Lords Sitting of 11 February 1986

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Bishop of Ripon.

Lord Goff of Chieveley
The Right Honourable Sir Robert Lionel Archibald Goff, Knight, a Lord Justice of Appeal, having been appointed a Lord of Appeal in Ordinary and thereby created a Baron for life, by the style and title of Baron Goff of Chieveley, of Chieveley in the Royal County of Berkshire—Was, in his robes, introduced between the Lord Brandon of Oakbrook and the Lord Butterworth.

Young Chronically Sick: Special Units
2.47 p.m.
Lady Kinloss: My Lords, on behalf of my noble friend Lady Mar, and at her request, I beg leave to ask the Question standing in her name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many beds are provided in special units for young chronically sick patients in England and Wales.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington): My Lords, in 1984, the latest year for which figures are available centrally, the average daily total of beds available in units for younger disabled people in National Health Service hospitals in England was 1,657. In addition, the average daily total in Wales for the same period was 47.
Lady Kinloss: My Lords, while thanking the noble Baroness for her reply, may I ask whether the Government appreciate the invaluable service given by those who care for the young chronically sick 24 hours a day, seven days a week, and often for years, without any relief? Do the Government agree that high priority should be given to the setting up of special units in local health districts to provide cover for emergencies and to give holiday relief for the carers?
Baroness Trumpington: My Lords, the Government are fully sympathetic to the need to provide relief for carers at critical times. Indeed, we recognise the valuable role played by the voluntary bodies in this area. However, we are not convinced that respite care away from home is always the best solution. Many voluntary bodies provide relief carers in the person's own home, and we welcome this development.
Lord Molloy: My Lords, can the noble Baroness say what is the current situation with regard to the recruitment of specialist student nurses to become specialists in this particular field, and whether there is any improvement in the situation in various parts of the country where this form of training has been instituted?
Baroness Trumpington: My Lords, I would need notice of that question. It is a little far from the Question on the Order Paper.
Baroness Macleod of Borve: My Lords, may I ask my noble friend to tell us, if she knows, whether there are many children on the waiting list for these beds?
Baroness Trumpington: No, my Lords, I do not know; but I shall write to the noble Baroness.
Baroness Seear: My Lords, if the noble Baroness the Minister believes that help in the carer's home is what is required, and it may well be that this is right, are the Government prepared to consider any financial contribution to it, because this is not a cheap thing to do?
Baroness Trumpington: My Lords, it is up to local authorities, voluntary bodies and health authorities as to how they allocate funds in any region or district.
Baroness Masham of Ilton: My Lords, may I ask the noble Baroness whether she is aware that there is concern at the closure of some of the smaller hospitals which give this short-term support in emergency services, such as the hospital at Bromsgrove, about which I wrote to the noble Baroness?
Baroness Trumpington: My Lords, I cannot be expected to answer particular questions about particular cases in the context of this Question.
Lord Ennals: My Lords, may I ask the noble Baroness whether she can say something about the situation as it affects mentally handicapped youngsters? From figures at my disposal, I understand that there was a very substantial increase in hospital beds available for young mentally handicapped but in fact only an increase of 42 places in the community in terms of day care support. This occurred between 1976 and 1982. Does this not create some concern about the extent to which community care is really operating, when a large number of patients are discharged without there being adequate day care facilities in the community?
Baroness Trumpington: My Lords, the Question applies to the young chronically sick, and I think I must stick to that definition. I would say further that, as the noble Lord will be aware, there are 192 district health authorities in England. In 1984 there were 79 young disabled units spread throughout the country. We look to health authorities to develop their policies in line with the Government's care in the community objective. Joint planning is something which health authorities must work out in collaboration with other statutory services and voluntary bodies. The provision of young disabled units is for each regional health authority to determine in conjunction with the districts. I think that reply would apply equally to the mentally handicapped.
Lord Cledwyn of Penrhos: My Lords, I hope that I may be forgiven for following immediately upon my noble friend. The noble Baroness may have a perfectly good explanation, but does she agree that 47 beds for Wales is a low figure and one out of all proportion to

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the English figure? Can she explain that, and can she say whether representations have been made about it?
Baroness Trumpington: My Lords, I have to go back to what I said previously. It is up to regional health authorities to plan how such help is distributed among the districts. Although there may not be a unit in every district, there may be sufficient to care for the young people of Wales.

European Airlines: Competition
2.53 p.m.
Lord Rodney: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government, in view of their declared policy of promoting a free internal market within the EEC, what action is being taken to liberalise air services to Europe.
The Parliamentary Under-Secretary of State, Department of Transport (The Earl of Caithness): My Lords, we have agreed more competitive arrangements for air services with five European countries in the last 18 months. Discussions are under way with the Finns, Scandinavians, Italians and Spanish, and should shortly start with the Irish Republic. At Community level there is now an urgent need for concrete progress, and at the recent informal Ministers' meeting in The Hague it became clear that there is now a growing consensus in favour of real reform.
Lord Rodney: My Lords, I thank my noble friend for that encouraging Answer. Can he say whether there will be extra support and pressure when we take over the chairmanship in the near future?
The Earl of Caithness: Indeed, my Lords, we shall continue the good progress that the Dutch are making.
Baroness Burton of Coventry: My Lords, is it correct that Italy and Greece have not yet shown an inclination towards liberalising air services in Europe? What are our connections with them in so far as direct routes from this country are concerned?
The Earl of Caithness: My Lords, the Italians and the Greeks have been rather slow to realise the benefits of a liberal market, but we are exerting pressure from this country, and the Commission is doing so as well.
Lord Mackie of Benshie: My Lords, by "real reform" does the Minister mean that the air services will be able to compete without any restriction whatsoever on prices?
The Earl of Caithness: My Lords, what I mean by real reform is lower prices that are advantageous to the passengers.
Lord Underhill: My Lords, on this occasion the noble Earl used only the term "a liberal market" and
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has not talked about co-ordination; so is that still the Government's policy? In discussions with other countries, are we still emphasising the need for the maximum use of our regional airports?
The Earl of Caithness: My Lords, I did not mention co-ordination because I knew that the noble Lord would do so. I can only refer him to my Answer on 23rd January.
Lord Taylor of Gryfe: My Lords, will the noble Earl confirm the reference in the Question that it is the Government's declared policy to promote a free internal market in the EC? In view of the decline in the value of sterling in relation to other European currencies, does he accept that now might be the moment to look at our membership of the exchange rate mechanism?
The Earl of Caithness: My Lords, that is a very good question, but it does not relate to the original Question. If the noble Lord would like to put down a separate Question we shall seek to answer it.
Lord Bruce of Donington: My Lords, is the noble Earl aware that when he says that there is a growing consensus in Europe on the achievement of liberalisation that has a familiar ring? Almost seven years ago exactly, when I asked a Question about insurance services in the United Kingdom, the Front Bench opposite said that there was a growing consensus on the desirability for such services, but that still has not happened. Will the noble Earl please bear in mind that the achievement of independent agreements with the various EC countries is no substitute for an effective EC policy along the lines of the treaty itself?
The Earl of Caithness: My Lords, I welcome the noble Lord's support for the Government's hope of getting an EC policy. I hope that he will use every endeavour to make sure that his friends in Europe follow him.

Palace of Westminster: Restoration Work
2.57 p.m.
Lord Sandys: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how much restoration work on the Palace of Westminster remains outstanding.
Lord Skelmersdale: My Lords, as far as the outside of the Palace is concerned, the stonework restoration programme will be more than half complete once the river frontage is finished this autumn. My right honourable friend the Secretary of State for the Environment will shortly consider what work should be tackled in the next stage of a continuing programme which it is hoped will be complete in the early 1990s. Within the Palace, the ceiling over the Peers' Lobby has been made structurally secure and work on the Throne is continuing apace.
Lord Sandys: My Lords, I thank my noble friend for that detailed and interesting Answer. Does he agree that the completion of the work on the Clock Tower has been a most spectacular stage in the work on the Palace? Does he also agree that the work which has continued virtually uninterrupted since the end of the war in 1945 is a most notable achievement for everybody concerned, architects and craftsmen alike?
Lord Skelmersdale: My Lords, I know that the Property Services Agency, which has suffered a number of brickbats in the recent past, will be delighted by my noble friend's comments. I certainly agree with him that the Clock Tower is a magnificent achievement, as is the work being conducted in the Chamber. With regard to his comment on the time-scale, I would point out that the present programme started in 1979 and, as I said in my main Answer, is due for completion in the early 1990s.
Baroness Birk: My Lords, does the Minister agree that the longer the work on the Victoria Tower is delayed the more it will cost, and that it will probably be put off again and again? He said that the ceiling in the Peers' Lobby had been made secure, but is he aware—he must be—that the ceiling has been scaffolded for a considerable time? Will he confirm that it is not envisaged that funds will be made available in 1986–87 for its restoration and the completion of that work? Is this not extraordinarily unsatisfactory? Will the Minister urge his right honourable friend to make funds available in 1986–87 for work in a very central part of the Palace of Westminster that is very much used by both Houses?
Lord Skelmersdale: My Lords, so far as the Victoria Tower is concerned, my right honourable friend the Secretary of State for the Environment will shortly he considering what work should be tackled next. He is fully aware of the importance of getting on with the work to the Victoria Tower, which is the last remaining external area of the Palace to be dealt with under the programme. But he also has to bear in mind that the estimated cost of this would be in excess of £4 million. As to the scaffolding in the Peers' Lobby, final structural repairs have still to be completed. The decorative ceiling panels have been removed and will be restored off-site this year. When they will in fact be put back, I am afraid I cannot tell the noble Baroness. Nor can I comment on her assertion that funds will not be available in the next financial year.
Baroness Birk: My Lords, in that case, will the Minister please make it known, not only to myself but to the House, whether this is not, as I understand it, envisaged to be budgeted for in 1986–87? This is of the greatest importance as we are only at the beginning of 1986.
Lord Skelmersdale: My Lords, I think I have already answered that question in that I have admitted that I am unable to answer it. However, I shall put the noble Baroness's point of view before my right honourable friend.

YTS Funding and Mode B Schemes
3.1 p.m.
Baroness Fisher of Rednal: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what representations they have received from local authorities concerning the effect of the new two-year YTS funding proposals on existing Mode B schemes.
The Secretary of State for Employment (Lord Young of Graffham): My Lords, representatives of the local authority associations were involved in the development of two-year YTS and have met Ministers to discuss the new programme. A number of individual local authorities have written to Ministers and to the chairman of the Manpower Services Commission on the question of funding and the possible effects on current Mode B provision.
Baroness Fisher of Rednal: My Lords, is the noble Lord aware that it is very difficult for people to understand the Government's proposals when, on the one hand, they talk about targeting in on the inner cities and involving young people in the inner cities while, on the other hand, they squeeze financially, very seriously, those voluntary bodies that are operating Mode B schemes which give basic training skills to those youngsters unfortunately not able to get on employer-led schemes?
Lord Young of Graffham: My Lords, I am sure that all in your Lordships' House will accept that the most important element in the new YTS scheme is the young people. We are concerned to ensure that there is an adequate supply of places for young people. On Friday last week I visited the North-East and found that already, at this time, we have 94 per cent. of the basic places and 94 per cent. of the premium places either definitely or likely to be provided. Yesterday I was in the North-West, and there I found that 93 per cent. of the basic places and 91 per cent. of the premium places are definitely or likely to be provided. I was concerned with the formation and foundation of the original Youth Training Scheme. This is a considerable advance on where we then stood, this many months before the start.
Baroness Seear: My Lords, will the noble Lord agree that there is a great deal of anxiety, possibly some of it exaggerated, about the effect that the changes are going to have on the voluntary bodies? Can he make much clearer than has so far been the case—I say this in no criticism of anyone, because it is not a matter that it is easy to make clear—how the premium places will work and the extent to which they will meet the needs of the voluntary bodies? I find that there is a great deal of anxiety. Some of it, I suspect, is felt far more than is necessary.
Lord Young of Graffham: My Lords, the original Youth Training Scheme in which Mode B1 was the replacement for those young people who could not

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find an employer, was paid for by the Manpower Services Commission on the basis of places provided and not on the basis of places filled by young people. This had the result in 1985 that the expenditure on unfilled places was £47·5 million. Of this, £35 million was spent on Mode B1 schemes. This was money not spent on young people but spent on providing trainers.
Under the new scheme, the arrangement agreed by the Manpower Services Commission with the TUC, the CBI and the local authority associations was that, in addition to the normal fee of £ 160 a month, there would be a premium fee of £110 a month per person on premium place schemes. This fee would be payable for only as long as young people were actually in these schemes. This seems an equitable way of dealing with the matter. Although we have received a number of representations from local authorities and some voluntary bodies claiming that this will provide them with some problems, we seem to have more than an adequacy of places throughout the country.
Lord McCarthy: My Lords, will the noble Lord take this opportunity to say that the Government accept the unique advantages of the Mode B scheme and that, although it is more expensive, it has a number of considerable advantages in that it narrows in on the unemployed and the long-term unemployed? Will he give an undertaking that the Government anticipate that at least the present proportion, the present distribution between Mode A and Mode B, whereby Mode B accounts for about 22 per cent. of the total number of places, will be maintained?
Lord Young of Graffham: No, my Lords; I wish that I could give that assurance. There is no question that the best scheme for the advantage of young people would be a place with an employer because it is an employment-based scheme. However, we all recognise that in some areas of the country there are some young people for whom immediate employment at the age of 16 is not appropriate, and, indeed, was not appropriate in the years long before there was a YTS scheme. But there are at present some 62,000 places in Mode B1. The highest number of youngsters in training in any one month so far, in 1985–86, is 48,000. Therefore, the balance, the difference between 48,000 and 62,000—some 14,000 places at best—have been empty. What the new scheme will do is to ensure that the money is spent only on young people receiving training. We should be concerned not to distinguish young people as between Mode A and Mode B, between sheep and goats, between those who can get places with employers and those who cannot. In premium places we shall be ensuring that young people, while they are in special places, will have their special needs met, as they deserve, and that when they go to employers they will receive the employment that all of them deserve.
Lord Hunt: My Lords, is the noble Lord not saying that in the matter of funding the Mode B scheme always has, and has always had, a lower priority than the Mode A scheme? Is this not particularly hard on young people who are not fortunate enough to find an employer and hard on those voluntary organisations
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and others which have schemes to help them but are not receiving sufficient funds?
Lord Young of Graffham: No, my Lords. The representations that I receive continually, like those I received during my time as chairman of the Manpower Services Commission, are representations made by trainers, by those providing the places, and not by young people who occupy those places. The truth is that at all times there has been a considerable surplus of places on Mode B1 schemes. Last year, at its very peak during the last 12 months, there were, as I think I have told your Lordships, 48,000 filled places out of a provision of 62,000. So there has always been a more than plentiful supply of places. What we are trying to ensure is that the money spent on unfilled places is now spent on young people.
Baroness Macleod of Borve: My Lords, can my noble friend the Minister say whether he is satisfied that children leaving school are encouraged by staff within those schools to take this training?
Lord Young of Graffham: My Lords, it falls to the careers service to advise young people to go to the most appropriate place to receive their training. For many young people, if not the vast majority, the mode will be employers' places on employers' premises. For those young people to whom this is not suitable, we are concerned to ensure that there is an adequate supply of places. I am assured by the Manpower Services Commission that there will be such a supply. The figures that I have seen show that in all cases there is over 90 per cent. provision at this time.
Lord Northfield: My Lords, can the noble Lord say that there will now be some stability in the scheme for at least the rest of this calendar year and, one hopes, for next year as well? Is he aware of the distress and concern of sponsoring bodies like my own new town corporation, where we have had to hire supervisory staff, discharge them when the scheme has changed, hire more again when the scheme has changed yet again and then discharge them yet again? Is this not a bad way to treat devoted staff who are supervising the schemes? Can we not now, please, have some stability at least for a good period ahead?
Lord Young of Graffham: My Lords, it was announced some time ago that YTS was permanent. But I think all your Lordships' House should share in my concern for young people and not for trainers and those societies or associations that provide the training. In our initial desire to ensure that there was an adequacy of training back in 1983–84, when YTS first came on the scene, we provided for some 100,000 places of which some 82,000 came into being. We can now see that we require no more than 51,000 places to provide for all those young people who need this form of training. The number of young people leaving school each year is diminishing. We must ensure, whatever happens, that we always have a plentiful supply for them. I hope that this will not lead to any more closures, but at all times it is the job of the Manpower Services Commission to look after the needs of the young people.
Lord Gisborough: My Lords, is the Minister aware that there are very many small young firms which are not prepared to contribute toward having these youngsters? They would like to employ a youngster, but are not prepared to contribute and are very half-hearted because they cannot afford the cost. If for very small fledgling firms there could be some way round this problem more places would be available.
Lord Young of Graffham: My Lords, no. There is an adequacy of places. I am quite sure we shall find enough places on employers' premises and that those firms which have now realised the great advantage to them as well as to young people in taking part in YTS will know that what they are being asked to contribute is money that will be very well spent.
Lord Hatch of Lusby: My Lords, the noble Lord has given national figures. Is he not aware that in some localities the situation is very different? Is he aware that recently I visited YTS schemes along the south coast and was told there that they were expected to conduct two-year programmes on a budget for one year and that this would mean a reduction in their Mode B schemes, and in some cases the complete closure of those schemes? Is it not the case, as my noble friend has pointed out, when local authorities are hiring and then having to fire instructors because of lack of money, that this is destroying the whole basis of the scheme?
Lord Young of Graffham: My Lords, no. The concern of those of us who are concerned with the provision of schemes for these young people is to ensure that there is an adequate supply of places. There has been very good notice of the sort of changes involved. Those who have been provided with schemes—and there are many valuable schemes that come under the premium places—schemes which we are concerned to see continue, will go on with them and other arrangements will have to be made for those for whom the need has passed.
This is a matter for negotiation between the scheme providers and the Manpower Services Commission. If there are any schemes in particular difficulty that the noble Lord would care to write to me about, I will deal with that.
Baroness Fisher of Rednal: My Lords, can I ask the noble Lord whether he will visit Birmingham after he has made all the other visits, where I understand on quite reliable information that there are over 1,000 youngsters and 16 YTS schemes running Mode B that are in grave and dire circumstances and will not be able to operate after April?
Lord Young of Graffham: My Lords, I shall certainly undertake to visit Birmingham. I spend a great deal of my time on visits. But the most important thing is that we have sufficient places for those young people who need them. My concern cannot be with the continued existence of schemes whose need has passed.

