense in altering what has already been established so far as concerns Amendment No. 8.
§ Lord McCarthy
My Lords, I want to support the noble Earl, Lord Perth, and to disagree with the noble Lords, Lord Elton and Lord Lucas of Chilworth.
First, it may well be, as the noble Earl, Lord Perth, said, that my amendments were too narrow. They were criticised because they were too narrow. We were told that they created problems and they did not have the support of the House. Therefore, if we can find another way of achieving some of the aims of those amendments, I shall support it.
Secondly, it is not true that we know what the phrase "wholly and mainly" would mean in this Bill. Some people may know what it meant in other Bills. They have told us what it meant at various times, and every time they have told us something different, presumably because they quoted from different Bills. We certainly do not know what it will mean in practice by reference to the 1950 Act, which was mentioned by the noble Lord, Lord Lucas of Chilworth. In Section 22 of that Act one finds the phrase "wholly and mainly", but it refers to individual workers and not to goods. It refers to the circumstances in which:any person employed wholly or mainly in connection with the sale of intoxicating liquorfor example, oremployed wholly or mainly as a milk roundsman",should get time off in lieu. That has nothing whatever to do with what we are talking about now.
Therefore, we have no idea what the courts would say about "wholly or mainly" in the context of this Bill if they had to apply it. We fear—as many eminent QCs have indicated, although I do not say that they are necessarily right—that it will be too wide. I accept that that will not necessarily be the case in relation to the motor trade; but it will be the case with DIY centres and garden centres. It will be far too wide. After all, those centres now sell everything—barbecues, clothes, Christmas lights, garden furniture, cookers, and so on. You name it, they sell it. We are afraid that it will be too wide, and as long as only 30 per cent. or 40 per cent. of their trade is in other goods and the majority of their trade, however defined—and we do not know how a court would define it—relates to their principal business as specified in the context of the Bill, then they will be covered by the law. We say that that is too wide.
In that context, I suggest that what is suggested here —"entirely or almost entirely"—is no more hazardous. It will have to be interpreted by the courts just as "wholly or mainly" will have to be, and it is significantly more narrow.
Thirdly, that is important because we are very worried that, if all the amendments appear on the face of the Bill, when the Bill goes to the other place it will be found to be what in some ways it will be, a form of undercover total deregulation. I remind the House that there was an overwhelming vote both in this House and 424 in another place against total deregulation. Therefore, if one wants an element of sanity and sense one cannot have such amendments.
§ Lord Boyd-Carpenter
My Lords, the problem with the Bill throughout is whether it will be completely and clearly understood by the courts. One of the reasons why people such as myself would much prefer total deregulation is because total deregulation would be entirely free of any misunderstanding or difficulty of interpretation. The Bill will give the courts and the local authorities quite a lot of problems of interpretation. That being so, the last thing we want to do is to make it more liable to misunderstanding. That is where I have to agree wholly with my noble friends Lord Elton and Lord Lucas of Chilworth, and disagree with the noble Earl, Lord Perth.
The formula proposed by the noble Earl, Lord Perth, as the noble Lord, Lord Elton, pointed out, so far as we can trace appears simply in one statute. There has been little interpretation of it. However, the expression "wholly or mainly" is frequently used in a great many statutes; and the courts are quite familiar with the problems of its interpretation. Therefore we should consider the matter from the practical point of view of those who will have to administer the law, given that it is quite a difficult Bill to administer because it goes only part way to deregulation. If we insert a formula such as the noble Earl proposes which makes the Bill more difficult to interpret, we are doing a great disservice to all who will have to administer a fairly complicated provision of the law. Therefore, I remain firmly of the view that your Lordships should not accept the amendment proposed by the noble Earl, Lord Perth, but should leave the Bill as it is in that respect.
§ Lord Simon of Glaisdale
My Lords, this area has been well traversed before your Lordships on many occasions. I do not think that there is any difficulty in interpreting the phrase "wholly or mainly". The first matter is a question of law. The meaning of a word in a statute is primarily and generally a question of law. The first point of law that is raised by the words "or mainly" is perfectly clear. It indicates that goods may be sold other than those which are specified in the statute. That is the difficulty.
Great difficulties were raised under the 1950 Act. Goods could be sold in one shop, some of which could be legally sold and some could not. The only manner of enforcement was by snoopers and agents provocateurs. My noble friend Lord Bledisloe was right when he said that that problem does not arise under this Bill. However, the noble Baroness, Lady Young, and the noble Lord, Lord Stoddart, pointed out another difficulty that is raised by the fact that other goods can be sold; namely, that large shops which fall under the schedule can compete with shops which are more closely regulated.
Having said that, on the last occasion I deprecated, with all respect to the noble Lord, Lord McCarthy, seeking to fiddle with the words "or mainly" when they had been fully considered in Committee before a large House, and again on Report in a much larger House than is present this evening. Once the words "or mainly" 425 have been construed in the sense that I have indicated, there is little difficulty in their application. The judge will advise the jury or the tribunal of fact that the word "mainly" is a common sense English word and they should apply their common sense to it, taking into account a number of factors many of which were enumerated by the noble Earl, Lord Ferrers, on the last occasion. In other words, the words "or mainly" occur in a number of statutes, and there will not be much difficulty in their application.
On the other hand, those are wide words. The words suggested by my noble friend are much narrower. He has done us a service in placing that formula before us and thereby ensuring that it is one of the options that are open to another place.
There is another reason why we are indebted to my noble friend. The amendment applies wherever the words "or mainly" occur. That is necessary because if we narrow the words "or mainly" in only one case—as we sought to do on Report—it makes the words "or mainly" very much broader wherever else they occur. We are greatly indebted to the noble Earl. It seems to me that his formula of "entirely or almost entirely" is much tighter than the words "wholly or mainly". There may not be much judicial precedent, but I do not see that the courts would have any difficulty in interpreting his words.
As I ventured to argue last time, since the matter should be left now at large to another place, perhaps I may suggest two other formulae that might be considered. I believe that "wholly or substantially" falls somewhere between the formula of my noble friend of "entirely or almost entirely" and the phrase that is now in the Bill, "wholly or mainly". There is a fourth way in which it might be possible to deal with the issue. It is to leave out entirely the qualifying words. There is a legal maxim which lawyers always express in Latin, but as lawyers' pronunciation of Latin is apt to offend your Lordships I shall try to paraphrase it. The maxim is that the law does not take account of insignificant things. So if any qualifying words are entirely left out it would not prevent, say, a tray of packets of sweets being offered in a shop which sells cycle goods and so on. The insubstantial, minor offer of goods would get by. It seems to me that in order of descending strictness we have the amendment on Report of the noble Lord, Lord McCarthy, which was undoubtedly very clear and exclusive; we have my suggestion of no qualifying word from which insubstantial deviations might be allowed; we have the formula of my noble friend of "entirely or almost entirely"; and we have the phrase "wholly or mainly". Having argued last time that the matter should be left to the other place, it seems to me that there is an even stronger case today for the reasons stated by the noble Lord, Lord Elton.
I desire only to add this. I have been increasingly worried at our chipping away at what was an agreed consensus, a compromise between the Keep Sunday Special deregulators and those like the noble Lord, Lord Boyd-Carpenter, with whom I stand on the matter, for total deregulation. It now remains for the other place to consider the amendments which noble Lords have made in their entirety, as well as each one.
426 As regards these amendments, for the reasons I have given, I suggest that we express our debt to my noble friend. However, I do not think it would be expedient now to make such an amendment to the Bill.
§ Lord Monson
My Lords, although my attitude to the Bill and the whole issue is much more libertarian than that of my noble friend Lord Perth, nevertheless I have considerable sympathy for the objectives underlying his amendments. However, the noble Earl, Lord Ferrers, with the considerable legal expertise at his disposal, has chosen to continue to use the words "wholly or mainly" in his new amendments before us this evening. That indicates that he and his department must be well satisfied that the words "wholly or mainly" effectively mean 90 per cent. plus, rather than the 51 per cent. plus, about which some noble Lords were worried. Provided the noble Earl can assure us that that is the case and that "wholly or mainly" means 90 per cent. plus and not something like 75 per cent. plus, there seems to be no need to alter the existing wording. If, however, 75 per cent. plus is the more likely meaning of "wholly or mainly", then perhaps the amendment of my noble friend Lord Perth needs more consideration.
§ Lord Hacking
My Lords, as we have continued on our roundabout over "wholly or mainly", with noble Lords placing different interpretations on the words, I have wondered whether we have been going through the looking glass with Lewis Carroll:'"When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean—neither more nor less'".No, my Lords. The words "wholly or mainly" do have a precision. They have precision in statute, they have precision in a number of cases that have been before the courts.
Since our last debates on 'wholly or mainly", I have made it my business to examine a number of those cases. Let me cite one to your Lordships. It was a case that was taken in 1909 by Mr. Justice Parker in the Chancery Division called the Hatschek Patents case. The learned judge in that case was adjudicating on the Patents and Designs Act 1907. The words in that Act were "exclusively or mainly" rather than "wholly or mainly", but nothing turns on that difference.
So it was that Mr. Justice Parker, in relation to whether patented goods were manufactured "exclusively or mainly" outside the United Kingdom, approached the construction of the word "mainly" in this manner. As a starter, he said that the word "mainly" should be seen to have been,used in close connection with and as an alternative to the word 'exclusively'".It therefore followed in his construction of the word "mainly" that there had to be a,disparity … greater than a small percentage",between the goods in question. In the example which he cited of just under 49 per cent. of the patented goods being manufactured in the United Kingdom and of just over 51 per cent of the patented goods being manufactured abroad, he thought that that did not come anywhere close to applying the word "mainly". He ruled that there had to be a "substantial" difference between those two groups of 427 goods which ultimately depended on the "abuse" to which Parliament was directing its attention. That was 80 years ago. Why should the courts today have any different approach?
My Lords, this is well travelled ground and we have the pleasure of going through it again this evening. The noble Earl, Lord Perth, asked me to confirm that it was my opinion that "wholly" was more significant than "mainly". I shall not be so stupid as to do anything like that. The noble Lord, Lord Stoddart, asked me whether I would clarify the position of Her Majesty's Government. It is for the courts to clarify the position.
As my noble friend Lord Hacking and the noble and learned Lord, Lord Simon of Glaisdale, said, the phrase "wholly or mainly" is not unknown to the statute book. The phrase has been used in both tax and planning legislation. As I pointed out to your Lordships on Report, the Broadcasting Act 1990 provides that one commercial radio station has to be devoted "wholly or mainly" to speech.
It will come as no surprise to your Lordships when I say that ultimately it can only be for a court to determine as a matter of fact whether a store does or does not meet the "wholly or mainly" test in the particular circumstances of a prosecution brought against that shop by a local authority. I fancy that one of the advantages of the "wholly or mainly" test is that that prosecution would not be brought on the basis of the technicality of whether a DIY shop had sold a single carpet tack or a single curtain track—and whether those were or were not permitted items. A prosecution would be brought where the local authority believed that the shop in question, whatever it claimed to be, was not the type of shop which could be exempt from the six-hour rule and was clearly cheating—for example, where a shop claiming to be a garden centre was actually selling only a very few plants but a great many hi-fis.
When coming to a decision on whether the "wholly or mainly" test was satisfied in any particular case, a court might wish to take into account turnover where there was an established trading pattern. The court might well decide that a particular proportion of sales in permitted items would satisfy the test. "Mainly" would probably take its natural meaning, so this proportion of sales would have to be more than half of total sales. But turnover may not be the only factor or even one of the factors which a court will wish always to take into account. Sometimes there might not be an established trading pattern—for example, in relation to a new shop which has only recently started to trade.
In my view, it would be reaching for the stars to hope to settle in advance in legislation how precisely the "wholly or mainly" test might be applied in every individual case. Those are matters which must be left to the good sense of the court so that it can determine the case as a matter of fact in the individual circumstances of the individual case which is before it.
However, there are two things of which we can be confident. The "wholly or mainly" test will be a workable test for the courts and for local authorities to 428 apply. The test will work and will inhibit cheating by those who try to pass themselves off as exempt from the six-hour rule when in fact they are not.
I should also like to remind your Lordships that the provision that a shop should sell "wholly or mainly" certain items is not the only criterion which it must satisfy in order to qualify for an exemption from the six-hour restriction other than in the case of shops selling wholly or mainly intoxicating liquor. In order to qualify, the shop must be a garden centre or a do-it-yourself store, a farm shop or whatever. The courts must be satisfied of this. If the courts were to feel that the store in question was really a supermarket, the fact that it sold some fig trees would not give it a suitable cover to protect it from prosecution. I fancy that your Lordships would consider that they can recognise a garden centre when they see one, and so could the courts.
The noble Earl, Lord Perth, has suggested an alternative form of words, "entirely or almost entirely". It is now for your Lordships to decide whether this formulation would work in practice. The noble Earl has argued that "entirely or almost entirely" is a better test than "wholly or mainly", which is the text in the Bill that your Lordships might think allows the sale of too many non-listed goods.
If the noble Earl's text of "entirely or almost entirely" were used, it might mean that if a do-it-yourself store were to sell, say, one choc ice at the checkout, it would not fall foul of the noble Earl's test, because one choc ice is clearly unlikely to be a significant part of that shop's trade. But if the shop were to sell a freezerful of choc ices, then it might fall foul of that test.
The question for the retailer, the local authority and ultimately the courts would be: how many choc ices could it sell without rendering the sale of the permitted items to be inadequate to pass the test that they are entirely or almost entirely the trade of the shop. In the case of choc ices, would it be 10 of them; or 20; or 30? Or would it be half a tonne? Would the shop have to say to the 1lth, 21st or 31st child, "I am so sorry. It's been a very hot day today. There's been a run on choc ices, and the noble Earl, Lord Perth, says that we must not sell any more". As the late Mr. Kenneth Williams of those lovely "Carry On" films might have put it: will this sort of "mucking about" really aid the enforcement of the law?
§ Baroness Seear
My Lords, would there not be the same problem for the courts in drawing the line over "mainly"? There are always problems when there are boundaries as to where you draw the boundary. I do not happen to support the amendment of the noble Earl, Lord Perth, but it does not seem to me that that is the reason for not supporting it. The courts must make the same sort of judgment as they do when deciding whether or not it is "mainly". What is the difference?
§ 8.30 p.m.
My Lords, of course that is a matter for the courts to decide. That is what I have been trying to say all along. But it is very much easier for them to 429 reach that judgment on the basis of "wholly or mainly" rather than "entirely" or "almost entirely". It is a different gradation in the scale.
