HL Deb 05 March 1957 vol 202 cc214-52

4.54 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 Hailsham.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 51:

Appointment of inspectors

51.—(1) A local authority may, for the purpose of carrying out their duty under the last foregoing section, appoint such inspectors as they think fit, and may pay to inspectors appointed by them under this section such reasonable remuneration as the authority may determine.

(2) Provision may be made by regulations with respect to—

  1. (a) the qualifications to be held by inspectors;
  2. (b) the mode of appointment and terms of tenure of office of inspectors;
and compliance with regulations having effect by virtue of this subsection shall be obligatory on a local authority by whom an inspector is appointed.

LORD MATHERS moved, in subsection (1), to substitute "shall" for "may" where that word first occurs. The noble Lord said: I think the intention of this Amendment and the next, which go together, will be clear to the Committee. My contention is that if there is to be inspection carried out by the local authority in matters of this kind they ought to appoint inspectors; it should not be left as a matter of option for them to do so. My next Amendment is merely complementary to the first. I ask that, if there is to be uniformity and a proper standard of what is expected of the inspection, there should be some responsibility placed upon someone apart from the local authority, to see that a proper standard is set. The words that I suggest in Amendment No. 87 are designed to carry out that intention. They place the local authorities under an obligation to see that the conditions of service and remuneration are such as can be approved by the Secretary of State. It will be remembered that these two Amendments were put down when I still had the hope that Scotland might be included in the Bill.

If the words do not quite bear the proper application of what is intended, I hope that, if the intention is accepted, the Government may take the responsibility of putting correct words into the clause later on. What I have in mind is that if it is left to the local authority to appoint anyone as an inspector they may use that opportunity for pensioning off some servant whom they wanted to let down quietly at the end of his service, without much regard to his ability or to his qualifications for carrying out the duties that would be required of him if proper attention were to be given to this matter of inspection. I have thought it wise to bring these considerations to play upon this particular clause. I cannot give chapter and verse for it at the moment, but I believe that conditions like these are included in the Food and Drugs Act. If I am correct in that—I have been assured that I am—it seems to me that that is a sound argument for bringing the same considerations to bear in connection with this clause and with this important Bill. I beg to move.

Amendment moved— Page 42, line 10, leave out ("may") and insert ("shall").—(Lord Mathers.)


Although I am resisting these two Amendments, I do not think there is really anything between the noble Lord and the Government on either of them and, like the noble Lord, I propose to deal with both of them together, if he and the Committee will permit that course to be taken. As regards the second of his Amendments, I cannot help thinking that the noble Lord has not fully appreciated the effect of Clause 51 (2), which gives my right honourable friend power to make regulations with regard to the qualifications, the mode of appointment and terms of tenure of office of the inspectors. It seems to me that that covers all the points which he desires to achieve by the present Amendments, and in a more appropriate way. The extent of remuneration, I am advised, is not a matter for the central Government but one for the local authority. Under the existing law my right honourable friend does not have, nor does he desire to possess, any power of deciding the remuneration of these local government officials. As regards conditions of service and qualifications, I believe that those matters are adequately dealt with under Clause 51 (2) by the power to make regulations.

The other question is one on which I have heard argument in another place literally for hours, but I believe that in fact the Amendment makes no effectual difference. Although on paper it would appear that by substituting the word "may" for "shall" we are taking away a duty and providing an option, in the specific language of Statutes in relation to local government service that is not so. It is, of course, the desire that every local authority charged with enforcement should appoint an inspector. The phraseology employed in the Bill, as distinct from that under existing law which employs the word "shall", takes cognisance of the fact that there is no effective method of enforcement supposing the local authority do not appoint an inspector; for they could appoint an inspector who did nothing, and this change of phraseology would give no effective means, of enforcement.

In point of fact, the ordinary custom of many of these Statutes which impose duties on local authorities, like the phraseology of many Statutes which impose duties on a Minister, is to give power to do a thing and to expect them to do it, leaving it to the control of Parliament and the local authority to carry out their duties. As regards the actual phraseology of the first Amendment, there is nothing in it, although I am advised that that employed by the draftsman is slightly more appropriate. As regards the second of the two Amendments, we already have, under Clause 51 (2), the powers we want to achieve the noble Lord's purpose, and as these Amendments are intended to be complementary I hope that, in the light of the explanation which I have given, and which I hope will not have impressed the noble Lord as unduly obscurantist, he will see fit to withdraw the first Amendment and net to move the second.


I seem to have a fairly good excuse, if not reason, in the actual wording of the Bill. I shall rest my faith on what the noble and learned Viscount has said, and will withdraw my first Amendment; and I will not move my second Amendment.


I am much obliged.

Amendment, by leave, withdrawn.

LORD MILVERTON moved to leave out subsection (2). The noble Lord said: The object of this Amendment is, I am afraid, the precise reverse of that which actuated the noble Lord, Lord Mathers, in his Amendment. As the noble and learned Viscount has just pointed out, the power in subsection (2) enables the Minister to prescribe by regulation the qualifications to be held by shop inspectors and their mode of appointment and terms of office. It seems to me to be clearly implied from that that the Secretary of State does not consider that local authorities are able, unassisted, to choose the staff required to perform their statutory functions, or that they can be relied upon to lay down appropriate conditions of service. I regard that as a regrettable lack of trust in local authorities.

At the present time, a small minority of the officers appointed by local authorities are subject to Government supervision in this way, but I suggest that there is no real case for an extension of that list. Indeed, the main objective of the Local Government Manpower Committee, which was set up in 1949 and was composed of representatives of Government Departments and local authority associations, was, as stated: To simplify the methods of departmental supervision of local government activities, to reduce the need for and the extent of such supervision and to ensure wherever possible that a greater measure of responsibility rested on local authorities. No Government has disowned these objectives, and many of the recommendations of that Committee have been put into effect. The effect of laying down qualifications in regulations might be to prevent authorities from enforcing the provisions of shops legislation through officers who, though not formally qualified, are perfectly capable of efficiently carrying out these duties. There are obviously cases, particularly with small local authorities, where, for example, the public health inspector could perfectly well perform the functions under the Shops Act in combination with his other duties.

As regards the mode of appointment and terms of tenure of office, the growth of Whitleyism in local government makes it quite unnecessary for the Government to enter this field. The shop inspectors have their representatives on a National Joint Council, on which both employers and employees are represented, and this body is fully competent to deal with questions relating to conditions of service. Incidentally, it is very difficult to conceive what should be the qualifications to be held by Shops Act inspectors. Presumably the only kind of examination which could be imposed would be on the provisions contained in shops legislation, and I should have thought that in many cases a local authority would be able to find someone to carry out what is, after all, a very practical job, even though he could not commit to memory the provisions of the Shops Act. I am thinking, for example, of small authorities who might wish to employ a part-time inspector. A retired policeman might be very suitable for the purpose, and it would be unreasonable surely to ask him to sit for art examination in shops law.

In addition to all these details, however, I suggest that there is an important principle at stake. Unfortunately, we live in a society which is being enervated by extreme centralisation, in pursuit of which we are teaching this nation to bend more and more to the dictates of any Whitehall clerk. I cannot believe that the noble and learned Viscount in charge of this Bill would ever favour slavish subservience to centralisation, or would wish to sap a sense of responsibility, even in local authorities. We have taught the world the way to win freedom, and it seems that by a great deal of our modern legislation we are now teaching it the way to lose it. We are supporting all self-government—there is a notable instance coming tomorrow—and we say that the only way to learn to carry responsibility is to be given the right to exercise it. Yet here at home our legislation shows an increasing reluctance to trust our own people. We say abroad that it is essential to effective democracy to have a local government possessing sufficient authority to manage its own affairs and to provide a sound foundation for a good central Government. I see no reason why we should not practise at home what we preach abroad. Above us all there still looms the immense tutelary powers of the State, and I suggest that it would be undesirable to add to them. That is the basis of this Amendment. I beg to move.