Parliament Bill [H.L.]
3.14 p.m.
Lord Perry of Walton: My Lords, I beg to introduce a Bill to amend the Parliament Act 1911. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Perry of Walton.)
On Question, Bill read a first time, and to be printed.

Prevention of Oil Pollution Bill [H.L.]
3.15 p.m.
Lord Denham: My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Prevention of Oil Pollution Bill, has consented to place her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Lord Walston: My Lords, I beg to move that this Bill be now read a third time.
At the same time, I should like to express my gratitude to the noble Viscount, Lord Davidson, and the department concerned for the help that they have given in the passage of this Bill. I beg to move.
Moved, That the Bill be now read a third time.—(Lord Walston.)
On Question, Bill read a third time, and passed, and sent to the Commons.

Shops Bill [H.L.]
3.16 p.m.
The Parliamentary Under-Secretary of State, Home Office (Lord Glenarthur): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be now further considered on Report.—(Lord Glenarthur.)
On Question, Motion agreed to.
Lord Denning Lord Denning moved Amendment No. 10:
Page 1, line 12, leave out ("cease") and insert ("continue").
The noble and learned Lord said: My Lords, having been very unsuccessful until now in trying to amend this Bill. I feel we have a very good case on this one, especially as, in framing it, I followed the advice of the noble Earl, Lord Stockton, on Committee stage.
This point is not dealing with Sunday trading as such. It is dealing with the protection of our shopworkers and the shop assistants. Of course it is difficult to understand this clause in the Bill.
Lord Glenarthur: My Lords, before the noble and learned Lord continues, I wonder whether he would be happy to follow the course that I believe was agreed earlier, that with this amendment we should take Amendments Nos. 11, 19, 23, 24, 25 and 26, because they are all on much the same theme.
Lord Denning: My Lords, I am much obliged. I was aware of that, and I ought to have mentioned it. Those amendments are almost consequential or minor ones compared with the one I am now moving.
Amendment No. 11: Page 1, line 13, leave out ("persons who have attained the age of eighteen") and insert ("shop assistants and others employed in connection with retail trades and businesses.").
Amendment No. 19: Page 2, line 12, at end insert—
("(4A) The following provisions of this Act, namely section 2, subsection (3) above, Schedule 2 (except paragraph 1), and Part II of Schedule 3 (and subsections (2) and (4) above in so far as they have effect in relation to those provisions), shall not come into force until the end of the period of two years beginning with the day on which it is passed.").
Amendment No. 23: Page 8, leave out lines 8 to 22.
Amendment No. 24: Page 8, line 23, leave out from ("22") to ("in") in line 26.
Amendment No. 25: Page 9, leave out line 4.
Amendment No. 26: Page 9, line 44, at end insert—

("PART II WORKING HOURS OF ADULT SHOP ASSISTANTS

Chapter

Short title

Extent of repeal

14 Geo. 6. c. 28.

The Shops Act 1950.

In section 18, in subsections (1), (2) and (4) the word "young"; and in subsection (7) the words "the application of" and "to young persons".

In section 20, subsection (1); and in subsections (2) and (3) the word "young".

In section 21, in subsection (3) paragraph (a) and in paragraph (d) the words "in the prescribed form", subsection (4), and in subsection (8) the words "and Part III of this Act".

In section 22, in the proviso to subsection (1), in paragraph (ii) the word "(a)" and paragraph (v).

In Schedule 3, Part II.").

As I said at the beginning, I am trying to follow the advice of the noble Earl, Lord Stockton, on Committee stage. We are now dealing with the protection of shopworkers. We are dealing with various clauses in the Shops Act 1950 which the Government, if you please, want to say are to cease to apply except to young people under 18. As the clause is almost unintelligible as it stands in the Bill, referring back to the original clauses, let me tell your Lordships the section which the Government seek to say should cease to apply.
Let me take Section 17:
"at least one week day in each week a shop assistant shall not be employed about the business of a shop after half-past one o'clock in the afternoon".
That seems to me a jolly good provision and might just as well continue to apply and not be taken away. Give every shopworker at least his half-day so that he can go and see the football match—all well and good.
Let me take the next one they want to repeal:
"Intervals for meals shall be allowed to each shop assistant"—
in accordance with the schedule. That seems sensible enough. Let him have his interval for meals, at one o'clock, or one o'clock to two o'clock, whatever it may be. That is quite sensible, it seems to me, and should apply to everybody. That is dealing with refreshment.
Let me go on to the next one which I have here:
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"no assistant to whom this section applies shall be employed for more than sixty-five hours in any week exclusive of meal-times".
That seems to be a very good thing; not more than 65 hours a week which, I suppose, is 10 hours a day or whatever it may be. That seems a very sensible provision to retain.
Then they have this in Section 22 about Sunday employment:
"No person shall be employed on Sunday about the business of a shop which is open for the serving of customers on that day unless the following requirements are complied with—
(a) in the case of a person so employed for more than four hours on any Sunday, that person shall—
(i) receive in respect of his employment on that Sunday a whole holiday on a day other than that of his statutory half-holiday".
What a good thing! If he has to work on a Sunday why should he not have an alternative day off in the week? Reading those provisions of the Shops Act there seems to me, on the face of it, no reason why they should cease to apply, or be repealed, or be confined to persons under 18.
Seeing those sensible provisions, I turned to the Auld Committee to see where this idea came from. In paragraph 295 they quite rightly start by saying:
"In our view, it would be unfortunate if the Government were to remove all the protection that shopworkers have now, at the very moment when, if our recommendations were to be adopted, they would feel at their most vulnerable".
That is all very sensible. They then go on to say:
"At the same time, we believe that it would be wrong to continue in statutory form the special and inflexible provisions for adult shopworkers, some of them only applicable to shopworkers in England and Wales".
Then they say:
"It may be that the answer lies in the extension of the role now exercised by the Wages Councils to ensure not only adequate pay but also satisfactory conditions of employment".
There it is. We have heard so many times throughout this Bill, "Wait for the wages council". I do not know what is in it, but I understand that there is a Wages Bill starting in the other place, and, if you please, we are to wait for that. In the meanwhile, we are to repeal these protective provisions. I say, let us wait for the Bill, if it comes before your Lordships, and see what it does; see whether it gives proper protection. If it does, then we can repeal those provisions, but do not repeal them before we know what the Wages Bill is going to say. We ought to keep them in being in that way.
Having read, and I hope dealt with, the Auld Committee's report, I am now going to read a few sentences from what my noble friend Lord Stockton said on Committee stage on 2Ist January at col. 160, about the principles which he would like to see adopted:
"Let us remember that the great commandment that was handed down to God's chosen people was perhaps the greatest social reform in the history of civilisation; the concept that every man or woman, however humble, should have at least some period of rest."
My noble friend was dealing with the amendment about limiting the provision to age 65. He went on to say:
"If this amendment is not the right method then we should find some other way of enclosing in this Bill a clause that will make it perfectly clear that the Bill does no injury at all, and is prevented from doing any injury at all, to the rights that have been so long-won for the humbler people in our country; won as much by both parties

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but conspicuously as a result of the old Tory tradition. Those rights were won for people who could not protect themselves and who had least power.
"Your Lordships should make sure that before this Bill leaves us it incorporates a clause or clauses that will reinstate, in whatever form the draftsman thinks is right, the whole system of preserving rights and of preventing the exploitation of a large class of people who are perhaps among the weakest in our great industrial and commercial system".
Those principles surely apply here. Those sections which I have read from the Shops Act 1950 ensure that shop assistants have their half-day; ensure moreover that they have their intervals for meals; and ensure that if they are to work on Sunday they must have compensation through a day off during the week. Surely those principles should be preserved and protected. Further, why limit it to youngsters under 18? This should apply, as our amendment suggests, all through a person's employment.
My noble friend Lord Glenarthur has referred to Amendment No. 19. He is saying, "Let the situation wait for two years, and then we will repeal that lot. We will let it go on for two years, and then they cease to apply." I hope that your Lordships will not accept that suggestion. These sections for the protection of workers should continue as they are until they are replaced by a Bill before your Lordships' House putting in something better, if it pleases your Lordships in the Wages Bill. But let them continue for the time being, and do not take them away now. I hope that your Lordships will support the amendment. I beg to move.
Lord Campbell of Alloway: My Lords, I wish to say a word in opposition to Amendments Nos. 10 and 11. These amendments are in no way concerned with the principle of deregulation relevant to the opening of shops on Sunday, as my noble and learned friend Lord Denning has said, and neither is therefore in any way inconsistent with the main intendment of the Bill. We are concerned only with the provisions of the Shops Act as they exist today, as affecting terms and conditions of Sunday employment in retail trades and businesses which do not obtain as regards the rendering of services, or the supply of goods, other than in retail trades or businesses on Sunday.
True, this amendment reflects to some degree the concern of my noble friend Lord Stockton, but my noble friend did not in any way direct his attention to the question of disparity of treatment, and of course one would listen with the greatest interest and respect to anything that my noble friend might say on that. The question is whether the moratorium on repeal of these provisions of the Shops Act, a moratorium of two years as proposed by Amendment No. 19, the Government amendment, is sufficient in this regard, or whether under the amendment to which the noble and learned Lord, Lord Denning, was speaking these provisions of the Shops Act 1950 shall, for an indefinite period—perhaps indeed until, for all one knows, the end of the century—continue.
The moratorium proposed by the Government amendment is to be preferred because today, and assuredly in the foreseeable future, there is no practical differentiation and no justification for a disparity in provisions of safeguard between categories of persons who work on Sunday. Appropriate general legislation
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to apply to all categories, which of course is well beyond the scope of this Bill, could be introduced, if so advised, at the end of the period of moratorium.
Would it not be wholly unrealistic to fail to acknowledge changes in social and family life, patterns of work, personal attitudes, financial incentives, and economic factors between 1950 and today? Surely we have to legislate against the background of these changes as they exist today and not as they existed in 1950. We must not legislate to perpetuate an unjustifiable distinction between categories of workers who work on Sunday beyond the moratorium period of two years.
In no way do these measures of safeguard impinge upon the crucial issue as to whether Sunday working should be truly optional to preserve a special character in Sunday as distinct from any other working day. Amendment No. 12, on the other hand, an Opposition amendment, and Amendment No. 19, a Government amendment, relate to this crucial issue. I intend to support both Amendments Nos. 12 and 19. But an amendment such as this, however well intentioned, which seeks to perpetuate an unjustifiable disparity, ought not to be supported.
3.30 p.m.
Baroness Seear: My Lords, I should like to speak in support of this amendment moved by the noble and learned Lord, Lord Denning. It seeks to continue the protection given under the 1950 Act. I do not quite understand why the noble Lord, Lord Campbell, has said that this protection is peculiar to people working in the retail trade. The details are peculiar to people in the retail trade, but for over a century there has been comparable protection for women working in industrial employment. There is nothing unique in the fact that these provisions give protection to women working in shops.
Those of us who have campaigned for equal treatment for men and women may have to answer the challenge: why do we want to continue protection for women when no protection is given to men? The answer that we have always given is that we should like to see good working conditions for both men and women. In the not so distant future we may have reforming legislation which will apply to all men and to all women. When that happens that will be the time to repeal the 1950 Act. I see no point whatsoever in repealing the 1950 Act now or bringing in a moratorium for two years if at the end of the two-year period it is proposed to make a further change. Why cannot we leave the 1950 Act as it is; then consider what is required in terms of both protection and improved conditions for all persons working, men and women; then bring in appropriate legislation when we have the experience and the time so to do? To change it now seems quite unnecessary and will involve additional legislation sooner or later. I very much hope that the House will support the amendment moved by the noble and learned Lord.
Lord Mishcon: My Lords, I am so delighted that I gave way to such a thoughtful and excellent speech. As your Lordships will gather from that definition of the speech, I, too, wish to support the amendment. I could not understand the noble Lord, Lord Campbell of

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Alloway, who very often in this House expresses the most liberal views among those on those Benches where that is not always the prevalent note that one hears. I could not understand him because I could not understand the logic. If it were a fact that any of your Lordships would have thought of bringing in a Bill in 1986 to negate the provisions of the original Shops Act, irrespective of deregulation, I could have understood the logic of his speech. Nobody on the Government Benches would in their wildest dreams ever have thought of putting such legislation before your Lordships.
It was working: there was no need for any of these provisions to be cancelled; but an opportunity has been taken by the Government in relation to a matter that has nothing to do with labour conditions to negate these worthwhile provisions, and to do it in a Bill the sole purpose of which is supposed to deregulate. I could just about understand the logic of that if, instead of people being asked to work six days a week, they were asked to work only five days a week and the Government had initiated legislation because, as the working hours compulsorily must be less, there was every reason for us to consider working conditions imposed by the original Shops Act.
This Bill of deregulation does quite the reverse. It provides for increased work, increased hours and on increased days. Therefore a fortiori one has to look with the greatest of care at the conditions which have applied until now to see whether they are not worsened.
I do not want to make a ridiculously dramatic political point out of this, but most of us on all Benches in the House were deeply moved by the speech of the noble Earl, Lord Stockton. He appealed to the reaction of the House, irrespective of party, to ensure that whatever else one did—one gathered that he was not particularly in favour of deregulation—it was made crystal clear to the country that this Government were not making the conditions of workers any worse than they were now and not detracting from any of the privileges that workers had for their comfort and welfare. We are trying to do that even if we agree to a two-year moratorium. The idea of a two-year moratorium is presumably that this will all be forgotten about for the two years and at the end of it there will be no time to legislate for anything different, so the worsening conditions continue.
My last point in favour of this amendment—which was so worthily moved by the noble and learned Lord, Lord Denning—is that the noble Lord, Lord Campbell of Alloway, asked: why differentiate for this class of worker? If I may be allowed to tell him this, there was a reason for doing it in 1950 and repeating the conditions up to then. There has been no difference for this class of worker or in his or her conditions since then. It is still a very largely unorganised branch of the industrial and retail trading world. As we have heard time and time again from all speakers, it consists largely of part-time staff. These people are largely married women who have families.
I ask your Lordships not to fob us off, please, with a two-year moratorium. That shows a slight change of conscience, but it is a deceptive change of conscience. I should not say that it was deliberate, but that is its
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effect. If we are to change Sunday and the work cycle, let us see to it, whatever else we do, that we have not been guilty of detracting from the rights of a largely unprotected group of citizens in this country.
Lord Simon of Glaisdale: My Lords, I was one of those who expressed misgivings at Committee about Clause 2, and I pleaded for a transition period so that one could be reasonably sure that sufficient protection was not being withdrawn from a peculiarly vulnerable class of employee. Moreover, I based, as so many of your Lordships did, the support of Clause 1 and resistance to amendments to Clause 1 on the cogent arguments of the Auld Committee. However, as my noble and learned friend has reminded your Lordships, and as was quoted at Committee stage by the noble Lord, Lord Lloyd, and I think the noble Baroness, Lady Turner, the Auld Committee itself expressed misgivings and looked to wages councils to provide the sufficient protection. Our difficulty was that we did not know what was going to be in the wages council legislation.
Having said that, I should nevertheless ask your Lordships to resist this amendent, for two reasons. The first is that the Government, by Amendment No. 19, have gone a long way to meet our misgivings and have provided a transition period, a testing period, a moratorium, as both noble Lords have called it, in which we can see how this works out. The second reason is that the 1950 Act was hopelessly out of date at the very time it was passed. The Gowers Committee, to which a tribute was paid by my noble and learned friend on Second Reading, criticised the existing legislation in 1947 in these terms;
"Legislation that affects the daily lives of so many people should be simple and intelligible. It is in fact obscure and complicated".
How obscure and complicated it is, I discovered only when I was trying to work out the issue of a point that I raised on Committee, of the interrelationship of Sections 21 and 25 of the Shops Act, and which is again the subject of an amendment proposed by myself on Report.
We would be entirely unjustified in prolonging indefinitely legislation which was utterly outmoded in 1950 when we are offered the alternative. The Gowers Committee, having not only its notable chairman but in fact a very strong committee, three members of which are now Members of your Lordships' House, gave detailed recommendations for the improvement of the existing legislation. The Government in 1950, instead of acting on those recommendations, merely consolidated the law, a law described in the passage that I have just recited to your Lordships. They consolidated legislation going back as far as 1912. It is that we are asked to prolong indefinitely. I ask your Lordships to say that, the Government having come so far to meet our misgivings, we would be quite unjustified in prolonging legislation that was already out of date in 1950.
3.45 p.m.
Lord Rochester: My Lords, in Committee I welcomed the constructive response made by the noble Lord, Lord Sandford, to the speech of the noble Earl, Lord Stockton. The suggestion of the noble Lord, Lord Sandford, as your Lordships will recall, was that