During the last debate on this matter I pointed out to noble Lords that do-it-yourself stores sell a great many items which are not used to repair or decorate buildings. I imagine that a smoke alarm—except perhaps if it were a particularly decorative smoke alarm—would not qualify. Nor would a washing-up bowl, unless it might be used to wash brushes. Nor would an ironing board, unless, I suppose, it might be used to iron paper which had somehow become crumpled.
If the noble Earl's amendment were to be agreed to, a store would need to make a decision about each item of its stock and decide whether or not it would qualify. That decision would need to be made over possibly hundreds or thousands of different product lines. The shop would then need to decide how many of the non-permitted items it could sell without falling foul of the "almost entirely" test. I find it unbelievable that the collective wisdom of your Lordships would feel that this was a practical proposition.
At Report I pointed out the danger of including provisions which are unworkable in an attempt to undo what your Lordships have already decided; namely, to exempt certain types of shop from the six-hour rule. I pointed out that I was not in favour of—indeed, I voted against—the exemptions for do-it-yourself stores, garden centres and farm shops. But I fancy that if those shops are to be exempt, they should be permitted to get on with their business without having, like some hypochondriac, perpetually to take their temperature to see whether they were on the right side of the law. As I have said so often, the matter is entirely for your Lordships. I hope that, whatever your Lordships decide, that conclusion is the right one.
§ The Earl of Perth
My Lords, first, I thank all those who have taken part in the debate and particularly those who supported my amendment. I must confess that I was not as encouraged as I had hoped I might be by the noble Earl. He did not give any indication of a move towards the judgment of the noble Earl, Lord Peel, rather than simply that of a majority. However, I hope that our debate may help another place. In particular, the words of my noble and learned friend Lord Simon of Glaisdale contained wisdom which everyone should ponder. I accept what he said. We are not a very large House tonight, and furthermore it should be for another place to decide. With those words, and again with thanks, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
§ Earl Ferrers moved Amendment No. 8:
Page 5, line 8, leave out from second ("of") to end of line 11 and insert ("any one or more of the following—
- (i) motor supplies and accessories, and
- (ii) cycle supplies and accessories,").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 4. I beg to move. On Question, amendment agreed to. [Amendment No. 9 not moved.]
§ Earl Ferrers moved Amendment No. 10:430
Page 5, line 13, leave out from first ("or") to ("materials") in line 14 and insert ("a combination of these, and where the trade or business carried on consists wholly or mainly of the sale of any one or more of the following—
- (i) plants,
- (ii) garden supplies and accessories, and
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 4. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 11 not moved.]
§ Lord Monson moved Amendment No. 12:
Page 5, line 20, at end insert:
("( ) any shop where the trade or business carried on continuously since 19th November 1990 consists wholly or mainly of either—
- (i) antiquarian books; or
- (ii) other second-hand books; or
- (iii) both.").
§ The noble Lord said: My Lords, perhaps I may explain the slightly unusual wording of this amendment and the background to it. At Report stage, four of us from all quarters of the House supported an amendment to exempt all large bookshops from the six-hour Sunday limitation. Although secondhand bookshops were briefly touched upon, what we essentially had in mind were shops like Dillons and Waterstones. Over 300 shops might theoretically have benefited, although in practice many have no intention of opening on Sundays, whatever the number of hours allowed to them.
§ I believe that we argued convincingly that booksellers and their customers are a special case—after all, Her Majesty's Government recognise that by exempting books from VAT on cultural grounds—and that acceptance of the amendment would in no way result in those who understandably want to keep Sunday quiet and peaceful becoming disturbed or upset. The amendment, unfortunately, was not reached until after dinner when three-quarters of our potential supporters had disappeared; so we lost. The amendment now before the House does not try to reverse that decision so far as the 300-plus shops selling mainly new books are concerned. However, antiquarian bookshops are a different matter. Only within the past few days did I learn that the prosperity of Hay-on-Wye on the Welsh borders is almost totally dependent on the survival of a flourishing secondhand book trade. The large second-hand bookshops in the town are famous not only all over the United Kingdom, but throughout Europe and North America as well.
§ One large bookshop, as some noble Lords may have read in the Daily Telegraph last Saturday,
"sells half-a-million books a year and carries a stock of 350,000 or so",
§ including at the moment,
"5,000 works on Hungary and 20,000 on Venezuela".
§ Another large bookshop in the town has a stock of a quarter of a million books. Nearly all its customers come, so I am told, from more than 50 miles away. So it is obviously no good telling those customers that they should come during their lunch hour rather than trying to shop on a Sunday. If you happen to live and work in London, Manchester, Brighton or Edinburgh, obviously that is not feasible. It is still less feasible if you live on the Continent of Europe or in North America.431
§ Moreover, although it is true that on the Continent, as was pointed out at earlier stages, shops do not generally open on Sunday, an exception is generally made for bookshops. The French, after all, take their culture very seriously.
§ The economy of Hay-on-Wye has benefited enormously from the book shop trade. No fewer than 70 shops of all sorts and descriptions are flourishing compared with four in a similarly sized town on the Welsh borders with no book shops. Hotels, restaurants and guest houses are also extremely dependent on the book trade. It is no exaggeration to say that, if that trade collapsed or substantially diminished as a consequence of strict enforcement of Sabbatarian laws, it would be like the closure of a pit in a mining village. Therefore, the amendment is highly targeted but also very modest. It would probably cover no more than 25 shops in the whole of England and Wales as compared with the 300 shops with which the Report stage amendment was concerned.
§ Furthermore, to make it even more acceptable to those noble Lords who seek to constrict rather than relax the law, I limited the provision to those shops which have been trading for at least three years before the First Reading of the Bill. It happens coincidentally to be exactly six months ago today; but that is pure coincidence. Three years is long enough to build up an international reputation.
§ The other place of course is always free to extend the period to five years if it so chooses, reduce it to one year or eliminate it altogether. But I thought it reasonable to put down some kind of marker today so that noble Lords will understand what I am trying to do. I beg to move.
§ Lord McCarthy
My Lords, this is another example of another breach. With great respect to the noble Lord, Lord Monson, I must say that it is the weakest that we have yet heard. In so far as reasons can be found for why there should be exceptions (and we tried to find reasons), none of them applies in this case. It is not the case that it was legal before. If shops selling books are open on Sunday, it is illegal and it has always been illegal. So there is not the acquired rights argument.
It is not the case that these shops are essential. I wish it were; but they are not essential. One does not die because one cannot buy a book. It is not the case that large book shops occur in isolated venues such as airports. There are small book shops there as well. Nor are they the only shops. There are Blackwells, Dillons, Heffers, Foyles and Hatchards. Above all in Hay-on-Wye, there are many small book shops all around the large book shops.
In most cases, the people who own the large book shops own half of the small book shops. Certainly that is the case in Hay-on-Wye. One gentleman owns over half of the book shops in Hay-on-Wye and nothing would be easier for him than to open them on a scheduled basis: six hours for one and six hours for another. He could open for 24 hours. There has never been an attempt weaker than this amendment to exempt a class of goods.
§ Viscount Brentford
My Lords, I must have misunderstood the noble Lord, Lord Monson. He seemed to imply that if antiquarian book shops were not allowed to be open for more than six hours, the impact on Hay-on-Wye would be similar to that of the mines being closed in a mining village. I must have misunderstood him because that is surely the largest exaggeration that I have heard. I cannot see why a shop selling antique books should have unlimited opening without antique furniture shops or other similar shops also being allowed to open. To accept this amendment would be to add yet one more anomaly to the Bill. I hope that the amendment will be rejected.
§ 8.45 p.m.
My Lords, the noble Lord, Lord Monson, does not seem to have many friends for his amendment this evening. I am bound to say that when I read his amendment I was fascinated by the choice of the date of 19th November. I wondered why he had chosen it and thought I had better do some research into the matter. He told us and it is quite right that 19th November was the day on which the Bill was introduced in another place. But I did not see how that had much to do with antiquarian book shops. My researches also showed me that on 19th November 1895 the pencil was invented. It was on 19th November 1969 that Pele scored his one thousandth goal. I wondered whether it was on 19th November that Hay-on-Wye, the home of the antiquarian book trade, proclaimed independence. Evidently that was not so, either.
I must confess that I did not quite see why an antiquarian book shop which has been trading, albeit continuously, for three and a half years, should receive different treatment from one which decided to start up this week.
Your Lordships have already debated at length the question of whether a book shop selling all manner of books should be exempted. I fancy that if your Lordships have decided that a large book shop selling Jeffrey Archer and Jilly Cooper novels should not be exempt, your Lordships may also see no reason why a large book shop selling Bram Stoker's Dracula should be exempted—even if it had been tooled with gold leaf on the cover.
As my noble friend Lady Trumpington pointed out at Report, reading is a pleasant way in which to spend a Sunday; but so are many other things such as listening to music. Some people like to play computer games or watch videos on a Sunday. But your Lordships have not given an exemption for large music shops or computer game shops.
Although it is easy for your Lordships to have sympathy with any sector which puts forward the argument that it is a special case, one would soon end up, as the noble Lord, Lord McCarthy, suggested, with total deregulation, if every sector, for which some of your Lordships had sympathy, gained an exemption. As I have said before, it is entirely a matter for your Lordships to decide. I do not see, much though we may enjoy antique and second-hand books, that the case for making an exemption there has been made.
§ Lord Monson
My Lords, I am glad that my amendment has given the noble Earl so much pleasurable research in looking up what happened on 19th November in various years. He now knows the object of putting that particular date. One has to choose an arbitrary date, which can always be altered by another place. But that is the least of the objections raised to the amendment.
The noble Lord, Lord McCarthy, pointed out that the shops had been opening illegally on Sunday, and in fact they open for 10 or 11 hours every day of the week. It is true; but, on the other hand, there has been no appetite on the part of the local authorities to enforce the law because they consider that the law is an ass, and the trade that those book shops bring into the town is to be welcomed and encouraged. I do not suppose that they will have any appetite for enforcing the law now. But pressure will be brought to bear on them now that the fine has been raised tenfold. That is one of the reasons why the amendment is so important.
The noble Viscount asked what was so special about books. He did not actually use those words, but that was implied. He asked what was the difference between books and furniture. I suggest that spiritually man can just about survive without furniture; but he cannot survive without books. In my opening remarks, I mentioned that the fact that Her Majesty's Treasury do not impose VAT on books indicates that it also recognises that reality.
This House is often accused of being excessively élitist over such matters of crime and punishment. This Bill has probably been excessively populist, if I may say so. Exemptions have been made in favour of what one might call the tabloid readers for DIY shops, and so on; but nothing has been done to help the readers of The Times Literary Supplement, as exemplified by the noble Lord, Lord Rodgers of Quarry Bank.
In the absence of any further support, I can only beg leave, very reluctantly, to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Lord Cochrane of Cults moved Amendment No. 13:
Page 5, line 31, at end insert: ("( ) any shop within a Holiday Park open only for the sale of goods to paying guests at that Park.").
§ The noble Lord said: My Lords, I must first declare an interest. I am chairman of a company which is in the holiday parks business in Scotland, to which this Bill does not apply.
§ The amendment is necessary to allow large shops —those over 280 square metres in area—to trade within holiday parks, in the same way that small shops are permitted to trade. Up to now those larger shops—about 50 of them are believed to exist—have been eligible to trade under resorts exemptions in the 1950s Act. Those exemptions are abolished in the Bill now before your Lordships. That has the unexpected result of leaving the shops subject to a more restrictive regime than now exists, yet the Bill's preamble states that it is to reform the law on Sunday trading.
§ The customers of the shops in the amendment are the guests staying at the holiday parks: people and their families who have gone to the park for a self-catering 434 holiday. Much of the changeover of guests at holiday parks takes place at weekends, and there is then a real need for more generous opening hours at large park shops to meet the needs of guests and their families who have recently arrived for a holiday.
§ Self-catering is now the fastest growing sector in the holiday business. That is because of the freedom it gives people to do as they choose at their own pace. That type of holiday makes one realise how great the need is for shops where, at a convenient time, one can readily buy necessities for the family's needs.
§ The reality of what I say is that almost: the whole of the purchases made at holiday park shops are of food. Noble Lords will be pleased to know that I shall not use the words "wholly" or "mainly", or any such analogy. If the shop on the holiday park is bigger than the size prescribed, then its hours are restricted. But if it falls below the stipulated size for a large shop—there may be more than one such shop in the park—the opening hours are not restricted. That is a rather anomalous state of affairs. For example, in a large park one, two or even three shops could be open on Sunday morning if each were smaller than the prescribed size; yet two of them together could be almost double the size of a "large" shop.
§ A further valuable benefit to come from the acceptance of the amendment—which is purely of a tidying-up nature—is that the enforcement duty of all local authorities with holiday parks within their boundaries will be reduced. They will not have to deal with inspections for shop measurements and so forth for any of the holiday parks within their district. That will reduce their expenditure and allow them to devote resources to other and more useful matters.
§ Large holiday parks can be the size of modest towns. When I last spoke on the Bill, I mentioned towns of the size of Uttoxeter (where there was racing today); Tewkesbury or indeed Henley, each with around 10,000 inhabitants, as an example of the size of some of the larger holiday parks that already exist in England and Wales. In a letter to me, my noble friend suggested that local residents—say, in Bognor—may feel put out in some way if they saw that a park shop was open before they could use their local large shop on a Sunday. Of course, that is a possibility; but a remote one. The difficulty and cost of travelling to a holiday park would be a considerable deterrent.
§ Holiday parks are not usually adjacent to built-up areas. If the shopper from Bognor has the choice of the small shops round about and they are not to his liking, he can change his mind about what he wants or wait until a large and perhaps better stocked shop opens. Of course, he could set out from Bognor and travel perhaps for some distance to a suitable holiday park, paying the entry charge when he arrives. Any casual purchase he made would be rather expensive due to the size of the entry charge. My figures indicate that that is normally around £6.50. Not many noble Lords would care to pay a £6.50 surcharge on a pound of sausages.
§ The Shopping Hours Reform Council offered no objection to the amendment. In a letter to me it referred to obvious shortcomings in the Bill affecting the larger shops within holiday parks. Evidently, the council does 435 not see it as a threat to its members' trade or to the compromise, and that therefore disposes of what I termed the "Bognor" question.
§ The Confederation of British Industry is staunchly in favour and gives particular emphasis to the concept that holiday parks are islands in terms of the local economy. I go further and say that they are islands of relaxation and leisure for those who holiday there. The amendment will reduce the burden on local authorities by reducing the range of inspections required. In many cases it will restore, in today's context, benefits previously enjoyed by large shops. Finally, it will help to add to the enjoyment of those who go to the holiday parks to enjoy themselves in comfort among pleasant and safe surroundings, as they rightly deserve. I beg to move.