Amendment moved— Page 42, line 15, leave out subsection (2).—(Lord Milverton.)


I think the noble Lord, Lord Mathers, would have just ground for complaint if I did not resist this Amendment. If I do so, it is not because I see either in the Amendment or in the Bill as drafted the deep philosophical implications which my noble friend has sought to read into them. The Bill is both more innocent than he appears to imagine and less closely connected with the affairs of Ghana. The fact is that the Government have full confidence in local authorities in the ordinary way. If it will be some consolation to my noble friend, I can tell him that both as regards conditions of tenure and as regards qualifications, it is the Government's intention to consult local authorities. In that way, I hope, it will be made apparent that we have confidence in the local authorities. I dare say that the local authorities will be glad to have some degree of uniformity in consultation in the matter. And I do not think that they would, on reflection, resent it as a criticism, explicit or implied, of their ability to decide their own affairs, if they do this in much the same way as one another. This is very often achieved by a regulating power. Nor do I think that they would feel that this was a case of a clerk in Whitehall imposing his baneful will upon them.

Without derogation from the general statement which I have just made, I think it is right to say that the Gowers Committee expressed great concern at evidence which showed that one or two local authorities had appointed as shops inspectors persons who, clearly, were not fit to do the job properly. I should have been disposed to agree with my noble friend, subject to the wiser opinion of my right honourable friend, that a retired policeman would appear to be a suitable incumbent of this office; but I hardly think that the same can be said of a car park attendant. Yet, a car park attendant was one of the persons who, the Gowers Committee found, had actually been appointed to this duty in one case. On another occasion the choice fell on the Mayor's mace-bearer. I should have thought it would be felt desirable by neighbouring local authorities not to permit occasional lapses of this kind, provided that the power of regulation is carried out after due consultation with the local authorities. I feel that this is not a gross abuse of power such as my noble friend seemed to think.

As regards tenure, I think that my noble friend has probably overlooked the wishes of the inspectors themselves. Inspectors are particularly vulnerable to victimisation. This particular power in Clause 51 (2) of the Bill was put in at their request, in order to protect them from local victimisation as a result of their activities.


Victimisation by whom?


Victimisation by people whom they have inspected. Such people may have certain powers. They may be able to lobby local interests against the person who has inspected them. Public health inspectors are rather analogous officials, and they have been protected in an analogous way. It is, therefore, at the request of inspectors, or potential inspectors, that this clause was inserted. It was not designed for the purpose of limiting freedom of local authorities, but for protecting the integrity and freedom of the inspectors. I hope that, with that explanation, my noble friend will accept what the Government have done as the best solution.


I am grateful to the noble Viscount for his full and complete reassurance on this subject, though it leaves me personally quite unsatisfied. The reasons which he gave, to my mind, are minor reasons compared with the principle which he so airily over-rode—that is, that excessive centralisation is ultimately a very bad thing for the local authorities if we want them to be efficient. In the circumstances, having expressed my protest, I have no alternative but to ask leave of the Committee to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 51 agreed to.

Clause 52 to 56 agreed to.

Clause 57:

Annual reports

57. Every local authority shall make to the Secretary of State an annual report of their proceedings under this Act containing such particulars as he may direct, and the Secretary of State shall make to Parliament an annual report giving an account of his proceedings under this Act and of the proceedings thereunder of local authorities.

5.16 p.m.

LORD MILVERTON moved to leave out Clause 57. The noble Lord said: This Amendment also is instigated by a clause which, to my mind, is another instance of top-heavy paternalism. I submit that, it is open to the same objection as Clause 51. I do not wish to repeat all the reasons which I gave when speaking on that clause, but to my mind it clearly indicates lack of confidence on the part of the Secretary of State in the ability of local authorities, and an inability to trust them to enforce the law. After all, the production of annual reports—and no one should know it better than I do—is unproductive labour and in my opinion the time and money spent on this work could be better spent in enforcing the law which is their subject matter. In any event, it seems to me unlikely that the reports will ever be seriously read by anyone, or examined critically, even if it should be thought that action might follow.

If enforcement of the Shops Act were grant-aided, there would be an excellent reason, or excuse, for the Secretary of State to require an account of expenditure on matters on which Exchequer monies were being spent. But in fact local authorities do not receive any contribution from central funds. I understand that Section 128 (3) of the Factories Act, 1937, has been quoted as a precedent for the submission of an annual report to a Minister. This section, however, merely requires that local authorities shall pass on to the Department a copy of the annual report of their medical officer of health, which is prepared for the information of the local authority in any event, and which covers a much wider field than local authorities' responsibilities under factories legislation. So, once more, I think it is right to protest against this unnecessary supervision or interference by the central authority. I beg to move.

Amendment moved— Leave out Clause 57.—(Lord Milverton.)


I did not think that on this Bill I should ever disagree with my noble friend Lord Milverton, but I do so now. I should like to say just one word about this Amendment. I think it is essential that Her Majesty's Government should be in a position to know whether a local authority is functioning under this Bill, when it becomes an Act, or whether it is not functioning. In my own part of the world, within a very short space of coastline, there are some five or six holiday resorts and areas covered by other local authorities as well. At this moment, I know well that there is one local authority which takes its duties seriously. There is another local authority which makes some effort, but the remaining local authorities make no effort whatsoever, with the result that shops are open at all sorts of extraordinary hours when they are not supposed to be open, to the great detriment of those local authorities who try to carry out their duties, In this case, I must say that I cannot agree with my noble friend.


As between my two noble friends, I have no hesitation in preferring the opinion of my noble friend Lord Derwent to that of my noble friend Lord Milverton, who, I must say, is in a terribly gloomy mood this afternoon. These baleful prophecies of the disaster which would occur as the result of a proposal that local authorities should submit annual reports to the central Government seem to me to be out of all kind of proportion. As my noble friend Lord Derwent said, we want to know how this Bill is working. We do not want the inspectors' reports to be wasted on the desert air. Where there is inspection, there is information; and information is largely wasted if it is not correlated and centralised. There is no undue paternalism in wanting to know the facts. There would be paternalism in interference but, after all, Parliament is giving my right honourable friend a responsibility for conditions in shops and he is entitled to have information upon which he can exercise that responsibility.

My information is that local authorities normally require inspectors to supply them with annual reports, and all that would be required under the Bill is for the local authorities to forward the reports they already have to my right honourable friend, so that he also may enjoy them. I am happy to give an assurance similar to that which I gave on the last Amendment: that it is our intention to consult the local authorities about the particulars which will be adequate for the report. The local authorities, I fancy, will find their neighbours' reports extremely interesting. Moreover, the additional information which will be available will be of value to Parliament. The Gowers Committee attached a good deal of importance to this proposal. I am told that the absence of the information which would have been contained in these reports has occasioned great difficulty to the draftsmen in drafting the present Bill. I should have thought that my noble friend who proposed this Amendment, with whose principle I so much sympathise, would, on the whole, feel able to console himself with the fact that these prophecies of gloom are perhaps a little overstated in this instance, sad as the present situation undoubtedly is.


I am much obliged to the noble Viscount for the answer he has given to the noble Lord, Lord Milverton. I am sorry to be on a different platform in this matter, but I want to ask whether the noble Viscount could make representations to his right honourable friend the Home Secretary to see whether there could be some regular publication, not of all the inspectors' reports, submitted from hundreds of local authorities, but of some kind of summary that would give all those organisations interested in the progress of this matter the facts which would enable them to get at the root of what has occurred over a period, either annual or triennial. Such a summary would be of great use to the trade unions, welfare societies and the like.


I may be wrong in this matter, and I know that my right honourable friend will listen respectfully to the words which have come from the noble Viscount, but if he would read the second part of this clause, which provides that the Secretary of State shall make to Parliament an annual report giving an account of his proceedings under the Act, and of the proceedings thereunder of local authorities, he will see that the provision is designed to meet the need which the noble Viscount has in mind. I am sure that my right honourable friend will consider it in the light of what he has said.


