§ `(1) Where any lease or agreement (however worded) entered into before the commencement of this section has the effect of requiring the occupier of a shop to keep the shop open for the serving of retail customers—
- (a) during normal business hours, or
- (b) during hours to be determined otherwise than by or with the consent of the occupier,
§ that lease or agreement shall not be regarded as requiring, or as enabling any person to require, the occupier to open the shop on Sunday for the serving of retail customers.
§ (2) Subsection (1) above shall not affect any lease or agreement
- (a) to the extent that it relates specifically to Sunday and would (apart from this section) have the effect of requiring Sunday trading of a kind which before the commencement of this section would have been lawful by virtue of any provision of Part IV of the Shops Act 1950, or
- (b) to the extent that it is varied by agreement after the commencement of this section.
§ (3) In this section "retail customer" and "shop" have the same meaning as in Schedule 1 to this Act.'.—[Mr. Peter Lloyd.]
§ Brought up, and read the First time.
§ Mr. Lloyd
The hon. Member for Hampstead and Highgate (Ms Jackson) and some other hon. Members expressed the concern in Committee that a small shopkeeper might not wish to open on a Sunday but might be obliged to open by virtue of a general provision in his or her lease requiring him or her to open during normal business hours. I undertook to consider whether it was possible to frame a narrow provision to meet this concern, which is what the new clause does. We have been helped considerably in framing the new clause by information and advice offered by Mr. Silman, a solicitor referred to us by 300 the hon. Member for Hampstead and Highgate, the John Lewis Group, the Boots Group and others, and I am grateful for that help.
The new clause provides that, where any term in an existing lease or agreement, however phrased, has the effect of requiring the occupier of a shop to open during normal business hours or to open otherwise without the occupier's consent, such a term cannot oblige an occupier to open on a Sunday. That does not extend to the situation where a leaseholder—perhaps a newsagent—can already engage in lawful Sunday trading under the 1950 Act and has a lease that provides for that. Nor does it extend to leases entered into in the future.
Rather, the new clause deals with the central concern expressed in Committee, particularly by the hon. Member for Hampstead and Highgate, that shopkeepers should not be obliged by a general term in a lease to open on a Sunday. When a lease is taken out, there may be no consideration on either side of the possibility that phrases like "general business hours" might include Sunday. It would therefore be unfair if such a provision could in future, because of this legislation, involve a compulsion upon the leaseholder which he or she had not considered or agreed to when signing the lease.
§ Mr. Jim Marshall (Leicester, South)
Will the new clause apply to circumstances in which a local authority took a policy decision to open a market hall? Would the protection then apply to the existing leaseholders of the shop units in the market hall where there is no current obligation to open on Sunday? Were the local authority to change its policy, could it force unit holders to attend their stalls on a Sunday?
§ Mr. Lloyd
It would depend on the nature of the previous agreement between the leaseholders—the stall holders—and the council. If the agreement said that they will open on a Sunday and if the council ever decided that Sunday opening would be introduced, the new clause would not protect them. If the agreement did not specify Sundays or said, "normal business hours", it would protect them. It depends on the nature of the agreement.
We are seeking to ensure—I think that we have succeeded in doing so—that, in the case of agreements entered into where there was no expectation of Sunday working and where the prospect was not taken into account in the drafting of the agreement, this change in the law will not oblige a leaseholder to do what he or she does not want to do, had never intended to do and had not reasonably been in a position where he or she might have expected that it could happen.
§ Mr. Alton
Will not the Minister again admit that the decision to introduce the proposal is a tacit admission that those pressures will be placed on shops? However good the agreements are, shops will face commercial pressure to open because of the profit factor. Shops—particularly if they are up against the wall and face bankruptcy—will have no choice but to open, regardless of how many worthy clauses of this sort are included in the Bill.
§ 5 pm
§ Mr. Lloyd
The proposal is a sensible change to ensure that such pressures are not put on small leaseholders. Of course, if businesses want to open, they may do so. Some will not want to open for commercial reasons—they may not think that they will do enough trade on Sundays. No 301 pressure should be placed on them to do so. The new clause makes a small, useful change that takes care of a problem identified by the hon. Member for Hampstead and Highgate. On that basis, I commend it to the House.
§ Ms Ruddock
I am again grateful to the Minister for the way in which he has explained the new clause. He mentioned my hon. Friend the Member for Hampstead and Highgate; in Committee, she and other Labour Members envisaged that an existing lease that provided for a general trading agreement could be interpreted to mean that small shops in, for example, a shopping centre could be obliged to open when they considered that it was not in their interests to do so.
We are all familiar with the concept of the shopping centre that contains a large store, which will perhaps exercise its right to open for the limited period provided for in the Bill. As a consequence, the freeholder might attempt to ensure that the maximum amount of trade occurs and might ask all leaseholders to comply with the new Sunday opening arrangements. That would be grossly unfair and we are pleased that the Minister has found a way to give force to our argument.
We are aware that it was exceedingly difficult to do so. We are particularly pleased that Mr. Silman, the constituent of my hon. Friend the Member for Hampstead and Highgate, has assisted the Government. I sent the new clause to Mr. Silman and he responded immediately, so I shall tax the Minister a little further. Mr. Silman has told me that the reference to the occupier in the second and penultimate lines of new clause 2(1) may present a problem. I am aware that throughout the Bill "occupier" is the relevant term, but Mr. Silman, who I presume is an expert on commercial leases, suggested that a contract could be with a tenant, but the covenant could be with the original tenant and could still make that person liable, although he or she is not now the occupier. Will the Minister respond to that small point?
In the main, we very much support the new clause. It appears to achieve our aim of ensuring that small shops or leaseholders do not have to open if they do not wish to do so. They may believe, for example, that it would not be economic to open. Small shops in shopping centres may employ only a few workers who might not want to work and employers may accept that working on a Sunday should be voluntary. For all those reasons, the new clause is very satisfactory.
§ Ms Glenda Jackson
I thank the Minister for his kind words, but credit should first go to Mr. Silman, who brought the loophole to my attention. I also thank my hon. Friend the Member for Lewisham, Deptford (Ms Ruddock) for facilitating my approach to the Minister.
I thank the Minister for giving his time and attention to Mr. Silman. I hope that he will pay due heed to the point that he has raised via my hon. Friend and will change the wording of the Bill because that matter greatly concerns many shopkeepers, especially those in small shopping centres. Many are single-man businesses and I know that they, Mr. Silman and I are most grateful to the Minister.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.