HL Deb 19 April 1982 vol 429 cc404-12

4.13 p.m.

Report received.

Lord Robertson of Oakridge moved Amendment No. 1: After Clause 1, insert the following new clause:

("Exemption from employment on certain days

.—(1) It shall be a term of employment of any person employed in a shop that he shall not be required to undertake employment on any day on which he conscientiously believes that he should not work by reason of the religious faith which he practices:

Provided that the employer shall be entitled to require reasonable proof of the bona fide nature of that belief.

(2) This section shall not apply in respect of the employment by any registered pharmacist within the meaning of the Pharmacy and Poisons Act 1933 of any person employed in connection with the sale or supply of medicines or medical or surgical appliances in any premises required to be kept open on Sunday for the serving of customers in pursuance of a contract between the occupier of the premises and an Area Health Authority".

(3) In this section "shop" has the same meaning as in the Shops Act 1950.").

The noble Lord said: My Lords, the aim of this amendment is to make it possible for those who, on religious grounds, conscientiously feel that they should not work on any particular day of the week not to do so. Your Lordships will recall that in Committee I moved a similar amendment confined to exemption on Sundays. I was much encouraged by the sympathy and support which that amendment received. A number of points were raised, however, and I promised to consider them so as to bring forward another amendment, revised as necessary, at this stage.

Several noble Lords expressed the view that the exemption should cover faiths other than Christianity and, therefore, other days of the week, and that I have included in the amendment. I must apologise for a spelling mistake in the word "practises" at the end of the first paragraph of subsection (1); I was out of the country last week and I am afraid I failed to notice it. The question of chemists required to be open on Sunday was also raised, and I have included that point in the revised amendment. It includes another alteration, which is that the employer would be enabled to require the employee to substantiate the religious grounds for objecting to working on the day in question.

I do not think I need say more on the principle or indeed the feelings behind the amendment. If anyone requires further information, the most enjoyable way of getting it that I can recommend is to see the excellent Oscar-winning film "Chariots of Fire" in which the Christian, Eric Liddell, gives up the strong chance of an Olympic medal because one of the heats is to be run on a Sunday and he feels that that is inconsistent with setting aside one day a week for the Lord. The film has won top awards on both sides of the Atlantic, and I believe that is partly because the feeling and principle held to by Eric Liddell regardless of the cost it could have brought to him—and in some respects did bring to him—ring as true today as they did 58 years ago. I beg to move.

Baroness Trumpington

My Lords, the amendment is, as has been explained, a revised version of the amendment which the noble Lord, Lord Robertson, moved in Committee. In its revised form, I say at once, it is a significant improvement on the amendment we had before us then, and I congratulate and thank the noble Lord for the effort he has made to meet some of the objections to his amendment, some of them made by me, which in part gave rise to his withdrawing the amendment at that stage. In particular, in its revised form the amendment now makes proper allowance for the fact, raised at the earlier stage, that we now live in a multi-racial society and that other religions treat days other than than Sunday as their holy days. That aspect would be met by the revised amendment. Further, the amendment, by making special provision exempting pharmacists from its ambit, would go a little way towards dealing with the problems of special cases.

Having said that, I fear I am still unable to support the amendment in its present form. As before, I am wholeheartedly in favour of the principle which the amendment enshrines. Of course, nobody would favour the idea of a shopworker—or anybody else, for that matter—being compelled to work on a Sunday if he or she objected to working on that day. (Incidentally, one wonders how many people go to see "Chariots of Fire" on a Sunday.) The same goes for any other day of the week in respect of which such objections might apply for religions other than the Christian religion.