My Lords, I am grateful to the noble Viscount for his explanation of the reasons why this clause ought to remain in the Bill. I have still the same lurking dissatisfaction with this creeping paralysis of centralisation, but, in view of what he said. I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clauses 58 and 59 agreed to.

Clause 60:

Punishment of offences

60.—(1) A person guilty of an offence under this Act shall be liable, on summary conviction, to a fine not exceeding twenty pounds.

5.26 p.m.

THE EARL OF LISTOWEL moved in subsection (1), to substitute "fifty" for "twenty" [pounds]. The noble Earl said: In moving this Amendment I hope that I can appeal to the noble Viscount's sympathy if I recall to his mind an episode which occurred in your Lordships' House two or three years ago during the Committee stage of the Television Bill. If the noble Viscount will cast his mind back, I think he will remember that he proposed an Amendment to alter the maximum penalty which the Government had suggested in the Television Bill. If I remember rightly, he was successful and the Government went some way to meet his proposal. I am proposing an alteration in the maximum penalty in this clause for offences committed against the provisions of the Bill, for the same reason as the noble Viscount wanted the maximum penalty altered in the Television Bill.

It is simply this: that the maximum penalty of £20 proposed in Clause 60 is the same in amount as that already laid down in the pre-war Acts of Parliament relating to shops. It was laid down in the 1936 Shops Act and that maximum was borrowed from the 1928 Shops Act; so that, in fact, the maximum of £20 goes hack for nearly thirty years and has taken no account at all of the change that has occurred in the value of money during that period of time, I think your Lordships would agree that although £20 may still be not unfitting as a maximum penalty for a first offender, a subsequent offender should be liable to a heavier fine, and that magistrates should have the option of imposing a heavier fine if they think a heavier line is suitable in the circumstances. I am not wedded to the wording of this Amendment. I think that there are two ways of doing this: either by having a maximum of £50 for any offence under the Bill, which is what I am suggesting, or one maximum for the first offence and another maximum for subsequent offences. That seems to be the way it was done in the earlier Acts. I do not pretend to know which is the better course, but I suggest that the noble Viscount may well agree in principle that the maximum of £20 is too low and that some Amendment is required in order to enable magistrates to impose a heavier line for persistent offenders, if they think fit. I beg to move.

Amendment moved— Page 45, line 36, leave out ("twenty") and insert ("fifty").—(The Earl of Listowel.)


The noble Earl has made two persuasive points, one of which is to recall out of my murky past an incident which I am bound to say had slipped from my memory but which I will accept from him. The second is that fines must go up as the value of money goes down. I would agree in general that there is a good deal to be said for this suggestion, but it is even more important to keep the maxima in line with the fines for similar offences. Under the Factories Acts, which are analogous to this, arid, indeed, of which I should be inclined to say that persistent breach was worse, the maximum penalty is £20; that is to say, the maximum penalty for offences relating to the hours of employment of women and young persons is £20, which is the same as is proposed here. It would, at first sight, be an anomaly to put £50 into the Shops Act when £20 remained in the Factories Acts. Similarly, under the Licensing Act, 1953, which is a relatively recent piece of legislation, the maximum penalty for selling intoxicating liquor outside hours is £30. Again, I should have thought that it was slightly absurd to make the penalty under this Bill much higher.

Under the Shops Act, 1950, which has the merit from the point of view of the noble Earl of being a piece of Socialist legislation and not too ancient, for a first offence it is £10 and for a second offence it is £20. So we are actually increasing here the maximum for first offences, but following the recent practice of leaving the actual amount of penalty to the court, and trusting the court (and in this I hope I shall have the approval of my noble friend behind me) to be able to distinguish between first and subsequent offences.

If I may speak rather outside the brief, I would point out to the noble Earl, from a considerable experience of police courts, that if you find persistent disregard of an Act of this kind the inspectors tend to bring a number of summonses, sometimes amounting to twenty in all; and if the inspectors follow this simple device, by a process of arithmetic the noble Earl will see that the amount the persistent offender will have to pay even on one occasion may be some hundreds of pounds. If, for instance, he failed to give a large number of shop assistants the half holiday, the fine might run into thousands of pounds in the case of a big shop. My inclination is to think that these summary offences are probably adequately penalised as they are. In my experience, magistrates, on the whole, seldom impose maxima. The type of offence which is dealt with in these Acts is best dealt with by inspection and prosecution, and unless one were going to impose sentences which I think no one would think appropriate for offences of this class—that is to say, sentences of imprisonment—I do not believe that as between the £20 and £30 there is very much difference. My right honourable friend, who has considered the noble Earl's proposal, would prefer to leave the fine the same as in the Factories Acts, and for that reason I resist the Amendment, although I am bound to admit that the noble Earl has got a plausible case which he has put extremely well.


I am grateful to the noble Viscount for his reply, but I must say that I am not altogether happy about it. It seems that he is in rather a fix, if I may put it in that way. I can sympathise with his desire to be consistent by bringing the penalty for offences under this Bill into line with the penalty for similar offences under existing Acts, such as the Factories Acts. On the other hand, he also wants to be consistent about carrying out as many as possible of the recommendations of the Gowers Committee Report; indeed, he invoked the Report of the Gowers Committee when we were dealing with the last Amendment. I should like to read paragraph 125 of the Gowers Committee Report, which says: We heard some complaints that these figures"— that is referring to the maxima in the earlier Acts— were not high enough, and more, that the fines actually imposed were inadequate. We think that the maximum penalties for second and subsequent offences might well be increased. There it is. The noble Viscount is in some difficulty, but I am sorry he does not feel that the importance of being consistent in the matter of the Gowers Committee Report is not greater than that of being consistent in relation to the other Acts. However, if I cannot persuade him, I do not press the point, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 60 agreed to.

Clause 61 agreed to.

Clause 62 [Defence available to persons charged with certain offences]:

5.35 p.m.

THE EARL OF LISTOWEL moved to leave out Clause 62 and to insert the following new clause:

Defence available to persons charged with certain offences

"62. Where the occupier of a shop is charged with an offence consisting in a contravention of a provision of Part I, II, III, IV or V of this Act he shall be entitled upon information duly laid by him to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge and if, after the commission of the offence has been proved, he proves to the satisfaction of the court that he has used due diligence to enforce the execution of this Act and that the said other person has committed the offence in question without his knowledge, consent or connivance the said other person shall be summarily convicted of such offence, and the occupier shall be exempt from any fine."

The noble Earl said: This appears an elaborate Amendment, but it is designed to meet a quite simple point. The purpose is to enable magistrates to convict a shop assistant of an offence when the shopkeeper has proved to the satisfaction of the court that the offence was committed without his knowledge or authority. To take a simple example, suppose a shopkeeper says to his assistant that he must not sell a certain article during the time the shop is closed on the early day in the week, but the shop assistant sells that article, then, clearly, the shopkeeper will be justified in arguing in his defence that this was done without his authority or consent. I should have thought that, equally clearly, the shop assistant was guilty of an offence under the provisions of the Bill and should be liable to conviction by the court. If this Amendment were adopted, it would simply be restoring the provisions of the 1950 Shops Act which cover this particular point. I beg to move.

Amendment moved— Leave out Clause 62 and insert the said new clause.—(The Earl of Listowel.)


When my noble friend replies, would he be so good as to deal with the one point that occurs to me: whether, in fact, this Amendment might not lead to awkward situations where the owner of the shop has given no instructions and is prosecuted. He then says that he has given those instructions and some nervous employee, not wanting to lose his job, may be hesitant about saying anything. The shop assistant will be fined when, in fact, it is really the fault of the occupier. And it may then happen that the occupier or owner of the shop, not wishing to get himself into trouble, will pay the fine. This Amendment seems to me to be likely to lead to the possibility of all sorts of awkward situations arising.


