HL Deb 26 February 1957 vol 202 cc22-47

3.35 p.m.

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Viscount Hail-sham.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair.]

Clause 40:

Special exceptions as respects persons engaged in the catering trade

40.—(1) The occupier of a shop about the business of which shop assistants are employed to work wholly or mainly in connection with the sale, for consumption on the premises, of meals or refreshments, or intoxicating liquor may give notice (in this subsection referred to as a "notice of election") that he elects that the provisions of this subsection shall apply to all such assistants for the time being employed about the business of that shop to work as aforesaid, and when a notice of election with respect to the shop assistants for the time being employed about the business of a shop to work as aforesaid has taken effect, then, until another notice withdrawing the notice of election takes effect,—

  1. (a) section thirty-seven of this Act shall not apply to any such assistants employed about the business of that shop to work as aforesaid; but

so, however, that the taking effect of a notice of election shall not operate to deprive an assistant to whom it relates of any holiday which heat the time when the notice takes effect entitled by virtue of subsection (2) of the said section thirty-seven to be allowed.

LORD WISE moved, in subsection (1), after the first word "may," to insert: after agreement with representatives of a substantial body of employees ".

The noble Lord said: I beg to move the Amendment standing in my name. Clause 40 deals essentially with the catering trade, and so far as I can see, is a substitute, in some degree, for Section 21 of the Shops Act, 1950. I think noble Lords will agree after I have spoken that this Amendment is both important and reasonable. Clause 40 provides that an occupier or an employer may opt out of certain provisions in the Bill. For example, he can dispense with the half-holiday each week and substitute four half-days over a period in every twenty-eight days. He can therefore, to a considerable extent, alter the conditions of the employees. Under the existing Act, there are certain half-holidays and days off which are left to the employee; but this clause alters that Act. There is no provision in this clause for any consultation between the employer and the employees. The noble and learned Viscount, Lord Hailsham, in some of his earlier remarks on this Bill, said that it affected not only the employer but the employee and the customer as well. In this clause, while the customer does not come into it, the employee certainly does.

What I seek to do is to bring into operation some sort of consultation between the employer and the employee as to what arrangements should be made in carrying out the provisions of this clause. I do not think it is desirable that it should be left entirely in the hands of the employer. It may be that the noble and learned Viscount may not agree with the wording of the Amendment, but if the reason for the alteration is accepted by the Government, if he would suggest other words at a later date, I should be quite satisfied. I suggest that the agreement can be brought into operation in small establishments by personal representation to the employer by the employees, or in larger establishments by representation by trade union officials connected with the particular union of which the employees are members.

The point I am making is not entirely a new one. I understand that in 1954 some representation was made to the Home Office that consultation between the employers and employees on this particular point should be brought into operation. I assume that the Bill was then in drafting form, and what happened to the representation made at that time I am not aware. In the Report of the Gowers Committee the point was not touched upon, but the Report did suggest that, when orders were made by the local authority, consultation should take place between the employer and the employee. I appeal to the noble Viscount to accept this Amendment. In the first two days' discussion of the Bill he has viewed in a favourable light many points which have arisen. If I may refer to his broadcast on Saturday night, to which I listened with considerable interest, he was fully in favour of co-operation in every way between employer and employed, both in production and distribution. I hope, therefore, with all respect, that what he said on Saturday night he will put into operation on Tuesday afternoon, and that he will agree to this Amendment. I beg to move.

Amendment moved— Page 34, line 46, after (" may ") insert (" after agreement with representatives of a substantial body of employees ").—(Lord Wise.)

THE MINISTER OF EDUCATION (VISCOUNT HAILSHAM)

The noble Lord who moved this Amendment has made it difficult for me to say, "No"; but I am afraid that that is exactly what I am going to say. Nor am I prepared to concede in the least that there is any application here of any of the principles which I enunciated on Saturday night. On behalf of the Government, I was very firm with the noble Lord, Lord Lucas of Chilworth, on our last sitting, when he tried to make it possible for employees to exempt themselves from the statutory minima provided in the Bill by virtue of an agreement with the employees or their representatives. That is really an a fortiori case to this, and, although it is in the opposite direction, it is equally inappropriate.

The object of these provisions is to provide certain statutory restrictions on employers, and the object here is to provide employees with adequate periods of rest. The purpose of this clause is to provide for the special conditions of the catering trade; but, in order to provide greater flexibility, employers are enabled to opt out of Clause 37, which relates to half-holidays, by invoking Clause 40, the clause we are discussing, which allows them the option of giving compensatory half-holidays, at the rate, I think, of four half-holidays a month, instead of the statutory half-holidays for the trade. That is done because the Government consider it is reasonable for catering authorities to have that degree of flexibility, just as, in the ordinary case, the Government have put forward the other clauses of the Bill because they think it reasonable that the employers should be bound, in principle, to give half-holidays. In other words, it is a statutory code of minimum performance by employers.

It is inappropriate to allow the employers to escape if they can persuade the trade unions to let them off, and it is unreasonable to deprive the employers of such liberties as the Bill gives them and to render it subject to trade union veto. In both cases, what is a minimum performance of his minimum duty by an employer is a question for Parliament to decide. I am afraid that I cannot depart from that principle at all here. Of course, it is part of the Government's policy that there should, in fact, be throughout the maximum consultation between employers and trade unions. If the trade unions succeeded in negotiating with an employer a higher degree of performance than the law demands, the Government would bless it. It is part of the ordinary custom of our Realm that such agreements should be made. But to make the performance of the minimum conditional upon trade union agreement is not part of this Bill in either direction, and I could not consent to make it part of this Bill in either direction.