§ Baroness Jay of Paddington
My Lords, perhaps I may correct the impression given by the noble Lord, Lord Cochrane of Cults, that the Shopping Hours Reform Council supports the amendment. That is not the case. It does not support the amendment. I did not speak to the amendment at Committee or Report stage. Many other Members of your Lordships' House wanted to speak. However, my objections to it are precisely the ones made consistently throughout the period of Committee and Report stages of the Bill—that is, that any amendment which attempts to extend the exemptions of the six-hour rule for large shops undermine the basic compromise of the Bill. The arguments against the amendment were adequately outlined at earlier stages of the Bill.
§ Lord Cochrane of Cults
My Lords, perhaps with leave, I may interrupt the noble Baroness. I said that the Shopping Hours Reform Council offered no objection. I spoke to a representative this morning and confirmed those words which were conveyed to me in writing. It was further stated that the council had no objection to my repeating them this evening in this House.
§ Baroness Jay of Paddington
My Lords, I speak as chairman of the Shopping Hours Reform Council. There is a considerable difference between having "no objection" and not supporting. I say now that I do not support the amendment as chairman of the Shopping Hours Reform Council. If the noble Lord looks back at my contributions in Committee and on Report, he will see that they are entirely consistent with the position that any further exemption to the six-hour rule for large shops has been consistently opposed by the Shopping Hours Reform Council. In my capacity as chairman of the council, I voted against those exemptions. That will be seen from the record.
Perhaps I can make one further point. This was something which was not mentioned on Report; but the noble Lord, Lord Cochrane, made the point again this evening. He said that the people who visit holiday parks can number around 10,000 and that that is the equivalent of a small town. It seems to me therefore that there must be an anomalous position if he is suggesting that the people who are in an encampment the size of a small town have the advantages of an exception to the six-hour rule, whereas the inhabitants of a small seaside 436 town of 10,000 people, whose population is enormously increased during the summer months, do not. What is the difference between being in a small holiday village which is enclosed and counts as a holiday park and being in a small holiday village by the sea, which has the same number of inhabitants?
§ Lord McCarthy
My Lords, the noble Lord, Lord Cochrane, is right when he says that he is not asking us to include "wholly" or "mainly". But he is asking us to include something much wider; he is asking us to say that the shops can sell what they like. As long as the shops are regarded as holiday camp shops, they can sell anything they like.
It is right to say that there are examples of that in the Bill. But this is one of the most unjustifiable exceptions —for which I am not responsible—in Schedule 1. If one is at an airport, a railway station, a service area or a filling station—which is nothing to do with the 1950 Act; they just shoved that in—one can sell anything. I do not know how those phrases came to be in the Bill but they are extremely dangerous. They mean that if one is in an isolated position where one can argue that one's customers are, in a sense, entrapped in some quasi-monopoly state, one should be allowed to sell anything.
I cannot see why, if this is passed in another place, similar amendments cannot be brought forward for university campuses, hotels, funfairs, festivals or football stadiums. Anything would be possible on that basis. It is one of the weakest exceptions we have had.
§ Lord Northbourne
My Lords, I rise to speak in favour of the amendment, and in doing so I should perhaps repeat a declaration of interest, though it is not a financial interest. I am a director of a company which runs two—and will shortly run three—holiday parks.
I think I can possibly answer the noble Baroness, Lady Jay, with what I am about to say. There is a very real distinction between a holiday park, which is a holiday entity in itself, like a hotel, and a village or a small town where there will almost certainly be a number of shops, a number of other options for shoppers and a number of opportunities for people to set up shops if they want to, if there are not already enough.
At the previous stage of the Bill some noble Lords ask what a holiday park is. I have obtained a quite useful definition of a holiday park as,self-contained premises where the main business is the provision of holiday accommodation with ancillary facilities and services".Holiday parks usually provide self-catering accommodation, which means that the cost can be significantly lower than the cost of a hotel. But in other respects they are to a considerable extent like some types of hotel. Because they have lower prices they are particularly attractive to family groups and to people who are less well off—the lower budget holidaymakers. What happens is that guests arrive, as they do to a hotel, very often for a week's stay. They are likely to arrive on a Saturday and quite likely they have come a long way and may arrive hot, tired and dusty, with the children screaming in the back of the car. They go to bed. In the morning, instead of going to a restaurant or to a 437 cafeteria, as they would if they were staying in a hotel, they go and buy their fresh produce from a shop. They buy fresh milk, hot rolls and all the things they need for their breakfast. They then consume it on the premises —this is an important factor—either by the pool or in their chalet.
Most holiday parks are remote from towns. The guests therefore do not have the opportunity to go and buy in small shops. Conversely, the people who live in those towns will not be tempted to drive a long way and pay the entrance fee to go into the park—if the park allows day visitors, and most of them do not—so that guests from outside the parks will not use the shops in the parks. The availability of breakfast at a holiday park is part of the total holiday experience which we try to offer, an experience of relaxation and freedom from stress. It is especially important on a Sunday for the family who have arrived late and tired on the night before.
We are talking about possibly 50 large shops. To maintain the quality of the holiday experience the owners of most parks would feel that they had to build a small shop in order to provide breakfast materials for the extra two or three hours on a Sunday. I do not think that was contemplated in the Bill. The purpose of the amendment is simply to avoid that, in my view, totally unjust and unintended imposition on the owners of the parks who could not let their guests suffer the inconvenience. It is so totally unnecessary and a total waste of time.
I would argue that the function of a food shop in a holiday park is comparable with the function of a cafeteria in a hotel. It is a catering function. It is interesting to note that the definition of the sale of goods in paragraph 1 of Schedule 1 specifically excludes from the sale of goods the sale of refreshments for consumption on the premises. Whether or not a carton of fresh milk or a hot croissant are refreshments would be a matter for the courts to decide, but my guess is that they probably are. It seems to me that it is much better to accept this amendment and clarify the position. I therefore commend it to your Lordships.
§ 9 p.m.
§ Viscount Brentford
My Lords, I am very glad that no reference has been made today to suggest that this amendment would bring the law back into line with the 1950 Act. The restrictions on holiday camp shops were fairly serious at that stage. They could be open for only 18 days and for a limited range of goods. We have not fallen into that trap today. However, I fully endorse the fact that this would be yet another anomaly for the reasons clearly put by the noble Baroness, Lady Jay. I believe that we should not accept the amendment. I note that the two movers are both directors in this business and that no one else appears to be supporting the amendment. I do not know whether my noble friend Lord Cochrane of Cults is a cricketer, but I note the fact that he has twice moved and withdrawn this amendment at earlier stages. Perhaps I may express the wish that he will score a hat-trick by for the third time withdrawing the amendment today.
My Lords, here we go again, with another possible exception. My noble friend Lord Cochrane of Cults, with admirable persistence, once again seeks an exemption for large shops in holiday parks. My noble friend considers it essential that shops in holiday parks should be exempt because the people who visit such parks expect the shops there to be open early on a Sunday morning and late on a Sunday evening. It is the duty of the parks, so the noble Lord, Lord Northbourne, says, to cater for their guests. I should have thought that they might more appropriately have been called customers.
That is the case, so far as I am concerned, for the prosecution. While I have wondered at times what it is about holiday parks which makes those visiting them so reluctant to leave their confines to search out a corner shop or a garage willing to sell them a pint of milk or a pot of marmalade when they are in extremis, I nonetheless have to accept that my noble friend Lord Cochrane and the noble Lord, Lord Northbourne, are experts on this matter. They know their own customers or guests and they know them best.
It has been argued before that a special exemption for shops in holiday parks is justified because the Shops Act 1950 allows, through Section 51 and Schedule 7, local authorities to make an order authorising shops in resort areas to sell additional goods to those which are listed in Schedule 5 to the Act. I have mentioned before that these orders could apply only to 18 Sundays in a year. Your Lordships will note that the amendment seeks to exempt only shops in holiday parks, not shops in holiday resorts. So your Lordships should be quite clear that what my noble friend is seeking is a special exemption for shops in holiday parks on the ground that they are a special case. The noble Baroness, Lady Jay, says that a holiday park is like a small town and may have 10,000 inhabitants. My noble friend is not just seeking to replicate an existing provision in the 1950 Act; he is asking them to be considered as a special case in the new Bill.
Your Lordships may well believe that holiday parks are a special feature and therefore a special case. But you should perhaps consider whether such stores in resort towns might feel that they would be unfairly treated if shops in holiday parks were to enjoy such an exemption whereas shops in holiday resorts were not. My noble friend has put forward the argument that, as the exemption would apply to those shops which sell goods only to paying guests at the park, other stores need not fear that they might lose custom to the shops in holiday parks. My noble friend's argument —your Lordships may find it a good one—is that members of the general public would hardly choose to pay the often substantial entry fee to a holiday park—which my noble friend Lord Cochrane says is £6.50—in order to buy, as he suggests, a pound of sausages outside the six-hour period permitted to all large shops.
But there is another way of looking at this. It could be argued that the holiday parks would, indeed, prefer their paying guests to make all their purchases at the park shop. That would be good for business. But in fact holiday parks may not have entirely captive customers and, if that were the case, supermarkets in the nearby 439 resort or town might expect some guests to forego the convenience of a shop on their very doorstep in the holiday park and might wish to venture into the town perhaps in search of more variety or cheaper prices.
If guests at holiday parks are not entirely captive, then there is an argument that, if your Lordships have to allow park shops an exemption from the six-hour rule but were not to allow such an exemption to shops elsewhere, then you would be helping to discourage park guests from shopping further afield. This in turn would tilt the balance towards holiday parks and against retailers in nearby resorts and towns.
Your Lordships may also like to consider whether the holiday resort as a whole might feel it right that holidaymakers who are staying in the holiday park can benefit from access to a large shop at any time on a Sunday but similar holidaymakers staying in flats on a nearby site could not. Landlords in the town might feel that they are up against enough competition from holiday parks as things stand without holiday park customers being given special privileges which are denied to other holidaymakers.
However, as I have pointed out before to your Lordships, these are weighty matters for your Lordships to consider. But, speaking personally, I am not enormously impressed with the amendment.
§ Lord Cochrane of Cults
My Lords, I thank my noble friend for his exposition of what I said. But I do not agree with his interpretation of a certain amount of what I said. Perhaps I may try to reply to the various points made. I believe that I have cleared the point with the noble Baroness, Lady Jay, when I said that the Shopping Hours Reform Council offered no objection, which of course is not the same as necessarily supporting but is a good deal better than opposing.
Another point is that the shops in the town are provided by a number of people. Within a holiday park they are under the control of one company or person. That is the essential difference. There may not be a choice of shops; they may all be congregated. I enjoyed very much the speech of the noble Lord, Lord McCarthy, and I am sorry to see that he is not in his place. He took to pieces the advocacy of the noble Lord, Lord Monson, for bookshops by stressing all the matters which were deficient in his argument and using the points which were the very strength of the argument for large shops. It was a curious dilemma.
My noble friend Lord Brentford asked whether I was a cricketer. The answer is unquestionably no. The nearest I got to cricket was to go on a cricketers' holiday, which some noble Lords may know about. I do not propose to score a hat trick. For one thing it is rather late at night and I could not possibly hit the ball three times. However, I shall invite your Lordships to support this amendment in due course.
My noble friend Lord Ferrers asked why we do not describe people as "customers". It is not because we want to avoid catching a nasty habit from British Rail where passengers have been turned into customers. People who stay in hotels and hostelries have always been guests. I am grateful to my noble friend for 440 commenting politely and flatteringly on the expertise which the noble Lord, Lord Northbourne, and I appear to have on this subject. The concept is of an hotel in a field and therefore "guests" is the operative word.
My noble friend was greatly exercised about the effect on the local shops of a holiday camp. When I first spoke on this subject I said that people treated them almost as a holiday prison. I was extremely apprehensive when I received a telephone call from the legal department of one of the main operators asking me to ring back. I thought that I had privilege and wondered whether there was going to be an objection because I had described the undertakings as in the nature of prisons.
All I meant was that people like to go to such places to cut themselves off from their usual surroundings and enjoy themselves. About 80 per cent. of the people go by their own transport and 20 per cent. by various means of public transport. The parks are not entirely self-contained, but the people spend most of their holiday money within the park. They will go out for a trip and so on, but the effect on the local economy is small compared to the number of people involved.
My noble friend also suggested that we were asking for a special case. Yes, I am asking for a special case, but it is to give equality of treatment to people who go to parks where the shopping may be restricted to a large food shop and other shops and to help our tourist trade remain internationally competitive and pleasant and attractive to our guests.
§ 9.15 p.m.
§ On Question, Whether the said amendment (No. 13) shall be agreed to?
§ Their Lordships divided: Contents, 7; Not-Contents, 51.
|Division No. 5|
|Boyd-Carpenter, L.||Cranborne, V.|
|Cavendish of Furness, L.||Hacking, L.|
|Cochrane of Cults, L. [Teller.]||Northbourne, L. [Teller.]|
|Annaly, L.||Lucas of Chilworth, L.|
|Astor, V.||Lyell, L.|
|Balfour, E.||Mackay of Ardbrecknish, L.|
|Blyth, L.||Masham of Ilton, B.|
|Brentford, V.||McCarthy, L. [Teller.]|
|Brougham and Vaux, L.||McColl of Dulwich, L.|
|Carnock, L.||Monteagle of Brandon, L.|
|Craigmyle, L.||Newall, L.|
|Cumberlege, B.||Nome, L.|
|Dean of Thornton-le-Fylde, B.||O'Cathain, B.|
|Dixon-Smith, L.||Rochester, L.|
|Elles, B.||Rodney, L.|
|Elton, L.||Seear, B.|
|Falkland, V.||Simon of Glaisdale, L.|
|Ferrers, E.||Soulsby of Swaffham Prior, L.|
|Fraser of Carmyllie, L.||St. Davids, V.|
|Goschen, V.||Stewartby, L.|
|Graham of Edmonton, L.||Stoddart of Swindon, L.|
|Hamwee, B.||Strathclyde, L.|
|Haskel, L.||Strathmore and Kinghorne, E.|
|Henley, L.||Swinton, E.|
|Howe, E.||Trumpington, B.|
|Jay of Paddington, B. [Teller.]||Turner of Camden, B.|
|Jeffreys, L.||Vinson, L.|
|Lawrence, L.||Wakeham, L. [Lord Privy Seal.]|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 9.23 p.m.
§ Earl Ferrers moved Amendment No. 14:
Page 5, line 32, leave out ("(1) (b)") and insert ("(1) (a), (b), (c) or (d)").
§ The noble Earl said: My Lords, I spoke to this amendment with Amendment No. 4. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 2 [Supplementary provisions]:
§ Earl Ferrers moved Amendment No. 15:
Page 7, leave out line 16.