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either the remit of wages councils should be extended for a limited period to get through the upheaval which this legislation will cause, or, alternatively, certain sections of the Shops Act should be retained for a period of transition. However, the noble Lord, Lord Sandford, also said, as I recall, that in his view the situation should then be reviewed.
The noble and learned Lord, Lord Denning, has referred to the Wages Bill, which is being given its Second Reading in another place this afternoon. I have here a copy of that Bill. From it, it is plain that within the Bill there is no provision for adequate remuneration on employment conditions for people aged between 18 and 21 on whose behalf, as he reminded us, the noble and learned Lord, Lord Simon, expressed so much concern in Committee. Indeed, the Bill confirms that it is the Government's intention to remove all those aged under 21 from the protection that is now afforded them by the relevant wages orders.
Under Amendment No. 19, as we have been told, it appears to be the Government's intention to retain those parts of the Shops Act, referred to in Clause 2 of this Bill, for a period of two years, but there is no provision for any review after that time. As I understand it, they will then come into play automatically. Admittedly, that has the political advantage for some of us that Clause 2 will not come into effect until after the next general election, one may suppose. However, I for my part do not think that that is good enough.
As the noble and learned Lord, Lord Simon, has fairly said, the Shops Act is by no means perfect. It can certainly do with amendment. But there is no provision in this Bill or, as I understand it, in the Wages Bill to put anything in the place of the relevant parts of the Shops Act which will give adequate protection to shopworkers. For that reason, it seems to me that we should support this amendment as being the only way in which we can now ensure that all shopworkers will continue to receive adequate protection until such time, as my noble friend Lady Seear has suggested, as adequate legislation can he put in its place.
Lord Oram: My Lords, both at Second Reading and in moving an amendment at Committee stage, I drew attention to a very serious gap which is being opened up by this Bill, and it has again been explained by the noble Lord, Lord Rochester. Below the 18th birthday of a shopworker, he will continue to have the protection at present afforded by the 1950 Act. After his 21st birthday, he will receive the protection of a wages council. However, that wages council will be a very much weaker body than the present wages council. In between the 18th birthday and the 21st birthday, a retail worker will have no statutory protection at all.
There are a quarter of a million such workers and they are going to be exposed to the full rigours of the marketplace in a very competitive situation. I did not press my amendment at the Committee stage because, as I myself pointed out, this Bill overlaps with the Wages Bill, which at that time had not been published. But it has now been published and, as the noble Lord, Lord Rochester, has said, it is being given its Second Reading today in another place. Having examined it,
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I see that our worst fears are confirmed: that is to say, the wages councils will have authority only in respect of workers of 21 and over and, more over, their powers even for that age group will be very much diminished. They will only be able to put down a regulation for pay per hour and one rate for overtime. That will severely restrict the operation of the wages council as provided by the Wages Bill which we have now seen.
The noble and learned Lord, Lord Denning, has moved this amendment, which is wider than the one which I moved at Committee stage. I merely wanted to close the 18-to-21 gap. He, in this amendment, goes beyond that and wishes—and I thoroughly support him in this—to extend the present protection of the 1950 Act to all workers and, obviously, by doing that his amendment would cover the gap which I had particularly in mind. It is for those reasons and for the reasons which I have stated at earlier stages that I support this amendment.
Lord Glenarthur: My Lords. I have listened with great care to the noble and learned Lord, Lord Denning, and to those others of your Lordships who have supported him in this amendment. But, as I have said consistently, I believe, during the passage of this Bill, it is the Government's view that the employment restrictions in the 1950 Act are outdated and they are unnecessary. To that extent, I have to disagree with a lot of what has been said on this amendment. There really is no logical reason to my mind why meal breaks, half holidays and Sunday working arrangements for adult shopworkers should be decided by Parliament when it is not thought necessary to do so for other groups of workers. Surely, matters like this are for individual or collective bargaining.
Throughout the length and breadth of the country there is a great variety of shops in terms of where they are, their size and the goods which they sell. With the removal of restrictions on trading hours there will doubtless be a great variety in hours of opening. Is it not for those who work in the retail trade to decide what arrangements they wish to make for their meal breaks and half-day holidays? I should have thought that it was. Why should we deny them the flexibility which we allow all other workers?
Lord Graham of Edmonton: My Lords, the noble Lord makes the fair point that those who are organised and are able to articulate in retailing have the opportunity to come to collective agreements. Surely the Minister is aware that less than half of those who work in retailing are organised; that there are more than a million workers who are not organised in trade unions. Would the Minister care to tell us how those more than one million workers, primarily women, part-time women workers, are going to seek to enjoy the present protections?
Lord Glenarthur: My Lords, I recognised that point before and I shall come to it again in due course as I proceed to explain my Amendment No. 19 in a few moments. I realise that shopworkers are not so well represented as other types of worker but I cannot believe that in principle the individual—and at the end of the day we are talking about individuals—let alone the collective bargaining side will not be able to come

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to the arrangements that so many other people come to in their other walks of life.
A further argument against this amendment is that it extends the application of the 1950 Act provisions to people other than shop assistants who are employed in connection with the retail trade and businesses. This would mean that the Shops Act provisions would start to apply to people who had not been covered in the past. For instance, maintenance workers and shopfitters could be brought under the scope of the Act; and, in general terms, we are here discussing extending outdated provisions to other people not previously affected.
The noble and learned Lord, Lord Denning, and the noble Lord, Lord Rochester, raised the question of the wages councils and the Wages Bill. There is no direct relationship between the amendment of the Shops Bill and this particular amendment and the Wages Bill. This Bill proposes to lift restrictions on hours for those shopworkers aged 18 and over. The Wages Bill proposes to remove employees under 21 from the scope of the wages councils. But I recognise the concern which was expressed by the noble Lord, Lord Oram, just now and others about the 18 to 21 year-olds. I think that I should make it clear that we are dealing here only with the Shops Act and the conditions of employment that it provides. It has never been concerned with pay rates. There will be ample opportunity to discuss wages councils and pay rates when that Bill comes before us. So far as this Shops Bill is concerned, our predecessors saw fit to distinguish between young people and adults when setting their conditions of work and we are continuing that distinction, at least for the time being.
Accordingly, the Government believe that the restrictions on hours for those aged 18 and over are simply no longer necessary. On the other hand, the young people's provisions are being retained until a full review of all the legislation on their hours has been made. I believe that this is the most logical and sensible approach.
As regards wages councils, it has been decided that the current system inhibits young people's employment. That, I believe, is something we all want to see put right. The changes proposed are aimed at helping young people to get their feet on the employment ladder—something we hear a lot about.
I turn now to the amendment standing in my name, because, during the lengthy and detailed debates that we have had on Clause 2 of the Bill, much concern was expressed that removing the restrictions on adult shop workers' hours at the same time as lifting all the trading hours restrictions would mean an already vulnerable (as the noble Lord, Lord Graham of Edmonton, suggested) and less-well-represented group of employees having to cope with great change and uncertainty. It has been argued that not only would employees have to adapt to the possibility of shops opening longer hours and on Sundays but also, simultaneously, all the restrictions on their working conditions would be swept away, leaving them totally unprotected.
I explained at length my reasons for believing quite genuinely that the restrictions are not really worth
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much in terms of protection. They are outdated and ineffective. Despite this, your Lordships have expressed deeply-held convictions that wholesale change on all fronts might well produce unacceptable and unwarranted uncertainty for shopworkers. My noble friend Lord Sandford was one of those expressing this fear and I believe that he used the word "turbulence" for the situation which he foresaw.
We have taken account of the strength of feeling evident among your Lordships on this matter. We accept that change can be unsettling and that at such times everyone tends to feel vulnerable, perhaps even threatened, as the Auld Committee said and as the noble and learned Lord, Lord Denning, quoted just now when he referred to that report. We accept that derestricting shop trading hours has at least the potential to alter significantly the fundamental nature of the retail trade. Whether it will in fact do so lies in the realm of conjecture. Whether or not any change that occurs will be sudden is also open to surmise.
4 p.m.
Be that as it may, we accept that some shopworkers may feel that too much is happening at once. I hope we can mitigate that feeling through Amendment No. 19, which stands in my name. We are attempting to stage the changes brought about by this Bill over a two-year period so that shopworkers have a greater opportunity to adapt. First will come the lifting of controls on shop trading hours. Employers and employees will then adapt to that as necessary, but within the framework of the Part II restrictions on hours. Again, as my noble friend Lord Sandford put it, the Part II restrictions will see them through this transition.
However, the two years allowed by this amendment should be ample time for those changes to work through and a new equilibrium will have been reached. At that point the restrictions on adult hours will be lifted, bringing adult shopworkers into line with other employees who do not have this type of statutory control over their working conditions.
Perhaps I should explain briefly why we have selected two years. It is certainly not an attempt, in the way that the noble Lord, Lord Mishcon, described it, simply to forget about it all after a couple of years. I think we would all agree that one year might not be adequate and it might not be sufficient for any changes to work through completely; but, on the other hand, a longer period of perhaps three to five years or whatever would really be too long. It would merely introduce delay for its own sake, and that is why we have chosen two years and why it seems to be the optimum.
The noble Lord, Lord Rochester, raised the matter of review of the two-year period. The amendment does not cater for such a review. Clause 2 of the Bill will come into effect automatically at the end of the two-year period. We are firmly convinced that a further review at the end of the two-year transitional period is completely unnecessary for many of the reasons given by the noble and learned Lord, Lord Simon of Glaisdale. The provisions of the 1950 Act have already been examined in detail by the Auld Committee. Their report concluded that the continuation of the inflexible statutory restrictions in Part II could not be justified nowadays.

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The Government have considered carefully the findings of the committee and they agree that the restrictions are, as I have already said, outdated, ineffective and unnecessary. I really do not believe that a further review could achieve anything. Having said that, the Government accept that shopworkers may feel that too much is happening at once if the Part II restrictions are lifted for adults at the same time as the restrictions on trading hours. They may, quite understandably, as I have said, feel unsettled by the change and that is why the Government have accepted the principle of a transitional period which I have described.
Having explained the reasons for this amendment, I must stress that after further consideration it may be necessary for us to exclude certain categories of employees from the scope of some or all of the restrictions by later amendments as the Bill progresses through Parliament. There is a good reason for that, and I will explain it to your Lordships. For instance, we are particularly concerned that some provisions of the 1950 Act are no longer relevant in the light of modern-day retail trading. One of these requires that shopworkers may work only a maximum of three Sundays a month. In the days when retailing was predominantly a full-time occupation that restriction had some point. Nowadays, however, a high proportion of employees are part-time and this restriction is not really relevant to them or to Sunday only workers.
Indeed, many of your Lordships have extolled the importance of not restricting opportunities for part-time workers, and therefore the Government would wish to keep open the possibility of excluding part-time workers and Sunday only workers from this and perhaps other technical restrictions as well, because it has not been possible fully to examine all the implications that we could expect, particularly with regard to Sunday workers and part-time workers. There are, for example, one or two other provisions in relation to butchers' shops, but the effect of the provisions on part-time and Sunday only employees is the main point I should like to stress.
In summary, I recognise—
Lord Oram: My Lords, I wonder whether the noble Lord would give way. Before he leaves his explanation of Amendment No. 19, will he please explain what is to me a particularly difficult phrase? It says that Part II of Schedule 3 will be one of the provisions which will be suspended for two years. But if we turn to Schedule 3 we find no Part II there, or indeed any other part. It it simply the schedule which repeals certain parts of Acts. There must be an error here. Can the Minister explain?
Lord Glenarthur: My Lords, I shall endeavour to explain to the noble Lord in a moment. May I, before I finish explaining the reasons for this amendment, say that I recognise the force of the arguments expressed in Committee on this matter? I cannot go so far as the noble and learned Lord, Lord Denning, and others would like me to, and I have spelt out the reasons why. I believe that those reasons stand scrutiny. But what we have by my amendment is a means of meeting the understandable concern about the transitional period
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which was expressed by many speakers, including my noble friend Lord Stockton.
As regards the noble and learned Lord's amendment, I cannot accept that his proposed restrictions, other than those for young people which I have explained are subject to review, should remain beyond this two-year period. It is on that basis that when I come to move Amendment No. 19 and its associated amendments I hope your Lordships will accept it. However, I cannot agree with the noble and learned Lord's amendment and I hope he will see the force of the arguments against it and not press it.
In answer to the point made by the noble Lord, Lord Oram, the amendment to Schedule 3 of the Shops Bill, as printed in the Marshalled List dated 3rd February 1986, omits an amendment to insert in the heading to that schedule,
"Part I [Opening hours and Sunday trading]".
I understand that the omission is deliberate because those concerned with the printing—I believe this may go so far as the House authorities concerned—were not prepared to accept an amendment merely to insert a heading in the schedule. This is getting rather technical, for which I apologise. However, the heading in question, which is necessary to indicate the proposed division of Schedule 3 into two parts, can be inserted without such amendment. The insertion will be made in the next print of the Bill.
Schedule 3 is to be divided into two parts as a result of the Government's proposal not to bring into force Clauses 2, 4(3), and Schedule 2, save for paragraph 1, concerning removal of restrictions on the working hours of adult shop assistants until two years after the passing of the Shops Bill. Part I of Schedule 3 will deal with the repeals relating to opening hours and Sunday trading. Part II of that schedule will deal with the repeals relating to the working hours of adult shop assistants. The repeals in Part I will come into force on the passing of the Act. The repeals in Part II will not come into force until the end of a period of two years beginning with the day on which the Act is passed. I am sure the noble Lord understood that. I am not sure that I do myself—
Lord Mishcon: My Lords, may the House have a period of two years' moratorium to consider what the noble Lord said?
Lord Glenarthur: My Lords, I am happy to join the noble Lord in that. If I can spell it out more clearly in due course, I shall do so.
Lord Oram: My Lords, having raised the difficulty, may I say that I am much more puzzled now.
Lord Glenarthur: My Lords, may I say that I am, too.
Baroness Fisher of Rednal: My Lords, to make sure that there is no misunderstanding, may we have a plain English version in Hansard alongside the technical explanation which the noble Lord has just given to us?
Lord Glenarthur: My Lords, with the leave of the House, may I simply say that I shall, of course, look at

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a way of expressing it more clearly, and whether it is in Hansard or in some other form I shall gladly do so. But I should like to look at it first and understand it fully myself, in view of the points raised.
Lord McCarthy: My Lords, I should like to raise a point on the crystal-clear amendment moved by the noble and learned Lord, Lord Denning. In order to do so, I should like to see whether I understand the Minister's speech. I shall not enter into discussion of what the Minister said and what he meant, in reply to the questions which were asked about the schedule, because if he reads it again—and I hope that we shall all read it again—he will probably be still more confused. Apart from that, his other points did not really support the argument that he put forward.
He asked us first not to vote for this amendment because it deals with, and wants to perpetuate, out-dated regulations. The particular way in which he said these regulations are out-dated, so far as I understand it, is that they cover only shopworkers. If it be the case that they cover only shopworkers, then surely the way in which we ought to bring them up to date is not by getting rid of them but by extending them or introducing other regulations or other Bills to extend similar, appropriate protection for other workers. It is not really fair to say that something is out of date because only a few people enjoy it, yet that seemed to me to be the first point on which the noble Lord laid his case.
Secondly, the Minister said that we must not take into account anything which is happening at the other end of the corridor today in relation to the Wages Bill. He said that the things which we are doing here today must not be compared with what is happening on the Wages Bill. I quite see why he says that, because you just cannot square what is being proposed in this House today with what is also being proposed today in another place at the other end of the corridor.
Essentially, what the Government are asking us to accept is that, so far as wages are concerned, the old should be protected. The old need protection, but the young people do not need protection in the area of wages. Therefore, down the other end they are going to abolish protection for the young in respect of minimum wages. But up here at this moment we are being told that it is the young who need protection in the case of hours. In the case of hours and conditions, being sent home for breaks and having half-holidays, the young need protection and the old do not need protection.
The Government cannot have it both ways. It is total nonsense. Either everybody should be protected or nobody should be protected. This particular combination, by whatever way it has arisen, is something which does not make any sense and which furthers us with an argument for voting for this amendment.
Then the Minister argued for his own amendment, and I thought he was going to say—and he would have had more reason to be listened to in this House if he had—that he was offering us a two-year moratorium at the end of which these out-dated provisions would be replaced by up-dated provisions. But no, my Lords, that did not seem to me to be what he was saying. He
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seemed to be saying that he was going to provide us with what the noble and learned Lord, Lord Simon of Glaisdale, called a breathing space, at the end of which the patient would be shot.
There would not be any revival; there would not be any reconstruction. There would be a two-year period, and that was just so that the workers involved could get used to what was happening to them. It was not that anything would be put in its place, not that the Government would use the two years and give us a careful review. No; it was just so that as the blows fell they were phased over a period of two years, and when the shopworkers were used to the consequences of all the other things that were to happen to them as a result of the rest of the Bill they would then be ready to take the consequences of this part of the Bill. None of these things seems to make a case for supporting the amendment of the Government. The Government do not solve the problem: they put off the problem for two years.
The really surprising thing is why an amendment of this kind is put down by the Government at the Report stage of the Bill. If the Government had really taken on board the need to phase the mayhem, the dislocation, they would have put it in the Bill at the beginning or at Committee stage. But they put it in the Bill now because they feel that unless they put something in the Bill we shall vote for the amendment of the noble and learned Lord, Lord Denning—and I think we should do so.
4.15 p.m.
Lord Denning: My Lords, I would first deal with Amendment No. 19, which I find quite unintelligible. It reads:
"The following provisions of this Act, namely section 2, subsection (3) above, Schedule 2 … shall not come into force",
and so on. When I look for those provisions, I cannot find them anywhere. At all events, finding it quite unintelligible, I hope that that amendment will not be accepted by your Lordships.
I want to deal with the merits of this discussion. First, it is accepted by the Auld Report, and indeed by my noble friend Lord Stockton, that we are dealing with the most vulnerable part of our society, the shopworkers, who are unorganised and, really, having no protection from a trade union, need the protection of the law. That is what the Auld Report said, and they recognised that. They went on to say that the remedy is in the new wages council. It may be that the answer lies in an extension of the role now exercised by the wages council, to ensure not only adequate pay but also adequate conditions of employment.
I have not seen the Bill in another place. I do not know that your Lordships ought to have regard to it when it has not come before us for consideration. But what we are told is that that applies only in regard to people over 21. That brings me to my next point. The Government's clause will still apply indefinitely to youngsters under 18. If it is good enough for them, surely it is good enough for everybody else. I ask: when you are considering whether youngsters under 18 are to have their half-day holiday during the week, and whether they are to have hours off in lieu of Sunday working, will the clauses of this Bill apply in the future?