Moreover, I am bound to say that I consider that, in its present form, the Amendment would be wholly unworkable. How, for instance, could one ascertain, in relation to a catering establishment, whether the particular organisation with which a particular employer in a small cafe was negotiating, was representative "of a substantial body of employees"? And what would happen if he made the agreement with all his employees but with no representatives? These problems are really insoluble. Negotiations between employers and trade unions are intended to have effect as a contract. What we are discussing in this legislation is something which is intended to have effect as a Statute. Both have their purposes and advantages as part of our industrial system. The Statute is the floor, if I may put it in that way, and the superstructure is the matter of the agreement in which the trade unions play their indispensable part. But it is the greatest possible mistake, either in the sense proposed by the noble Lord, Lord Lucas of Chilworth, on the last occasion, or in the present sense, as proposed by the noble Lord, Lord Wise, to confuse the two functions, because they are different.

VISCOUNT ALEXANDER OF LLSBOROUGH

I must say that the noble Viscount has made an excellent argument for retaining a rigid attitude that the law itself shall always contain the basis which is to be observed. I do not quarrel with him at all in general principle. There is always some danger, however, of having a rigidity in a general enactment of this kind which may not work in the case of certain individual occupations. The catering trade, as I am sure the noble Viscount knows from his study of the law, has been a trade with many ups and downs in regard to conditions of employment. It is a trade which has been abused by certain classes of employers in the past, a fact which led to Governmental action to bring it within the trade boards legislation, which, as the noble Viscount knows even better than I do, was a series of pieces of legislation to prevent "sweating" in the industry. Of course, there is now the much more respectable organisation of the more or less permanent Board, which I think was set up during the time the late Mr. Bevin was at the Ministry of Labour. This is a very good organisation indeed.

When it comes to variation of practice in a case like this, surely it is not unreasonable, having regard to the history of the trade and the way in which this sort of thing can be easily confused, if, before advantage is taken, say, of a provision of Clause 40 in substitution of Clause 37, there should be accurate consultation, if not with the actual trade union, at least with the Catering Wages Board, in accordance with the principle the noble Viscount has expressed. Why cannot we do that? The form of words which my noble friend has suggested might be difficult to apply, but in view of the history of this trade, and the way in which it could be abused, I think it should be put in the Statute somewhere that there is some place for consultation, either between the particular employer or occupier and the organisations speaking for the class of employees represented, or with the existing Catering Wages Board, which was set up to decide questions of wages and conditions. I should have thought that that would be quite reasonable.

3.50 p.m.

VISCOUNT HAILSHAM

I am afraid that I cannot give way at all on this point. I am not going to plead guilty to rigidity. On the contrary, the Bill as it stands is flexible. The Amendment would introduce rigidity into it. I am not prepared to say that the degree of freedom which Parliament thinks reasonable should be made dependent upon negotiations with the trade union. This is not because I or the Government deprecate in any way the right of the trade union, and indeed its indispensable duty, to intervene and to negotiate with employers in cases precisely of this kind. They can still do so under the clause as drafted. What is objected to is making consultation part of the statutory restriction imposed upon the employer. The trade unions are free to negotiate, and so are the employers. It is not the business of Parliament, with respect, to interfere with those negotiations on either side. If they interfere on the one side, they will certainly start interfering on the other side, because what is sauce for the goose in such matters is sauce for the gander. We are discussing here what are reasonable conditions to impose as a minimum on employers. That is something for Parliament to decide, and that is what we are deciding this afternoon.

LORD WISE

I am disappointed that the noble Viscount is unable to meet us on this particular point. I thought possibly the drafting might have been amended to cover not only the small but the large concerns as well. That was really the intention of the Amendment. I thought, also, that it was a rather different point from that raised by my noble friend Lord Lucas of Chilworth a few days ago. However, as the noble Viscount is unable to meet us, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD LUCAS OF CHILWORTH moved, in subsection (1), to leave out "until another notice withdrawing the notice of election takes effect." The noble Lord said: May I have your Lordships' permission to discuss Amendments Nos. 70 and 71 together, as they run together? The reason I put down these Amendments is because I just do not understand the Bill as it is written at the present time. I want to ask the noble Viscount what is his view about this clause, because I do not understand it and I want him to tell me. I expect he knows far more about it than I do. At the present time, special exceptions are made as regards conditions of work, weekly half-days, Sunday employment and mealtimes, for persons engaged in the catering trade. Under the present Statute, the employer is given the option of taking advantage of these exceptions, and all he has to do is to exhibit in his shop a notice in the prescribed form, which cannot be withdrawn until the expiration of a year from the date when it was exhibited. These provisions have worked very well since about 1913.

Under the Bill, if an employer wishes to take advantage of the exceptions in a catering establishment, he must give notice of election in writing to the local authority. He must also give to the local authority notice of any withdrawal of that election. The Bill contains complicated provisions which I cannot understand as to when the notice of withdrawal takes effect. I have heard no good reason why notice has to be given to the local authority if the employer exhibits this other notice. My Amendments, Nos. 70 and 71, give my understanding of what the Government mean.