§ The noble Earl said: My Lords, in moving Amendment No. 15, I shall speak also to Amendments Nos. 18, 19 and 20. These are minor technical amendments to tidy up the drafting of Schedule 2. I beg to move.
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 16:
Page 7, line 21, leave out ("this Act") and insert ("Schedules 1 and 3 to this Act and Part III of this Schedule").
§ The noble Earl said: My Lords, in moving Amendment No. 16, I shall speak also to Amendment No. 17. These are purely technical amendments to clarify the drafting of the Bill. I beg to move.
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No. 17:
Page 7, line 31, after second ("of") insert ("Schedules 1 and 3 to").
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendments Nos. 18 to 20:
Page 9, line 45, leave out ("has") and insert ("and "shop" have").
Page 10, line 6, leave out ("(within the meaning of this Schedule)").
Page 10, line 7 at end insert ("and is at that time a large shop within the meaning of Schedule 1 to this Act").
§ On Question, amendments agreed to.
§ Schedule 3 [Loading and unloading at large shops on Sunday morning]:
§ Lord Hacking moved Amendment No. 21:
Page 10, line 45, at end insert ("and as may be sufficient to cover in whole or in part the reasonable administration costs of processing his application.").
§ The noble Lord said: My Lords, as your Lordships will be aware, Schedule 3 covers the loading and unloading at large shops on Sunday morning.
§ Paragraph 5 of Schedule 3 provides that local authorities are allowed to set reasonable fees as they see fit or, to use the words of the Bill, as they "may determine" for granting consent to deliveries before 9 a.m. The fear is that some local authorities may see that as a means of charging larger retailers amounts which go well above and beyond administrative costs.
§ Local authorities have a number of statutory duties in relation to loading and unloading; for example, they have a duty to investigate noise. The anxiety is that the cost of some of those investigations and other matters may be incorporated in the fee which the justices charge under paragraph 5 of Schedule 3.442
§ It is not simply a figment of imagination. Representations have been made to me by a large retail store. In its experience, there are a wide variety of charges and different interpretations can be placed upon terms such as appear in paragraph 5 of Schedule 3. I beg to move.
§ Lord Airedale
My Lords, I support the amendment. In the absence of a provision to say that the fee is repayable to the applicant if the application is refused, those words are a useful indication of what Parliament means by a "reasonable fee". They indicate clearly that local authorities are not intended to make money by refusing applications.
§ Lord Elton
My Lords, I suggest, on the contrary, that the costs of the authority are not only administrative. The authority supplies the labour force necessary to keep the traffic moving, the streets clean and so on. We have talked a lot this evening about how it is right to leave the courts to interpret well-understood words like "mainly". "Reasonable" is an even more familiar word in statute and I should have thought that it was for the courts to decide what is reasonable in those: circumstances.
My Lords, I believe that is a very reasonable observation. The term "reasonable fee" as used in Schedule 3 to the Bill is quite a standard term and it appears frequently in legislation; for example, paragraph 19 of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982, which deals with the licensing of sex shops, uses the term "reasonable fee", as does paragraph 5 of Schedule 2 to the Noise and Statutory Nuisance Act 1993, which covers loud-speakers in the streets.
The amendment which is tabled by my noble friend Lord Hacking seeks to make it explicit that the fee could be used to cover, in whole or in part, only the reasonable administration costs of processing the application. But that seems to be over-egging the pudding. I find it: difficult to know to what else a "reasonable fee" could relate. The paragraph already states that it has to be in respect of the application. The local authority could not, therefore, use it as some kind of addition local tax with which to fund a lavish new town hall. It could not: properly be used to cover general administrative costs incurred by the local authority in the normal course of its business because those costs would not be in respect: of the application as the Bill requires. I hope that my noble friend will accept my assurance that the term used in the Bill is a normal term; that it does not cause problems in other legislation; and that, therefore, his proposed amendment would do no more than add unnecessary words.
§ Lord Hacking
My Lords, my noble friend has given a most adequate reply. I am very happy to withdraw the amendment.
Amendment, by leave, withdrawn.
443 9.30 p.m.
Schedule 4 [Rights of shop workers as respects Sunday working]:
§ Lord Monson moved Amendment No. 22:
Page 11, line 44, at end insert:
(" "large shop" means a shop which has a relevant floor area (within the meaning of Schedule 1) exceeding 280 square metres").
§ The noble Lord said: My Lords, very much to my surprise, and to my mild dismay, I find myself speaking first to this group of amendments most of which—that is, the substantive ones—have been inspired either by the noble Baroness, Lady Turner of Camden, or by the noble Lord, Lord Rochester. The reason I do so is that my purely technical amendment just happens to slot in a little earlier in Schedule 4.
§ What the right notice period should be for employees who have opted for Sunday working but who have subsequently changed their minds was argued at length during earlier stages of the Bill. I, for one, found the arguments of the noble Earl, Lord Ferrers, who argued for the existing three-month notice period, and those of the noble Baroness, Lady Turner, who argued for a one-month notice period, equally compelling. That would seem to suggest that a compromise period of two months is about right.
§ However, I entirely agree with the noble Lord, Lord Rochester, that any such compromise should apply only to employees of large shops, one of the main reasons being the problems, in the words of the noble Earl, Lord Ferrers, of,
"those shops whose sales staff are required to have specialist knowledge".—[Official Report, 18/4/94; col. 14.]
§ Large shops with many employees should be able to get around that problem. They may not be able to do so in every case but, on the whole, they should be able to do so. However, that is not the case so far as concerns smaller shops.
§ Let us take, for example, the case of an antique dealer with only one employee who agreed earlier to work on Sundays. If he or she were subsequently to give two months' notice, the employer could find himself in real difficulties in finding someone in the time available, given the fact that the employee might be expected to be left in sole charge of the shop while the boss is away, for example, at a country house sale. Such an individual would need to possess a thorough knowledge of antiques, not merely a superficial one, and have plenty of references testifying to the fact that he or she was totally honest, as large sums of cash would almost certainly be handled. For all those reasons, I beg to move my paving amendment.
§ Lord Rochester
My Lords, I should like to speak to Amendments Nos. 24 and 31. I am grateful to the noble Lord, Lord Monson, for having moved Amendment No. 22. I should, indeed, have done so myself. I believe that there is general agreement that, in reaching a conclusion as to what should be the period of notice that a shopworker should give in order to opt out of Sunday working, there is a need to achieve a balance; that is, a balance between the differing interests of employers and employees.
444 On Report, I was among those who argued that the period should be no more than six weeks. In doing so I was influenced by two considerations. First, if a shopworker was unexpectedly confronted with a family problem which meant that he or, more probably, she no longer felt able to work on Sunday, that person might be obliged to give one month's notice to leave altogether rather than the three months' notice required to opt out. That seemed to me to be unduly harsh. Secondly, when employees give the normal notice of one month if they wish to terminate their employment, employers seem to manage well enough. I could not see therefore why an employer should have more than six weeks' notice that an employee wished to stop working on Sunday.
On Report, I went on to say that if the period could not be six weeks, let it be two months. I expressed the hope that in that way we could achieve a consensus on the matter. In his reply the noble Earl, Lord Ferrers, said that a large supermarket employing hundreds of workers might well be able to cope with some of its employees opting out of Sunday working simply by seeking more volunteers from within its existing workforce, but that a small newsagent on the other hand with only one or two employees might have great difficulty in continuing to trade if his entire complement of staff were able to opt out of Sunday work at six weeks' notice. The noble Earl added that if a shop had only a handful of staff in certain key posts where, for example, specialist knowledge was required, it could create greater problems if those staff were to opt out of Sunday work at relatively short notice than would arise if, say, a checkout operator or shelf filler were to opt out.
In drafting my Amendment No. 24 I have endeavoured to meet those criticisms, first, by extending the suggested period of notice from six weeks to two months and, secondly, by confining the period of two months to large shops as defined in Amendment No. 22. In smaller shops the period of notice would stay at three months. I hope the Minister and your Lordships will recognise that in this way I have done all I can to find common ground in this matter and that Amendments Nos. 22 and 24 will be accepted. Amendment No. 31, to which I am also speaking, is consequential.
§ Baroness Turner of Camden
My Lords, I rise to support the amendment of the noble Lord, Lord Monson, and the noble Lord, Lord Rochester. My own Amendment No. 25 is in this grouping. A number of us clearly have felt that three months is far too long for the average shopworker to be expected to give notice that he or she does not want to do Sunday work. The Government claim that shop working on a Sunday must be voluntary and I believe that this is sincerely their objective. On the other hand, there is also a desire to protect the interests of small shopkeepers who may not find it so easy to obtain replacements for workers who feel they cannot work on Sundays. Both the noble Lord, Lord Monson, and the noble Lord, Lord Rochester, have repeated those arguments this evening.
I still favour my original amendment which was rejected by your Lordships. I still think one month's notice should be enough, but clearly your Lordships did not think so and there does seem a genuine concern that 445 small shops in particular would find this difficult to cope with. I nevertheless ask your Lordships to consider the position of a shopworker—in all probability a woman —working at an unskilled or semi-skilled job, perhaps stacking supermarket shelves. She takes on Sunday working originally because she needs the extra money but having done so she then finds she cannot manage it. The domestic pressures may be too great. If she has family responsibilities, perhaps small children, she may find it too exhausting to continue or else she may have elderly relatives who need to be cared for. To expect her to give three months' notice of her inability to continue working on Sunday is, I think, too much and it certainly undermines the voluntary nature of shop working which the Government have been anxious to maintain.
Nevertheless, I am aware of the fact that we have rehearsed these arguments both in Committee and on Report and I have decided to back the amendment of the noble Lord, Lord Rochester, and the noble Lord, Lord Monson, because it seems to me that it has tried to overcome the opposition to previous amendments which have been voiced in this House. It is a question of attaining the right balance, as has been said on a number of occasions in debate. I believe that as the Bill now stands the balance is tilted too much in the direction of the employer.
I hope that your Lordships will accept the amendment to which I am now speaking because it makes a genuine attempt to deal with some of the objections that have been voiced in previous debates on this issue in Committee and on Report. I support the amendment.
§ Viscount Brentford
My Lords, I should like to add my support to the amendments. I said previously that I thought that three months was too long, but I was unhappy that four weeks was too short a period for the reasons that have been rehearsed. As has been said, this is a question of balance, and I hope that the balance that has been put forward is acceptable to the House for the reasons which have already been given and which I shall not repeat.
§ Lord McCarthy
My Lords, I hope that the Government will listen to what has been said. I want to make just one point. Whenever the issue has been raised the Government seem to have said that the rights that they are giving to workers relate to temporary absence from Sunday work. It is not to be permanent. You are supposed to want for some reason not to have to work on Sunday and to be able to say to your employer that you cannot work on Sunday. If that is the case, I suggest that that must be due to some short-term crisis. What else could it be? After all, the new entrant is screened before he or she starts the job. If that person gives an indication that in general he or she will not work on Sunday then presumably that individual will not be taken on. Therefore, staff must normally give an indication that they will be prepared to work on Sunday. This is the way the Government regard the matter.
Then there is a crisis. Surely it must be a short-term crisis, whether it is a sudden death in the family, a football match or the collapse of a child-minding arrangement. It must be sudden and in the nature of a 446 crisis. What earthly use is a three-month period of notice to anybody in those circumstances? In those circumstances, as has been said, the individual worker either has to leave or has to beg the employer. The employee has to say "I have no statutory right, but I can't work next Sunday. I have to give you three months' notice. Therefore I beg you to give me what I do not have as a statutory right". What good is that?
My Lords, the question of what period of notice should be required from an employee who wants to opt out of a contractual agreement to work on Sundays has, as your Lordships have already observed, been discussed many times both here and in another place. We return to it once more today.
I recognise the concern which many noble Lords feel on this point. However, I remain of the opinion that this unique option to opt out of a contractual agreement which has already been freely entered into is generous as it stands. To reduce the statutory maximum notice period from the three months which is proposed in the Bill would cause real difficulties for employers and would tip the balance unduly in the direction of the employee.
It seems to me that to be able to opt out of a contractual obligation in that way—and so simply—is a very generous measure. I find it difficult to accept the argument put forward by the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord McCarthy, that in a sudden change of circumstances at a time of family crisis the three months' notice period is too long, with the inference that two months or six months is manageable.
Family crises are not confined to Sundays. It seems to me that that is an entirely separate issue. Misfortunes can occur on any day of the week. In such circumstances employers and employees naturally agree a suitable course of action. They have always done so in the past. I am sure that a reasonable employer would consider a request from an employee to be excused Sunday duties on the grounds of unexpected family circumstances or tragedy. It would, in all probability, be in the employer's interest to do so. But the right to opt out of their contract is not designed to deal with unexpected emergencies but nor would a six week period or even a month. The fact is that it is a right for all shop workers, whatever their reason, to opt out.
There is nothing to prevent the employer from waiving the three months' notice period, and the fact that employers who backed the Shopping Hours Reform Council have agreed with the Union of Shop Distributive and Allied Workers to a one month notice period illustrates that voluntary agreements can be mutually acceptable.
But the schedule allows any shop worker, no matter what his reasons and with no regard to the status or circumstance of his employer, unilaterally to alter the terms of his employment. A three month notice period of the intention to do so seems to me to be perfectly reasonable.
As with many other amendments, noble Lords have sought to bolster their arguments by claiming that, if those employers who back the Shopping Hours Reform 447 Council option can manage, so can others. But, of course, Shopping Hours Reform Council employers are not, and do not claim to be, representative of the retail industry as a whole.
While I appreciate the sentiment underlying the variation on the amendment which has been tabled by the noble Lord, Lord Rochester, I do not think that it would work. It is true that the problems which are experienced by a retailer when employees opt out of Sunday working are likely to be greater in smaller shops than in larger ones. For example, the size of the workforce in a small shop may make it more difficult to rearrange staffing rotas. But such problems are by no means limited to smaller shops.
The Government have received many representations, from employers as large as John Lewis and Burton—as well as from smaller retailers and shops which require expertise among their staff, such as gardening centres and hardware stores—expressing their concern that there should be a right to opt out at all and that the three months' notice period will cause difficulties. Their interests must also be taken into account.
In allowing such a radical departure from normal practice it is imperative that the interests of employers should be taken properly into account as well as the interests of employees. The three month notice period should allow sufficient time for retailers to make alternative arrangements. A lesser period may suit some shops, and they are perfectly free to agree to a shorter period with their staff if they wish to do so, but a shorter period could well cause real difficulties for others. It is for those reasons that we feel it right to keep the figure at three months.