It is as well to see exactly what is in issue here. Clause 62 of the Bill, as drafted, makes it a defence if a person charged with an offence consisting in a contravention of the provisions of the first five Parts of the Act proves that he used all due diligence to secure compliance with the law. That is in line with quite a number of Statutes and regulations. I cannot remember them all, but there are quite a number under the Food and Drugs legislation, and quite a number under the Public Health legislation; and I am also told that there is another under the Agriculture (Safety Health and Welfare) Provisions Act, 1956. At all events, noble Lords can take it as certain that there are a number of cases where regulations, if broken, can lead to the prosecution of an employer; and the employer, as the person legally responsible, has to exonerate himself by proving that he is innocent of any fault and has used due diligence. Some employers find that onerous, particularly a conscientious man who feels the stigma of a prosecution for this type of offence rather more hardly. He may value his reputation as a good employer, as a purveyor of clean milk and so on. He finds, to his distress, that the regulations have been broken, and he is prosecuted, and he has to prove that he is innocent, contrary to the general rule of English law.

There are two patterns: the Bill follows one pattern and the noble Earl suggests the other; and both have precedents in this legislation. The question is which the Committee prefer. The first pattern is our Clause 62: that if the owner proves he is innocent, he is to get off. The other pattern says that he can invoke that defence only if he prosecutes somebody else, normally his employee, but sometimes an independent contractor. The advantage of that, from the point of view of enforcement, is that he has another person before the court whose views can be heard, so that the judicial authority before whom the prosecution is brought has the opportunity of probing the matter further, of seeing perhaps that it is not a put-up defence and so on.

On the other hand, we feel that the model we have chosen, which follows the model of the 1956 Act, is the more humane and the better of the two. It is extremely invidious for an employer to prosecute his employee, and I do not think a good employer will often do so. At any rate, it would be extremely unjust to put the employer in the position of having to prosecute his employee or else debar himself from asserting his innocence. I say that with a certain amount of feeling, because it once happened to me. Fortunately, I was able to persuade the local authority that I was so certain to get off on the statutory defence that they would not prosecute me at all. But if they had, I had instructed my solicitor not to accuse my employee, who was manifestly guilty, rather than incur the odium of so doing. I should have been in the position of being convicted of a criminal offence and of being debarred from asserting my own innocence, simply because I preferred not to prosecute my employee. So in this instance I endorse the advice I have received from the Home Office with more than the usual sense of conviction. I hope I have spoken with a sense of conviction of which I have the courage, because in the other case that did not fall to my lot. I hope that, in speaking with some feeling on the matter, the noble Earl will agree with me and will withdraw his Amendment.


I am much moved by the force of the noble Viscount's argument. I did not realise the difficult position in which an employer would be placed. I think he will agree that my Amendment has some force, but I see the other side of the case, and I must admit that the noble Viscount is probably right. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 62 agreed to.

Clause 63 agreed to.

Clause 64 [General Interpretation Provisions]:

5.42 p.m.

LORD DERWENT moved, in the definition of "closed", to leave out "the serving of customers" and insert "retail trade or business". The noble Lord said: Amendments Nos. 92 to 96 inclusive, are all trying to deal with the same problem—that is, the definition of the word "closed", which, under present legislation, and in this Bill, is taken to mean, "closed for the serving of customers". It has been, up to now, almost impossible to know what the words, "closed for the serving of customers" means. The courts have found extreme difficulty in interpreting them. It may be that my noble friend, with his great legal knowledge, when he comes to reply will be able to satisfy me that they do in fact mean what they appear to mean.

The two types of business which are particularly affected by this definition are car selling businesses and those selling televisions, though, of course, the selling of cookers and everything else is also affected. There have been two cases in the courts from which everybody hoped, after they were over, that everyone would know what the words meant. But they merely made the situation rather foggier. The first case was Waterman v. Wallasey Corporation, and the decision in that case was that it was no offence to show a person over a car and to discuss its price and merits—no sale, of course, having taken place; though how they know that, it is difficult to tell—whilst in the other case of Hesketh v. Wallasey Corporation it was established that if a prospective customer was taken out for a trial spin in a car, this did constitute being open for the serving of customers. So we get what, in fact, may be two sales—one takes place indoors and is supposed to be just seeing the car, and the other out-of-doors, which is supposed to be selling the car. In either case the car may be sold, or it may not. So the result of these two cases did not help much.

What is even more uncertain is the effect these two judgments have on other businesses—for example, the demonstration of television after the shop is supposed to be shut. Is that serving customers, or is it not? In the early days of television—and the sale of television sets provides one of the more difficult questions—there was little viewing time and it was not always possible to demonstrate a television during the hours a shop was supposed to be open. But those days are past. There is now plenty of time, and I do not see nowadays that there is any difference between showing a television, a car, a piano, a cooker, or anything of that kind. I am not in the least interested myself whether televisions or cars should be demonstrated before closing hours or after; I do not care at all. But, surely, this is new legislation, and the intention of the Act ought to be made abundantly clear in the Act itself. If the Government want television or cars to be shown after closing hours, then put it in the Bill. But as, apparently, that is not their intention, then I suggest that the words of my first Amendment will cover the situation and will make it quite clear. Instead of using the words, "'closed' means closed for the serving of customers", the words would read "'closed' means closed for retail trade or business." I am advised that that will be well understood in the courts and will, in fact, cover exactly what it says—that you must not carry on any retail trade or business. I believe the courts understand that.


In my view, the noble Lord is raising an intensely interesting point. Might I put this question to him? Whilst, by accepting his Amendment, you might close a television shop for retail business, suppose that before the hour of closing the assistant takes the television set out of the shop, puts it in a motor car and drives it to the house of the prospective purchaser and demonstrates it on the purchaser's own premises. What happens then? As the Bill is now drafted, my interpretation is that if he does that upon an afternoon when the shop should be closed under the early closing provisions, he is breaking the law. But how are you going to enforce it?


I hesitate to embark on this legal argument with my noble friend sitting on the Bench in front of me, but I rather think that the case the noble Lord mentioned might well be covered by the decision in Waterman v. Wallasey Corporation. But I do not know. I am hoping to hear from my noble friend when he replies. If he does not like the wording, "retail trade or business", I would ask him what wording he does like, for there is no doubt whatever—because the courts have found themselves in difficulty—that the wording, "for the serving of customers" is not satisfactory. I beg to move.

Amendment moved— Page 47, line 6, leave out ("the serving of customers;") and insert ("retail trade or business;").—(Lord Derwent.)


I should like to say a word in support of the noble Lord, Lord Derwent, as some of these linked Amendments are in my name as well. I do not wish to repeat the noble Lord's argument. The aim of the Amendments, as he has said, is to endeavour to remove what we regard as the ambiguity in the definition of "closed". Perhaps I might add to what he said by referring to the fact that one Amendment, No. 95, makes explicit mention of the taking of orders. I understand that it is argued, no doubt based on Case Law, too, that the taking of orders is implicit in the meaning of "retail trade". If that is so, I suggest that in this new legislation it would be desirable to make it quite plain to those who are affected by this legislation and explicitly state it in the Bill. I beg to support the Amendment.

5.51 p.m.


May I ask the noble Viscount this question? Would he, at the same time as he is answering the noble Lord, Lord Derwent, deal with this point that I have raised? Is it covered by his undertaking? I raised this point, the noble Viscount will remember, on one of the first Amendments—I think it was to Clause 10. That was one of my reasons for asking him to consider it, and he very kindly undertook to do so. If you take goods from the place of sale, which is closed for the purpose of serving customers, to another place, is that illegal? I interpret it to be so, under the Bill as it is drawn, if it is done upon an early closing day or at any time—perhaps the noble Viscount will tell me this—outside the hours when that particular establishment is permitted to be open. So no wireless or television salesman can sell a wireless set or a television set after seven o'clock on any weekday, unless it is a late closing day, even if it is away from the place that is supposed to be closed for the purpose of business. He cannot do it on the afternoon of the early closing day. The same obtains with motor cars, commercial vehicles, caravans or anything like that. Does this not involve the original Amendment that put down, which the noble Viscount said he would be kind enough to look into, with a view perhaps to meeting the case?