I want to ask the noble Viscount in charge of the Bill if he will explain what the following passage means—I am quoting from line 22, page 35, of the Bill: A notice of election and a notice withdrawing such a notice shall be given in writing to the local authority within whose area is situate the shop about the business of which are employed the assistants to whom the notice relates, and shall take effect at the beginning of the week next after that in which it is given, but a notice withdrawing a notice of election shall be of no effect if given before the expiration of a period of fifty-one weeks beginning with the day on which the notice of election took effect or unless it is so given as to take effect at the expiration of a period beginning with that day in which the number of days is a multiple of twenty-eight; and in paragraph (b) of this subsection "relevant period" means, in relation to the time during which a notice of election is in force, the period of twenty-eight days beginning with the day on which the notice took effect and each of the successive periods of twenty-eight days. I spent about four or five hours trying to think out precisely what that meant, and I am forced to admit that I failed, but I have got to put what I think it means in language that the small keeper of a catering establishment who has to put this into force would understand. What I have tried to do in my Amendment, quite simply, is to re-enact in this Bill the existing law, because all that this jargon does, so far as I can see—I speak subject to correction—is to lay down when the notice has to be given to the local authority. I ask, why has it to be given to the local authority? The present arrangement has worked extremely well for from ten to fifteen years. Why can it not go on? I beg to move.

Amendment moved— Page 35, line 5, leave out from (" then ") to end of line 6.—(Lord Lucas of Chilworth.)

VISCOUNT HAILSHAM

When I was studying logic at the university, there was a book that I found very difficult to understand which was called Appearances and Reality, by F. H. Bradley, who referred to the ultimate essence behind things as a fantastic ballet of ghostly characters ". My difficulty in understanding that was brought forcibly back to my mind both by the noble Lord's labours in trying to understand the subsection and by the strange and fluid character of the Front Bench opposite in the type of Amendments they propose. Earlier in the Bill—in Clause 3, to be precise—I was patiently resisting an attempt by the noble Earl, Lord Listowel, to substitute for the notice which under that clause the shopkeeper had to exhibit in order to exercise his option of early closing, a notice in writing to the authorities. I explained on that occasion, patiently and courteously I hope, that the Government thought that a notice displayed in a shop window provided adequate means of enforcement. I am not sure that the noble Earl was persuaded by my eloquence, but he very graciously withdrew his Amendment. Now, in this "fantastic ballet", our positions are reversed, for here I am explaining to the noble Lord, Lord Lucas of Chilworth, that in this particular case the Government want notice in writing to the authorities, whereas the noble Lord, Lord Lucas of Chilworth, is pressing us to put up a notice in the shop.

Ultimately, the explanation is a perfectly simple one. The policy of the Gov[...]rnment is to select the method of[...]ercising an option in both cases which, [...]he view of the Government, imposes [...]urden upon the shopkeeper, con[...] with reasonable enforcement. In the case of the early closing day, the Government came to the conclusion that it would be reasonably sufficient to have a notice in the shop and it would not be necessary to send notices in writing to the local authorities. But in the case of this rather complicated option in relation to the half-holiday of employees in the catering trade, it was thought necessary, as I conceded with, I hope, perfect frankness to the noble Earl, Lord Listowel, that the method of easier enforcement was the one for which we should go; and, with respect, I think that that is right.

One has to put oneself in the position of the local authority which has the duty of enforcing these provisions. The difficulties are quite considerable, because first one has to find out in relation to a catering establishment which of two options the owner of an establishment is taking. If he is pursuing what I may call the "table d'hôte" method (to take a metaphor from his own trade) he comes under Clause 37 and must give the employee a half-holiday every week. But if he chooses instead to go under Clause 40, he has to exercise a positive option, and he then gives his employees compensatory half-holidays in the shape of half-holidays on business days during each successive period of four weeks, which I think can be taken, by virtue of the special provisions, in the form of two whole holidays instead of four half-holidays. The result is that a local authority is surely entitled to know where it is. If the noble Earl, Lord Listowel, will have a word with his noble friend, I am sure he would explain to him all the arguments which he explained so amicably and persuasively to the Committee on the previous occasion, that local authorities find the process of notices in writing to be the easier and more convenient method of enforcement. If they wanted it under Clause 3, they will emphatically insist upon it under Clause 40. On this occasion we are going to give them what they want.

The noble Lord, Lord Lucas of Chilworth, found great difficulty—I do not blame him—in understanding the words of the last paragraph of Clause 40. I think that the words are plain but extremely elaborate. The need for their elaboration arises from the fact, first, that the option given to the owner of the establishment consists in giving a certain number of half-holidays during successive periods of four weeks; secondly, that it is desired to avoid the changing of that option by the owner of the shop at a point of time which would entitle him to deprive his employees of the benefit of one of the Christmas periods of ordinary holidays, thus to kill two birds with one stone and ultimately swindle his employees out of something to which they would be entitled if he had stuck to the original option.

As I see it, the effect is that if a shopkeeper wishes to adopt the special arrangements provided by Clause 40 he must give notice in writing to the local authority and the arrangements take effect at the beginning of the next week. That is the first option. If this happens to be during the first two weeks of the year, an assistant cannot be deprived of any half-holiday deferred from the Christmas and New Year period, under the provisions of Clause 37 (2)—that is the accrued value of his half-holidays under Clause 37, to which I have referred as the "table d'hôte" method. The special arrangements must, therefore, remain in operation for at least one year, and can only be then withdrawn at the end of one of the periods of four weeks.