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When inspectors go to a shop, are they to ask all the youngsters, "How old are you? Are you 17½ or 18½? Have you had your half-day holiday this week? Have you had your day off in place of Sunday working?" It is absolutely impossible for inspectors to distinguish, in practice, between those under 18 and those over 18. It will be absolutely unenforceable if there is this distinction in the law between the under 18s, for which the clauses are to continue, and the over 18s, for which they will cease to exist.
Lord Simon of Glaisdale: My Lords, if my noble and learned friend will allow me to intervene, that distinction is drawn already in the Shops Act, which he wishes to continue.
Lord Denning: My Lords, I am dealing in regard to the Shops Act with the particular provisions concern-ing half days. I know there are distinctions in other respects, but I am dealing with the half days. I am dealing with time off in place of Sunday working. That distinction between the under 18s and the over 18s or the under 21s and the over 21s is a quite impossible distinction to take off in practice. You ought to say to all workers in the shop, whether they are 17, 21, 30 or the like, "You are entitled to your half-day; you are equally entitled to say that as you had to work on Sunday you will have a day off instead". Surely those are sensible provisions to continue, not only for the under 18s but for those above.
The only thing which the Auld Report suggested in this respect was to leave it to the wages council. How long shall we have to wait? We have not seen it at all. As my noble friend Lord Oram said, that is only for the over 21s. The truth is that your Lordships ought not to be affected by what the Government say may take place through the wages council and the like. You ought not to repeal the present provisions until you know what is going to replace them. That is why this so-called moratorium fails altogether.
It is suggested that the protections which we have should be extended for another two years and should then fall altogether. Why should that be? We have no promise of new legislation to take their place. We should simply have all those protections removed all at once. It is said that they are not applicable today—I doubt that. I should like the House to consider that. They are applicable today, at all events until they are replaced by measures brought before your Lordships to show something better than they are. As for saying that they are out of date and unenforceable, they are enforceable enough for the under 18s. I suggest that the repeal of these protections after two years with nothing to replace them is quite wrong. They ought to be continued until the Government come forward to your Lordships showing some satisfactory alternative. I shall go on with the amendment.
Lord Glenarthur: My Lords, before the noble and learned Lord sits down, may I respond briefly to what was said by the noble Lord, Lord McCarthy? I feel that he somewhat exaggerated the state of play—
Lord Mishcon: My Lords, I always want to extend the utmost courtesy to the Minister, as would the rest of the House, but this is Report stage. Does the noble
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Lord wish, by leave of the House, to address the House on another occasion?
Lord Glenarthur: My Lords, I rather thought that I had the right to do so, but with the leave of the House, and before the noble and learned Lord moves the amendment finally, may I simply answer the point made by the noble Lord, Lord McCarthy? I said that I believed he had exaggerated rather wildly about the response of the Government to what had been said at Report. It is very difficult to know how we could have responded any earlier to it because we had not heard either the argument of the noble Lord, Lord McCarthy, or indeed the argument of the noble Lord, Lord Mishcon, or indeed the point which had been raised by my noble friend Lord Stockton, my noble friend Lord Sandford and others. That is precisely why we realised that there was force in the argument that there could be confusion and could be difficulties (as the Auld Report itself made clear in a paragraph which was quoted by the noble and learned Lord, Lord Denning, earlier this afternoon) and that the idea of a transitional period would remove that concern or would go a very long way towards easing it.
With regard to the wages council legislation, I have to explain again to the noble Lord, Lord McCarthy, although I am sure he recognises it, that the Wages Bill deals primarily with pay, and evidence suggests that the current wage rates—the noble Lord, Lord McCarthy, shakes his head, but nevertheless this is the evidence—inhibit the employment of young people up to the age of 21.
Lord Graham of Edmonton: There is no evidence, my Lords.
Lord Glenarthur: My Lords, the noble Lord, Lord Graham, says that there is no evidence. There is evidence to support it.
Noble Lords: Produce it!
Lord Glenarthur: My Lords, the proposals in that Bill which is already in another place are aimed at giving young people a chance at employment. Noble Lords opposite are the first people to suggest that not enough has been done for employment and they are the first also to suggest that the people on whom we should concentrate are those who are young. That is precisely what that Bill seeks to do.
Lord Mishcon: My Lords, I must protest. The orderliness of this House at Report stage—and it is not for me to bring the House to order—is that when somebody moves an amendment, then replies to the debate, and moves the amendment finally and says that he wants to test the opinion of the House, the debate then closes. For somebody to take advantage of the opportunity, even as courteously as the noble Lord the Minister does, to start answering the debate all over again will produce only confusion and turmoil and upset the procedure of your Lordships' House.
Lord Glenarthur: My Lords, the last thing I would want to do is to upset the procedure of your Lordships' House. If I have stepped out of order I apologise

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unreservedly. What I was trying to do was to answer a point which the noble Lord, Lord McCarthy, made when he spoke after I had spoken. I can say no more than I have done in relation to the Wages Bill, and I shall leave it at that.
Lord Denning: My Lords, I have said enough. I find the Government's arguments quite unconvincing. I move my amendment and hope that most noble Lords will support it.
4.27 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 121; Not-Contents, 120.

DIVISION NO. 1

CONTENTS

Airedale, L.

Irving of Dartford, L.

Amherst, E.

Jacques, L.

Ardwick, L.

Jeger, B.

Auckland, L.

Jenkins of Putney, L.

Aylestone, L.

John-Mackie, L.

Banks, L.

Kearton, L.

Birk, B.

Kinloss, Ly.

Blyton, L.

Lauderdale, E.

Boothby, L.

Lawrence, L.

Bottomley, L.

Leatherland, L.

Brentford, V.

Listowel, E.

Brockway, L.

Lloyd of Kilgerran, L.

Brooks of Tremorfa, L.

Lockwood, B.

Bruce of Donington, L.

Longford, E.

Campbell of Eskan, L.

McCarthy, L.

Carmichael of Kelvingrove, L.

McNair, L.

Chalfont, L.

Mais, L.

Cledwyn of Penrhos, L.

Masham of Ilton, B.

Collison, L.

Melchett, L.

Cottesloe, L.

Mishcon, L.

Dacre of Glanton, L.

Molloy, L.

David, B.

Mountevans, L.

Davies of Penrhys, L.

Mulley, L.

Dean of Beswick, L.

Munster, E.

Denington, B.

Murray of Epping Forest, L.

Denning, L.

Nicol, B.

Diamond, L.

Oram, L.

Donaldson of Kingsbridge, L.

Paget of Northampton, L.

Edmund-Davies, L.

Phillips, B.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Ewart-Biggs, B.

Ponsonby of Shulbrede, L.

Ezra, L.

Rhodes, L.

Falkender, B.

Ritchie of Dundee, L.

Falkland, V.

Roberthall, L.

Fisher of Rednal, B.

Robson of Kiddington, B.

Fulton, L.

Rochester, L.

Gallacher, L.

Ross of Marnock, L.

Galpern, L.

Rugby, L.

Gladwyn, L.

Russell of Liverpool, L.

Glenamara, L.

Seear, B.

Graham of Edmonton, L. [Teller.]

Serota, B.

Shepherd, L.

Greenway, L.

Silkin of Dulwich, L.

Grey, E.

Simon, V.

Grimond, L.

Somers, L.

Hampton, L.

Stallard, L. [Teller.]

Hanworth, V.

Stamp, L.

Harris of Greenwich, L.

Stedman, B.

Hatch of Lusby, L.

Stewart of Fulham, L.

Hayter, L.

Stockton, E.

Heycock, L.

Stoddart of Swindon, L.

Howie of Troon, L.

Strabolgi, L.

Hughes, L.

Taylor of Blackburn, L.

Hunt, L.

Taylor of Gryfe, L.

Hutchinson of Lullington, L.

Taylor of Mansfield, L.

122

Todd, L.

White, B.

Underhill, L.

Williams of Elvel, L.

Vaux of Harrowden, L.

Wilson of Langside, L.

Wallace of Coslany, L.

Winchilsea and Nottingham, E.

Wedderburn of Charlton, L.

Wells-Pestell, L.

Winstanley, L.

Whaddon, L.

NOT-CONTENTS

Ailesbury, M.

Lane-Fox, B.

Airey of Abingdon, B.

Liverpool, E.

Alexander of Tunis, E.

Loch, L.

Allerton, L.

Long, V.

Alport, L.

Lucas of Chilworth, L.

Belhaven and Stenton, L.

Luke, L.

Beloff, L.

McAlpine of West Green, L.

Belstead, L.

McFadzean, L.

Bessborough, E.

Macleod of Borve, B.

Biddulph, L.

Mancroft, L.

Boyd-Carpenter, L.

Mansfield, E.

Brabazon of Tara, L.

Manton, L.

Brougham and Vaux, L.

Marley, L.

Broxbourne, L.

Maude of Stratford-upon-Avon, L.

Bruce-Gardyne, L.

Caccia, L.

Melville, V.

Caithness, E.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Campbell of Croy, L.

Middleton, L.

Carnegy of Lour, B.

Monk Bretton, L.

Chelmer, L.

Morris, L.

Cork and Orrery, E.

Mottistone, L.

Cornwallis, L.

Mountgarret, V.

Cox, B.

Norrie, L.

Cullen of Ashbourne, L.

O'Brien of Lothbury, L.

Davidson, V.

Onslow, E.

De Freyne, L.

Orkney, E.

Denham, L. [Teller.]

Orr-Ewing, L.

Drumalbyn, L.

Pender, L.

Dundee, E.

Penrhyn, L.

Eccles, V.

Peyton of Yeovil, L.

Ellenborough, L.

Portland, D.

Elliot of Harwood, B.

Rankeillour, L.

Elton, L.

Rochdale, V.

Fortescue, E.

Rodney, L.

Fraser of Kilmorack, L.

St. Davids, V.

Gainford, L.

Sandford, L.

Gibson-Watt, L.

Sandys, L.

Gisborough, L.

Seebohm, L.

Glanusk, L.

Selkirk, E.

Glenarthur, L.

Shaughnessy, L.

Gray of Contin, L.

Simon of Glaisdale, L.

Gridley, L.

Skelmesdale, L.

Grimston of Westbury, L.

Stodart of Leaston, L.

Hailsham of Saint Marylebone, L.

Strathcona and Mount Royal, L.

Harmar-Nicholls, L.

Sudeley, L.

Harris of High Cross, L.

Swinton, E. [Teller.]

Henderson of Brompton, L.

Terrington, L.

Henley, L.

Teviot, L.

Hertford, M.

Teynham, L.

Holderness, L.

Thomas of Swynnerton, L.

Home of the Hirsel, L.

Thorneycroft, L.

Hood, V.

Trefgarne, L.

Hooper, B.

Trumpington, B.

Hunter of Newington, L.

Tweedsmuir, L.

Hylton-Foster, B.

Vivian, L.

Ingrow, L.

Wise, L.

Killearn, L.

Wolfson, L.

Kimball, L.

Young, B.

Kimberley, E.

Zouche of Haryngworth, L.

Kinnaird, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.36 p.m.
Lord Denning Lord Denning moved Amendment No. 11:
[Printed above.]
On Question, amendment agreed to.
The Deputy Speaker (Lord Wells-Pestell): My Lords, before calling the next amendment I must point out to your Lordships that, owing to a printer's error, the second Marshalled List contains misleading running headings at the top of pages 2, 3 and 4. The headings, "After Clause 1" on those pages should read, "After Clause 2".
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 12:
After Clause 2 insert the following new clause:
("Trial period
.—(1) Following the commencement of this Act any shopworker who undertakes to perform Sunday work or work after 7 p.m. and who, prior to such an undertaking, had not regularly undertaken such work for the same employer shall be entitled to terminate such an undertaking following a trial period of three months and subject to one month's notice of such termination being given to his employer.
(2) Such a termination shall not be grounds for discrimination, dismissal, discharge, reduction in hours or any other penalty and dismissal or action short of dismissal arising from such a termination shall be regarded as unfair and subject to the provisions of paragraphs 4 to 7 of Schedule 1 to this Act.
(3) This section shall not apply to new shopworkers who undertake to perform Sunday working or work after 7 p.m. as a condition of their engagement except in cases where, in practice, such a condition is not regularly enforced.
(4) Nothing in this section shall operate to prevent the termination of Sunday working at any time by agreement between an employer and a shopworker.")
The noble Lord said: My Lords, Amendment No. 12, which stands in the names of my noble friends Lord Stallard and Lady Turner of Camden is very much an attempt to catch the mood of the House. At an earlier stage, when we were debating the uncertainty that might exist in regard to whether workers have the right under the Bill to opt out of working on Sundays, we moved Amendment No. 28A in the name of my noble friend Lady Turner. This provided that workers could, on more than one occasion, change their minds on whether the conditions of working on a Sunday were appropriate to their circumstances.
I think the whole House is aware of the great uncertainty that will exist when the Bill comes into existence unless it is amended further. Together with other noble Lords, we on this side of the House have sought to point out that the protection which the Bill purports to give existing workers of being able to say, "No, I do not wish to work on a Sunday", is not worth very much. In actual fact, we have been told—indeed I can recall a Member of this House from the Bishops' Bench pointing it out—about the insidious way in which the right to decide not to work on a Sunday could be undermined by management, and not always with evil intent, I may say.
I am well seized of the problems of management as they seek to staff their shops with an adequate level of labour and supervisory staff. We have said that if the only thing which happens to existing workers who have decided not to work is that they continue in their present work without any blame or detrimental effect, then that will be fine. But the real world is not like that.
Let us take for example a shop or a store—and increasingly we are talking about large establishments and in terms of establishments where there are not three or four workers only, because increasingly the
124
volume of business is done at establishments where there are a hundred or perhaps 200 or more workers; and there are thousands of them. There will be circumstances in which the shopworker, exercising his or increasingly her rights, for all the very good arguments which have been deployed, will wish to say, "No" to the shop manager when he comes along one day, later this year perhaps, and announces that the law allows the company to trade on a Sunday, that the company has decided to do so and it would now like that person to work.
We envisage a situation, which will not be an isolated one, where many workers will not be attracted by the extra wages—because there will be extra wages, premiums and inducements of some sort—and where workers genuinely do not wish to work on Sunday. I paint a scenario which has been conveyed to me by many trade union organisers and people who work in shops. The debate on Second Reading will confirm that a member of the Bench of Bishops cited chapter and verse about a worker who was invited to work on Sunday last year over Christmas and the letter was read into the record. The practice was illegal, of course, as indeed is most of the work done on a Sunday in establishments which are not supposed to open.
So there will be pressures. We sought to have recognised the extreme difficulty of the worker under pressure who not only may decide to give it a try but may very well accept the reality of working on Sunday at the time but whose circumstances change later. I can recall at Committee stage that the noble Baroness, Lady Gardner of Parkes, said:
"I think there is a case for the once-only trial system whereby an employee going on to Sunday working at the beginning could say 'I will give it a try'. There could be an agreement at the beginning that this should be a once-only trial. If employees found it was not possible, it would not be held against them in employment dismissal terms".—[Official Report, 23/1/86; col. 410.]
I can well understand ordinary people who want to keep their job, who recognise the unemployment situation and are torn between the pressures which exist, saying: "Well, I have a good firm" (and most of them are), "I have a good manager" (and most of them are), "I have good work mates" (and most of them are), and "I want the business to thrive. Though I do not want to work on a Sunday I am prepared to do so". But I can also envisage another situation where this same man three months later says, "Alas, this does not work. It does not work because of my family circumstances and it does not work because of my domestic relationships"—there may be a whole range of reasons.
4.45 p.m.
The amendment is drawn in such a way that it does not put management in pawn to the whim of an employee who might decide very quickly that he wants out. The amendment is drafted, so far as we can do so, in reasonable terms:
"shall be entitled to terminate such an undertaking following a trial period of three months and subject to one month's notice of such termination being given to his employer".
If the Government are minded to recognise the realities of retailing, I believe that they will see justice and equity in this amendment. Shorn of the arguments about whether deregulation should take place and all