§ Lord Monson
My Lords, I listened carefully to what the noble Earl, Lord Ferrers, said. However, I remain unconvinced, as I am sure do the noble Lord, Lord Rochester, and others who have supported the amendments.
The compromise amendments in the name of the noble Lord, Lord Rochester, and myself are designed to appeal to noble Lords across the political spectrum and not only those on the Opposition Benches. Quite apart from the intrinsic merit of those amendments, I invite noble Lords in the Shopping Hours Reform Council lobby, and indeed the noble Earl, Lord Ferrers, to consider the following. It is often psychologically prudent as well as undoubtedly courteous to allow your opponents at least one small victory to compensate for a series of defeats. In this particular case, it is psychologically prudent because it may well allow Keep Sunday Special campaigners in another place to accept more of our liberalising amendments than they will be prepared to do in the absence of an amendment like this being accepted. For that reason I intend to divide the House.
§ 9.49 p.m.
§ On Question, Whether the said amendment (No. 22) shall be agreed to?
§ Their Lordships divided: Contents, 16; Not-Contents, 43.448
|Division no. 6|
|Airedale, L.||Norrie, L.|
|Brentford, V.||Richard, L.|
|Dean of Thomton-le-Fylde, B.||Rochester, L.[Teller.]|
|Graham of Edmonton, L.||Seear, B.|
|Hamwee, B.||Simon of Glaisdale, L.|
|Jay of Paddington, B.||Skelmersdale, L.|
|McCarthy, L.||Stoddart of Swindon, L.|
|Monson, L. [Teller.]||Turner of Camden, B.|
|Annaly, L.||Henley, L.|
|Astor, V.||Howe, E.|
|Balfour, E.||Jeffreys, L.|
|Blatch, B.||Long, V.|
|Blyth, L.||Lucas of Chilworth, L.|
|Brougham and Vaux, L.||Lucas, L.|
|Camock, L.||Lyell, L.|
|Cavendish of Furness, L.||Mackay of Ardbrecknish, L.|
|Clark of Kempston, L.||Marlesford, L.|
|Cochrane of Cults, L.||McColl of Dulwich, L.|
|Courtown, E.||Monteagle of Brandon, L.|
|Craigmyle, L.||O'Cathain, B.|
|Cranbome, V.||Reay, L.|
|Cumberlege, B.||Rodney, L.|
|Denton of Wakefield, B.||St. Davids, V.|
|Dixon-Smith, L.||Stewartby, L.|
|Elles, B.||Strathclyde, L.|
|Elton, L.||Strathmore and Kinghorne, E.|
|Fraser of Carmyllie, L.||Trumpington, B.|
|Goschen, V.||Ullswater, V. [Teller.]|
|Hacking, L.||Wakeham, L. [Lord Privy Seal.]|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 9.56 p.m.
§ Baroness Turner of Camden moved Amendment No. 23:
Page 12, line 19 at end insert ("and/or a worker within the meaning of section 8 of the Wages Council Act 1986, who is required to do shop work, or may be required to do such work.").
§ The noble Baroness said: My Lords, I said when the House considered the Bill on Report that I would return with this amendment at Third Reading. The reason for doing so is that we did not reach the amendments concerned with employee protection until approaching midnight. It was not possible to do the arguments justice at that time and when the House was very poorly attended. We are not very much better situated tonight, I may say. However, I had then the advantage of the Minister's response.
§ The main anxieties among those who have not been happy about the Bill have been about the protection of workers who do not, for whatever reason, want to work on Sundays. Most people, I think, still regard Sunday as a special day. There has been a real fear lest the changes to which both Houses have now agreed will ultimately have the result of making Sunday a day like any other. Clearly, it is not. Most people in this country would not want it to be. They treasure the special nature of Sunday, and certainly I do. It therefore follows that workers who do not want to work on Sunday for religious, domestic or other reasons should not feel compelled to do so.
§ The Government have recognised those fears, which is why they have agreed to the measures of protection that are written into this Bill in Schedule 4. Protected and opted out shopworkers, as we find in the Bill, cannot 449 be compelled to work on Sunday; and any term in their contracts of employment to that effect becomes unenforceable.
However, those arrangements apply only to people working under contracts of employment. There is no comparable protection for people working under a contract of services. This is no longer a small matter. Increasing casualisation of employment—increasing flexibility, which is what the Government want—could mean that workers in shops doing what could be regarded as casual work would not be covered by the protections that apply to Schedule 4. Not only will the contractual obligations of such workers to do work on Sundays be unaffected by the Bill, but they could also be denied the protection of the statutory right not to be unfairly dismissed and the right not to suffer any detriment for refusing Sunday work.
The development of the kinds of flexible arrangements whereby individuals could perhaps be regarded by the courts as self-employed was recognised by the Government when they introduced the Wages Act. Under Section 8 of that Act, a worker within the meaning of the Act is defined as being,
an individual who has entered into or works under … one of the
contracts referred to in subsection (2)".
§ Those contracts are either a contract of service, a contract of apprenticeship or:
"any other contract whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by that individual".
§ The Act's provisions apply:
"whether such a contract is express or implied and, if express, whether it is oral or in writing".
§ When I moved the amendment very late in the day on Report, the Minister did not deny that there might be individuals who may come into the category that I quoted and therefore would not be covered by the protection afforded by the Bill. He believed, however, that the workers in the categories to which I referred were more often found in industries such as construction, where what is known as "labour only" sub-contracting is very common. He did not think that it applied to the retail sector.
§ But I do not feel that we can be so sure about that. As I said earlier, flexibility has increasingly become the practice across a whole range of industries. There is now such a thing as "zero employment", where the employee is effectively on call and comes in when called upon to do so, keeping himself or herself available in case of need. Moreover, some employers may feel inclined to employ people on the sub-contracting basis which has become prevalent in construction. Clearly it has advantages for the employer, who then escapes all the obligations that labour law can rightly impose upon him when he employs labour in the traditional way.
§ Therefore, I do not see why the Minister the last time around felt that he could not accept the amendment. The Government are already committed to a similar formula in the Wages Act, an Act which by no means applies solely to the construction industry, or indeed to manufacturing industry generally, but is of more general application.450
§ I hope that this evening I shall meet with a more sympathetic response to the amendment. I beg to move.
§ Lord Rochester
My Lords, in the brief discussion on this subject that we had on Report, late at night, the noble Lord, Lord Henley, acknowledged that there was one category of shopworker to which the schedule of provisions did not extend: broadly, those who are self-employed rather than those who are employees.
At that time the noble Lord resisted the amendment, partly on the grounds that there are relatively few self-employed retail workers. But, as the noble Baroness, Lady Turner, said, self-employment is increasing and in these days of flexible jobs, when there is the temptation to reintroduce casual working or so-called zero employment, employers may well seek to employ more people on that basis because, as the noble: Baroness said, the statutory rights to which other employees are entitled do not have to be accorded to self-employed people.
Therefore, I suggest that the need for the amendment: has been demonstrated. I hope that, on reflection, the Government will accept it.
§ Lord McCarthy
My Lords, the Government will not deny that there has been a general growth in the: self-employed, part-time, temporary labour force compared with the full-time labour force with employment contracts. The Labour Force Survey in general terms shows that to be the case. We are often told that this country has millions of part-time workers. We are told that the self-employed are the fastest: growing part of the labour force.
That being the case, the precise number of such self-employed, part-time or temporary workers who work in the retail trades is a second order question. They may very well not be as many as in construction but there are some. The evidence that we have indicates that their number is increasing. So there is a significant number of workers who are not protected by this legislation.
We do not want to say that all employers or even most employers will take such an attitude. But it is very easy to reclassify people as self-employed, without employment contracts but with contracts of service, so that one escapes liability not simply for this piece of legislation but for unfair dismissal legislation, equal opportunities legislation and so on. There is therefore an incentive. This amendment would allow the Government in that respect to combat the incentive and give the rights to workers that they were intended to have when the Bill was first tabled.
§ The Parliamentary Under-Secretary of State, Department of Employment (Lord Henley)
My Lords, again we are running round old courses. As the: noble Baroness explained, the amendment is designed to extend the Schedule 4 employment rights to shopworkers who are not employees but are self-employed workers engaged on certain contracts for services. In practice the workers who would be covered are those who are not genuinely in business on their own account. We touched on this matter at Report, albeit briefly. I hope that by repeating some of what I said then 451 and a little more I can offer the appropriate reassurances to the noble Baroness that her amendments are unnecessary.
I appreciate that the noble Baroness is concerned to ensure that all individuals who do shop work are covered by the employment provisions in the Bill. As I made clear at Report, the Government share that concern and that is why the definition of "shop worker" in Schedule 4 has been drawn widely.
The noble Baroness and the noble Lords, Lord McCarthy and Lord Rochester, identified two possible categories of people who may not be covered; first, the self-employed on a contract for services and, secondly, casual workers who may be engaged on zero-hours contracts. I shall deal with both in due course.
With regard to casual workers, the noble Baroness cited the development of the flexible labour market and implied that its participants are not normally considered employees and therefore would not be eligible for the protection provided. Those with short-term, casual or zero-hours contracts would all be covered so long as they were engaged under a contract of employment. Those rights will apply from the first day of a shopworker's employment. They are not subject to any qualifying period of service. They do not depend on working a specific number of hours a week and there is no upper limit. Therefore, workers employed on short-term, casual or zero-hours contracts will benefit from the protections in the same way as those employed under contracts of an indefinite duration. The schedule does not distinguish between the two groups in terms of the extra rights that it gives to shopworkers.
It has been argued also that the extension is needed in order to deter employers from making their employees self-employed so that they no longer enjoy the protections in the schedule. It was suggested that there was a real possibility of employers taking that line. I do not believe that the evidence supports such a belief. General unfair dismissal provisions have been with us for well over 20 years. In all that time there is no evidence whatever that employers sought to give their workers self-employed status in order to escape those provisions. Occupational group rather than legislative vicissitudes tends to be the determining factor in whether workers have self-employed or employee status. As I indicated, the overwhelming tendency is for retail workers to have employee status.
The noble Lord, Lord McCarthy, implied that there would be an incentive for employers to, as it were, make their employees self-employed. I must remind the noble Lord—he will be the first to acknowledge this—that the question of employment status is not a matter for unilateral decision either by the employer or by the employee. The noble Lord will be the first to acknowledge and is well aware that it is a question of law and of fact relating to the status of that employee and the degree of control exerted over him. Where an individual's employment status is unclear, it would be for a tribunal to decide the nature of the employment relationship on the basis of the facts in the specific case.
§ Lord McCarthy
My Lords, the noble Lord says that. But if one came before a tribunal it would be very influential if the employer could say, "I offered him a contract for services and that is what he has got. I never offered him a contract of employment".
§ Lord Henley
My Lords, the noble Lord will know perfectly well that it is not what the employer says that matters. It is the degree of control exerted over the employee or self-employed person that defines his status. It is not a matter purely for the employer to declare that he is employed under a contract of service. If the facts of the manner in which he is working indicate that he is an employee, an employee he is, and he is not self-employed. That is what the tribunal would have to decide, whatever the employer had said. I think the noble Lord would have to accept that from his knowledge of labour law.
Perhaps I may say a little about the Wages Council Act because the amendment makes cross-references to that Act. It provides the necessary technical device for the amendment. The provisions of the Act serve an entirely different purpose from the Schedule 4 provisions. They are there to ensure that people get paid fairly for work they do. The wide definition is designed to ensure in particular that workers in the construction industry are covered. That industry has unusually high numbers of self-employed workers who often experience difficulties in getting paid their full due. Those workers do not, however, have the right not to be unfairly dismissed. That right has only ever applied to employees. In large part that is because it is difficult to see how workers can be protected against dismissal if they are not employed. It would be wholly inconsistent with the rest of unfair dismissal law to apply this aspect alone to a particular category of the self-employed.
With the assurance I have given her I hope the noble Baroness will accept that her amendment is not only unnecessary but is also inappropriate. I trust, therefore, that the noble Baroness will feel able to withdraw her amendment.
§ Baroness Turner of Camden
My Lords, I thank the Minister for his explanation of the Government's position. Despite the argument about the status of the employee, I am quite convinced that with the casualisation of the labour market we shall see a growth of the practices that have existed in a number of industries hitherto. People are categorised as self-employed because they have a contract for services as distinct from a contract of service.
If my amendment had not been satisfactory or suitable it might have been possible—at an earlier stage admittedly; not at Third Reading—to have devised a formula which would have given protection to those workers. The Minister said that the formula in the Wages Council Act would not serve this purpose because it was for quite a different purpose and in any event the definition did not cover people in respect of unfair dismissal because they were not categorised as employees. That may well be so, although I still think that there could have been an opportunity at an earlier stage of the Bill to devise a formula which would have given the kind of protection that we are seeking.
453 Nevertheless, as I said earlier, it is not my intention to press the amendment to a Division at this hour. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ The Deputy Speaker (Lord Brougham and Vaux)
My Lords, I have to inform the House that if Amendment No. 24 is agreed to, I cannot call Amendment No. 25.
[Amendment No. 24 not moved.]
[Amendment No. 25 not moved.]
§ Baroness Turner of Camden moved Amendment No. 26:
Page 15, line 41, at end insert: ("(5) In determining for the purposes of this paragraph whether the dismissal of a shop worker was fair or unfair, it shall be for the employer to show that the reason (or, if there was more than one, the principal reason) for the dismissal was not a reason falling within sub-paragraph (1) or (3) above.").
§ The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendment No. 27. I return to amendments which I moved at an earlier stage at: a time when it was not possible to air the subject adequately. The amendments are concerned with the burden of proof in the event of a dismissal which the employee contends is unfair. In Committee the Minister confirmed my impression that for the employee with less than two years the burden of proof when dismissed allegedly for refusal to work on Sunday rests firmly upon the employee.
§ For longer-serving employees the Minister seemed to indicate that the burden of proof is reversed—that is to say, it would be for the employer to prove that the dismissal was not connected with a refusal to do Sunday working. It is not entirely clear-cut. For the avoidance of doubt, my amendments cover all employees included in the definition of "shopworker" contained in the Bill.
§ This is not a small matter. It is difficult for an employee, particularly one who is not represented, to win at an industrial tribunal, anyway. The employer is unlikely to make it easy by declaring that the dismissal is due to a refusal to work on Sunday. As we know, the reasons for dismissal can be dressed up in all sorts of ways. Some imagined misdemeanour can be dredged up; fault can be found when it is not found in employees willing to do Sunday work, and so forth. However, the mere fact that the legislation makes it clear that the employer will have to prove that dismissal was not due to refusal to work on Sunday will be an added protection for shopworkers many of whom are very vulnerable. Many will not have worked for two years and will often not be in unions. This is in an industry where short-term employment is very common. If such employees want to enforce their rights, they will often have to make unrepresented application to an industrial tribunal.