Where the special arrangements are adopted they apply to all the shop assistants employed on the catering work in the establishment. The point is that this last paragraph is drafted, admittedly in an elaborate fashion, but still I think no more elaborately than is necessary for the purpose, to ensure that when the owner of the establishment changes his option after having exercised it once or more than once, he cannot operate it in such a way as to deprive his employees of an accrued right. It is to be done in this way partly because of the accrued right which may exist under Clause 37 (2), and partly so that he cannot thereby deprive his employees of the accrued right they may have acquired under the operation of the special arrangements so long as they were in force. I hope that with that explanation the noble Lord will be satisfied.

VISCOUNT GAGE

I hope I may appeal to my noble friend to reconsider this matter, and to see whether it would not be possible, if not to re-draft the language, to produce some simpler procedure. As I understand it, the ultimate intention is that enforcement under this Bill would, or may be, entrusted to small boroughs and district councils. It puts a great strain on the legal advisers of those councils if they are confronted with a clause which even gives food for thought to my noble friend Lord Hailsham, who is himself such a great master of English.

LORD LUCAS OF CHILWORTH

May I support what the noble Viscount, Lord Gage, has said? The noble Viscount, Lord Hailsham, gave a perfectly lucid explanation. He was an ornament to the Bar of this country and he enjoyed the advantages of a university education. But, as the noble Viscount, Lord Gage, has said, one has to think of the local inspector of a rural district council or the keeper of the local cookshop which is a catering establishment. Neither advantage would accrue to either of those people. Can the noble Viscount tell me how they are going to understand this language about a number of days being a multiple of twenty-eight? If it is as simple as the noble Viscount made it sound, why cannot it be put simply in the Bill? That is something that defeats me. This Bill has to be understood by simple people. Even if I did not argue the point to the last ditch, I suspect that some local authorities will be so short-staffed that the sending of a notice in regard to the alteration of an option would, be a pure waste of paper. Let us see that the law can be understood by those who have to understand it.

If the noble Viscount accepted my wording in this Amendment, the clause would then at least be intelligible. I am certain that the other wording is not intelligible unless the noble Viscount will come round and give a daily explanation to those who have to put this law into effect. Surely some more simple language than this can be found. If the noble Viscount does not like my Amendment I am perfectly willing to withdraw the wording, to which I am not at all wedded. But let us have something that will be understood by every little cookshop owner in this country who will be affected by it—even the little place in the village that serves a poached egg on toast will come under it. Have we to go through all th[...] rigmarole as to whether they are ge[...] to cheat the one little female[...] assistant who comes in now and give then a hand on a busy day? We are not dealing there only with the Savoy Grill—that is what the Government draftsman does not seem to understand. We have to make this law intelligible not only to the local authority inspectorate who have to enforce it but to those upon whom it is enforceable. Would the noble and learned Viscount not take this back and see whether he cannot put it into the more intelligible language that he has used?

VISCOUNT HAILSHAM

I am very sympathetic to what the noble Lord has said, but I am not sure that I can help him very much. There are really two separate points here. The points which the noble Lord, Lord Lucas of Chilworth, and my noble friend, Lord Gage, have just raised, have nothing whatever to do with the Amendment. The only principle of the Amendment is whether a notice is displayed in the shop when the option is exercised or whether you send a notice to the local authorities. On this particular occasion I opted for notice to the local authorities and that is the only point in the Amendment; although quite admit not only that this is a subject about which opinions can differ but that Her Majesty's Government have taken a different view in Clause 3 from that which they take in Clause 40. I would therefore be the last man to dogmatise about it. There is no more to say, because it is a short, simple and intelligible point. No amount of redrafting of the Amendment is going to make the smallest difference to the point under discussion, for it has nothing whatever to do with it.

In the course of advocating his Amendment, the noble Lord, Lord Lucas of Chilworth, asked me to explain the substantive point underlying the clause, and I said that it arose because there were limits to the speed at which an option of this kind, once exercised, could be changed. That was because there were a number of accrued rights of employees, and it followed that in order to safeguard one set of rights one had to wait a year and in order to safeguard another' set of rights one had to wait for a multiple of twenty-eight days, inasmuch as the rights accrue in arrear for periods of twenty-eight days. That is a simple conception which I think can be simply understood. I have acted in that way, arid have done so in what the noble Lord conceded was intelligible language. But in order to draft it into the Bill one has to use a form of words which gives not merely adequate direction how to find out the principle on which one is acting, but has to provide a formula which is watertight when recited in a police court when somebody is being Prosecuted for infringement. What has been said will be most carefully scrutinised—I gladly give that undertaking. We all want to make this Bill intelligible and easy to understand. But I do not think that in order to satisfy the second of those two requirements one could choose a formula, much less elaborate than that.