Before the noble Viscount replies, may I make a correction? When answering the noble Lord, Lord Lucas of Chilworth, I cited the wrong case. I think the case that made it illegal was Hesketh v. Wallasey.


I have been asked a number of questions, and I am afraid that I am going to give a most unsatisfactory reply. A Minister who attempts to be a British law-ascertaining tribunal is inviting disaster. I have heard many a Minister try, in both Houses of Parliament, especially if he has legal training, but invariably, if he tries to do so, he fails to carry the conviction of the Committee which he is addressing. It has always seemed to me that the basic reason why many Ministers—in fact, all Ministers including myself on the present occasion—fail to do so is that when they are asked a number of questions of this kind, they are being asked what we should describe, in legal language, as questions of fact and not questions of law. All these questions are questions of degree for the tribunal of fact, be it magistrate or jury, to pronounce upon within the ambit of the Act; and, if you try in advance to give a hard answer on a suppositious case about a question of fact, the chances are that the next week a case will come up in the courts, apparently indistinguishable, and the opposite conclusion will be arrived at.


May I phrase the question I put in a different way?—I am now addressing the Minister responsible for the Bill. Is it the intention of the Government in this Bill to enact legislation which will debar the things that I have said? Surely the House is entitled to know that. If the House cannot be told that, how can the House act as a Legislative Chamber?

What are the Government's intentions in this Bill, and are those intentions as I have outlined them?


No. I think this is exactly the kind of trap into which I have seen Ministers fall before. The Government intend, as the Bill is drafted at the moment, to limit the hours during which shops are open for the serving of customers. They intend to leave to the courts, who are the persons entrusted with that kind of business, the question of what, on a given state of facts, consists in being closed, and what, on a given state of facts, consists in serving customers. There is almost every kind of combination and permutation which an ingenious mind can find in advance, and the only sensible answer that a lawyer ought to give is that we entrust the decision of cases on fairly clear words to a body of responsible men of the world, acting impartially, who, when the concrete circumstances of a given case are stated to them, do not find it impossible to decide, for instance, whether a shop is closed for the serving of customers.

Of course, one would like to have a more precise definition, my noble friend Lord Derwent would like to have a more precise definition, and it would certainly be my desire to have a more precise definition of what constitutes being closed—that is to say, closed for the serving of customers or closed by any other rubric. All the ingenuity of "all the Queen's horses and all the Queen's men"—and they are very much more ingenious than I am—has failed to find a definition which does not involve some issue of fact which would be at least as obscure as the form of words which is now chosen—" closed for the serving of customers ". The form of words which is now chosen, "closed for the serving of customers", has to some extent been elucidated in the courts. It has been elucidated in the courts in the two cases of Hesketh and Waterman, to which my noble friend referred. The advice I have is that they afford admirable guidance as to what the law is in the matter. That means that the particular form of words which has been chosen has been the subject of judicial scrutiny and judicial explanation, which makes them rather plainer than most other forms of words.

My noble friend Lord Derwent prefers the form of words which he has put forward. I will gladly consider with him or, preferably, will arrange that he or any other noble Lord interested in the subject should consider with the draftsman responsible for this Bill, whether any form of words is better than "closed for the serving of customers". Those advising me, and I myself, are persuaded that the formula which the noble Lord himself has devised is actually more obscure and more full of questions of fact which cannot be elucidated in advance than the formula which the Government have chosen. My noble friend would insert "retail trade or business". What is "closed for retail trade or business"?


I am sorry to interrupt the noble Viscount. Although we have not yet come to it, I believe he has looked at Amendment No. 96.


I think the noble Lord is being a little previous. I was taking things stage by stage. First of all, I am dealing with the formula stage by stage. The noble Lord has chosen the formula "closed for retail trade or business". What is "retail trade or business" and what is "closed"? That raises an exactly comparable level of problems, rather similar, though not identical, to those which the noble Lord, Lord Lucas of Chilworth, asked me in relation to "closed for the serving of customers". What is "closed", and what is "serving of customers" in relation to the kind of circumstance which he has in mind? What is "closed" and what is "retail trade or business" in relation to the formula my noble friend prefers? So far as I know, there is in fact no answer to that question.

It is quite true, as my noble friend suggested, that both the noble Lord, Lord Milverton, and the noble Lord, Lord Derwent, apparently realised that the formula they have proposed was at least as vague as that which the Government proposed, because each in his turn has inserted a further definition in the subsequent definition of "retail trade" to cover this point. Unfortunately, they have not covered it, because the formula in the second definition phrase "retail trade" starts with the word "includes". "Includes" tells you a number of things which are meant, but does not purport to tell you the extent to which the phrase will ultimately go. Therefore, it precisely does not answer a range of questions which the noble Lord, Lord Lucas of Chilworth, posed me.

The wording favoured by my noble friend Lord Milverton is the demonstration of goods and any personal service facilitating their inspection, the taking of orders. The formula preferred by my noble friend Lord Derwent includes inserting after "auction", in the same phrase, the words, and the personal attendance by the occupier of the shop upon any person so as to permit the demonstration or inspection of any goods offered or exposed for sale at the shop. In relation to either of those formulæ I cannot make up my mind what the situation would be—it certainly would not be the same in the two cases—in relation to the demonstration of the various articles which the noble Lord, Lord Lucas of Chilworth had in mind at places other than the shop by persons in the employment of the owner of the shop other than the occupier of the shop himself. To my mind, this only illustrates that it is very easy to say that a formula devised by a Bill is not precise. I should be the first to admit that "closed for the serving of customers" is not particularly precise; but it is quite wrong to substitute another formula which, at first sight, in one's own eyes is much mare precise but, upon closer investigation, is seen to raise a totally different and far more complex series of problems. We want to stop creating more doubt and difficulty than would be removed by the substitution of a new formula. We want to avoid prohibiting harmless activities, including, possibly, even window displays. Is a window display a demonstration? I suppose on the dictionary meaning it probably is.

Broadly speaking, therefore, the view to which we have come and to which we adhere at this stage—although the last thing I want to do is to be dogmatic or to suggest that the last word has been spoken, or that even some further formula might not be found to elucidate the matter more plainly—is that, ultimately, what constitutes a shop being open or not is what the lawyers call a question of fact, not of law. Parliament should lay down to the magistrates (who are, if I may say so in the presence of the learned Lord Chairman, normally fairly intelligent people), as it does with juries in parallel circumstances: "If a shop is open for the service of customers outside certain hours an offence has been committed, but if it is closed for the service of customers an offence has not been committed. What exactly constitutes being open or closed for the service of customers is for you, as men of the world, to say, in the light of the particular circumstances of the case."

The best guidance that we can give to the Committee is that that is a proper solution. It is also in line with the general doctrines of English law and practice to trust the magistrates upon a fairly clear statement of the law, to apply that law to the state of affairs which an extremely complex situation may reveal. That is the best we can do. I want to make it quite plain, both to the noble Lord opposite and to my noble friends, that if, for any reason, they think they have a more precise formula, and would like either to press the one which they have put down or some other form of their own devising which they may think is plainer than that of those responsible for the drafting of the bill, the disposition of those responsible for that draftsmanship would be to accept it if they felt that a greater degree of light would be shed upon the subject. At the present time, the disposition of those responsible for the draftsmanship—and, I may add, my own also—is to lay down the general guidance that this is one of those questions which should be left to a competent lay tribunal as a question of fact, once one accepts the view that the ordinary man is quite clear when a shop is open for the serving of customers as he is quite clear when he sees an elephant.


I find this entirely unsatisfactory. I see the difficulties; but one of our principal difficulties; is that we do not know what the Government want to do. We do not know if, when a shop is closed, in the sense that the building is closed, they want to allow people to look at a car or at a television set after the shutters are down. We do not know if they want to allow people to take a car or a television set or a cooker to somebody's house to demonstrate it after the shop is closed. We have no idea of their intentions. The noble Viscount has said that we are leaving this matter vague. Of course we are leaving it vague, because we do not know what is wanted: In my submission, we are not leaving it as vague as the words that are at present in the Bill. Obviously, we cannot press this matter now, and we will reconsider what the noble Viscount has said. It will not help us much, because we do not know what it is desired to do. Before I ask leave to withdraw my Amendment perhaps the noble Viscount will say what he wishes to take place; then we should be delighted to try to draft something. Until then I do not see what we can do.