§ That is a daunting experience. Only about 10 per cent. of all unrepresented applicants succeed. The industrial tribunal system has become one in which it is increasingly necessary for applicants to be represented whether by a union or by a legal representative. Therefore, I do not accept what has been said earlier by the Minister about these amendments. The wording now before the House is a little different from that put forward in Committee. The two amendments now cover 454 unfair selection for redundancy as well as straight dismissal. I believe that the Government are sincere when they say that Sunday working should be entirely voluntary. I believe that they are just not fully aware of the kind of pressures which can be brought to bear on vulnerable employees who need the work and who are afraid of insisting on rights even when these are clearly set out in legislation. The amendments are intended to make it easier for them to do so. Therefore, I hope that the Minister will give them a sympathetic ear this evening. I beg to move.
§ 10.15 p.m.
§ Lord Rochester
My Lords, in Committee: the noble Lord, Lord Henley, acknowledged that this was a complicated matter. He did his best to satisfy us that the right not to be dismissed for refusing to work on Sunday was adequately protected in the Bill as it stood. However, he failed to persuade me among others that that was so in all cases, particularly in relation to employees having fewer than two years' service. The misgivings felt on that score have been expressed again tonight by the noble Baroness, Lady Turner, and I share them. The Government have nothing to lose by accepting this amendment, and that is what I hope the Minister will now agree to do so that there is no longer any room for doubt in the matter at all.
§ Baroness Seear
My Lords, I strongly support these amendments. I remind the House that: the sort of employee of whom we are speaking is likely to be very low paid to begin with. He frequently does not serve the two-year period. Employers not infrequently seize the opportunity to get rid of him whenever and however that opportunity may present itself so that the employee does not reach the two-year period. There is no legal aid for representation at an industrial tribunal so such an employee is thrown back either on defending himself, which is a very daunting experience, as the noble Baroness, Lady Turner, has said, or having a trade union to represent him. For whatever reason, a very great many employees are not in trade unions and are not likely to be. So the odds are very heavily weighted indeed against the employee. In the light of these arguments, surely it is not too much for the Government once, and as a last chance, to show that they can accept an amendment on this matter.
§ Lord Henley
My Lords, in Committee we argued these matters at an earlier hour in the evening, and I gave a fairly thorough response to a similar amendment moved by the noble Baroness when I sought to explain why such an amendment was unnecessary. I highlighted the potentially absurd situation, to which the amendment could give rise, of an employer being required to demonstrate that the reason an employee had been dismissed was not a refusal to do Sunday work, even if the employee concerned had agreed to do such work and had always done it when asked.
I pointed out the danger of getting the issue out of all proportion. All the employee needs to do is to establish a prima facie case. I fancy that obstacle to be far from insurmountable. Thereafter, it is for the employer to establish the reason for dismissal. I would add that the 455 amendment is circular. If a tribunal is considering a case under the terms of the schedule, then it must have already accepted that there are some grounds for thinking that the worker was dismissed for refusing to work on Sundays.
I appreciate that noble Lords who have spoken feel deeply on this matter and the points that I made have not necessarily removed their concern. However, I do not feel that it would serve any useful purpose to revisit the arguments I have made. I do not believe that it would be a fruitful use of our time to repeat them.
I should like to say a word or two, however, about industrial tribunals. The noble Baronesses, Lady Turner and Lady Seear, implied that the industrial tribunal system does not meet the objectives set out for it and that a great many people had considerable fear of using it. I do not believe that there is any evidence that employees are deterred from using tribunals. There is no evidence that they are deterred from using them by the absence of legal aid. We have seen applications to the tribunals increase by some 67 per cent. in the years 1990–91 to 1992–93. They increased from 43,000 to some 72,000. That indicates that employees themselves think that industrial tribunals work. If they did not, the applications would not have risen by such an amount.
All noble Lords will know that industrial tribunals are informal and speedy compared with other courts. Most users express high levels of satisfaction with the procedures and how they work. A recent survey showed that some 42 per cent. of those who represented themselves or who were represented by a friend or relative were successful. That is a higher proportion of success than those employing any other form of representation. There is little evidence to show that people are deterred from using industrial tribunals. The absence of legal aid is not shown to be a deterrent to individuals making use of the tribunals. I hope that the noble Baroness will again see that her amendment is unnecessary.
§ Baroness Turner of Camden
My Lords, I am not altogether surprised by the Minister's response, and I am not of course convinced by it. I have some experience of appearing before industrial tribunals, representing members of my union. I believe that members, even when represented, find it a daunting experience. I have some research which seems to indicate that the number of cases which go to a tribunal is a relatively small proportion of the whole and that those which are resolved in the employee's favour are a small proportion of that.
Research has established that financial support and legal advice from a union, or some other body, are vital to an individual's chances of success before an industrial tribunal, especially where the employer is represented. Of course, legal aid is not available to applicants in unfair dismissal hearings. So I do not accept what the Minister said about individuals not finding the experience daunting. In my experience they do.
The increase in the number of cases may well be due to the fact that there have been far more dismissals and 456 redundancies during a period when there has been a great deal of unemployment and many problems for individuals resulting from the recession. I cannot expect to call a Division at this hour of the night. I am not satisfied, however, with what the Minister said. I still think our case is a good one. I still think it would provide further protection for vulnerable shopworkers if they knew that the burden of proof was on the employer. It would also be somewhat of a deterrent for employers who might feel inclined to deny to workers the rights set out in Schedule 4. Nevertheless, I shall not press the matter to a Division tonight. I am glad at least to have had the opportunity earlier than midnight—as opposed to the previous occasion —to put the arguments for it on the record. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 27 not moved.]
Baroness Turner of Camden moved Amendment No. 28:
Page 17, line 6, at end insert:
§ ("Limitation of Working Hours on a Sunday
§ .. No shopworker shall be employed for more than eight hours on a Sunday and any provision in any shopworker's contract which requires, or may have the effect of requiring, the shopworker to be employed for more than eight hours on a Sunday is null and void.")
§ The noble Baroness said: My Lords, I had intended to table this amendment in Committee but somehow it was omitted from the Marshalled List. I did not move it on Report because the hour was late. The House has agreed to the preferred option of six hours working on Sunday, which is supported by the Shopping Hours Reform Group. The intention of the amendment is to limit the number of hours that a shopworker can be compelled to work on a Sunday.
§ That is reasonable, since in the event of a shop opening for six hours it will be normal to expect the shopworkers, or some of them, to be there before opening time and immediately after closure in order to handle the necessary supplies and to undertake appropriate preparation and clearing up afterwards. It would therefore be appropriate to say that eight hours is the limit that should be worked on a Sunday.
§ After all, it is agreed by everyone, except perhaps those in favour of total deregulation—I see that the noble Lord, Lord Boyd-Carpenter, is not in his place and therefore cannot comment on the point—that Sunday is a special day. As a result of that feeling, special protection is written into the Bill for those workers who, for whatever reason, do not want to work on a Sunday. But we must still be careful that those who work on a Sunday are not exposed to exploitation.
§ This is another amendment that has union support. I gather that agreements already exist with a number of employers to the effect that the limitation of work on a Sunday is eight hours. Therefore, I hope that the Minister will see fit to give it support.
§ The noble Lords, Lord Rochester and Lord Monson, have tabled amendments to provide for exceptions in the case of small shops. As with arguments in respect of Amendment No. 24, they believe that there must be special arrangements to protect small shopkeepers. I would not object to those amendments because if they 457 amended my Amendment No. 28 and were incorporated in the Bill that would be an improvement. However, some limitation must be put on the number of hours that people can be expected to work on a Sunday and it seems to me that eight hours is a reasonable figure. I beg to move.
§ Lord Rochester moved, as an amendment to Amendment No. 28, Amendment No. 29:
Line 3, after ("shopworker") insert ("in a large shop").
§ The noble Lord said: My Lords, I am glad to support the principle underlying the amendment moved so capably by the noble Baroness, Lady Turner of Camden. As she said, the Bill stipulates that trading in large shops should be confined to a period of six hours between 10 a.m. and 6 p.m. However, there is no limit to the number of hours that shopworkers can be required to work. By the time the shop has been prepared beforehand and cleared up afterwards, more than eight hours can easily elapse. Therefore, it is eminently reasonable to limit work in large shops on what many of us regard as a special day to no more than the length of a normal working day.
§ What has troubled me a little about Amendment No. 28 is that problems could arise in the case of small shops which may already be open on Sunday for more than eight hours. If that amendment were passed, such a shop would have to open later or close earlier than the owner might wish unless he were willing to pay another worker for the extra time. That would seem an unfortunate consequence and it has prompted me to table Amendments Nos. 29 and 30. Their intended effect is simply to confine to large shops the proposed limitation of the working day to eight hours, leaving the position in small shops as it is now. I beg to move.
§ 10.30 p.m.
§ Lord Stoddart of Swindon
My Lords, I support the amendment. We should remind ourselves yet again that this relates to Sunday working and some of us still believe that Sunday is a special day. Because it is a special day, we need special legislation for it.
In fact there is ever greater reason for the kind of protection proposed. In Committee and on Report, the House decided to widen and increase the range of shops which can open all the hours that God might send on a Sunday. Those shops will not be confined to six hours. There are now groups of shops—garden centres, motor accessory shops and DIY shops—which are permitted to open longer than six hours. Therefore, it is necessary that there should be some protection for the staff working on Sundays. For those reasons, I hope that the Government will consider sympathetically the amendment moved by my noble friend and the amendments to that amendment in the names of the noble Lords, Lord Rochester and Lord Monson.
§ Baroness Seear
My Lords, I support what the noble Lord, Lord Stoddart, has just said. The fact is that during the passage of the Bill those of us opposed to what is proposed should become the law said that it was not partial deregulation; it was deregulation. Already we see the limits being nibbled away. I would lay a wager with anyone in your Lordships' House that in five years' 458 time, we shall have total deregulation in fact, whatever it may be de jure. That being so, we need to see the safeguards for workers fully in place before total deregulation in fact, if not in principle, becomes the law of the land.
§ Lord McCarthy
My Lords, I want to try to forestall an argument which the Government may use. It is an argument which the noble Lord, Lord Boyd-Carpenter, would undoubtedly have used had he not gone home. It is the argument: what is so special about shopworkers? He often asks why we should do anything special for shopworkers. The Government do not believe in regulating hours or employment conditions at all. So why should they make an exception for shopworkers?
The answer is that we have always in the past thought that we should. From the nineteenth century onwards, it has been accepted that shopworkers are in a particularly weak position. Perhaps it was the novels of H.G. Wells. But it was accepted that shopworkers are particularly liable to exploitation and extremely difficult to unionise. Therefore, for a long time we have had a good deal more regulation. It is even provided that women must have seats on which to sit. There are many regulations in the 1950 Act which the Government do not intend to get rid of entirely, as far as I can see.
Therefore, it has been generally accepted until this point that shopworkers are particularly open to exploitation by a minority of employers. Since we have got rid of most of the regulations affecting shopworkers, including the most important—the wages councils—we suggest that a little of that nineteenth century tradition for the exceptional position of shopworkers might be continued in this Bill.
My Lords, I can well understand your Lordships' anxiety, which led to the tabling of the amendment. However, I think that the spectre of a somewhat Dickensian world of an oppressed workforce toiling long hours for scant reward is misleading. I hope that I can persuade your Lordships that the principle of voluntary Sunday work, provided by Schedule 4, ensures that a statutory limit on the number of hours that an employee may work is unnecessary; and, indeed, undesirable.
The provisions in Schedule 4 will ensure that Sunday shop work is entirely voluntary. If people want to work, possibly for more than eight hours—and usually at premium rates—I, for one, do not see any justification for preventing them by statute from doing so. Your Lordships may care to consider, for example, the position of a student who works part-time to help pay his way through college, or a housewife who welcomes the opportunity to work on a Sunday in order to bolster the family income. Those are wholly meritorious objectives. I cannot believe that it is right to limit their ability to earn the money that they need and which they may not be able to earn on any other day by imposing an arbitrary limit on the number of hours that they are allowed to work. Apart from anything else, that could present particular difficulties for small shops many of which are trading perfectly legitimately at present. However, when the law on Sunday trading is reformed, those people will face new obligations.
459 The amendment tabled in the name of the noble Baroness, Lady Turner of Camden, would simply add further to the burdens of small shops and, I believe, to no good effect. For example, it would not be unusual for a small shop to open on a Sunday from 9 a.m. to 6 p.m. That is nine hours' opening time. But, if the amendment were carried, it would mean that such a small shop would need to engage two workers rather than one if cover was required for the full opening period. The cost might well be prohibitive for many small shops. We would therefore see the restrictions on Sunday trading (which your Lordships voted against so decisively before Easter) being introduced via the back door. The amendment tabled in the name of the noble Lord, Lord Rochester, as an amendment to Amendment No. 28, is designed to meet the latter concern. But, in doing so, it ignores the legitimate needs of large shops and creates unacceptable differences in treatment between the employees of large shops and those of small ones.
It seems to me to be quite unfair that a restriction on working hours should be imposed on some workers but not on others. In my modest view, there is no need for any further protection to be provided in the schedule. I know that the noble Lord, Lord Rochester, does not share that view. However, I hope that the rest of the House will do so. I am perplexed at the noble Lord's apparent conviction that only employees in large stores should have their hours limited by statute.
Instead of providing protection for the individual, the amendments would actually inhibit the freedom of individuals and that of employers, both of whom could agree together about what their working patterns should be. Those patterns would meet the interests of both parties concerned. The amendments would also damage the earning potential of those employees for whom Sunday represents the only opportunity to take paid employment.
The noble Baroness, Lady Turner, has sought to persuade us that the amendment is necessary in order to ensure that shopworkers should have the opportunity to spend at least some time with their families or friends or to pursue other non-work activities. I agree: Sunday is a special day. I hope that families will be able to spend their time together. However, I do not believe that Parliament should seek to restrict the amount of time which workers can lawfully work on a Sunday on the grounds that those shopworkers alone must have a certain amount of time available to do other things.
The amendment would interfere with the desires and wishes of employers and employees in that way. It is a matter of individual choice and of individual agreement. I do not believe that it is a matter for statutory determination. On reflection, I hope that the noble Baroness will agree that the Bill is best left in its present position and that it is not right to impose statutory limitations on people's hours of work which they wish to enter into quite freely.