I said at the beginning that it did not think this clause is difficult to understand. I think it is extremely elaborate, and for that reason one is apt, in the course of calculation, to lose track. I believe that that is what is wrong with it, but having regard to the subject matter I do not think that it can he further simplified. I would respectfully say that the noble Lord, Lord Lucas of Chilworth, is probably exaggerating the difficulty in practice of understanding what it means. Once the kind of explanation I have given is put forward, as it will be, we have to find a formula which, I agree, is applicable to the village catering establishment no less than to the Savoy. But, of course, the formula must be water-tight, so as to cover the large London, restaurant as well as that village establishment, and enforcement in the case of the London restaurant may be more important than in the case of the village establishment where much goes by good will and little by the letter of the law. For those reasons, although I gladly give the undertaking that what has been said by my noble friend and the noble Lord opposite will be most carefully scrutinised (and I confess at once that I have a great deal of sympathy with them because I have always been very bad at these things), I do not believe I shall be able, when the day is done, to do very much about it.

LORD LUCAS OF CIELWORTH

After this argument, can we narrow the question down to this question: why have notice to the local authority at all? I agree with the noble and learned Viscount that this provision sets out how and when notice is to be sent to the local authority. But the local authority has not had notice before, and that: arrangement appears, from my information, to have worked very well for thirteen years. Why bring in all this complication to do something which apparently has worked very well without any complaint and without, to my knowledge, the raising by any union or employee of any argument? There has not been the cheating which the noble and learned Viscount wants, quite rightly, to guard against. So why suddenly bring in this whole rigmarole of jargon, making it necessary, as well as putting a notice on the wall to inform the employee of any variation on his half-holiday, at the same time to send notice to the local authority? When the noble and learned Viscount is considering this matter, would he consider whether all this is really worth while?

VISCOUNT HAILSHAM

I think the noble Lord, Lord Lucas of Chilworth, must be persuaded by me that his Amendment does not come into this matter. Perhaps he will look back, for instance, to Clause 3, which is a very much simpler clause because it does not involve the multiple of twenty-eight days. There we have chosen the very method of procedure which he advocates in this clause: notice procedure, rather than advising local authorities. He will see that even there, which is a very much more simple matter, there is an option procedure which is almost as complicated. Because, supposing I accepted his advice, and abolished entirely the giving of notice to the local authority and substituted the display of a notice in the shop, I should still have to devise a formula, which would be rendered just as elaborate by the nature of the case, in order to tell the shopkeeper how often he can change his mind.

The difficulty of the paragraph which the noble Lord has drawn to my attention arises not by reason of the fact that I have selected the procedure of notice to the local authority but by reason of the fact that I have had to tell the owner of the shop how often and at what intervals he is entitled to change his mind. That is where the difficulty comes in; and it would arise whichever of the two methods was adopted. For that reason I do not think one can get over the difficulty by accepting the noble Lord's Amendment, or any variant of it. One has to admit that by giving the catering establishment the flexibility we have and allowing them to invoke Clause 40 in place of Clause 37, we have cast upon ourselves the burden of devising a form of words which will tell him, once he has exercised his option, how soon he can go back, and vice versa.

LORD LUCAS OF CHILWORTH

I am quite prepared to leave it with the noble and learned Viscount. I shall certainly be bitterly disappointed in him if he cannot find more simple language in which to say to the local café proprietor: "You can change your employees' half holiday then, then and then; and when you have done it, you must write on a certain dale to the local authority." I shall be very surprised if the noble and learned Lord cannot put that instruction in much more simple language than appears here. Secure in my belief in the ability of the noble and learned Viscount, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

4.20 p.m.

LORD JESSEL moved, after subsection (1) to insert: (2) For the purposes of subsection (1) of this section ' half-holiday ' means either—

  1. (a) a day on which the employment of an assistant ceases not later than three o'clock in the afternoon and on which he is not employed for more than six hours including a period for meals of not less than three-quarters of an hour; or
  2. (b) a day on which the employment of an assistant ceases after three o'clock in the afternoon and on which he is not employed for more than four and a half hours."

The noble Lord said: Under the special scheme for caterers provided by existing legislation—Section 21 (6) of the Shops Act, 1950—the weekly half-holiday for stall is on a day in which the worker does not work later than 3 p.m. or for more than six hours. In this present Bill this is changed, and the new proposal under Clause 43 (1) (a) is that the proposed half-holiday shall be a day on which the worker does not work after 1.30 p.m. or for more than 4½ hours.

The catering trade, I understand, feel very strongly that this will cause difficulty in their establishments. I am sure your Lordships will realise that the hour of 1.30 p.m. is right in the middle of the period of serving lunch. Therefore, it is important that the present hour of 3.30 p.m. up to which staff are allowed to work should be retained, especially in licensed premises. The 4½ hour alternative of employment would not, I think, help very much, because, under this arrangement, in order to continue work after 3 p.m. the worker would have to start after 10.30 a.m., which is not early enough. There is a great shortage of labour in the catering industry which makes it even more important that staff should be available during the lunch hour after 1.30 p.m. The object of this Amendment is to amend the Bill, by an addition to Clause 40 (which, I would remind your Lordships, is applicable to the catering trade only), so that the present definition of half-day is retained and reinstated in the Bill with the addition of the alternative arrangement whereby a worker could continue to work after 3 p.m. provided that the total hours of employment on that day did not exceed 4½ hours.

Amendment moved— Page 35, line 37, at end insert the said subsection.—(Lord jessel.)

VISCOUNT HAILSHAM

I am unlucky this afternoon, because this is another Amendment which I fear I must resist. The Bill, as it stands, already makes new concessions to the employers in this trade by allowing a day to count as an assistant's half-holiday if he is released 4½ hours after he begins work. That can be seen from Clause 43 (1). Under this provision, an employer can, for example, employ an assistant in the evening of his half-holiday to serve dinners, whereas under Section 21 of the 1950 Act the employer cannot do this. I could not help noticing that there is an Amendment in the name of the noble Lord, Lord Wise, to remove even this concession. My noble friend Lord Jessel would have a bigger concession altogether.