I find myself in complete agreement with the noble Lord, Lord Derwent. If the noble Viscount will forgive me for saying so, it is not fair for him to come here and ride off the Amendment by a clear and clever exposition of the legal processes. After all, Parliament is composed of ordinary intelligent individuals, not lawyers. The lawmaking is put upon them. I am certain that all noble Lords wish to discharge their duties and functions to the best of their ability, and to make the law as clear as it is possible for them to do, so that the ordinary man in the street can understand it. What an impossible position legislators are put in when we do not know, as the noble Lord, Lord Derwent has so clearly said, what are the Government's intentions! Do the Government desire to make it illegal for goods to be taken out of a retail shop and to be sold outside that shop, in the case of motor cars or television sets, pianos and other transportable goods, after the hours which this Bill sets out as being the limit within which retail trade can be carried on in that shop or upon those premises? If the Government will tell us their intentions, then we will do our best, with our average intelligence, to help draft the law so as to give effect to those intentions.

The noble and learned Viscount is really only telling us that we do not know what Her Majesty's Government want, and neither do they. This is one of the most awkward questions which makes much of this Bill a farce, but the noble and learned Viscount says in an airy fairy fashion—I hope I am not saying this offensively—"Ah! But it is not our duty to interpret the law; that is for my learned friends." It is our duty to make the law and to make it as clear as we can. The noble Lord, Lord Derwent, has made a brave attempt. I cannot help him very much, although I desire to do so, until I know, as he desires to know, what are the intentions of Her Majesty's Government.


I have heard these debates, on exactly these lines, fifteen or twenty times, over the last twelve years, with both Parties in power, and I have noticed that what the Minister has said has had the same effect, at any rate on the lay members of the Committee to whom he has been speaking; and each time I have realised that the misunderstanding was inevitable and almost absolute. So far from pretending or believing that it is not the duty of Parliament to make legislation clear, I myself assert it, and I am a defender of that principle against my noble friends and the noble Lord opposite. It is easy to say that what the Government mean is intelligible to an ordinary man when the Government say they want a shop closed within certain hours; but making something clear is not the same as making it either elaborate or precise.

On other occasions in this Bill we have seen the dangers and difficulties which occur when one has to undertake to make the law elaborate or precise. The effect is to encourage evasion. If Her Majesty's Government say their intention is that shops should be closed for the serving of customers, that seems to me to be something which an ordinary man can understand, something he is much more likely to understand than the formula devised as to one part by the united wisdom and as to the other part by the divided wisdom of my three noble friends who have put down this particular Amendment. I believe that the ordinary man and the honest shopkeeper will know in general what is meant when it is said that a shop shall be closed for the serving of customers.

On a much earlier Amendment I told the noble Lord, Lord Lucas of Chilworth, that we would consider the motor car trade separately. I agreed that perhaps theirs is a special problem and that some degree of exemption may be the way out. It is even conceivable that the radio trade may present a similar problem. These are matters which can be discussed now or at later stages of the Bill. But I am quite sure that Parliament nearly always makes a mistake if it disregards the advice of the draftsman and, so far as I am concerned, the rather modestly trained lawyer, not to be too precise for the sake of avoiding evasion, but to leave it to a tribunal of fact, composed of honest and reasonably-minded men, to apply the intentions of Parliament, plainly stated, to any given set of circumstances which Parliament can only dimly foresee in detail and would be unwise to pronounce upon in detail in advance. It is also part of the policy of the wise draftsman to use, in legislation, words which an honest shopkeeper, or whatever class of man he is seeking to legislate for, will understand in the ordinary sense. It is only the one who wants to evade the law who will be in difficulties.

I stated, I hope with commendable frankness, that if a more precise formula can be found which exactly defines what is meant by opening and closing a shop and does so in such a way that it cannot be evaded or misunderstood, I shall be the first to welcome it. All I am saying at this stage of the Bill is that the special problem of the motor and the radio trades may have to be dealt with by way of exemptions, and that particular problems of definition have to be solved by the Parliamentary draftsman or by myself. We believe that the formula which my noble friends have devised is at least as obscure as that which we have devised.


I will read what my noble and learned friend has said with great care, but I hope that if demonstrations are to take place away from the shop they will be legal, and that that will go into the Bill. That will make it abundantly clear that the article is not something which is being sold from the shop. If those are the intentions of my noble and learned friend, perhaps we may return to the point later. I now beg leave to withdraw my Amendment.

Amendment, by leave withdrawn.

6.17 p.m.

LORD DERWENT moved, in the paragraph defining "shop assistant," after the words "work about the business of a shop" to insert "for more than twenty-five hours in any week". The noble Lord said: We have partly debated this matter before. I suggest to your Lordships that it is a question we ought to decide to-night and not leave to a future occasion. It was debated when I had a consequential Amendment to this on Clause 38. This is an Amendment which deals with part-time workers. My definition of part-time workers in this Amendment is those who work for twenty-five hours a week or less; and the Amendment seeks to take those part-timers out of the control of this Bill. The reason I have chosen a total of twenty-five hours a week or less is that as long ago as 1934, in the Shops Act, that was considered as defining a part-time worker for young persons, and they were taken out of the orbit of that Act.

Now unless there is something of this kind in the Bill we shall make complete nonsense of some of the administration. Clause 38 (2) lays down that where working hours of a shop assistant include the hours from half-past-eleven in the morning to half-past-two in the afternoon, that worker shall be allowed between those hours an interval for dinner of at least three-quarters of an hour if feeding on the premises or at least one hour if feeding outside the premises. Every day, for five days a week, many hundreds of true part-time workers (I have taken this as an example but it appears all over the country) go into the City of London at about eleven or half-past-eleven and leave again at three o'clock; so that their daily work, for five days a week, is four or three-and-a-half hours. They go there solely to serve luncheons to City workers. They do nothing else in the City.

If this Amendment of mine, on Clause 64 is not put into the Bill, all those people who are going into the City at 11.30 a.m. are then to have three-quarters of an hour off for lunch, just when people are coming in to get their lunch; then they will go away at three o'clock. That makes absolute nonsense. When the noble Viscount the Leader of the Opposition raised this matter on Clause 38, he seemed not to mind the idea behind my Amendment, but he put out a word of grave warning as to what might happen if too many hours were worked in a day by this particular category of part-time workers—those working twenty-five hours a week or less—and thought they might work three days a week for twelve hours a day. It is for that reason that I think this Amendment should be passed to-day—so that all your Lordships will have time to see that these people are properly looked after. I think that the noble Viscount will find that the only Amendment he will want to put in will be the Amendment which I had down last time for Clause 38 (1), because in that subsection it is laid down that a shop assistant: shall not be employed to work continuously about the business of a shop for a spell of more than five hours without an interval of at least half an hour for a meal or rest:". The noble Viscount will remember that when I was talking about Clause 38 (1), I explained that I wanted to put these people back into the Bill, and the effect of my Amendment was that they could get protection. Apart from that, I suggest that one must have something in the nature of my Amendment which deals with part-time workers, because either people in cities will not get their lunches or they will have to have them at very queer times—the workers may have to get their lunches by 9 a.m. It does not make sense. The principle has been agreed in previous Acts of Parliament. It started as long ago as the Shops Act, 1934. I beg to move.

Amendment moved— Page 48, line 6, after ("shop") insert the said words.—(Lord Derwent.)