125
the other arguments about rights, the amendment simply takes into account the case of an employer who has the opportunity to trade on a Sunday, who wants to trade on a Sunday and who induces the worker to be willing to work on a Sunday and then later, after three months, finds the worker saying "This is not for me". We are saying that, provided that it is before the three months are up and before one month's notice has been given, that is in practice after two months, we think that the worker should be able to come to a conclusion. Before someone says to me that two months is wrong and five or six is better, I shall concede that that could be a point. We are saying that the experiment of the shopworker about how he will work should last for three months.
I do not think that we as a House should be inflexible about workers and management and then find management having to resort to nefarious practices where there is an unwilling worker who says that he will stand on his rights. One then has all the paraphernalia of his being looked upon as an unsatisfactory worker who is refusing to work on Sunday and to co-operate. I think there should be a period when both employer and employee, in the light of the then changed circumstances, can say, "How do we go on?" Good managements will try to take all the employees with them and will recognise that there will be many employees for whom the inducement of extra wages is no inducement at all, but I can still see a situation arising in which the management of a shop may say, "If I am compelled under the Bill to allow all those who want to opt out to do so, I shall not have enough employees".
There is an argument that there are plenty of people who want to work on a Sunday, who already work elsewhere for five or six days a week and want to work on Sunday for an extra £20, £30 or £40; and that is right. I am trying to look at a business which wants to maintain the unity of its labour force, and which does not want to have two workforces: the normal workforce and the extra, Sunday workforce. The kind of problems which that arrangement will create for management in terms of supervision and security will be a nightmare.
This Bill should concern management and employees who want to work together in the light of the new legislation and this amendment provides that opportunity. In other words, I am talking about the employee whose circumstances change and who, having given the system a try (which is fair to the employer), then says "This is not for me".
This is a reasonable amendment. I hope that the Minister will not say that this proposal is caught up with anything that the House has already done this afternoon or at some other stage. I am always prepared to be guided on technicalities. The sense of what I am saying is borne out by the discussions that we had at an earlier stage. I am heartened by the words of the noble Lord, Lord Campbell of Alloway, who has indicated that he intends to support the amendment—which clearly is an imprimatur of reasonableness. I beg to move.
Lord Boyd-Carpenter: My Lords, the noble Lord who has just spoken is proposing to go further than the
126
rather marginal decision of the House a few moments ago in the creation of a specially privileged class of Sunday workers. As your Lordships have been told during the passage of the Bill, some 4 million people in this country work regularly on Sundays and a further 5 million from time to time. The proposal, following on the decision of the House of a few moments ago which I hope may not be allowed to stand, to create special privileges for those who happen to work in shops, as compared with those who work in other equally useful avocations such as in hotels, restaurants, transport and the innumerable public services that function on Sunday, is a great mistake.
The noble Lord also appeared in the course of his speech to ignore entirely the fact that his amendment relates not only to Sunday working but also to working after seven o'clock on weekdays. He will be aware that, in some cases legally, and in some cases illegally, many shops are already open after seven o'clock. That is of the greatest advantage to many members of the public, particularly in these days when women so often do a full-time job and require to do their household shopping in the evening. The noble Lord did not even mention that, but that is a very important factor relating to his amendment and one which your Lordships may feel weighs even more against it than the Sunday opening proposals.
But if one looks at the amendment even within the framework of the creation of a legally privileged class of worker, it is a very peculiar one. It says that a man or a woman can make an agreement to work on Sunday and then unilaterally break it by giving a month's notice after two months. That seems again to be giving a very peculiar privilege one-sidedly. One party to an agreement is allowed to break it without ill consequences and the other presumably would be in trouble with the courts if he did. That again is difficult to justify.
As I see it, there is nothing whatever to prevent a man who genuinely does not know whether he will be disposed to work on Sundays or after seven o'clock on weekdays, from entering into an agreement with his employer to do so for a limited period, subject to review at the end of the period, in which case both sides would be on an equal basis. But this proposal is to confer a special privilege on such a man to make an agreement and then to break it. It may be highly inconvenient to the employer. He may have deliber-ately taken somebody on or kept somebody on on the basis that this is someone who will work sometimes, on occasions, on Sunday or after seven o'clock, and not taken on somebody else who was not prepared to make that agreement. The person whom he has taken on on that basis is proposed to be given by this amendment the privilege of breaking his agreement without any recourse by the employer to any form of compensation for that. I think that this is an outrageous proposal.
Lord Campbell of Alloway: My Lords, I support the amendment; certainly the spirit of it. With due respect to the noble Lord, Lord Boyd-Carpenter, it is not a question of here creating a special privilege for those who work in shops.
Lord Boyd-Carpenter: It is, my Lords.
Lord Campbell of Alloway: My Lords, the noble Lord from a sedentary position says that it is. At the moment I am seeking to convince your Lordships that it is not and to say why it is not. All that the amendment would do, in effect, would be to ease the incidence of the Act in the initial stages of its implementation in what I suggest is a humane and reasonable way. Of course as the noble Lord. Lord Boyd-Carpenter, said, it is a peculiar privilege, and because it is a peculiar privilege it has to be justified. But there is a case for justification.
I seek a measure of clarification on the words "7 p.m." as to whether they in effect relate to working after 7 p.m. on a Sunday or whether they are of general application. If they are of general application, I cannot support them. If they are to be construed as relating to Sunday, I would support them.
The essence of the problem is the question of Sunday working being truly optional. In a sense, can it he said that anyone who agrees to work on Sunday after the commencement of the Act opts to do so? In one sense it can be said. But that is far too narrow an approach for the reasons that the noble Lord, Lord Graham, has so clearly explained.
Although the moratorium with which we have been concerned, as proposed in Clause 19, would apply after the commencement of the Act, it is reasonable that there should be this additional safeguard for a trial period. It is right that the unfair dismissal provisions should be strengthened for those in employment at the commencement of the Act. This is effected by Amendment No. 22.
It is one thing to safeguard the strengthening of the existing rights of those employed at the commencement of the Act but quite another, as I have sought to suggest, to extend disparity of treatment between certain types of shopworkers and others. That whole question is a matter for general legislation. Here, one of the views that affected this was set out in old Amendment No. 24, which was in effect rejected. However, even if the substance of old Amendment No. 11, which is now Amendment No. 14, has been subsumed in Amendment No. 22, as I think it has, then that applies for those in employment at the commencement of the Act. Is there not a case in principle for a trial period for those where the obligation to work on Sundays is arrived at, albeit by agreement, after the commencement of the Act?
5 p.m.
It seems to me that this, as I have sought to suggest, is not only reasonable but also humane. It conflicts in no way with any principle in the Bill. It is innocuous to the drafting structure of the Bill. And does it not tend to ease the shoe where employment, albeit agreed, just begins to pinch upon the special character of Sunday in terms of leisure, family life, religious considerations, or what have you? I find difficulties over the issue of 7 p.m., very serious difficulties if one interpretation of the drafting is right. One cannot introduce an amendment and vote for it if one is not quite sure what it means. But the spirit of this I do support. The hope is that, in this regard, my noble friend will be able to give sympathetic consideration. I ask for no more. I do ask, however, that it should not be rejected out of hand. There is something to do with
128
humanity and reasonableness behind it. If that was the case, it would be my personal hope that it would not be put to a Division.
Baroness Ewart-Biggs: My Lords, I supported the first version of this amendment when it was brought up at the Committee stage. I should like to support the new version that is before us now. I wish to stress one particular aspect of the amendment—its importance vis-á-vis the large proportion of women workers. One must see this amendment relating to that large proportion of women. There must be many arguments, upon which all of us are agreed, to support the fact that a woman worker needs more flexibility than, in most cases, a man worker, on account of her responsibilities at home—her marriage responsibilities, her maternal responsibilities or, very often, her responsibilities regarding a physically disabled parent. It is known that the number of daughters looking after a physically disabled parent is very much greater than the number of sons doing so.
Surely one can examine these three areas where, through no possible motive of self-interest, a woman might have to change what she has committed herself to do in her work life. She might well enter with every good faith into working on a Sunday and indeed working after 7 p.m. I know that the noble Lord, Lord Campbell of Alloway, has agreed to the principle of this amendment as it applies to Sunday working. But the noble Lord says that he cannot agree to it as it applies to late night working. I have outlined the responsibilities that a woman may have towards her husband, towards her children or towards an aged parent. These arguments relate as much to the evening when her children are at home as they do to a Sunday. I believe therefore that the amendment is rational in that it applies itself to Sundays and to late working.
Lord Campbell of Alloway: My Lords, on the rationality I may be mistaken but I thought that the Bill was concerned with Sunday trading in shops.
Lord Graham of Edmonton: My Lords, it is a Bill for deregulation of shopping hours.
Lord Campbell of Alloway: My Lords, yes, on Sundays.
Lord Graham of Edmonton: My Lords, weekdays and Sundays.
Lord Campbell of Alloway: My Lords, weekdays and Sundays?
Lord Boyd-Carpenter: My Lords, hours of opening!
Lord Campbell of Alloway: My Lords, I see. I apologise.
Baroness Ewart-Biggs: My Lords, the point that I was going to make—I am glad to make it following the intervention by the noble Lord, Lord Campbell of Alloway—is that it seems fair that a woman should say "Let me give it a try". If some extraordinary family situation should arise, she might then say, "Sadly, I shall not be able to go on with my commitment". This was a point made very well by the noble Baroness,

129
Lady Gardner of Parkes, at Committee stage. Such an understanding between an employee and employer would surely enable these new trading hours whether on a Sunday or on a week-day to work better. We have often said—the Minister has said it—that there will need to be a great deal of understanding between employees and employers in order to make these new trading hours work for the benefit of themselves and also for the benefit of the customer.
Surely, there is a case. It is not trying to make a privileged group. I cannot accept what the noble Lord, Lord Boyd-Carpenter, says every time he speaks about shopworkers, that we are trying to create a privileged group. We are not. We are trying to bring in some flexibility for women workers. It is known that there is an enormous percentage of women workers in this area. We have accepted that they are vulnerable. We are trying to ease their way to work as the Bill would like them to work.
Lord Boyd-Carpenter: My Lords, surely what is proposed in this amendment, as in several others, is to confer on shopworkers legal privileges allowed to no other section of Sunday or other workers. Is the noble Baroness aware that there are many other occupations involving Sunday working, such as work in hotels, in which a great many women also take part?
Baroness Ewart-Biggs: My Lords, I recall the noble Lord, Lord Boyd-Carpenter, putting forward that idea previously. We on this side have asked why there should be an increase in the number of women who do not have flexibility. We are arguing that a woman needs flexibility in the work area in order to give her best both to her work and to her family responsibilities. This is a matter of how you see it. I do not see these people as a privileged group. I see the proposal as a help to that particular group to perform their responsibilities at home and in the workplace. I cannot see anything wrong with that. This is an important amendment. I know that people have been in two minds about many of our amendments. But this is one where the principle is practical and helpful both in respect of the future enactment of different trading hours and to those many women workers who are trying to do their best both at home and in the workplace.
Baroness Lockwood: My Lords, I had not intended to intervene on this amendment. I feel, however, that the noble Lord, Lord Boyd-Carpenter, is either unintentionally misleading the House or misunderstanding the situation. Surely we are referring now to a group of workers—the shopworkers—who, when they undertook such work, did so on the understanding that they would not be required to work on Sundays and after 7 p.m. This Bill is now introducing provisions for such workers to be able to work on a Sunday or after 7 p.m. Their situation is quite different to that of hotel workers and other groups of workers mentioned by the noble Lord who undertook their particular work on the understanding and on the basis that they would be required to work on Sunday.
Lord Boyd-Carpenter: My Lords, is the noble Baroness aware that the very amendment to which she is speaking deals with people who had undertaken to work on Sundays or after 7 p.m. and now desire to go back on it?
Baroness Lockwood: My Lords, no. Again, the noble Lord misunderstands the situation. The amendment relates to people who currently are not required to work on Sundays and after 7 p.m. They might be tempted, as my noble friend said, to enter into such an arrangement. He is suggesting that they should have the opportunity for such an arrangement to occur for a three-month period. Again as my noble friend has said, there are many women among our shopworkers who would find it difficult to work on Sunday, and some might not realise until they were in the situation of having to work on a Sunday that it was creating difficulties within the family.
This amendment extends the opportunity which the Bill itself is giving to current employees. The Bill is saying that those who are already working in a shop shall not be required to work on a Sunday unless they opt to do so. Therefore, we are seeking to give them this opportunity; and, as the noble Lord, Lord Campbell of Alloway, on the opposite Benches, has said, this might be a way of easing the Bill into operation. On those grounds I think it is a proposal worthy of support from your Lordships.
Lord Simon of Glaisdale: My Lords, the main provision of this new clause has been argued on either side. Any further points will no doubt be picked up by the noble Lord the Minister. However, I should like to ask the noble Lord, Lord Graham, when he replies, whether he could clear up two points on subsection (3), at the top of page 2 of the Marshalled List. First,
"shall not apply to new shop workers".
I take it that that means persons entering employment after the commencement of the Act, but the noble Lord will no doubt say if I am wrong. I should have thought that if that is the meaning that will not do as a matter of drafting. But it is the kind of matter which can easily be put right on a redraft at Third Reading.
The other matter was the last phrase in that subsection:
"in cases where, in practice, such a condition is not regularly enforced".
I confess that I do not understand what the noble Lord is getting at there; and whether it means either before or after the commencement of the Act, or possibly both. I should be very grateful if in his reply the noble Lord could deal with those matters of detailed drafting.
Lord McCarthy: My Lords, the noble Lord, Lord Boyd-Carpenter says—as he has said several times in the course of these debates—that we are seeking to put shopworkers (I think I have him right) in a special position, to make them a special case. He subsequently said that this would give them a privileged position. Our position on this would be that they are a special case and that the Government accept that they are a special case.
The Government propose to change the longstanding expectation of shopworkers that they would

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not have to work on Sunday. In fact, all kinds of regulations are to be taken away not only for Sunday work but for other types of work as well. We are saying what the Government are saying. It is the noble Lord who is not saying this. We are saying, yes, it is a special case; it is a special set of circumstances. We are saying that this special set of circumstances justifies this amendment. The Government accept this case with regard to the provision in the Bill to deal with unfair dismissal. They are giving rights which no other group of workers have. They are saying, for example, that the two-year rule will be set aside; and that if groups of shopworkers are dismissed as a result of Sunday working then, whatever the period of service—whether they have been there for six or three months—they will have protection. What is the reason for this? It is a special case.
Indeed, I think that earlier on the Minister in arguing for Amendment No. 19—which was subsequently, I hope, set aside by the decisions of the House—was also arguing for some kind of special case. He was saying, "Here is a group of workers whose long-term expectations are being shaken by the Bill which we are introducing and we have to look around and try to find special measures to fit the special case". That is the case for this amendment.
5.15 p.m.
Viscount Brentford: My Lords, it strikes me that this amendment is very much in the same spirit as the amendment for a two-year moratorium which has been proposed by my noble friend the Minister. He has referred to the turbulence that there will be when a Bill promoting total deregulation comes into force. I would envisage, if a period like this was agreed to by your Lordships, that this would again be a matter that would be relevant only for a short number of years while this period of turbulence existed. I am, therefore, very struck by the arguments of my noble friend Lord Campbell of Alloway on the reasonableness of this. The amendment seems to be in the very spirit which my noble friend the Minister has already set out.
Baroness Seear: My Lords, far from making a special case, this legislation in itself is unilaterally varying the contract of employment which has been entered into between the employer and shopworker by making it permissible for them to be required to work on Sundays. This is the point which is being corrected by this proposed amendment, as I understand it.
When the existing workers entered into a contract of employment, they did not undertake to work on Sunday. That is their contract of employment. This is now being varied by this legislation except in so far as those who are in existing employment have the opportunity to refuse to do so. As I understand it, this amendment is saying that, although they have the right to refuse to do it, they may say, "Yes, we will work on Sunday on the condition that we have the opportunity to do it for only three months and then to change our minds". That is all that we are saying. So this is a very special case. It is most unusual to have unilateral variation of contracts of employment.
Lord Murray of Epping Forest: My Lords, I should have thought that the Government, far from rejecting
132
this amendment, would have welcomed it with open arms specifically because it will help to facilitate the introduction of the changes which they are proposing—not to hinder, but to help, to facilitate. Certainly there can be no question of special privileges. Shopworkers have not asked for this Bill. It has been imposed on them against their will. But what is now being said in this amendment is, "Even though you are an existing shopworker, and are protected against an imposition by the employer, nevertheless you may wish to discuss with him and enter into an arrangement for working on Sundays or in the evenings. But if you do that, we want to give you, the existing shopworker, the existing protected person, the opportunity to have second thoughts". That is an opportunity which is given to him absolutely by the Bill as it stands, but one which the employee would, in a sense, be voluntarily rescinding, at least temporarily, were this amendment not carried.
The consequence of this amendment, as I understand it, is to enable certain things to happen which would not otherwise happen. It enables the shopworker, the employee, to say, "It will be difficult to adjust, it may be impossible, but I am prepared to give it a chance. I am prepared to have a go for a period of months and to see how I get on. But I really want to be able to fall back on my basic protections if it doesn't work out, if I have family problems, or I don't like going to work on Sundays, or whatever". Therefore, I should have thought that my noble friend Lord Graham and the noble Lord who has put this amendment down are doing the Government a favour, and I would hope that they would accept it in the spirit in which apparently it is offered.
Lord Campbell of Alloway: My Lords, before the noble Lord sits down may I ask him whether he, like me, is rather limiting his support to Sunday working as distinct from other days?
Lord Murray of Epping Forest: My Lords, on the contrary, I think that what should apply on Sunday should apply to evening working as a whole. Although I do not like the Bill, I recognise that it ranges over the whole gamut, and therefore I think it proper that any changes made under this heading should apply to both. That is my view.
Lord Somers: My Lords, I think that nothing in this Bill is intended to be compulsory. That is to say, nobody is to be compelled either to open a shop or to work on a Sunday. It is purely permissive. But of course one has to realise the element of human nature. The shopkeeper may well say to his weekday employees, "If you are not going to work on Sunday, then I do not want you". They will thereby lose their jobs, and he will find somebody who will work every day. That element of human nature has to be regarded, and perhaps provided for.
Baroness Trumpington: My Lords, I have listened carefully to what the noble Lord, Lord Graham of Edmonton, and the noble Baroness, Lady Seear, said when moving and speaking to this amendment, and to what other noble Lords who have taken part in this debate have said. I fully sympathise with the idea of a trial period, because many shopworkers will naturally