I should have thought that it could not seriously be pretended that an assistant has a reasonable half-holiday on a day in which he works six hours up to 3 p.m. or, alternatively, works two hours around midday and another 2½ hours in the evening. I should have thought that was not a reasonable half-holiday. Yet the effect of the Amendment would be to make it possible for the employer to employ his assistant in that way and so deprive him, week after week, of what I should personally regard as a fair half-holiday. My own feeling is that that is going too far. It is quite true that under the old Section 21 of the Shops Act something of the sort obtained, but these provisions had a very definite history. They were in the nature of a bargain whereby, in return for concessions to employers, the assistants were entitled to certain compensations. They became law in 1913. At the time when they became law, the compensation offered to assistants was no doubt real and valuable, but in this respect they have been overtaken by the progress of things, and although assistants were given these concessions without being required to make compensating concessions to the employers, it is not thought that they are now of any serious value to the employees.

The effect of the Amendment would he to give to the employer the advantage of the bargain at a time when the value of the compensating concession had disappeared. It would, as I say, he open to the employer to work his employee six hours up to 3 p.m. and call it a half-holiday, or two hours before 1 p.m. and another 2½ hours in the evening and call that a half-holiday. In these circumstances, my feeling is that the Government have been right to fix the limit as it is in Clause 43 (1).

LORD JESSEL

I must admit that I am convinced by the noble Viscount that these hours after 3 p.m. would not be much of a half-holiday, and there is the other alternative of 4½ hours which should go a long way to meet the case. I have much pleasure in asking leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD WISE had an Amendment on the Marshalled List to leave out Clause 40. The noble Lord said: In view of what the noble Viscount said with regard to my first Amendment, I am not anxious to press this particular Amendment, but I thought that if I moved it some other noble Lords might wish to speak upon it. I understand now that that is not likely to be the case; therefore with your Lordships' leave, I will not move this Amendment.

Clause 40 agreed to.

Clause 41:

Special exception Os respects employment of certain pharmacists on Sunday

41. Paragraph (a) of subsection (1) of section thirty-nine of this Act shall not apply to the employment of a registered pharmaceutical chemist to work on a Sunday about the business of a shop which, in fulfilment of a requirement in that behalf contained in arrangements made in pursuance of section thirty-eight of the National Health Service Act, 1946, by or on behalf of an executive council constituted under section thirty-one of that Act, is opened on that day for the sale or supply of drugs or medicines or medical or surgical appliances if—

(d) in consideration of his being employed to work about the business of the shop on the first-mentioned Sunday his working hours on a business day either in the week beginning with that Sunday or in the immediately preceding week (other than a day on which, by virtue of subsection (1) or (2) of section thirty-seven of this Act or subsection (1) of section thirty-nine thereof, he falls, or fell, to be allowed a half-holiday) either do not include any period before eleven o'clock in the morning or do not include any period after five o'clock in the afternoon.

4.29 p.m.

VISCOUNT ALEXANDER OF HILLS BOROUGH moved to leave out paragraph (d). The noble Viscount said: I am quite sure that the reason for this Amendment will be apparent to the noble Viscount. Clause 41 permits the employment of a registered pharmaceutical chemist on Sunday about the business of a shop which is open on that day for the supply of drugs or medicine under the requirements of the National Health Service Act. But it is laid down that such employment may not exceed a single period of two hours on alternate Sundays, and that the pharmacist shall be given time off in lieu, either in the week beginning with that Sunday or in the immediately preceding week, either before 11 in the morning or after 5 in the evening. In those pharmacies where only one qualified man is employed, it would be impossible to secure the service of a locum tenens for a short period of two hours in the morning or in the afternoon while the pharmacist is having time off in lieu of duty performed on Sunday. The result would be that the pharmacy would have to close for this period and thus break the terms of contract under the National Health Service Act. Pharmacists are thus likely to be placed in a quandary.

I think that I can say that I speak for all pharmacists, though I am not specially briefed on behalf of anybody except my personal friends who have a large number of co-operative pharmacies. Though not speaking for them, I am speaking inline with the conclusions that have been arrived at by the Pharmaceutical Society and the National Pharmaceutical Union. Again, I come up against the rigidity—after the noble Viscount's speech just now, I almost said "fearful rigidity"—of the noble Viscount. We want to improve the situation of every class of person working in shops, but in the case of pharmacies we want to have Sunday arrangements in order to give an urgently required national service; and if we are going to do that, we must somehow make the arrangement possible.

The matter would be easy if we had an addition to the present number of pharmaceutical chemists, but they are not there to be obtained. That is one of the reasons why the noble Viscount should be less rigid in this matter and accept this Amendment, so that there could be some resolution of the matter, following the request of both the pharmaceutical societies that compensation for the hours worked should be a matter of agreement between the chemists and the pharmaceutical associations. There are pharmacists who argue that their work on Sunday is much more of a professional duty, in line with the professional work of the doctor, than the work of a shop assistant. It is a special arrangement under which professional dispensing of the prescriptions of doctors is carried out, as the doctor himself has to do in his own dispensary at times. We need have only a reasonable control of this so as to keep up a regular service for public requirements.