I should like to support this Amendment. The noble Viscount, Lord Hailsham, on the second day of the debate, replying to Lord Derwent's Amendment, put it very well, I think, when he said [OFFICIAL REPORT, Vol. 201 (No. 34). col. 980.]: it also takes away the meal interval provision in Clause 32 (2) as well, leaving the meal interval provision in Clause 38 (1). That is exactly what Lord Derwent wants to put back. He wants to give these part-time workers the meal interval provision in Clause 38 (1). Also, the noble Viscount was right in what he said about taking away the half-holiday. Again I quote: I cannot myself see why the Sunday provisions do not work well enough in their place. If an assistant is employed on a Sunday but not on every weekday the requirements of Clause 39, about time off in lieu of Sunday employment, have been complied with; so I do not see that any hardship is involved in regard to the employer. The Sunday provisions of Clause 39 are not all right if the person works more than four hours on Sunday only because, as I read it, he is not allowed to work more than three Sundays in the quarter. In the season, in seaside places, very often people are required just for Sunday work, so, if the provisions of Clause 39 are complied with, they will not be able to work every Sunday; they must have one Sunday off in the quarter—by the "quarter" I mean a period of four Sundays. I think that is the right interpretation. I should like to hear the noble Viscount's remarks on that when he comes to reply.


I am to some extent taken aback by this Amendment. I thought we had agreed to discuss this matter on the Amendment to Clause 38. My understanding was that I had answered, and that my noble friend had accepted what I said at the earlier stage of the Bill. It is, therefore, to some extent, impromptu that I now rise to deal with a matter which had to some extent passed from my mind. The effect of the two Amendments taken together—the one which was withdrawn (and I thought withdrawn with the consent of the Committee) and this one which is before us now—is to exclude from the employment provisions of the Bill all shop assistants who work twenty-five hours a week or less. With the exception of the provisions relating to Clause 38 (1), the present Amendment—that is to say, the one we are now discussing to Clause 64, page 48, line 6—has, I think, by itself, the effect of excluding part-timers altogether from the Bill: that is to say, that even the provisions in Clause 38 (1) would cease to affect the part-timer if the present Amendment were passed.

I cannot at the moment, therefore, see what the purpose is of moving this Amendment, unless it is to go even further than the Amendment which was (in my judgment, at any rate) rightly withdrawn at the earlier stage of the Bill. I cannot see why any of the provisions should not, as they are drafted, apply to part-time workers. The relevant provisions are half-holiday provisions in Clauses 37 and 43 and the meal interval provisions in Clause 38 (2). Even if I do not take a legitimate or, as my noble friend might complain, a rather debating advantage of him in referring to the provisions of Clause 38 (1), which are clearly designed to apply to part-timers but which this Amendment would exclude from part-timers, I would point out that the Bill has been carefully drafted to make reasonable and flexible provision for part-time workers. For instance, the provisions of Clause 43 (1) (a) are expressly designed to meet the needs of part-time workers and, I think, primarily designed to meet the needs of part-time workers and no one else. It is that amongst other provisions—


I hesitate to interrupt the noble Viscount, but I do not quite follow. Is that not just a new alternative definition of half-holiday?


I think not, with respect to my noble friend. The purpose is to apply half-holiday provisions to part-time workers. That is why a new definition is inserted. That is the intention of the Bill. The second part of the definition in Clause 43 (1) (a) is devised for the precise purpose of making the provisions of Clause 37, which relate to a half-holiday, applicable to part-time workers; and it is this provision, among others, which would be excluded from application to part-time workers if this Amendment were carried. I cannot go the whole way with my noble friend on Sunday work. I have not got up the case afresh, but I do not understand why, if a person is employed for Sundays only, he is not given for purposes of Clause 39 a whole holiday for the rest of the week. It may be the effect of Clause 39 on the part-time worker is as mentioned by Lord Jessel. Without notice, I should not like to dogmatise whether it is or not. The effect of Clause 39 on particular types of part-time workers may be to restrict the number of Sundays on which they may be employed. I should not like, offhand, to exclude the possibility of making a concession on that point—but not by this avenue, not by excluding part-time workers as a whole from the Bill. I am most anxious that the Bill should not include an anomaly in this respect.

I should like to consider the point further, in the light of any advice I might receive from my right honourable friend, but in my own mind I am clear that in general it would not be fair to exclude part-time workers as such from the provisions on Sunday working. It may be that it would be proper to make a concession for particular types of part-time workers on some part of the operation of the Sunday work provisions, but that is a detailed question which I think could be dealt with on Clause 39, either in the course of Report stage of in another place. I do not think that the right way of approaching the subject is to exclude from the operation of the Bill the Sunday and half-holiday provisions in relation to part-time workers as a class. As I think I said on the previous occasion—and I should like to repeat it—those advising me would find the definition of "part-time worker" by the rather crude dividing line of twenty-five hours a week unacceptable in itself.


Why unacceptable?


Because it leads to so much controversy about what a part-timer really is. Twenty-five hours seems to be a purely arbitrary line of demarcation, which has not been justified by any argument before your Lordships. Clearly a 25-hour-a-week man would be a part-timer but it is not clear whether a 26-hour-a-week man would be anything more. That would have to be gone into.

I apologise to the Committee if my remarks have been related to some extent to the arguments as we have heard them. I thought that the subject was closed by the withdrawal of the earlier Amendment. I admit that it is entirely my own fault if I was under that misapprehension, but I should not like your Lordships to think that I was guilty of any want of courtesy in not dealing with it in more detail. However, I think I have said enough to indicate that, at any Tate in the view of the Government, there is no reason at all, with the qualification I have given, why Clauses 37 and 40 should not apply to the part-timer as such, and why Clause 38 (2), to which my noble friend referred, should not exactly meet the circumstances which my noble friend had in mind. Clause 38 (2) provides that Without prejudice to the provisions of the foregoing subsection, but subject as aforesaid,—

  1. (a) where the working hours of a shop assistant include the hours from half-past eleven o'clock in the morning to half-past two o'clock in the afternoon, he shall be allowed between those hours an interval for dinner of—".
Then it gives the alternatives:— at least three-quarters of an hour, if that meal is taken in the shop… or at least one hour in any other case;". I should have thought that that was applicable to the cases which the noble Lord has in mind and would be met, if an employee was employed during the lunch hour and nothing else, by his not being employed after the lunch hour. I should have thought that that was the answer to that point. It is the intention of the Government to apply the provisions of the Bill to part-timers, and it is also the intention not to create any anomaly which would impose upon the employer of a part-timer an onerous and unnecessary restriction. Should my noble friend have any particular instances in mind with which we could deal by way of amendment to Clauses 37 to 40 inclusive, I know that my right honourable friend will be glad to consider them and so, indeed, should I.


Before the noble Lord speaks, may I say that I have looked into this matter a little since the previous discussion, and the trade union attitude is clear to me. They are a little anxious. They are afraid, as the noble Lord, Lord Jessel, said, that if we carry the original Amendment to Clause 38 and do not make some amendment to Clause 39, there will be some dubiety about the situation with regard to part-time assistants employed on Sundays as well as on other days. If the noble Viscount, with his noble friend Lord Derwent, would look into this matter a little further before Report stage, perhaps we could have a talk about it. I should like to leave it at that now.


I shall be only too glad to do so. What I had contemplated on the Clause 38 Amendment was that the various undertakings which I had given during the Committee stage should be carefully considered by those advising my right honourable friend, and any which required further discussion could be considered between noble Lords and myself, or between noble Lords and my right honourable friend, before Report stage. I was hoping that that suggestion would cover the situation.