Accepting, as I do, the principle that shopworkers should not be compelled to work on Sundays when they believe they should not on religious grounds, we must then consider two further matters: first, does it necessarily follow that the principle has to be put into some statutory form and, secondly, assuming that it must be put into some statutory form, is the form in which it is proposed to do so, the right and appropriate form in which to do so? In considering the first question, I am far from being convinced that it is necessary to put this important principle into statutory form. The noble Lord, Lord Robertson, eloquently put the case for the principle of not having to work on a Sunday when conscience dictates otherwise, but he has not demonstrated that, unless we add his proposed new clause to the Bill, shopworkers who object to working on Sundays on those grounds would actually be required to do so.

Let us consider what is likely to happen. When the Bill comes into force, according to the noble Lord's hypothesis, some shops now required by law to remain closed will decide to open. In those shops, so the hypothesis runs, there are at present working some shopworkers who have sincere and bona fide religious beliefs which require that they shall not work on Sundays. The management of those shops—those which have now decided to open on Sundays—say to their staffs, "As from next week"—or next month or whatever is decided—"we shall be opening on Sundays. That means that all of you who work in our shop will have to work on Sundays, whether or not you like it and whether or not you believe in it". That is the hypothesis on which the amendment is founded. Would it really be like that? I cannot see it happening that way at all.

The most important point surely is this. If the shop worker is not required under the terms of his present employment to work on Sundays, nothing in my Bill will change that. The mere fact that his employer becomes entitled by law to open on Sunday does not change by one iota the terms of employment of the existing employees. In order to get any one of the existing employees to work on a Sunday it would be necessary for the employer to negotiate with the employees either individually or collectively—it might be through their trade union—and include provisions for working on a Sunday.

Any shop worker who objects on either religious or any other grounds to working on Sunday would at that stage be able to resist being made to work on that day. In effect it is already the position legally that no shop worker can be compelled to work on a Sunday under the existing law, except in those shops within the present exemptions. So any change in working hours to bring in Sunday working can be brought about only with the consent of the employees concerned. That means in effect that the employees concerned—those who object to Sunday working on religious grounds—already have to all intents and purposes the benefit which the amendment seeks to confer; namely, the right not to work on Sunday.

Any shop worker within the noble Lord's contemplation as being in need of the protection which the clause would confer need do no more than say to his employer, when Sunday working is to be introduced, "Not me, thank you. I do not agree with it. I am not required to do Sunday working now. You cannot make me do it unless I agree to a change in my working hours. I do not agree. I will stick to my present arrangements, and there is nothing that you can do to make me change my mind." That surely is the reality. The existing employees already enjoy the rights which this clause would seek to confer. It is quite unnecessary both in law and in practice.

Of course, it might he said that employers will bring pressure to bear on their employees to make them work on Sundays whether they like it or not. Perhaps they will—a few of them—but in that case the noble Lord's amendment will not help them any more than does the protection that they already enjoy by means of the terms of their existing employment conditions, to which I have referred. We should bear in mind that the existing employment law would protect shop workers from being unfairly dismissed, and that would, of course, include circumstances where an employer sought to dismiss an employee on the grounds that the employee would not agree to work on a Sunday where in the past he was not required to do so. So I would suggest to the House that the existing law already more than adequately covers what the noble Lord has in mind, and there is no need for the amendment. But even if there were a call for a conscience clause of this kind, we would have most carefully to consider whether the amendment would be the right and appropriate way to achieve it. I apologise for "going on", but this is my only chance.

The amendment would introduce a special kind of privilege for shop workers. Incidentally, I see from the clock that I have spoken for "no" minutes. There are plenty of other workers who work on Sundays: railway workers, those employed in posts and telecommunications, bus drivers, those employed in the leisure industries, and many others. If shop workers are to have a conscience clause by statute in this form, why not train drivers, petrol pump attendants, and all those other workers whose employment is such that working on Sundays arises from time to time? It would put shop workers in an anomalous position. It would put them in a privileged position compared with other workers whose employment involves working on Sundays. I suggest to the House that just because we are allowing shops to open on Sundays it should not mean that the workers need a special protection compared with the other workers whose occupation entails working on Sundays.