What happens in practice is this—and I dare say the noble Viscount has looked into details and will know what I am going to say. The pharmacists in a district arrange between themselves a rôta under which a certain chemist's shop keeps open on Sunday while others close, so as not to have too many successive Sundays on duty. Apart from payment made under the Government scheme, which I think is a minimum payment of 7s. 6d. an hour and 12s. 6d. in certain cases, the question always arises, because of the shortage of pharmaceutical chemists, how the compensatory periods of rest which are added to the pharmacist's period of holiday can be provided for, as the additional holidays mean fewer pharmacists available to be employed as locum tenens. If we were to try to obtain locum tenens for chemists for two hours on their half-day, it would be impossible with the present supply of chemists. Therefore, I think that the noble Viscount might do well to accept this Amendment and in the meantime consider whether there is any other special provision he would like to have considered by the professional associations concerned. I beg to move.

Amendment moved— Page 36, line 29, leave out paragraph (d).—(Viscount Alexander of Hillsborough.)

VISCOUNT HAILSHAM

This is another rather quaint reversal of rôle. The noble Viscount and the noble Lord, Lord Lucas of Chilworth, are representing the views of the employers—that is to say, the employers of chemists and the cooperative societies who have chemists' departments. I am representing the known views of the trade unions. Fax from the trade unions being satisfied with this amendment, they regard the provisions of paragraph (d) as quite inadequate, and I am told that they would strongly oppose its deletion as a result of which there would be no statutory compensation at all. I think that there is a good deal to be said for their point of view. The Government recognise that chemists are in a special position and they are given a special exception under the provisions of Clause 41. They are given Sunday opening on condition that certain compensatory provisions are afforded to the qualified chemists who have to be there on Sundays while the shop is open.

LORD LUCAS OF CHILWORTH

The noble Viscount used the expression, "They are given Sunday opening"—will he elaborate that? Does he mean that the owners of the shops are given Sunday opening?

VISCOUNT HAILSHAM

As the noble Lord knows, the clause says that it is the shop which may be open on Sunday.

LORD LUCAS OF CHILWORTH

The point I am making is that the chemist's shop has to be open. It is a life and death service. It is like the fire brigade. The shop is not open because of a whim of the owner: it is a necessity because the public demand it.

VISCOUNT HAILSHAM

I think the noble Lord is not quite right. Nobody would call it a whim, but I do not think that I am compelling chemists to open on Sunday; I am only leaving it permissive. As his noble friend pointed out, chemists often operate, and reasonably operate, a rôta service, which means that most of them are shut. They are given the right to open on Sunday, and this clause provides that adequate compensation is given to the employees, not only in money but also in terms of service. The three main conditions are, as the noble Lord will see, that the pharmacist's …employment is wholly or mainly in connection with the sale or supply of drugs or medicines or medical or surgical appliances;"— which, of course, does not seriously improve his lot. Secondly, his employment is for a single period not exceeding two hours in length; And thirdly, he was not employed to work about the business of that shop on the immediately preceding Sunday; None of these things gives him any compensation for his work on Sunday; they merely limit the conditions under which he may work on the Sunday. The compensation provision is paragraph (d), which the noble Viscount would omit. This paragraph says that if an employee works on Sunday in a chemist's shop, then in consideration of his being employed on Sunday, either in the week beginning on that Sunday or in the immediately preceding week—that is to say, the week before or the week after the Sunday on which he works—he is to have either a late starting day or an early stopping day; either stop at five or start at eleven. That is the only compensation he gets. The view of the trade union is that it is wholly inadequate.

I agree that this does put limited companies and co-operative societies, and sometimes individual employers who have only one assistant, in something of a difficulty, because the sale of these drugs has to be done at a time when in the shop there is a qualified pharmacist, of which there must be one, otherwise it does not open at all. That, I realise, does create a difficulty. But I should have thought that the difficulty could be got over by a suitable arrangement between employers. My present attitude, and that of my right honourable friend, is this. This is a matter upon which there is a direct divergence of opinion between the employers' organisation and the trade union concerned.

My right honourable friend and I have listened with a good deal of sympathy to the difficulty I have just tried to describe in order to show that I have it in mind, and it was also quite rightly described by the noble Viscount, Lord Alexander of Hillsborough. We should prefer to leave this matter in this House as it is. It will be discussed again in another place, where both points of view will be adequately represented. The views put forward by the noble Lord, Lord Lucas of Chilworth, will be taken into account, as well. It will then be possible to arrive at a conclusion. Therefore, although formerly I adopted a rigid attitude, I think it might be described as semi-rigid in this case. I hope that with that explanation and that undertaking the noble Viscount will withdraw the Amendment. I am far from saying that we will not make a concession later.

4.43 p.m.

VISCOUNT ALEXANDER OF HILLS BOROUGH

I have nothing to quarrel with in the spirit of the reply of the noble and learned Viscount, but perhaps I was a little inadequate in presenting the particular pinpoints of the difficulty. I want him, if he is going to reconsider the matter, to have them in mind. The one I want specially to stress is this. The organisation for which I speak, at any rate, has the general principle that it employs only members of trade unions or of the appropriate professional organisations. So there is not the slightest wish to depart from the proper stand to be taken in this matter. On the other hand, if it is impossible to obtain the number of professionally qualified pharmacists for the extra duties, then there is grave danger either of having to give up a specially necessary service to the public, or of seeing it fall into a poor service.