§ Lord Rochester
My Lords, all I can say is that it seems to be very difficult to get things right in the eyes of the Government. I would like to thank all the noble Lords who have spoken in support of these 460 amendments. I am not persuaded, as he foresaw, by the arguments of the noble Earl, Lord Ferrers. The difference between us is clear-cut, but it is plain that the Government are unwilling to accept what I and others have said on this matter. At this time of night all I can do is to express disappointment and beg leave to withdraw my amendment to Amendment No. 28.
Amendment No. 29, as an amendment to Amendment No. 28, by leave, withdrawn.
§ Baroness Turner of Camden
My Lords, I wish briefly to respond to the Minister on Amendment No. 28. He says that we seem to believe that we are still living in a Dickensian era. I have to tell the noble Minister that there are many shopworkers who really do still live in what one might call a sweat shop era, and that is particularly the case since even the protection that existed with the wages councils—as my noble friend Lord McCarthy said—has now been removed. What we are trying to do in this legislation, it seems to me, is to give protection to very vulnerable workers who often are not able to be easily unionised and have no other form of protection except what is provided in the legislation agreed in both Houses of Parliament.
I am not persuaded that the amendment we have tabled to extend those protections is unnecessary. I share the view of the noble Baroness, Lady Seear, who pointed out to the House that the consensus which was originally agreed has been gradually nibbled away and we may well find ourselves in a few years' time having total deregulation, and if that is going to be the case the stronger the protection we can obtain for vulnerable workers, the better.
We have the opportunity in this Bill of strengthening the protections that were devised in Schedule 4. However, as has already been said by the noble Lord, Lord Rochester, there is no point in pressing this amendment at this hour. We have had the opportunity of putting our fears on the record, perhaps for future reference, and having said that I beg leave to withdraw the amendment.
Amendment No. 28, by leave, withdrawn.
[Amendment No. 30, as an amendment to Amendment No. 28, not moved.]
[Amendment No. 31 not moved.]
§ Baroness Turner of Camden moved Amendment No. 32:
Page 18, line 50, at end insert:
("( ) A shopworker shall be entitled to remuneration from his employer in respect of shop work undertaken on a Sunday at a rate of pay which exceeds that which he earns during his normal working hours on a weekday, or in the case of a shopworker required to work only on a Sunday, at a rate which exceeds that earned by a shopworker carrying out similar shop work for the employer during his normal working hours on a weekday. That rate paid shall in no instance be less than one and a half times the hourly rate and a shopworker claiming to have been denied remuneration at the appropriate rate may seek to recover compensation for the amount lost by applying to the Industrial Tribunal for an Award.").
§ The noble Baroness said: My Lords, in Committee I argued that individuals who work on a Sunday when the rest of us are at leisure should have some compensation for so doing. The Bill does not envisage total deregulation although we may be unfortunately moving 461 gradually in that direction. So there is an acceptance at present implicit in the Bill that Sunday is a special day and a number of noble Lords have reiterated that view in the debate this evening. That is why, quite rightly, the Government themselves have written into the Bill some protection for workers who do not want to work on Sunday.
§ If Sunday were a day like any other there would be no argument for enhanced payment, but it is not. It is right that the minority of people who work so that others may enjoy varied leisure pursuits on Sunday—which will now include shopping—should have compensation for doing so. I was unable to persuade the Chamber in Committee to this effect. It was argued that many small shops could not afford to pay double time which was the demand in my previous amendment.
§ Several of us on this side of the House, notably my noble friend Lord Stoddart, who I am glad to say is in his place this evening, cited a number of examples indicating that it was generally accepted that Sunday working should rate for double time. Indeed, the consortium of companies supporting the Shopping Hours Reform Council has already entered into agreements with the unions which guarantee double time on Sundays. Those companies believe that they must do that in order to attract staff of a suitable calibre for Sunday working. They do not wish to be undercut by firms which refuse to compensate their staff adequately, relying on the fact of unemployment to get people to work without proper payment.
§ In the light of some of the comments made in Committee, I have produced another amendment. I must stress that it is my belief that the correct level of enhanced payment for working on a Sunday is double time, but in the light of some of the remarks I have drafted an amendment which lays down time and one half as a minimum. If it were passed I would hope that it would be the floor on which much better agreements could be built.
§ I have also noted the criticisms that my previous amendment contained no means by which enhanced payments could be enforced. I agree that that is difficult, but I have added a provision that a worker who believes that he or she should have had an enhanced payment and has not received it could apply to an industrial tribunal for an award to be made. I beg to move.
§ 10.45 p.m.
§ Lord Rochester
My Lords, it is tempting to say, "I told you so". From the start I have maintained that the only way to make sure that Sunday did not become like any other day and so no longer warrant premium pay was to prevent large shops from opening on any except the four Sundays before Christmas. Your Lordships decided otherwise, and now we are stuck with the consequences.
In Committee I said that I was tempted to vote in favour of shopworkers being paid at least one-and-a-half times the normal weekday rate, if only as a deterrent to more and more employers deciding to trade on Sunday. However, I went on to express doubts as to whether it was right for rates of pay to be prescribed by law at all and as to how, if they were so prescribed, they 462 could be enforced. I also feared that if such a course were followed it might compel small shops to shed labour or close altogether, at the expense of disadvantaged people who depend on them.
In the amendment which the noble Baroness, Lady Turner, has put forward this evening she has endeavoured to meet at least one of those difficulties in suggesting a means by which shopworkers claiming to have been denied remuneration at the appropriate rate might seek to recover compensation for the amount lost by applying to an industrial tribunal for an award. That is a proposal which needs to be judged on its merits.
Aside from that, I remain unhappy about the effect of the amendment on employment in small shops, for in the amendment no distinction is made between large and small shops. There is also the difficulty that if the amendment were passed it would place shopworkers in an altogether exceptional position compared with other people who have no statutory right to enhanced pay for work on Sunday. I do not see how that can be justified.
For those reasons I hope that the noble Baroness, Lady Turner, will not insist on her amendment tonight.
§ Baroness Dean of Thomton-le-Fylde
My Lords, I feel that I must rise to speak in support of my noble friend's proposal in regard to extra pay for Sundays. I am very conscious of the needs of small companies. I come from an industry which is made up predominantly of small companies. I recognise that there is a tendency to overplay the vulnerability of small companies. Until quite recently there were wages councils which provided a base level below which workers could not be paid.
Sunday is a special day. I ask noble Lords to reflect whether they would be prepared to work on Sunday for the same level of pay as they receive during the week. Only approximately 11 per cent. of the workforce work on Sunday. The available statistics show that generally in industry and commerce anyone who works on Sunday is paid extra.
We are talking about a change to the Shops Act. Therefore it is within the responsibilities of this House to consider the whole picture. Having achieved a change whereby shops can open on Sunday, it is not good enough then to say, "Let's nibble away at the minimal rights that workers will have when working on a Sunday". I hope that noble Lords will seriously consider the proposal that is put forward. I do not accept that the provision is too onerous on shops which choose to open to trade on Sunday.
§ Lord Henley
My Lords, I can give an assurance to the noble Baroness that I am certainly not on overtime at this time of night.
Once again we find ourselves back on the issue of premium pay for shopworkers on a Sunday. We had a long debate on this matter at Committee stage, with a great many interesting speeches. The Committee decided by a pretty large majority to reject the noble Baroness's amendment. The noble Baroness says that she has come forward with a more reasonable, milder, amendment; she has added the provision that the shopworker can go to an industrial tribunal. However, in other respects I do not see the provision as being much 463 different. In the old amendment it was a minimum pay of time and a half; in this amendment it is still a minimum pay of time and a half. If people want to go beyond that, that is a matter for negotiation.
I do not want to rehearse at length the arguments made at Committee stage. But I will briefly reiterate the points that we made on that occasion. We believe that statutory wage fixing distorts the operation of the labour market and destroys jobs. We believe that pay is properly a matter for employers and employees to agree according to local circumstances, or according to negotiations such as those to which the noble Baroness referred, as announced by those shops which are part of the Shopping Hours Reform Council. They are not matters for Parliament. Employers are in the best position to judge what rates of pay they can afford as well as what rate is needed to attract and retain staff of the right calibre in the light of local market circumstances.
We believe that there are no grounds for making an exception to this principle for Sunday retail workers. Although the Sunday Trading Bill will liberalise the law and allow more shops to open than at present, certain Sunday trading is currently perfectly legal. There is no legislation in force which requires Sunday shopworkers working lawfully to be paid at a premium rate. The power of wages councils to determine those special rates was abolished as long ago as 1986.
I believe that the amendment would create undesirable rigidities which are not removed by the token flexibility of a range from time and a half to whatever the employer wishes to pay. For example, the amendment would prevent an employer whose business was on the edge of viability from agreeing with his employees a reduction in Sunday pay rates to less than those paid on weekdays even if this would prevent job losses. It would also prevent him from offering a lower pay rate to Sunday only workers than weekday workers even if the supply of Sunday only workers far exceeded those available to work during the week. Additionally, it would have a damaging effect on employers who decided to pay a premium but were unable to pay as much as time and a half.
For those reasons, I believe that the noble Baroness ought to withdraw her amendment. If she wishes to press the matter to a Division, I would advise noble Lords to reject the amendment.
§ Baroness Turner of Camden
My Lords, I am not surprised by the Minister's response. There is no meeting of minds on this question. I believe strongly that it is the responsibility of parliamentarians to intervene to protect the vulnerable; and in some cases it is necessary to do so in the ways that we have sought to do by amendments to Schedule 4 to the Bill.
People who are organised in unions will have agreements to ensure that they have Sunday working premiums. Those who are not—they are often the most vulnerable and employed in smaller shops—will not have such protection and will be open to exploitation. I was under the impression that the Government wanted to ensure that working on a Sunday was going to be 464 entirely voluntary; there was going to be no pressure of any kind. If people are to be pressurised to work either for no premium amounts or for even less than their normal working arrangements, that surely is a degree of exploitation which should not be acceptable to this House.
As for people not being able to reach agreement with their employers to work for lesser amounts, it often seems to me, when we hear talk of small businesses and how small employers may not be able to offer employment, if the only way in which some shopkeepers can make a living is by exploiting their workforce, they ought to question whether they should be in business at all. There is no reason why a minimum standard should not be laid down in legislation.
The Minster says that he hopes I shall not press the amendment to a vote. I would do so if it were earlier in the evening. Unfortunately, it is quite absurd to consider pressing the issue to a vote at this time.
I must say again, as I said when we discussed Schedule 4 at Report stage, that it is very unsatisfactory that amendments concerned with the protection of employees' interests should on both occasions have been discussed late at night when there has been a thin House. That meant that it was quite impossible to test the feelings of noble Lords on such an issue. Having said that, I feel that I have no alternative but, with regret, to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 10.55 p.m.
My Lords, I beg to move that the Bill do now pass.
This is a unique Bill and the way in which it has been dealt with in Parliament is unique. "Unique" is a description which is frequently misapplied, but in the case of this Bill I fancy that the description is justified. This is the 30th Bill in the past 44 years to attempt to reform the Sunday trading provisions of the Shops Act 1950.
The issue of Sunday trading rouses strong passions which transcend the normal party lines in politics. As a result, another place has found it impossible before now to agree on the shape which reform of Sunday trading law should take, although even the other place has managed to agree that reform is necessary. The fact that, with your Lordships' approval, this Bill may be the first to succeed after 44 years of trying is at least a considerable achievement. It is an achievement in part because of the unique way in which the crucial decisions on the shape which reform should take have all been taken by both Houses on a series of free votes.
I add only that as a member of a government who, as all governments do, have business to try to get through, I would not necessarily recommend the process that we have adopted on the Bill as a normal way of dealing with difficult and contentious issues. However, one of the advantages of the system which we have used with this Bill is that we have all found ourselves in such charming and unusual company in the Division Lobbies.
There was a great risk, when the Bill was first introduced in another place, that Parliament as a whole 465 would fail once again to reach a conclusion. There was a risk too that noble Lords and Members of another place would fail to agree on the best option for reform. But noble Lords, with their customary percipience, chose the same option as that chosen by another place. If I may say so, thank heavens for that.
The fact that noble Lords chose partial deregulation means that, although Members of another place may find when they come to consider your Lordships' amendments that they do not agree with everything which your Lordships have done, at least the differences between this House and another place will be on questions of detail rather than on the substance of the Bill.
The hour is late and noble Lords have been remarkably stoic in remaining here so long. It would not meet with the approval of the House if I were to digress into a long speech rehearsing the advantages of the Bill. I do not intend to do so. It would be invidious to single out too many of our debates for special mention now. But I have been impressed, and I would like to thank various noble Lords for what they have done. In particular I was impressed with the indefatigable efforts of the noble Lords, Lord Stoddart and Lord McCarthy, and of the noble Baroness, Lady Turner of Camden. They have enriched our debates. They had strong views and they put them over courteously, generously, consistently and constantly. For that we are all grateful.
I recognise, too, the splendid mix of deep passion and impressive ability to marshal an argument that has been brought to bear by my noble friends Lord Elton and Lady Young. I also recognise the remarkable, inflexible determination of my noble friend Lord Boyd-Carpenter to put his point of view—which in his view was always the right one. The noble Lord, Lord Rochester, in his turn added considerably to the debates that we had on the various subjects.
Many noble Lords have brought distinctive interests to bear. In particular, I cannot help remembering my noble friend Lord Onslow, who informed us that he sells in his bigger than 809 cubits garden centre, as he put it: white rabbits, pink rabbits, rabbits with floppy ears, fish, parakeets and marmosets, as well as chameleons and tarantulas. That to my mind was a funny sort of garden centre. It seemed to me to be more like a zoo or Noah's Ark. But one lives and learns. According to the amendments which your Lordships have passed, my noble friend's curious garden centre will now be open for more than six hours on a Sunday.
Your Lordships have given this Bill, as is your Lordships' wont, careful thought and scrutiny. The Bill represents a compromise; and that inevitably means that not all of it is to everyone's liking. Indeed, to some noble Lords I fancy that none of it is very likeable. But I agree with the noble and learned Lord, Lord Simon of Glaisdale: there is nothing wrong in compromise; that in itself can be a principle too.
Those noble Lords who remain unhappy about some of the provisions can at least have the satisfaction of knowing that, thanks to your Lordships' meticulous consideration of the provisions, the issues have been thoroughly debated.
466 Despite the passions which this issue arouses—they are great, they are considerable, they are deep, and they are all the better for that—our debates have been lucid and, I think too, of good humour. I am particularly grateful to noble Lords that my frequent litany of, "on the one hand this, and on the other hand that, but of course inevitably in the end it is a matter for your Lordships", has provoked only gentle smiles rather than the type of ribaldry which might have greeted the sight of a Minister of the Crown perched so graciously but determinedly on the fence.