The noble Lord, Lord Robertson of Oakridge, has not enlightened the House on how railway workers and telephone workers who have conscientious objections to working on Sundays fare under the present law. We can only speculate as to whether there are problems about Sunday working for those who have religious objections to doing so where they fall within those classes of occupation where already Sunday working is allowed. But since we have heard nothing of the problems that they encounter, is it not reasonable to conclude that there are in fact no problems, or at least so few as not to make it necessary to legislate along the lines of the present amendment in order to provide necessary safeguards? In other words, if shopworkers need this kind of protection, then all workers who might have to work on a Sunday need it, and we need to legislate on these lines in the context of an employment protection Bill, and not in the context of a Bill designed to relax shop opening hours.

In conclusion, let me emphasise once again that I have a great deal of sympathy for the principles which underlie the amendment, and that I am second to none in the desire to see that no shop worker is forced to work on a Sunday, or whatever day it is to which he has a religious objection to working, when he has genuine objections to doing so. Reluctantly, I cannot accept the amendment for the reasons that I have given. I cannot commend the amendment to your Lordships' House, and while accepting the spirit of it, I have to advise your Lordships to reject it. Surely this must be the longest speech ever made in "two minutes"!

Baroness MacLeod of Borve

My Lords, I should like, very briefly, to support my noble friend. Unfortunately this is the first time that I have been able to do so on what I regard as a very important Bill. I want to take this opportunity to congratulate my noble friend on piloting the Bill through the House. I believe that my noble friend Lady Trumpington has completely and sufficiently covered the point about the conscience clause—certainly from my point of view.

I want to make one other point, about an inaccuracy in the amendment, which would mean that your Lordships could not pass it this afternoon. The amendment refers to area health authorities, but there are no area health authorities. There are district health authorities, as from 1st April, and therefore on that ground alone I could not possibly support the amendment.

4.28 p.m.

Lord Bishopston

My Lords, I rise to seek some clarification from the noble Baroness, Lady Trumpington, intended, as always, to help her elucidate some of the questions raised, to her benefit or the benefit of others. I think that the amendment is an important one, since, as the noble Lord has said, it seeks to amend the Bill to take into account conscientious objection to working on certain days. It also has important implications for Christians, Jews, and indeed those of other faiths, and one might also have to take into account the sensitivities of ethnic minorities.

As we have been told by the noble Baroness, there has been conducted a poll which indicates a majority of consumers wanting a change to the Shops Acts to give them the freedom which she has already detailed —the freedom to shop whenever they wish. But we know, too, that some consumers are also shopworkers, and whether when they referred in the poll to being consumers they had in mind the effects of the Bill is another thing. They will be involved as a result of the changes in the Bill, if it becomes law.

It has also been pointed out that a significant number of shopworkers are also women, indeed married women. One can imagine some of the conflicts which will arise for women workers with homes and families when they have to weigh the interests of their families and the cooking of the Sunday joint with the demands of their shopkeeper employers. Duty would be entwined with some religious beliefs, and it would be difficult for us to implement that part of the amendment which states: Provided that the employer shall be entitled to require reasonable proof of the bona fide nature of that belief". Such a provision might be quite justified in an amendment of this kind, and it naturally calls into question the need for some kind of appeals procedure in order to arbitrate between the claims of the shop worker wanting to be exempted on grounds of religious belief and the claims of the employer, based on commercial reasons.

I would draw the attention of the noble Baroness to my understanding that in the closed shop legislation there are trade union membership safeguards with an appeals procedure; but I was not quite sure what was the case made by the noble Baroness. On the one hand, I think she accepts the case for some kind of exemption in respect of those with religious beliefs, but, on the other hand, says it is unnecessary because it is already in the legislation. She also says that if the concession was given to shopworkers, then the same kind of concession would be demanded by many other people as well. I was not quite sure what she had in mind when she mentioned, also, that if shopworkers were not obliged to work already on a Sunday they would not be obliged to work on a Sunday if the law were changed. Of course, if nobody works on a Sunday then no one is obliged to do so; but if other people in an establishment have to work on a Sunday, then surely everyone working there would be expected to work in the same way.