133
be uncertain about regular Sunday working and many will want to see what it is like before making a permanent decision one way or the other.
Such trials can be either for a period of three months or on some other basis such as an agreement to work, say, one Sunday a month for 12 months. The amendment proposed would, as it stands, apply to workers who begin shop work on or after commencement date as well as to those who began such work before commencement date.
Although we are sympathetic to trial periods I do not think that they should, or need, be provided for rigidly by statute. The proper way to introduce a trial period for Sunday working is by the voluntary agreement of employers and employees. Statutory provision is too rigid a method to introduce trial periods. I really would be surprised if my noble friend Lord Campbell of Alloway did not agree with that point. It can take no account of the particular circumstances of individual employers and employees. I agree with what the noble Lord, Lord Somers, said.
It really is for employers and employees to agree between themselves the length of the trial period, the nature of the trial period and what period of notice is required to terminate the trial. In some instances a trial period may not be appropriate, and to enforce such a trial by statute would be unfair to either the employer or the employee. A statutory provision will tie the hands of employers and employees when what is required are voluntary arrangements that encourage as much flexibility as possible.
My noble friend Lord Boyd-Carpenter is quite right. There is nothing in the Bill to prevent an employee from agreeing to work on a Sunday for only a certain period or a certain number of Sundays. The employee will recover his statutory protection when those trial Sundays are passed.
Moreover, this amendment seeks to extend statutory provisions to shopwork after 7 p.m. on weekdays. Whereas we have consistently argued that existing shopworkers should have statutory protection from being forced to work on a Sunday, we have not sought to extend this to late evening work. Many employees in other industries have to work after 7 in the evening and there is no reason to extend statutory protection in this way. Of course, if employers and employees wish to enter into some voluntary arrange-ment for a trial period of late evening work, that is entirely for them to decide.
In addition to late evening work being different in kind from Sunday work, it is already legal for shops to open until 8 p.m. or, on one evening a week, until 9 p.m. The effect of this amendment on employers would be more restrictive than the present law. This would be unreasonable. Moreover, this amendment seeks to extend protection to new recruits into the industry after commencement date. I have said on many earlier occasions, as has my noble friend the Minister, that we cannot support an extension of special privileges to new recruits. This amendment would also appear to allow employees to repeat these trial periods without ever making a permanent decision one way or the other. This would also be unreasonable for employers.
134
The noble Baroness, Lady Seear, and the noble Lord, Lord Murray, ask, "Why should a shopworker not be able to agree to do Sunday work for a trial period?" Under the Bill they can agree to do just this, and then recover their statutory rights. I urge your Lordships to reject this amendment, or the mover to withdraw it.
Lord Jacques: My Lords, I would suggest to the noble Baroness that she is overlooking one important point. The vast majority of shopworkers are not members of a trade union, and they are not used to negotiating with employers. They are not acquainted with the fact that if the employer says, "Will you work on a Sunday?" they can ask for a trial period. However, if it was in the statute it would be different. They need this protection of a trial period because they are not represented by a trade union and they are not used to negotiating.
Lord Graham of Edmonton: My Lords, the final words of the noble Baroness were that this amendment would provide the employee with the ability to have a number of trial periods, to repeat the trial period. If the noble Baroness had been listening, or had read the proceedings of the last debate on this matter, she would have found that it is clear that, hinged upon the remarks of the noble Baroness, Lady Gardner of Parkes, this is an attempt—and the noble Baroness may be able to point out to me that it is a wrong one—to take the once-only option.
We recognise how impossible management's life would be if an employee were to say to his management, month in and month out, "I am prepared to work, and then I am going to stand on my rights". It would be impossible. Of course, there is nothing about the management which says, "I am going to open my shops for one month and then perhaps close them, and then open them and then close them". There is nothing about unilateral rights of anyone else.
The noble Lord, Lord Boyd-Carpenter, spoke about an employee being able to act unilaterally somehow or other in a heinous fashion. The Government are acting unilaterally in passing this Bill. The employer will act unilaterally if he decides to open his shop. What is the meaning of the word "unilateral"? Without consultation? Without taking into account? Without recognising rights, etc? I shall allow the noble Lord, Lord Boyd-Carpenter, to intervene in a moment, but the point I seek to make is that the noble Lord, Lord Boyd-Carpenter, and the noble Baroness are saying that it is once-and-for-all, and the alternative is the employee's standing on his rights and saying to the employer, "I am enabled by legislation to say that I do not wish to work, and therefore I will not". I give way now.
5.30 p.m.
Lord Boyd-Carpenter: My Lords, the noble Lord asked what I meant by the word "unilaterally". It is simple. The amendment proposes that there should be two parties to the agreement: one shall be free to break it with impugnity and the other shall not. I call that unilateral.
Lord Graham of Edmonton: My Lords, the noble Lord may have his background and experience. Let us take this very slowly. That may be of benefit to all of us, including myself! We have a situation where the law is changed. Under the changed law the management of a shop, such as the director or the owner, is legally entitled to open. The management says to the workers, "We would like you to work on a Sunday", and an amicable agreement is reached. Later, by force of economic circumstance, the management decides that it does not wish to open on a Sunday. That is a unilateral decision. He has decided that he does not want the employee to work on a Sunday, forgetting all the changes that might have been made by that man or woman, boy or girl, to fit in with the need.
I shall not stick strictly to the unilateral argument. I am especially seized by the opening remarks of the noble Lord, Lord Boyd-Carpenter, that somehow we are seeking to create or perpetuate a special and privileged class of worker. That special and privileged class of worker is among the lowest paid in the land. If the noble Lord simply wishes to consider one part of the worker's way of life, which is the conditions of work without the pay, (this is all part of the argument) he will discover it is all very one-sided. We are considering people for whom the modest protection and provisions in the 1950 Act, which we have now agreed shall be perpetuated, are on the margin, perhaps the kind of things that protect the worker from even greater exploitation.
I do not stand here with my background and my experience to say remotely that employers in general or even a majority who are the managers, directors and owners of retail businesses are bad employers per se, but the facts of life are clear. Against the background of a mounting total of unemployment, against the background of what the Government seek to do in the Wages Bill which started its run in another place today, it is clear that for hundreds of thousands in 1986, unless existing opportunities are protected, their rights will be whittled away. I shall not say they will be whittled away maliciously or mischieviously, but they will be allowed to go unless someone protects shop workers.
I have declared more than once an interest, which I declare once again, in the Union of Shop, Distributive and Allied Workers. This union does not represent all shop workers but most shop workers. There is the General and Municipal Workers Union, the Transport and General Workers and other unions with workers in the retail and distributive trades, all having good relationships with large employers. The statistics have not been denied because they are true. More than half the people who work in retail and distribution are not members of trade unions. I believe that being a member of a trade union per se automatically provides the worker with the ability to be articulate as to what he wants and to achieve the best possible terms from his employer. I shall not say that, because they are not organised in a trade union, unorganised workers are at the mercy of bad employers; but the Government and noble Lords know that the reason why most workers seek to be members of trade unions is that collectively they can get a better deal.
136
Let us consider the reality. As I have said, the reality is that a worker who now works for a large retail organisation has, on commencement day, the opportunity to tell his employer that he will not work on a Sunday. The amendment provides that the employee does not want to be as black and as white as that. He wants to say to his employer, "You have your rights to open your shop. I have my rights not to work in it. But with good relationships between employer and employee we want to talk about my (that is the employees) problems as well as yours. You are a good employer; you have a good business. I like working here. We have no arguments about wages, but I want to see whether I like working on a Sunday or after 7 o'clock at night".
I paid no attention to the late night a week. That was a slip on my part, but it is a powerful part of the argument because the noble Lord, Lord Campbell of Alloway, drew the attention of the House forcefully to the fact that the Bill is not wholly about Sunday trading but about trading hours. At the moment the law on hours is flouted persistently, with shops opening until 8 o'clock on any day, with one late night until 9 o'clock. We have included this as a response to the pressures we have had from trade unions on behalf of their members. Unions are fearful. I gave your Lordships my information from another source because many large employers will not go down the Sunday route, but down the route of late opening in the weekday. They will want to see whether they can capture some of their competitors' trade by opening not to 8 o'clock or even 9 o'clock. We know that Sainsbury's in Croydon open until 10 o'clock, breaking the law. That is the present position. There will be others who will believe that that is the way to go.
In a previous debate the noble Baroness, Lady Trumpington, poo-pooed conditions on the streets, the crime, the way in which not only women but others move about. We are concerned that it is not merely the customer being able to shop to 10 o'clock at night—but the duty of the employee to work until 8, 9 or 10 o'clock at night. When the shop closes at 10 he or she does not merely walk out, but has to clear the shop ready for the next day. For the employer who tell his employees that he intends to open until 10 o'clock we are providing in the amendment the opportunity for the employee to tell his employer that he is apprehensive; that he does not have a car, or the car park in which it is parked is dangerous or this is a difficult area and crime statistics prove it, but he is prepared to give it a try. We are asking for this suggestion to be given a try to see what will happen.
Baroness Trumpington: My Lords, by leave of the House and before the noble Lord withdraws or does not withdraw his amendment, may I ask him two questions and point out one thing. He is right that we spoke about the dangers to women last time round. I always forget how young the noble Baroness, Lady Ewart-Biggs, is. At that time I should have liked to say "Yes, it was more dangerous then, my Lords, there were bombs".
Lord Graham of Edmonton: Bombs, my Lords?
Baroness Trumpington: There were bombs in the street, my Lords, when women were working all night. It was as dangerous, in a different way, as it is now. By his own admissions the noble Lord speaks for a minority. He will correct me if I am wrong, I am sure. The majority of shop workers do not belong to a union, I think he said. They could if they wanted to, so why do they not? Why should the noble Lord and the noble Lord, Lord Jacques, my old friend, speak for people who do not belong to a union? It would be very wearying for your Lordships if I were to repeat the arguments that I have made before, but I think perhaps your Lordships should read them.
Lord Graham of Edmonton: My Lords, I find it somewhat astounding that the noble Baroness pleads in aid, as a means of denigrating the argument, that conditions on the streets and in our environment are no more dangerous in 1986 than they were, for instance, in 1956 or 1946; that in 1941 or 1942 bombs were dropping in the streets. Of course they were, but that is a different kind of danger. I believe the noble Baroness by that remark reveals her complete inability to appreciate—I do not say accept, but appreciate—the argument that we are deploying.
When I mentioned that there were 2·2 million workers at the moment in retailing and distribution, and that just under half of them were members of trade unions, I was drawing attention to the nature of the business. When one looks at the transient nature, the part-time nature, and the holiday nature of the business, one sees that the retailing and distributive business is not the same as engineering or building. It has a special character all its own. One is talking about part-timers, one is talking about catering, restaurants and a great range of other matters.
The noble Baroness said in her remarks that as far as late evening work was concerned, we needed no statutory provisions. I honestly believe that the Government are straining at a gnat, not merely on the last amendment but also on this one. We are asking the Government to acept such modest amendments, or even to say something. Before the noble Baroness made quite clear her attitude, I was prepared to say that I would withdraw this amendment provided that I had some indication from her that there was the possibility of a discussion, at some level, with somebody, before Third Reading, to see whether we could reach an accommodation. These are genuinely felt points. They are points which people have brought to us and which my own sense tells me would be quite reasonable.
One should give a worker the opportunity of saying to his employer, "I am prepared to try to make the Act work, but give me the opportunity, only once". It would not be more than once because I am talking about a trial period, not more than one trial period. It is not in and out, it is for only once.
I think that the amendment that I have moved is most reasonable. I am very sorry that the Government have seen fit to indicate that even this modest amendment, which would be beneficial to a great many people, does not find favour with them. In that case, I will test the opinion of the House.
Lord Simon of Glaisdale: My Lords, before the noble Lord is finally allowed to sit down, will he, if he wishes, deal with the question I asked about sub-section (3)?
Lord Graham of Edmonton: My Lords, subsection (3) quite clearly indicates that the main body of this amendment does not apply to new workers, because the new workers are in a special category and they have signed a contract.
Lord Simon of Glaisdale: My Lords, that is post-Act workers, is it?
Lord Graham of Edmonton: My Lords, yes, that is right. As regards the phrase,
"where, in practice, such a condition is not regularly enforced",
the purpose in putting that in is that we recognise that it will not be a case of commencement day: all shops open or all shops closed;. There will be a period. There will be some existing workers who will be told by their employers on Day 1, "We do not intend to open", and then, two months later, when competition forces them to do so, the employer is going to say to the employees, "I am going to open". That is why we use that phrase, "not regularly enforced".
I beg to move my amendment to test the opinion of the House.
5.44 p.m.
On Question, Whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 107; Not-Contents, 129.

DIVISION NO. 2

CONTENTS

Airedale, L.

Gladwyn, L.

Alport, L.

Glenamara, L.

Amherst, E.

Graham of Edmonton, L. [Teller.]

Ardwick, L.

Aylestone, L.

Greenway, L.

Barnett, L.

Gregson, L.

Birk, B.

Grey, E.

Blease, L.

Grimond, L.

Blyton, L.

Hampton, L.

Brentford, V.

Hanworth, V.

Brockway, L.

Harris of Greenwich, L.

Bruce of Donington, L.

Hatch of Lusby, L.

Buckmaster, V.

Hayter, L.

Campbell of Eskan, L.

Heycock, L.

Caradon, L.

Hughes, L.

Carmichael of Kelvingrove, L.

Hunter of Newington, L.

Cledwyn of Penrhos, L.

Hutchinson of Lullington, L.

Collison, L.

Irving of Dartford, L.

Dacre of Glanton, L.

Jacques, L.

David, B.

Jeger, B.

Davies of Penrhys, L.

Jenkins of Putney, L.

Denington, B.

John-Mackie, L.

Denning, L.

Kaldor, L.

Diamond, L.

Kilbracken, L.

Elwyn-Jones, L.

Kirkhill, L.

Ennals, L.

Lauderdale, E.

Ewart-Biggs, B.

Leatherland, L.

Falkender, B.

Lockwood, B.

Fisher of Rednal, B.

Longford, E.

Foot, L.

Lovell-Davis, L.

Fulton, L.

McCarthy, L.

Gallacher, L.

McNair, L.

Galpern, L.

Mais, L.

139

Melchett, L.

Simon, V.

Mishcon, L.

Somers, L.

Molloy, L.

Stallard, L. [Teller.]

Mountevans, L.

Stedman, B.

Mulley, L.

Stewart of Fulham, L.

Murray of Epping Forest, L.

Stoddart of Swindon, L.

Nicol, B.

Strabolgi, L.

Ogmore, L.

Taylor of Blackburn, L.

Oram, L.

Taylor of Gryfe, L.

Paget of Northampton, L.

Taylor of Mansfield, L.

Phillips, B.

Tordoff, L.

Pitt of Hampstead, L.

Underhill, L.

Ponsonby of Shulbrede, L.

Vaux of Harrowden, L.

Rea, L.

Wallace of Coslany, L.

Ritchie of Dundee, L.

Wedderburn of Charlton, L.

Roberthall, L.

Wells-Pestell, L.

Robson of Kiddington, B.

White, B.

Rochester, L.

Wigoder, L.

Ross of Marnock, L.

Winchilsea and Nottingham, E.

Seear, B.

Serota, B.

Winterbottom, L.

Silkin of Dulwich, L.

NOT-CONTENTS

Airey of Abingdon, B.

Kimball, L.

Aldington, L.

King of Wartnaby, L.

Alexander of Tunis, E.

Kinnaird, L.

Allerton, L.

Lane-Fox, B.

Ampthill, L.

Lansdowne, M.

Belhaven and Stenton, L.

Lawrence, L.

Beloff, L.

Liverpool, E.

Belstead, L.

Loch, L.

Bessborough, E.

Long, V.

Biddulph, L.

Lucas of Chilworth, L.

Boyd-Carpenter, L.

Luke, L.

Brabazon of Tara, L.

Lyell, L.

Brougham and Vaux, L.

McAlpine of Moffat, L.

Broxbourne, L.

McAlpine of West Green, L.

Bruce-Gardyne, L.

McFadzean, L.

Buckinghamshire, E.

Macleod of Borve, B.

Butterworth, L.

Mancroft, L.

Caccia, L.

Mansfield, E.

Caithness, E.

Manton, L.

Campbell of Croy, L.

Margadale, L.

Carnegy of Lour, B.

Marley, L.

Cathcart, E.

Maude of Stratford-upon-Avon, L.

Chelwood, L.

Colville of Culross, V.

Melville, V.

Cox, B.

Merrivale, L.

Cullen of Ashbourne, L.

Mersey, V.

Davidson, V.

Middleton, L.

Denham, L. [Teller.]

Minto, E.

Dilhorne, V.

Monk Bretton, L.

Dundee, E.

Monson, L.

Eccles, V.

Montagu of Beaulieu, L.

Elliot of Harwood, B.

Montgomery of Alamein, V.

Erroll of Hale, L.

Mottistone, L.

Fortescue, E.

Munster, E.

Fraser of Kilmorack, L.

Newall, L.

Gibson-Watt, L.

Norrie, L.

Gisborough, L.

Onslow, E.

Glanusk, L.

Orkney, E.

Glenarthur, L.

Orr-Ewing, L.

Gray of Contin, L.

Pender, L.

Gridley, L.

Penrhyn, L.

Grimston of Westbury, L.

Peyton of Yeovil, L.

Hailsham of Saint Marylebone, L.

Portland, D.

Quinton, L.

Halsbury, E.

Rankeillour, L.

Hanson, L.

Renwick, L.

Harmar-Nicholls, L.

Rochdale, V.

Harris of High Cross, L.

Russell of Liverpool, L.

Henderson of Brompton, L.

St. Davids, V.

Henley, L.

Sandford, L.

Holderness, L.

Seebohm, L.

Home of the Hirsel, L.

Selkirk, E.

Hood, V.

Shannon, E.

Hooper, B.

Shaughnessy, L.

Hylton-Foster, B.

Simon of Glaisdale, L.

Ingrow, L.

Skelmersdale, L.

Killearn, L.

Stanley of Alderley, L.

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Stockton, E.

Trenchard, V.

Stodart of Leaston, L.

Trumpington, B.

Strathcona and Mount Royal, L.