I would also like to thank my noble friends Lord Henley and Lady Trumpington for the help that they have given me during the passage of the Bill. I know in particular that my noble friend Lady Trumpington will be especially pleased that an issue that has concerned her for so many years, and one which she. has tried in the past to resolve herself, is finally about to be settled.
All of your Lordships who took part in so many different ways and spoke on so many facets of this Bill and with such a variety of views always did so with consistency and graciousness. For that I think we can all be grateful. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Earl Ferrers.)
§ 11 p.m.
§ Baroness Turner of Camden
My Lords, the Minister is quite right. This is a unique Bill and one which has been extremely difficult to handle on all sides of the House. We have managed to reach a consensus which, although I have my doubts, I hope has brought to an end the debate on the whole issue of Sunday trading.
We on this side of the House operated the free vote system, except when it came to Schedule 4. As noble Lords know, we felt very strongly about the whole matter of protection of employees. Although the Minister on practically every issue concluded his remarks with, "It's a matter for your Lordships", he did not say so on anything connected with Schedule 4. We had to fight very hard to put our point of view across —although I must say that I would like to thank him for the courtesy with which he dealt with our opposition on the issues about which we felt so strongly.
I should also like to thank the noble Baroness, Lady Trumpington, and the noble Lord, Lord Henley, who is not in his place at the moment, for the way in which they handled the issues that we raised on this side of the House. I also thank my noble friend—if I may call him that on this occasion—Lord Rochester, who worked very closely with this Bench on the whole matter of employment protection. I know that he and the noble Baroness, Lady Seear, feel very strongly on that matter, as indeed do we. We hope very much that when the Bill is fully in operation as an Act, workers are protected against exploitation and that the protections which have been placed in Schedule 4 operate effectively on their behalf.
It simply remains for me to thank the noble Lords who have supported us and spoken in the debates. I regret very much that the issues about which we felt strongly came up at a very late stage in the evening on both days, particularly on Report, when we were talking about worker protection at midnight. I do not believe 467 that that is terribly appropriate. Even this time round we have had to deal with our amendments very late in the day. I hope that if we have another such Bill on another occasion, we somehow manage the arrangement of our business in a rather more reasonable way. I hold very strongly to the view that we cannot debate issues in any reasonable way after about 10 o'clock at night and certainly not at midnight.
Having said that, I again thank the Minister for his good humour and for the the way in which he dealt in general with the Bill and with noble Lords on this side of the House and for the consideration shown to us.
§ Lord Rochester
My Lords, like other noble Lords, I speak as an individual and not for my party. I continue to regret that the House chose the option of the so-called compromise which now forms Schedule 1 to the Bill. I believe that at the end of the day its commercial, social and environmental effects will prove to be no different from total deregulation.
I am sorry too that in Committee and on Report so many departures from that compromise were countenanced by your Lordships. It remains to be seen what the other place has to say later about those amendments. I have done what I could to safeguard the rights of employees who are unwilling to work on Sundays.
At this point I should like to support most strongly what the noble Baroness, Lady Turner of Camden, said. It is deplorable that the Government were not able so to arrange their business as to enable amendments to Schedule 4 to be discussed at a more reasonable hour either on Report or tonight at Third Reading. I fear that under the option of so-called partial deregulation, employment protection will be severely limited. I fear too that, as Sunday increasingly becomes just like any other day, the justification for premium pay for work on that day will eventually disappear altogether. However, all that is now water under the bridge.
For the rest, from these Benches I should like to join in thanking the noble Earl, Lord Ferrers, and the noble Baroness, Lady Trumpington, for the dispassionate and good tempered way in which they steered this controversial Bill through its various stages, ably assisted by the noble Lord, Lord Henley. I congratulate the noble Baroness, Lady Turner, also on the great part that she has played in discussions on the Bill. I can only hope that the ultimate effects of the Bill will prove to be less damaging than those that I have foretold.
§ Lord Simon of Glaisdale
My Lords, it is very late. I frequently find myself in agreement with the noble Baroness, Lady Turner, but never more enthusiastically than with what she had to say in relation to the timing of the debate. I hope the Rippon committee will take notice of what happened today and, indeed, every day this week. Nevertheless, I would not wish to let go the opportunity of associating the Cross-Benchers with the gratitude expressed to the noble Earl and his coadjutors.
The noble Earl's first difficulty was to ensure that we entered the right Lobbies on the options. I fully expected at least 10 per cent. to end up in the wrong Lobbies, but in fact such was his care and clarity of direction that I have not heard a single complaint.
468 It would be an impertinence to mention other noble Lords who contributed so richly to the diversity of our debate. I must, however, make one exception, if I may be so allowed. And that is the noble Baroness, Lady Jay. We would not have this Bill at all if we had not had the Shopping Hours Reform Council. We would still be in the mire, slough and turgidity of the 1950 Act and its invitations to lawlessness. Therefore, in spite of what the noble Lord, Lord Rochester, said, we have had, and both Houses have found it possible to concur in, a genuine compromise.
I was worried that your Lordships' House, with its strong predilection for deregulation, had made a number of exceptions, all of them in favour of greater deregulation and every one of them widened by the words "or mainly". I was worried about that for several reasons. I dislike very much your Lordships' House being so completely, as we now are, in the hands of the other place. But even more, it seems to me, we have acted without sound policy, even when we had the power and the right, in derogating from the compromise.
It seems to me that we have been less than fair to the Keep Sunday Special interests. They made a sacrifice in our direction and it seemed to me incumbent that we should not let them down. They will not necessarily be let down, because in the other place, where the Keep Sunday Special interests are strongly represented, the vote against that option was quite a narrow one and it may intervene in their interests.
Having said that, I come back to where I began; namely, our great indebtedness to the noble Earl. Having managed to shepherd us into the right Lobbies on the options, he very fairly summarised at every stage the considerations that apply, sometimes adding that, "Although it is your Lordships' decision, I hope you come to the right one." So too with the noble Baroness, Lady Trumpington; those of us on the Cross-Benches are deeply grateful to her.
§ 11.15 p.m.
§ Lord Lucas of Chilworth
My Lords, I echo what my noble friend the Minister said in his closing remarks that on balance our very long debates, which have resulted for some in satisfaction, and for others in not so much satisfaction, have been conducted with good humour. That is endemic in the behaviour of your Lordships in most cases.
I want particularly to thank my noble friend the Minister for the way in which, as the noble and learned Lord, Lord Simon of Glaisdale, said, he put the different sides of the argument and then invited your Lordships to make the decision. We have reflected the changing patterns of trade and industry and we have reflected that which was best in the old Act. I can only hope that the other place finds that our deliberations and our decisions meet with its approval and that we can go forward over the next years with a law which can be accepted by all those who trade without the arguments that have gone on in the past 10 or 15 years. I thank my noble friend for his help in conducting us through a difficult Bill.
§ Lord Hacking
My Lords, at this late hour there are many things that one should like to say, but one refrains from doing so. Certainly, words of gratitude and thanks should be expressed to the noble Baroness, Lady Young, and the work of the Retailers for Shops Act Reform, to the noble Baroness, Lady Jay, and the work of the Shopping Hours Reform Council, and to my noble friend the Minister for his work and that of his advisers. If I may, I shall cut short those words of thanks and praise and turn to the amendment that I have some responsibility for—the amendment concerning garden centres and DIY stores.
The Motion before your Lordships' House is that the Bill do now pass. It will be passing back again to another place and the other place will be considering the amendments that we have now placed in the Bill. As reports reach me, the amendment with which I was concerned will receive particular attention in another place. I should like to say that I and the noble Baroness, Lady Nicol, and the noble Lords, Lord Rodgers of Quarry Bank, Lord Skelmersdale and Lord Norrie, who tabled and spoke in favour of the amendment concerning the exempt status in the Bill of garden centres and DIY stores, made plain throughout our proceedings that we were only seeking exemption, under paragraph 3 of Schedule 1 to the Bill, for genuine garden centres and DIY stores. It was never our purpose, in persuading your Lordships to accept the exemption which is now paragraph 3(1) (c) of Schedule 1, for other retailers to masquerade as garden centres or DIY stores. In that context, I have to express considerable reservations about the tarantulas and other products sold from the garden centre of the noble Earl, Lord Onslow, and whether he would be able to persuade any court that that was a genuine garden centre of the kind our amendment was directed towards.
I should like to put before your Lordships very clearly the intent behind our amendment. I and my fellow peers who introduced the measure concerning garden centres and DIY stores had a clear intent and I should like to set out what we believe, following that intent, should be the correct approach of the court in construing it. The court will of course come to its decision as a matter of fact and law, as the noble Earl, Lord Ferrers, rightly suggested at Report and again in our debate at Third Reading. It would take into account the proportion of goods sold in each category, the value and quantity of each set of goods, the shop's turnover and established trade pattern, its stock records and other pertinent evidence.
§ Lord Elton
My Lords, with the greatest of respect and with deep interest in what the noble Lord is saying, he is repeating his arguments of an earlier stage. I wonder whether we can just rely on Hansard and revert to the Question of the Bill do now pass.
§ Lord Hacking
My Lords, I am not intending to lengthen the debate. It is a matter of considerable importance that when this amendment is considered in another place it clearly knows what our intent is. Therefore, I have to say that our intent has been plain and we wish the exemption to be considered on a proper basis of fact and law. If it is, then the noble Lord, Lord 470 Elton, who has just interrupted me, will find that the sale of a few frocks at garden centres, DIY stores or at motor and cycle retailers, will not be deemed to be breaking the law, but when the frock retailing goes up to 49 per cent., which was the figure which the noble Lord, Lord Elton, quoted to your Lordships, the justices may think that they are dealing with a hosiery business and not plants or flowers for the garden or planks of wood for home-made shelves.
§ Viscount Brentford
My Lords, perhaps I may thank my noble friend the Minister for his usual humorous and courteous impartiality throughout our long debate. It certainly gives me great pleasure to think that this battle:, which has been going on for 10 years and where he and I have certainly been in dispute on a number of occasions, is drawing to a close. I am also grateful to him for his written answers to questions received during our debates on the Bill. In contrast to my noble friend Lord Hacking, I very much hope that some of the anomalies which have been introduced into this Bill by your Lordships will be reconsidered in another place and that it will be tidied up and made more uniform and less prone to argument in the future. I am very grateful that we are now drawing to a conclusion.
§ Lord Elton
My Lords, your Lordships will forgive me if I do not repeat the expressions of gratitude and admiration which I share for all who have taken part or address a series of amendments which we have spent a great deal of time on already. Will your Lordships permit me three minutes? I have not yet spent one of them. Therefore, will your Lordships permit me four minutes on the clock to say something about the passing of this Bill? The noble Baroness, Lady Seear, gave it five years before regulation de facto became extinct. I agree with her. Those who have failed to extend the protection of shopworkers, therefore, may comfort themselves with the thought that those provisions will all be obsolete then because there will be nothing special about Sunday. As the right reverend Prelate said in a moving speech at the beginning of the Committee stage, individuals cannot make Sunday special any more than they can make green belts or national parks special. That takes statute. By then the statute will be dead.
The statute which we have replaced was muddled, not merely in its detail but in its motive. It was muddled originally in its detail and much fun has been had with that. The motivation became more muddled as the years went by because the statute was itself the legislative consequence of the social expression of the religious perceptions of our fathers and grandfathers and even the father and grandfather of the noble Baroness, Lady Trumpington. Those perceptions will also change. We were a people who recognised, at least with a collective nod, the place of the Christian religion and particularly Anglican and nonconformative Christianity in regulating our collective behaviour. We are now a people who recognise with a rather deeper obeisance the right of commercial interests—usually described as "market forces" —to dictate our behaviour in all respects. So be it. I realise that there are people on both sides with deep religious convictions. As the right reverend Prelate put it, there are no devils or angels here.
471 As I reminded your Lordships before, it is not 44 years since the debate began. The first Sunday regulation was by King Athelstan 100 years before the Norman Conquest, and the thousand-year story is now nearly, but not quite, over. Give it, as the noble Baroness said, five years. Then Sunday will be a maxi-shopping day; 3,000 small shopkeepers will, I fear, have closed; countless council workers, not protected by the measures put into the Bill, will find themselves at work; and families will be separated for another day of the week. Worship will not stop. Sunday will be special for those who want it to be special. So this is not a watershed, nor, for the next five years, is it the end of the story.
§ Baroness Jay of Paddington
My Lords, perhaps I may be forgiven for finishing my remarks on this long Bill on a slightly more optimistic and enthusiastic note than that of the noble Lord, Lord Elton. First, my enthusiastic thanks, like those of other noble Lords, to the Minister and the noble Baroness, Lady Trumpington, and, of course, to my noble friend Lady Turner on the Opposition Front Bench, especially for the very hard work that she has done on Schedule 4. I agree with her about the inappropriate hours at which we have discussed those important measures.
My enthusiasm for the passing of the Bill has to do, of course, with the way in which it was begun, and with the enormous interest of women consumers in particular. The voice of women in this procedure has been welcome. I should like to thank my noble friend Lady Dean, who is in her place, for her support in greatly advancing the view that this is a measure which is of particular interest to women who work and women who consume.
I am, of course, disappointed that the Schedule 4 amendments were not carried, but I should like to re-emphasise what was said by my noble friend Lady Turner, that many of those measures have already been incorporated in voluntary agreements between the 472 SHRC and the USDAW union. The union has professed itself satisfied with the provisions as they now stand, although of course we should have liked to have seen them tightened in certain ways.
On a final less pessimistic note than that of the noble Lord, Lord Elton, I believe that when those noble Lords who speak about this being deregulation in disguise look at the way in which Sunday will still be different from other shopping days, they should think of the fact that it is now part of the normal trading hours that many of the stores will now be limited to six hours on Sunday. On a six-day week they would be trading for 12 hours, so there are restrictions. There are the benefits that we have discussed at length for small shops in having their market advantage retained and the provision they give to shoppers particularly emphasised before 10 o'clock in the morning. I shall not follow the example of the noble Lord, Lord Hacking, and discuss the differences that exist over some of the details of the amendments which your Lordships have accepted.
In conclusion, I say merely that partial deregulation was at the core of the Bill when it came here from the other place; I think that it remains at the core of the Bill. I believe that partial deregulation reflects the interests of the great number of consumers who have shown that they want to be able to shop on Sundays. It meets the concerns of employees whom we have tried to protect to the extent that we have, and it is a partial compromise for those traders whose opening hours are limited and those small shops which can stay open for 24 hours a day.
My Lords, it only remains for me to thank your Lordships not just for the part that your Lordships have played during the passage of the Bill, but for what your Lordships have said this evening.
On Question, Bill passed, and returned to the Commons with amendments.
House adjourned at twenty-nine minutes past eleven o'clock.