We have referred to the rôta, and the noble and learned Viscount knows about that. In some of our largest co-operative societies there may be in the chain of their area something like seven, eight or ten pharmaceutical branches. If paragraph (d) is adopted, it may well be that, in some districts, some branches will have to retire altogether from the rôta system. That means that in many cases the public will have to go miles in order to obtain the Sunday service of the pharmacist. That would be a great pity. On the other hand, we recognise that the people who are so employed have a right to human consideration. If we could get more pharmacists, we could deal with it; but we cannot. Every week one can see advertisements in our particular trade paper, but still we cannot get the people. What we do is to make the best arrangements we can with the trade union and the professional organisation concerned, in order that we may not have to slip out of the rôta system in certain districts and interrupt the continuous service which is at present available, and was always clearly available under the provisions of Section 22 of the 1950 Act. We have managed that quite well, and we have met the chemists on every possible occasion by ensuring that they have the necessary compensation for their work in such circumstances.

I am grateful to the noble and learned Viscount for saying that, although he does not want to amend it now, he will have another look at this point. But I hope that the Minister, whom Lord Hailsham will advise as to your Lordships' views on the matter, when he has it under consideration will have regard to what is, after all, the main objective—that is, to see that the urgent, essential human needs are met under the National Health Service Act, and that those who are worried and distressed by attendance on their own sick folk will not have to go two, three or four times the present distance in order to get the service on Sundays.

LORD LUCAS OF CHILWORTH

Before my noble friend withdraws the Amendment, I should like to put one or two points to the noble and learned Viscount. Right the way through this Bill, until we come to this vital point, there seems to have been in his mind that he must weigh the balance between what is in the trade union interest and what is in the employers' interest. With great respect, although those two interests have to be looked after, there is, of course, the public interest. And I submit that that, in this context we are discussing now, is absolutely vital. That is why I was rude enough to interrupt the noble Viscount to ask what he meant by the phrase, "they are allowed to open." No chemist can ever make a profit out of opening on a half-day or a Sunday, when he may dispense only one prescription. But that one prescription may, as my noble friend has said, save the life of one person. Opening out of hours by a chemist is not an amenity service; it is a life-and-death service. I suggest to the noble and learned Viscount that we must remove this matter out of the context of just a rigid kind of mathematical calculation of one twenty-eighth of some indivisible number.

The plain fact is, as my noble friend has said, that there are not enough skilled dispensers in the country. That is what we have to balance, when we come to this stage, with what is in the public interest. It may shock the noble Viscount to know that, in some of our rural districts, one may have to travel twenty-five miles to get a dispenser on a Sunday. Chemists are not open by the half-dozen. And even in some of our medium-size provincial towns there may be only one chemist open. I hope that the noble Viscount will take notice of what my noble friend has said, and of the points which I have put to him. I thought my noble friend was quite right: in the last analysis, this comes down to a question of proper discussion between the professional bodies concerned as to what they can do to increase the number of skilled dispensers, because unless the number in existence to-day is increased, the National Health Service will break down. That, I feel certain, the noble Viscount does not want; and neither do we. Therefore, I hope that he will make representations to his right honourable friend with all the force he can.

VISCOUNT HAILSHAM

Of course I will make representations. I think that both the noble Lord and the noble Viscount, in his second speech, tended to over-state what was essentially a reasonable case. I quite agree that there is a shortage of qualified dispensers. I do not think that there is any danger whatever of the Health Service breaking down—I think that is putting the matter a great deal too high. Secondly, I would say this. We still are not compelling these shops to open on Sunday. A great many of them do not and, indeed, the noble Viscount, in the hearing of the noble Lord, said that there might be a danger that Co-operative chemist departments would not. Therefore, I do not think there is the smallest basis whatever for accusing the Government of a failure to appreciate the public interest in this matter. Nor, in my view, at any rate, is the public interest in this matter involved at all. The proposal is not concerned with the ability of the shop to open on Sunday, but the amount of compensatory hours which the employee who is sent there on Sunday must be given on weekdays.

I must say, frankly, to the noble Viscount who represents the Co-operative Movement so persuasively and well, that I feel certain that, should it turn out (I hope it will not) on consideration of the matter, that this is the best compromise that can be worked, they would rather have their chemist department shut for two hours one weekday in every four weeks than drop out of the rôta, and never open on Sunday, and so play their part in benefiting and service to the public, a point so adequately and eloquently put forward by the noble Lord. However, I will put this matter forward. I am far from saying that this is an easy point, and I do not want to appear either dogmatic or unregenerate.

VISCOUNT ALEXANDER OF HILLS BOROUGH

I do not want to argue much more about this matter. I will say only that a superintendent who serves a large number of branches in different areas could argue the point; and he would put it more forcibly than I can. At any rate, we have the noble Viscount's interest in the matter, and in those circumstances I will withdraw the Amendment here. I am quite certain, however, that my friends in another place will raise it again.

Amendment, by leave, withdrawn.

Clause 41 agreed to.

Clause 42 agreed to.

House resumed.

House adjourned during pleasure.

House resumed.

ROYAL COMMISSION

5.0 p.m.

The following Bills received Royal Assent:

House adjourned during pleasure.

House resumed by The LORD CHANCELLOR.