Baroness Trumpington

My Lords, may I just say to the noble Lord, Lord Bishopston, that he does realise, I hope, that I am in no position to answer any questions. As I pointed out, I was speaking at length because that was my only chance, this being Report stage.

Lord Bishopston

My Lords, I recognise the point being made there by the noble Baroness, but I am trying to be helpful to her by saying that some of us may have questions or doubts in our minds about some of the points she has raised, and it may be helpful to her if she can make known her views on these particular matters.

The other aspect is one which I have raised on previous occasions, and it is that the Bill goes beyond the Shops Acts because those working in banks and post offices, accountants, car park attendants and many others, may also have to work on a Sunday, and may also want to plead religious objection to doing so. Of course, the fact is that if the employer is told by his employees that they have objections to working on a Sunday, then we all know very well that there are 3 million people in the queues (many of them shop-workers, indeed) who would be quite ready to take the place of those who have genuine objections to working on a Sunday. I make these points because it may be that at a later stage the noble Baroness might feel inclined to look at the matter again to see whether some of the anomalies created by the Bill, which inherently is very simple indeed, can be tidied up.

Lord Robbins

My Lords, I agree completely with what the noble Baroness has said, and I simply cannot understand the alleged contradictions which the noble Lord, Lord Bishopston, professes to see in her exposition. In my judgment the noble Baroness demonstrated completely that either the amendment is superfluous—the grievances of those who object to working on days to which they attribute religious significance are covered already by the law or by custom—or, if that is not the case, then the amendment is entirely inappropriate in this context. If one has a special statute dealing with shops, then clearly one should have a special statute dealing with all forms of occupation in which the participants are asked to work on Sundays. I see no contradiction at all between the two points which the noble Baroness tried to bring out.

On the other hand, I see substantial objections to subsection (2) of the amendment, which singles out chemists as being excluded from the stipulations of subsection (1). If subsection (1) is necessary, then subsection (2) is incomplete and all sorts of occupations ought to be included, which I would humbly submit would transform the Bill in its simple reference. I conclude by saying that all that this Bill does is to create a greater freedom for those who prefer it.

Lord Monson

My Lords, I thoroughly agree with my noble friend Lord Robertson of Oakridge about the excellence of the film Chariots of Fire. On the other hand, I must disagree thoroughly with his amendment, for the reasons which the noble Baroness, Lady Trumpington, has so eloquently given. The noble Lord, Lord Bishopston, suggested that married women would find themselves in a dilemma if this amendment were not passed. May I point out to him that many bus conductors, ticket collectors, booking clerks, possibly airline stewardesses, and certainly nurses, policewomen and hospital doctors are already married women, and they do not seem to find too much of a problem.

Lord Elton

My Lords, I of course have the greatest respect for the views of the noble Lord, Lord Robertson, on this subject, and I understand fully the purpose of his amendment; but for a number of reasons I would advise your Lordships to consider its implications very carefully indeed before agreeing to accept it. Apart from a reservation about a reference to the Pharmacy and Poisons Act 1933, which has in fact been repealed, the Government have two main reservations about the desirability of including this amendment in my noble friend's Bill.

In the first place, we believe that terms and conditions of work are essentially matters which are best negotiated between employees and employers. After all, these parties are in a far better position than the Government could be to assess the circumstances of their trade, the needs and market position of their own firm and the requirements of the workers in employment there; so intervention would normally be inappropriate. On these grounds we would say to the noble Lord, Lord Robertson, that his amendment would appear to make statutory a provision which it really is up to individual workers to negotiate with their employers, if they feel strongly enough on the subject.