Vickers, B.

Vivian, L.

Sudeley, L.

Whitelaw, V.

Swinton, E. [Teller.]

Wise, L.

Teviot. L.

Wolfson, L.

Thomas of Swynnerton, L.

Young, B.

Trefgarne, L.

Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.53 p.m.
Lord McCarthy Lord McCarthy moved Amendment No. 13:
After Clause 2, insert the following new clause:
("Young workers and the powers of the retail wages council.
. A wages council covering the retail trade may, if it sees fit, make an order fixing minimum rates of pay for young workers under the age of 21.").
The noble Lord said: My Lords, the purpose of Amendment No. 13 is to give any wages council for the retail trades the right to fix minimum wage rates for those under 21. In the light of what was said by the noble Baroness, Lady Trumpington, earlier in this debate, I should perhaps say that it is intended to do this both for trade unionists and for non-unionists, because we do not accept—
Baroness Trumpington: My Lords, may I ask the noble Lord whether he is also speaking to Amendment No. 15? I have a list of amendments. It will be very helpful from my point of view if the noble Lord can tell me.
Lord McCarthy: My Lords, I am afraid that is equally important and equally affects trade unionists and non-unionists, but it will be moved separately.
Lord Boyd-Carpenter: My Lords, can the noble Lord say which amendment he is moving?
Lord McCarthy: My Lords, the noble Baroness asked me whether I was moving Amendment No. 15, and I said "No". I am moving Amendment No. 13.
The objective of the amendment is to give a wages council for the retail trades the right to fix minimum wage rates for those under 21, but it says "if it sees fit", because it might decide in its wisdom that it was not necessary to do so. Nevertheless, it would have the power to do that. We would argue that this amendment is in line with the intentions of the House as they were shown earlier this evening because, as a result of the amendment moved by the noble and learned Lord, Lord Denning, we have accepted a situation, as I take it, where workers in the shop industry, irrespective of age, are protected in relation to hours, meal breaks and so on. What we are saying is that they should be protected in respect of wages as well.
The noble Lord, Lord Glenarthur, in a previous contribution to this debate when we were discussing the possible connection between what we are doing in this Bill in this House and what is being done in another place, said that it was not reasonable to suggest that there should be protections for young workers in respect of wages, although it might be reasonable to suggest that there should be protection

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for young workers in respect of hours and conditions, because we all wanted to raise the employment of young workers. He said that those of us on this side of the House are always asking what the Government are doing about youth unemployment.
I accept that. Nevertheless, as we said at the time, and as I am afraid I shook my head to indicate at that moment, we do not believe that the abolition of minimum wage protection for young workers will result in an increase in youth employment. Indeed, we would argue that, far from all the evidence supporting what the noble Lord said earlier in this debate, virtually all the evidence—and I do not say all the publications, but virtually all the evidence—suggests that there is no real connection. The most important piece of evidence is the fact that, whereas youth unemployment has trebled since 1979, the proportion of youth wages to average wages has actually fallen. It is 4 per cent. in real terms lower than it was in 1979. The youth wages figure in 1979 was 41 per cent. of the average wage, and by 1985 it was 37 per cent. of the average wage. Therefore, we have moved through a period in which the average real wages of young people have fallen relatively against the real wages of older workers; and yet we have had much larger increases in the rate of unemployment among young people than we have had among the population generally.
Secondly, there has been a very considerable volume of research, and the most convincing of that research was the research sponsored by the Government themselves into the working of the employment trends where wages councils have been abolished—abolished overall and not abolished for certain sections of workers. All that research by a whole series of investigators sponsored by the Department of Employment suggests that when wages councils are abolished, although wages fall employment continues to fall as well, and that there is no necessary connection between falling wages, either in money terms or in real terms in this country, and the level of employment.
Thirdly, there has been a survey done very recently by a Government agency, the Advisory, Conciliation and Arbitration Service, into the hairdressing wages council. They once again found no connection between minimum wage legislation and the level of employment. Indeed, they argue that low rates of pay already in the hairdressing trade are leading to higher rates of turnover and lower levels of employment, and that there is once again no positive connection between statutory support for wages and levels of employment.
The only piece of evidence which the Government have so far advanced is a thin piece of work by the Institute of Economic Affairs by two authors, Forrest and Dennison, which is very largely based on misleading analogies with American experience. There is no evidence based upon actual situations in this country today which suggests that if we were to accept this amendment the result would be a fall in employment for young people in wages council industries. We say, therefore, that it will be consistent with the view which has been taken already in this House so far if we were to pass this amendment.
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We say that the wages of shopworkers today are in fact very low indeed in all relative terms; that 83 per cent. of full-time workers in shops are earning less than £100 a week and that 25 per cent. of women are earning less than £75 a week. That is for full-time work. Also, of young people employed in wages council industries today, the majority are fortunate if they receive, on a full-time basis, as much as £50 a week. In those circumstances we say that the argument for maintaining protection across the board for hours and conditions is no weaker than, but is just as strong as—the same, in fact—the argument in favour of this amendment to do it for wages as well. I beg to move.
6 p.m.
Lord Boyd-Carpenter: My Lords, I cannot help wondering whether this amendment, whatever its merits or demerits, really comes within the scope of this Bill. I find it difficult to reconcile it with the Long Title of the Bill. It is not, as I understand it, a provision confined to those who work on Sundays, and, again as I understand it, is simply an anticipation of the debates, and the admirable speeches which we shall no doubt hear in the course of them, on the Wages Bill when it comes here.
This is a most ingenious "trailer", if I may put it that way, for the noble Lord's speeches, which I have no doubt—and I look forward to the prospect with great happiness—will be very frequent and very full when we come to deal with the Wages Bill. But really, with respect, it seems to have remarkably little to do with this Bill, which is concerned with the Sunday opening of shops. Therefore, I should have thought that, as the wages councils' proposals are not, as apparently the noble Lord has not appreciated, restricted to wages earned on Sundays but are general, that was almost sufficient reason to dismiss the amendment, and that one should simply say to the noble Lord, Lord McCarthy, "Come again at the right time." But as he has said something on the merits I think it is only fair that I should say something on the demerits.
All your Lordships, regardless of where we sit, are desperately concerned about youth unemployment and the damaging effect on a generation leaving school of finding that there is no job for them, which in many parts of the country is unhappily the case. The noble Lord, Lord McCarthy, can say that youth wages have fallen as a percentage of total wages over the years, but of course that is a somewhat misleading argument because total wages have risen very considerably more than the index of retail prices. Therefore, the level of youth wages has of course risen in real terms even if as a percentage of overall wages it may be smaller.
Accordingly, the noble Lord really has not succeeded, it seems to me, in talking himself out of the problem that, in general, if you wish to stimulate employment it is singularly foolish to fix rigid and officially-laid-down levels of wages. It seems to me quite wrong in this situation—and this we shall say very frequently no doubt on the wages council Bill, when it will be more relevant—to say that where someone is prepared to work for a certain wage and someone is prepared to offer him a job at that wage, they shall both of them be forbidden by law to enter into that contract, with the result in many cases that

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the young man remains unemployed and, if he remains unemployed over the years, rapidly becomes unemployable.
There are many spirited young people who would be happy to work for a wage not very much above, and perhaps quite close to, the unemployment benefit level because it would free them of the sense of frustration and uselessness which you get, particularly when young, if you have not got a job or anybody prepared to employ you. Deliberately to put legal obstacles in the way by saying that in a job which from the employer's point of view is not worth above a certain amount you should be denied by law the opportunity to work seems to me a wholly wrongheaded policy. But we shall come to this on the other Bill. To this Bill, with the greatest deference to the noble Lord, Lord McCarthy, it is wholly irrelevant.
Lord Mishcon: My Lords, I wish the matter was as simple as the noble Lord, Lord Boyd-Carpenter, has made it, in very lucid language. We have been told that this is not just a Sunday trading Bill: it is an extension of hours Bill, and one in which the opportunity is being taken to bring up to date old regulations under the Shops Acts relating to terms and conditions of employment. We have been told it is a Bill where we are envisaging a different situation industrially in 1986 from that which obtained in 1950 and was looked at even before, as the noble and learned Lord, Lord Simon of Glaisdale, loves to remind us, by a previous Gower Commission, which decided then that the laws were out of date. So we have done an awful lot about terms and conditions. That is the first answer.
The second answer is that frequently throughout this Bill, and very properly so, we hve been reminded that we are carrying out the recommendations of the Auld Committee. That committee took it for granted that wages councils would remain as they were but they wanted to see that the councils strengthened protection for, among others, those who were young. That is the second reason why this is material and relevant.
The third reason is that many of us do not wish to be caught between two fires, or, if I may use a biblical paraphrase, we must not swing between two gates. And we are liable to do that, because every time we start talking about the wages council and the lack of protection which seems to be envisaged by a Bill now before another place we are reminded that we cannot deal with that Bill at this stage. However, we know what its provisions are, and every time we try to gainsay, because we know what those provisions are, and try to protect the largely unorganised shopworkers, we are told we cannot do it.
The last thing I say to the noble Lord, with great respect, is this. He has interpreted the word "may" as the word "shall". This amendment merely gives a permissive power; and all the arguments he advanced so forcefully as to why it is that employers are anxious to employ young people but at rather low wages, and that the young people ought to accept them, may be very good arguments indeed and they may be relevant, but surely the wages council will have the common sense to take those arguments into account before it exercises what is only a permissive power.
Lord Boyd-Carpenter: My Lords, before the noble Lord sits down, is he not aware that if you set up a wages council with the power to fix wages you are contemplating that they may do so? My objection, if he will be good enough to recall what I said, was to that possibility. If he is telling your Lordships that of course the wages council, being sensible, would never fix wages for these people, why on earth put down the amendment?
Lord Mishcon: My Lords, because if they have not got the power to do so and they are deprived of the power by later legislation not yet before us, we are, as it were, as I have said, caught between two fires. I hope the Opposition, when it is trying to protect (with the help of others sitting on Benches very near to us) the right of shopworkers, will not be told, "Please, just wait until the Wages Bill". It will then be too late. I hope we shall not be told not to move amendments because they are irrelevant when we endeavour to give the wages council powers which they otherwise would not have.
Lord Simon of Glaisdale: My Lords, I largely want to deal with the technical point. It seems to me, with respect to the noble Lord, Lord Boyd-Carpenter, that this amendment is clearly within the Long Title of the Bill; and, in any case, in this House we can amend the Long Title later.
Lord Boyd-Carpenter: My Lords, I think we shall have to!
Lord Simon of Glaisdale: On the other hand, my Lords, it seems to me to fit most unhappily into this Bill. I do not altogether follow the noble Lord, Lord Mishcon, when he says we are in danger of falling between two stools, or between two gates in his biblical quotation. We shall certainly have an opportunity of considering this sort of provision when the Wages Bill comes before your Lordships. It will obviously be far more convenient to consider wages council protection for the 18 to 21-year-olds over the whole field rather than, as your Lordships are invited by this amendment to do, to confine it to the retail trade. Therefore, I very much hope, although subject to a better view that this is in the Long Title of the Bill, that the noble Lord. Lord McCarthy, will not press the amendment.
Lord Rochester: My Lords, I should like very briefly to deal with the substance of the amendment moved by the noble Lord, Lord McCarthy, and the response to it made by the noble Lord, Lord Boyd-Carpenter. On a number of occasions in this House, I have gone out of my way to say that there should be a reduction in the percentage of the adult rate payable to young people. The noble Lord, Lord McCarthy, has said that to some extent in the last few years there has been a relative reduction in that pay. It may even be that it could go further in the interests of this country's competitiveness. In that sense, I concede, in degree, the point made by the noble Lord, Lord Boyd-Carpenter.
But, as I understand it, that is not what is in the Government's mind. To leave young people aged between 18 and 21 altogether unprotected as regards their minimum rates of pay is a very different matter

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indeed, and that is exactly what will happen if the Wages Bill which is now before the other place goes through in its present form. Quite simply, I fear that if no provision is made to fix minimum rates of pay in retail trades for people aged under 21, as proposed in this amendment, then unscrupulous employers will take advantage of the difficulties that small groups of shopworkers experience in combining together to protect themselves and, at a time of high unemployment, will exploit their weakness. For that reason, I should like to support this amendment.
Baroness Trumpington: My Lords, the amendment of the noble Lord, Lord McCarthy, is concerned with the remuneration of young workers in retail trades. As such, his amendment is really outside the scope of the Bill which is presently under discussion. Amendment No. 13 is not in accord with the Government's proposals which are set out in Part II of the Wages Bill. The purpose of the Wages Bill is to simplify and reform the wages council system, to reduce burdens on business and to promote employment, particularly employment for young people. The reforms are part of a broad strategy of deregulation designed to stimulate an environment in which job creation is more likely.
There can be no doubt that wages councils inhibit the employment of young people by setting rates too high in relation to those for competing adults. While there is no consensus of opinion on the number of jobs which will arise from the exclusion of young people from regulation, evidence can be found in all the studies on the effects of wages councils that they have inhibited employment prospects, especially for young people.
These barriers to employment opportunities apply just as much to the retail trade as to other industries. There is no merit or logic, I submit to the noble Lord, Lord Mishcon, in preventing an employer from providing work for a young person, offering a wage which reflects a young person's lack of training and experience and which the young person is prepared to accept. It is an overriding concern that young people are helped to gain access to the crucial first rung of the employment ladder, and that is why the Government have proposed to remove them from regulation by the councils.
So your Lordships will see that this amendment flies in the face of a very positive intention on behalf of Government to remove young people from the scope of wages councils and to give more of them a start in employment. Noble Lords will have an opportunity to raise this question again during the passage through Parliament of the Wages Bill.
6.15 p.m.
Lord Graham of Edmonton: My Lords, I find it quite staggering that those who oppose this amendment are saying that matters relating to the functions of wages councils—I do not mean the contents of the Wages Bill—do not properly form part of this debate. Let me read to the noble Baroness something which I am certain is written on her heart, which is every word of the Auld Committee's report because that is the Bible. That has been prayed in aid by the Government as their justification—not that it gives any
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backing—whenever they are in a tight corner, when they say, "The Auld report has told us this", or, "The Auld report has not told us that".
Let me read paragraph 288 which states:
"We understand that the Government has been considering the abolition of Wages Councils without replacing them with any similar machinery. If this were to happen, we believe that there would be a strong likelihood of exploitation of some shopworkers in the form of lower wages, particularly for unsocial hours of work, and possibly in a longer working week. No doubt most good employers would continue to pay the established rates, but in the rapidly changing and uncertain conditions that might follow de-regulation of shop opening hours, if our recommendations were to be adopted, we cannot be sure that all employers would do so. Accordingly, although it is not directly within our terms of reference, we strongly urge the retention for retail workers of the machinery of the Wages Councils for the fixing of satisfactory wages and premium rates. Retention of Wage Councils is no adequate protection unless their orders are properly enforced. Accordingly, we also urge that there should be proper enforcement of the Wages Council Orders, by an adequately staffed Wages Council Inspectorate. This would become an even greater necessity in the event of de-regulation than it is now."
I am as prone as any noble Lord to select the bits of a document that make my case. But noble Lords ought not to rest on the basis that wages council pay and the effect of deregulation, which is what this Bill is all about, are not a proper part of this debate on this amendment.
The noble Lord, Lord Boyd-Carpenter, talked about the supplementary benefit rates. He alluded to their relationship with the wages of workers. The noble Lord did not complete the statistics. The supplementary benefit rate, which the Government lay down as a minimum long-term rate for a couple with two children, is £103.15 which includes a notional £20 for rent. The Government say that no man with a wife and two children can live in 1986 with less than £103.15. What do the wages council lay down as the adult male rate in the retail food trade? The figure is £71, which is £32 less than the Government's minimum rate.
I am talking about the rate and not about the earnings. The earnings are very near to the £100 mark. I am talking about securing, as the noble Lord on the Alliance Benches said, some bare minimum below which even the kind of employer that the noble Lord, Lord Boyd-Carpenter, wants to encourage—that is, the employer who says, "I wonder how low I can pitch my wage, in order to get someone who is willing to work for me"—will not go. There are some of those about—perhaps not many, but there are some of those about. In the non-food area the rate is £71.50; £31 below what the Government say is the minimum. For young workers under 17, as my noble friend Lord McCarthy has pointed out, the rate laid down is two-thirds, then three-quarters and then 80 per cent. Two-thirds of the rate is £48 a week.
With all the costs of getting to work, of living and of paying stamps, are noble Lords entitled to say that £48 a week is too high a rate to pay in 1986? I think it is sickening for Members of your Lordships' House to begin to make such a case. It is sickening and hypocritical for Members of Lordships' House to say that what employers and the consuming public need is protection from paying rates of that kind. What they want is the ability—the Government have not hidden it—of the employer to get his employees at the lowest rate for which they are prepared to work. I shall tell