The noble Viscount went rather quickly and I am not quite sure what he said; but I will read it. I do not think he met my point. I may be entirely wrong about this question, particularly about mid-day workers who are serving luncheon's to other people. I think we can put Amendments down for the Third Reading, because if there are Amendments on Report stage, there may be consequential Amendments to put forward at the following stage. I am not very happy about this question at the moment, but I may be happier when I have read the OFFICIAL REPORT. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

THE EARL OF LISTOWEL moved to insert the following definition: 'Souvenir' means any article designed primarily for ornament and any article which by reason of its materials or its manufacture or of any design or representation incorporated in it has particular associations with the locality in which it is sold;

The noble Earl said: The object of this Amendment is to try to attach a precise meaning to the word "souvenir". We must do this in order to distinguish between genuine souvenirs and articles which cannot, by the widest stretch of imagination, be regarded as souvenirs but which, nevertheless, are sold as such by tradesmen outside normal hours. Perhaps I may be allowed to draw attention to what the Gowers Committee said on this point, because I know that the noble Viscount opposite attaches as much importance as we do to the views of the Gowers Committee. I would direct the attention to the noble Viscount to paragraph 106 of the Report. I will read only the last sentence. We were told by a Shops Acts inspector at a holiday resort that he felt that he had no choice but to regard all Sunday sales as legal, because he saw no likelihood of prosecutions being successful. 'Visitors,' he said, 'now take home as presents and souvenirs a more useful type of article, e.g. wearing apparel, shoes, slippers, and even small articles of hardware and household utensils.' That is what has been happening at holiday resorts on Sundays, and that is what will continue to happen under the Third Schedule of the Bill as it stands, because there we find souvenirs and fancy goods classed as things that can be sold on Sunday. We have found a similar difficulty in London in regard to the Festival Pleasure Gardens at Battersea, which, under the Second Schedule, are exempted for the sale of souvenirs. We found there that tradesmen sell pretty well anything on Sunday, telling their customers that the articles can be called "souvenirs". I think that here is a gap which ought to be closed.

I admit that a great difficulty arises at this point, which I leave to the fertile imagination of the noble Viscount and the very able draftsmen he has at his disposal. It is extremely difficult to find a definition of "souvenir," and I have merely had a shot at it in my Amendment. I do not pretend that it is a good definition. It seems to me that there are two things which most people would regard as being appropriate to a souvenir. One is that it should be intended as an ornament, and the other is that it should have some indication of its local origin and connection, such as, for example, the Coat of Arms of a London Borough or the Coat of Arms of Blackpool, Brighton, or wherever the object is bought. I suggest that those two characteristics might be regarded as being essential to a souvenir. I admit that I am only drawing a bow at venture, and I am certain that the noble Viscount will be more successful than I have been in my Amendment. I beg to move.

Amendment moved— Page 48, line 9, insert the said words.—(The Earl of Listowel.)


I am grateful to the noble Earl: indeed, he should spare my blushes by not referring to my fertility of imagination or device; and I know that those who are responsible for the drafting of this Bill will appreciate the implied compliment to themselves. However, they have so far failed to find a Satisfactory definition of "souvenir" and, with respect, they are not impressed with the gallant attempt of the noble Earl. They feel—and I am bound to agree with them—that an ordinary garden spade with the words on it "A present from Brighton", or the crest of Brighton, would be a souvenir within his definition. Therefore, I think the noble Earl's definition would be worse than none.


It has to be designed "for ornament", too.


No, with respect, not on this definition, because the Amendment says: 'Souvenir' means any article designed primarily for ornament"— that is one part of it— and any article which by reason of its materials or its manufacture or of any design or representation incorporated in it has particular associations with the locality in which it is sold. According to this definition, the souvenir does not have to fulfil both the conditions, in which case it would be too narrow, but has to fulfil either, in which case the definition is manifestly too wide. As I say, those advising me are not impressed. They are open to suggestion, but they have lost all confidence in that fertility of ingenuity and device with which the noble Earl has credited them, and I certainly never had any confidence in my own.


As I said, I have not great confidence in my own fertility of inventing a definition for this word, or even in the ability of my advisers to do so. However, I hope that, as the noble Viscount has admitted that a definition should, if possible, be found, he will have another look at the matter between now and the Report stage, and that if, after further consultation with his advisers, a formula is found, he will be good enough to suggest something when we reach the next stage of the Bill. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD MILNER OF LEEDS moved to leave out subsection (2), and insert— (2) If either throughout the area of a local authority in England or Wales, or in some part thereof, it is customary—

  1. (a) for there to be no general abstention from the carrying on of retail trade or business upon a bank holiday, but
  2. (b) for there to be, instead, such a general abstention upon another day,
they may by order direct that, for the purposes of the application of this Act to their area, or to that part thereof, as the case may be, the bank holiday shall be treated as a business day and not as a non-business day and the other day shall be treated as a non-business day and not as a business day.

The noble Lord said: Clause 64 (2) is not easy to interpret, but I imagine that it was included in the Bill to make it possible to continue the custom which exists in certain districts, and particularly seaside resorts, of which your Lordships will know there are some outstanding ones in Yorkshire, such as Scarborough and others, where retail trade may continue on a Bank Holiday falling within the season, but in exchange shops are permitted to close on some off-season weekday. If Clause 64 (2) as now drafted is allowed to remain in the Bill, then the position would go far beyond the question of an exchange such as I have indicated.

In certain towns, such as Leeds and Bradford, it has become the custom to open on the half-holiday on which customarily the shops would close. In the case of Leeds and Bradford, it is the Wednesday afternoon prior to a Bank Holiday and the Wednesday afternoon following a Bank Holiday. It has been customary for the shops to open on those days, but in exchange to close on the Tuesday following the Monday Bank Holiday; and that happens at Easter, Whitsuntide and August. Your Lordships will appreciate that, whatever the reason for that (and I think the reason was that it was not considered fair to shop assistants in those towns to take away the customary half-holiday and not to give something in exchange, and therefore it was agreed that the shops should close on the Bank Holiday Tuesday) it is obviously desirable. It enables shopkeepers, shop assistants and others to have a fairly long week-end from the Saturday to the Wednesday morning, and it would seem eminently desirable to facilitate that being done.

Further, many northern towns, as your Lordships are aware, have a Wakes Week in the summer when businesses usually lose down for a whole week, running, for example, from the Friday of one week to perhaps the Thursday of the following week inclusive. In the succeeding week the whole holiday overlaps the normal local early closing day. If Clause 64 (2) remains in its present form, every weekday in the Wakes Week would become a non-business day, and shops would be obliged to close, in addition, on some afternoon, possibly the Friday or Saturday, in the second week. Obviously, again, that is not intended or desirable.

I do not wish to take up your Lordships' time unduly, but there is also the question of a possible five-day week, some discussion on which has taken place in the retail trade. One method whereby that could be effected would be to close all day on the normal early closing day, instead of only on the afternoon of that day. But again, if Clause 64 (2) remains in the Bill, as drafted, that day will be treated as a non-business day and shops will be required to close in the afternoon of some other weekday as well. In that way the intention to convert the half-day closing day into a whole day closing would be thwarted. There are other customs and practices of that kind which would be affected if this subsection were allowed to remain in the Bill in its present form.

The problem, therefore, is to devise a form of words which would allow shops in seaside resorts, for example, to open on the Bank Holiday Monday and to close for a full day on some other day, and, at the same time, to permit the carrying on of such customs as are carried out in Leeds, Bradford and elsewhere, and for the shopkeepers and shop assistants not to be penalised. The new subsection which I propose will have the effect of enabling that to be done. It would enable local authorities—and it will be a matter for the local authority in each case—to make an order under the Bill whereby the shops could close on the Bank Holiday Tuesday and open on the customary half-holiday in the week preceding and the week following the Bank Holiday, and permitting seaside resorts to carry out the exchange which is proposed. The matter is a little complicated, but I think the noble Viscount is seized of the position. I beg to move.

Amendment moved— Page 48, line 32, leave out subsection ("2") and insert the said new subsection.—(Lord Milner of Leeds.)


I am happy to say that the Government can see their way to accept this Amendment. It has been already fully explained by the noble Lord opposite, and I do not think I can add anything to his explanation. It permits a perfectly desirable local practice in various parts of the country to continue, and it is our desire that it should continue.


I am greatly obliged to the noble Viscount. I hope that it is a practice which will extend from the civilised and considerate North to the hitherto uncivilised and inconsiderate South.

On Question, Amendment agreed to.

Clause 64, as amended, agreed to.

Clause 65 agreed to.

House resumed.