I think your Lordships will agree that, as my noble friend's Bill seeks to bring shops into line with other establishments employing people, it would be rational that shop assistants' conditions of service should, as far as possible, be on the same basis as those of other sections of trade and commerce—and noble Lords all round the House have made this point. In the view of the Government, therefore, the provision of facilities to enable workers, whatever their trade or profession, to observe holy days is best negotiated at the local level. I understand that this is the view also of the Commission for Racial Equality; and, incidentally, your Lordships may be interested to know that the commission have prepared guidance for employers on the issues involved in Moslem religious observance at the workplace.

My second point relates to the practicality of the noble Lord's amendment. I think he will agree that it might often be extremely difficult for an employer to establish whether someone really does hold a conscientious objection on religious grounds and is not simply exploiting a conscience clause for his own convenience. Although I know he said that the employer should have reasonable proof of this conviction, it is very difficult to see what it might be in every case. This has certainly been the experience of the Board of Deputies of British Jews, who since 1937 have been responsible for administering the Jewish Tribunal—appointed under the 1950 Act by my right honourable friend the Home Secretary—for inquiring into the conscientious objection of Jewish traders who, by virtue of their registration under the Act by the local authorities, are permitted to trade on Sundays. Unless some machinery were established to which employers and employees could refer dubious cases, I think that the provision would be unworkable and would tie the hands of employers quite unnecessarily.

I hope I have not given the House or the noble Lord, Lord Robertson, the impression that the Government are insensitive to the beliefs of those who try to follow their conscience in regard to any faith. But I really do believe that his amendment goes further than we might wish. As I have said, we think that this is a matter which should be negotiated locally by the parties concerned. We have no reason to believe that Christians and members of other faiths who wish to abstain from work in other trades and professions experience any difficulty, and I hope therefore that the noble Lord will agree to withdraw his amendment.

Lord Bishopston

My Lords, before the noble Lord sits down, will he accept that he has given some replies to questions that I put to the noble Baroness, to which, for reasons of order, she could not reply? We welcome some of the safeguards to which the noble Lord drew our attention.

Lord Jacques

My Lords, if this Bill ever sees the light of day as legislation, the real motive power behind it will be fear. Even if they do not want to do so, people will feel compelled to open their shops on Sundays in order to retain their market share. Employees will work on Sundays, not because they want to do so but because they will be afraid of losing their jobs. Fear will be the most important of the motive powers, and this will apply whether this amendment is in the Bill or not. Therefore, I feel quite indifferent.

Lord Mottistone

My Lords, may I ask a question of the noble Lord, Lord Jacques? Would he not agree that, if what he says is correct, it would apply today in Scotland?

Lord Jacques

No, my Lords. Scotland, I think, is quite different. I believe that the pattern that we are likely to get in this country will be more like that in some of the States of America than that in Scotland. Because of the distribution of population, the concentration of mutiples and department stores is different here from that in Scotland. One can find any number of places that are different—for example, the Falkland Islands.

Lord Robertson of Oakridge

My Lords, I am grateful to those noble Lords who have taken part in this short debate on my amendment. I thank the noble Baroness, Lady Trumpington, for the detailed and courteous way in which she replied. I think an important principle is involved here. Also I think there is something in what the noble Lord, Lord Jacques, has said in that the extra freedom which will be given to consumers, owners and proprietors of shops will carry a price, and part of the price will fall in the area of job security. No one can tell how my amendment would work out, but I believe it would significantly enhance the job security of those who feel in the way I have described on religious grounds.

On the question of creating a special case for shopworkers, I believe that the shopworkers are in a totally different category from essential workers. As Government speakers have been at pains to say in the debates that we have had on this Bill, they have not brought forward legislation of their own because there is no consensus on this subject and feelings run strongly in both directions. Feelings do not run strongly on whether, for instance, the telephone system should operate on Sundays, and therefore I think there is a distinct difference. I was impressed by what was said by the noble Lord, Lord Elton. I am grateful for the assurances and the other information that he gave, and in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.