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noble Lords what would happen. If there was no level and someone said, "I am prepared to employ you at £40 a week", he would get people to work. If he then said, "Well, I will offer you £38", he would get somebody to work. In the conditions of today, which are more the responsibility of that side of the Chamber than this, whatever the rate may be, that rate will be marginally higher than people would be able to get by some other means, whether it is one scheme or another. But where is the morality? Where is the dignity of work? Where is the inducement?
No evidence has been produced, and I invite the Minister, who I know is listening carefully, to place in the Library of the House the evidence upon which he has said more than once in this debate, and certainly earlier tonight, as has the noble Baroness, that rates of pay such as £48 a week which employers are forced to pay are having a debilitating effect upon young people getting work. I ask the Minister to produce the evidence. I shall quote the report of the National Economic Development Organisation which says that there is no body of evidence which is capable of being produced. I shall produce that and I invite the Minister, who is a fair, honest and reliable man, to produce that body of evidence. I see that the Box is making strenuous efforts to make sure that the Minister is well supplied with the information.
The Minister knows very well, because he is a knowledgeable man in these matters, that young workers are especially at risk. By their very nature they are unskilled and untrained. They have just come from school. If someone has to go in a time of recession, it will be the young who go—they will be the last in and the first out. Certainly among young workers there is a greater proportion of non-trade unionists. Certainly there is less skill, and certainly they drift more than the adult working population.
At a time when the Government can see that the national average rate of earnings for men is £178 a week, the retail food industry rate of earnings, which is about £100, is 71 per cent. of the national average; of non-food it is 75 per cent., and of non-manual workers it is 66 per cent. What the Government seek to do with the aid of their friends who have spoken is to reduce the safety net and reduce the level to which these rates can go.
For people who work in retailing—I again stress shopworkers, not merely USDAW members but others—the reality is not that they are a cinderella industry, but that they have never been able to command as retail distributive workers the kind of wages that apply elsewhere. The national average rate of earnings for men is £178 a week; the national average for retail food workers is £100, which takes into account overtime, special allowances and skills. I look noble Lords in the face and say this: how on earth can we have the audacity to say to men and women, adults with families, who take home less than £100 a week, and to young workers who take home less than £50 a week, that we want to deny them something which already exists?
The amendment simply says to the good men and women representing employers and employees—independents as well as trade unionists—who form a wages council, to take on board the fact that if, in
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looking at how best they can manage their affairs, they decide that they want to have a minimum rate, and if they believe that it will be helpful—I do not just mean helpful to the wages bill or to the consumers' cost, but in terms of the dignity of the work ethic—and that it is right to set minimum rates of pay for young workers, this simple clause will help them to do it. I invite any noble Lord to vote against that principle.
Lord Murray of Epping Forest: My Lords, it is with some degree of reluctance that I support this amendment; with reluctance because I have no particular fondness for the wages council as an institution. I vastly prefer voluntary combinations of work-people coming together collectively in trade unions to bargain with employers and establish their wages and conditions. But I had to recognise, as indeed trade unionists have had to recognise over the years, that there are situations in which this is not possible and in which organisation is extraordinarily difficult. The classic cases are shops and restaurants, typically places where very small numbers of people are employed and therefore where, in the past, those small numbers of people—this is well documented—have been to an extent at the mercy of unscrupulous employers.
This was why the trade boards, which later became the wages councils, were established in the early 1900s. They have been maintained not because of some superiority of wages councils—indeed they are greatly inferior organisations—but because some basic decent minimum was necessary not only for working people but for employers in these trades as well. I wish to emphasise that point. We are not merely concerned here with the requirement that there should be a basic minimum for employees.
One of the purposes of wages councils in shops is to enable those decent employers—most employers—who want to pay reasonable wages and give reasonable conditions, not to face undercutting, cut-throat undercutting, by other employers, at the expense of employees. We shall hear this philosophical argument to a great extent during the forthcoming debates on the Wages Bill. Therefore I urge that, in this great change in the shops industry, we should not lose sight of the need to enable the decent employers to be able to go on doing what they want to do and not be forced to match those who have no compunction, no concern and are prepared to keep on forcing wages down.
I support the amendment not because of any exuberance about the role of wages councils, but merely because I believe that the great tradition in British industry which has been maintained by consent for so many years should not be abandoned either in relation to shops or, as I shall hope to argue to your Lordships at a later stage, generally in relation to the industries which are covered by wages councils.
Lord Graham of Edmonton: My Lords, before my noble friend rises perhaps I may make an apology to the House. Earlier today I was party to an understanding that Amendments Nos. 13 and 15 would be moved together. Inadvertently, after an event which caused some excitement (to me at least) about an hour ago. I forgot to brief my noble friend adequately. I do apologise.
Lord Simon of Glaisdale: I am sorry, my Lords, I did not catch what the noble Lord, Lord Graham, said. What is being taken with this amendment?
Lord Graham of Edmonton: Amendment No. 15, my Lords, I apologise; I simply wanted to make sure. Earlier today my views were sought and I agreed that it would not be inappropriate for Amendments Nos. 13 and 15 to be taken together.
Baroness Trumpington: My Lords, with the leave of the House, may I just say that I am most grateful to the noble Lord and I quite understand.
6.30 p.m.
Lord McCarthy: My Lords, in the circumstances, and since it has not been discussed, it would be better for amendment No. 15 not to be moved. When we reach that amendment I shall not move it.
There is not much to be said about this discussion so far. I have two things to say to the noble Lord, Lord Boyd-Carpenter. He says that we shall be here again. That is right. I accept that I shall probably be making the same speeches, and so will he; but we shall be none the worse for that. We shall be here again, but we are here now. Secondly, the noble Lord said that I did not tell him—and he is probably right—about absolute real wage levels. I can tell him, and when we touch on this subject again I shall tell him at much greater length, that since 1979 in absolute wage terms all the lower paid workers have not kept pace with the retail price index. This is particularly so of wage council workers, and is especially so of young workers covered by wage councils; but we can go into that later.
Both the noble Lord, Lord Boyd-Carpenter, and the noble Baroness, Lady Trumpington, said that it has nothing to do with the Bill. That, I think, has been answered by several speakers on this side of the House. We wish that that were so. We wish that this were just a Sunday trading Bill. We have argued throughout that we do not know what Clause 2 of the Bill is doing in the Bill at all. If this were just a Sunday trading Bill it could be debated in a non-partisan manner, with people taking up their stance, and we would not have to argue, as we do, that we believe that the Government are using the Sunday trading parts of this Bill as a cover—we have to say this—to introduce some particularly unjustifiable forms of deregulation of shopworkers' conditions. While that is the case, then deregulation is the subject and we believe that we are entitled, both technically and morally, to raise the issue of wages as well as conditions; and that is what we are doing in this amendment.
Finally, the twofold case against this amendment at the time would either be first—as I think we have shown is not the case—that it was clearly established that unless wages for young workers were significantly reduced in retail trades there would be a decline in employment, and that if they were significantly reduced there would be an increase in employment. There is absolutely no evidence of that. Neither of the Government speakers who have spoken on this subject tonight has argued that. Neither has put forward any evidence to suggest that. Therefore, we say that it is not established.
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Secondly, it would have to be established—as my noble friend who has just sat down argued very effectively—that we cannot afford, in real terms, that these workers should be paid these rates. As my noble friend said, to come to this House in 1986 and suggest that the industry cannot afford to pay these rates is an argument which no one can really sustain. There is no evidence of shop employers going broke; there is no evidence of absence of entry into the trade; there is no evidence of a starvation of supply because of high wages. There is no evidence at all. On the contrary, all the evidence shows that this is a booming, flourishing part of the economy, and that even if wages were significantly higher in the retail trades it would have very little effect on the volume of employment.
However, it is quite clear that this amendment is not going to find favour. Therefore, we shall not press it at this stage, although we may bring it back subsequently. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 14:
("Sunday working optional.
After Clause 2, insert the following new clause:
.—(1) No person shall be required to work in or about a shop on a Sunday.
(2) Refusal to work in or about a shop on a Sunday shall not be grounds for discrimination, dismissal, discharge, reduction in hours or any other penalty.
(3) In this section, "shop" includes any premises or other place where any retail trade or business is carried on and, for the purposes of this definition, "retail trade or business" has the same meaning as in the Shops Act 1950.").
The noble Lord said: My Lords, it may well be that some people would read this amendment and wonder why it was necessary to table it. Clause 3 states:
"Schedule 1 to this Act shall have effect for the purpose of giving certain rights concerning Sunday working to persons employed as shop workers at the commencement of this Act".
In Schedule 1, paragraph 4 is headed:
"Right not to be dismissed for refusing Sunday work".
The paragraph then reads:
"The dismissal of an established shop worker shall be regarded as unfair for the purposes of Part V of the 1978 Act if the reason for it (or, if more than one, the principal reason) is that the shopworker has refused to do uncontractual Sunday work.".
Some people might believe that you cannot have it fairer than that: that if the principal reason for the dismissal of a shopworker is that he has refused to do uncontractual Sunday work then the employer has offended against Part V of the 1978 Act and it shall be deemed, prima facie, to be unfair, and a tribunal is then obliged to hear the case where the arguments will be made.
What we have sought to do in subsection (2) of the new clause in Amendment No. 14 is to be a little more specific. The amendment states:
"Refusal to work in or about a shop on a Sunday shall not be grounds for discrimination, dismissal, discharge, reduction in hours or any other penalty".
We are concerned with what may happen, and we are trying to make sure that it does not happen. The whole body of case law regarding the relationship between employer and employee is full of situations which do not fit precisely the words of the statute but which have been used as the peg, the device, or the foot in the

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door, in order either to make the life of employees so miserable that they want to go (therefore, they have not been dismissed) or to treat them in such a way that they consider that they have been unfairly treated.
The scenario does not need to be painted in bold capitals. There can be the situation of a worker who is promising, capable, well thought of by his employer and, in effect, looked upon as potential management material. The employer decides, as is his right, that he will trade on Sundays. He then decides that he needs a certain level of employee complement and among those he asks to work is the employee to which I have referred. The employee politely says, "I wish to exercise my rights and I do not wish to work". I said earlier that that—Oh! happy day!—would be the end of it. The manager would get on with trying to manage his business and the employee would get on with working his five-and-a-half or six days a week and would have his day off.
However, we know that in the real world outside certain situations will arise. One of those will be that when it comes to looking for potential managers, or even peripatetic managers—people to carry extra responsibility and, by virtue of that, receive extra wages—there will be two categories of worker in the office, and even on the notice board, but certainly well known to the employees in the establishment. There will be those who are willing to work (I do not say anyone will be happy to work: they may be satisfied with the rates of pay for working, but no one will actually say, "My life will be less full if I do not work on Sunday") and those who are not.
There are subtle ways open to an employer, if not to make an employee recant then to make him reflect, as it were. One of those ways will be that when it comes to a question of promotion the management will say—and I imagine it will be legal—"The only people I can entertain to become branch managers or departmental managers, or who can go far in the business, are those who are willing, if need be, to work seven days a week"—or four in five Sundays, whatever is the arrangement. In my view, that is a blemish on the existing situation.
In this clause we talk not merely in terms of discrimination (that is what I meant there) but of dismissal (that is already covered), discharge (that is covered) and reduction in hours. There will be situations which are outwith the question of working on Sundays, such as the question of overtime. There will be circumstances in which employees, like most employees who have good employers, will say, "Well, I like having the opportunity to work the extra two nights a week and getting £20 or £30". But not everyone is required. The employee of whom I am talking would normally get his fair share or be on rota, or be able to opt in or out.
I can envisage a situation in which the employer that I have in mind will say, "There is not much point in giving something which is a benefit, or is a beneficial aspect of work, to this employee who is not prepared to work on Sunday". Human nature being what it is, I can see the other employees saying, "Why should that employee who refuses to work on a Sunday and apparently gets away with it still have the opportunity by working two nights in the week to earn an extra £20
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or £30, while I who am willing to work on a Sunday do not get the opportunity, or get less of an opportunity?"
So the purpose of this amendment is, perhaps, to spell out even further some of the consequences which I believe are not only possible but are quite likely to happen. We should bear in mind that every large employer is in a cut-throat business. He is engaged with other competitors who are wanting to hone as sharply as possible, every tool they possess, and the most valuable tool in the kit of any employer comprises the employees in the business. He will not be satisfied if, according to his lights, he is carrying some passengers; that is, those who opt to exercise their right not to work on Sunday. This amendment aims simply at extending the protection.
In form it is a straight lift from the legislation in Massachusetts, which has been pleaded in aid more than once as a satisfactory experiment in good employer/employee legislation. It is a straight lift of the words which protect the employee who wishes to exercise his rights. I certainly do not say that what is good enough for Massachusetts should be good enough for your Lordships' House. I simply say, before any noble Lord ridicules as untenable the premises that are strung together in this amendment, that it is accepted in some other places. I do not say more than that it ought to be listened to very carefully by your Lordships' House. I beg to move.
6.45 p.m.
Lord Simon of Glaisdale: My Lords, I gather that this is largely a probing amendment, and I am bound to say that I read the rights given by the first schedule to the persons entitled under Clause 3 as covering all the sorts of penal action that are referred to in subsection (2) of the new clause, particularly now that the schedule, happily and mercifully, has been redrawn, for which we shall express our gratitude in due course.
Certainly this new clause, however proper as a probing amendment, cannot stand as it is. It can mean either that no employer can make any offer of Sunday employment to an employee, which clearly is not meant, or else (which is the only alternative that I can see) that it entitles an employee who has accepted a contract of employment to work on a Sunday to break that contract. I shall be told if there is any third alternative. I have been trying to think of one and have not been successful.
I do not want to put this just as an abstract legal proposition—though I should think that your Lordships would immediately say, "It is no business of the House of Lords to condone or sanction a breach of contract"—but to give your Lordships, as I have tried to do throughout our discussions, a practical example. Let us take a fairly isolated petrol filling station. At the moment it can open on a Sunday. It may well happen—I think it often does in such cases—that the employer there works a shift system, and he may have three female employees working shifts throughout the week who have agreed to work on the Sunday. There may not be many others who would agree simply to work on a Sunday. But suppose the middle one, or any of them, then acquires that heady mixture, a boyfriend with a motor cycle, and

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she no longer wishes to work on a Sunday. Under the terms of this new clause clearly she can refuse to do so and claim the rights under subsection (2) not to be discriminated against. So what will happen is that the employer will be landed with a six-day-a-week shiftworker whereas he wants a seven-day-a-week shiftworker. The alternative is that he looks around to find another seven-day-a-week shiftworker, who may be very difficult to find for an isolated petrol-filling station, or in a village.
I can well understand that the noble Lord, Lord Graham, who has argued his case throughout with conspicuous fairness, should endeavour to probe the rights that are given to the employee under Clause 3 and Schedule 1, but I would respectfully suggest that both on principle and in its practical application the new clause cannot possibly stand.
Lord Glenarthur: My Lords, the reason for offering safeguards to existing employees, as we propose, is clear, and furthermore it is straighforward. The Bill will radically alter the position of existing shopworkers, many of whom may have been attracted to shop work in the first instance because they would not have to work on a Sunday. I understand the concern of existing shopworkers, and I believe that our proposals recognise their special position.
But similar considerations cannot be said to apply to new recruits. As I have asked your Lordships so many times over the past few weeks, in what ways are they different from other employees who join industries where Sunday working is expected? They will join, surely, in the full knowledge that Sunday working is a possibility, and if they do not wish to work on a Sunday they can either come to some arrangement with their employer or take their chance elsewhere.
We have gone over the arguments many times during the passage of the Bill, but it is inevitable that I must repeat some of what I have said. Many people in many walks of life have to work at least occasionally on a Sunday. That applies not only to people in public services, some of which are essential, such as the police, hospitals, transport and so on, but also those in manufacturing, agriculture and the leisure industries, which are becoming an increasingly important part of our lives. As my noble friend Lord Boyd-Carpenter made plain again this afternoon, some 4 million people work regularly and another 5 million occasionally on a Sunday.
One thing that I certainly have not come across is a great outcry that people are working on Sundays at swimming pools, restaurants or estate agencies, which are among the bodies that are now operating. We must recognise that the pattern of working life for many people includes an element of Sunday working. Nobody is expected to work a seven-day week, except perhaps some people concerned with the wellbeing of animals. Most people work on the basis of a five-day week. I would expect exactly the same situation to apply to shopworkers. Those who work on a Sunday would get time off in lieu during the week. There is one other general point that I ought to make. We cannot just assume that people do not want to work at weekends. Many do. The evidence, certainly in Scotland where shops are open already on Sunday, is that a great many people want to work then for a number of reasons.
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The intention of the amendment as to whether new and existing employees should be able voluntarily to enter into a contractual obligation to work on Sunday, despite the noble Lord's description and explanation, seems a little unclear. If that possibility were to be ruled out, employers would be placed in a quite impossible situation. They would never be sure that employees who had volunteered for Sunday work would turn up on the day. Moreover, all existing employees with contractual obligations to work on a Sunday would be able to throw them over unilaterally. I suggest that would be not only unreasonable but well nigh intolerable.
If, on the other hand, employees were able voluntarily to enter into contractual obligations to work on a Sunday, the amendment would in any event prove of limited value to new recruits. The rights proposed apply only to those with jobs. They would provide no safeguards—and this is very important—for those unable to get jobs because they were not prepared to go into a contractual obligation to work on a Sunday.
To pick up one of the points that the noble Lord made, if an employee's life is made so miserable that he has to leave, that is treated as constructive dismissal, which I think was the point that the noble and learned Lord, Lord Simon of Glaisdale, was making, and counts as being a dismissal for the purposes of the unfair dismissal provisions. The same applies in a different way if an employee is discriminated against by not being promoted, because that is taking action against him which is short of dismissal. That would be unlawful under paragraph 6 of Schedule 1 if the reason was that he had refused Sunday work.
Lastly, I say to the noble Lord that the amendment seems to be merely declaratory. It makes no provision for remedies if the rights were to be transgressed. There are profound objections to the amendment. I hope that the noble Lord will see the force of the arguments and not press his amendment.
Lord Graham of Edmonton: My Lords, I do not intend to press the amendment. As the noble and learned Lord, Lord Simon, said, it is a probing amendment. If and when the Bill begins to operate, I am prepared to acknowledge that many of the fears put to Members on this side of the House may prove unfounded. Apparently those fears have not been put to Members on the other side of the House; otherwise, being fair-minded men and women, they would have mentioned them.
It is argued that in existing legislation and in this Bill there are remedies. But we know of the subtle ways in which matters that are not part of agreements or of legislation may play a part in the workplace. The Minister is right; constructive dismissal can be established, not easily, but without too much difficulty. As I explained, the purpose of the amendment was to tackle head on what people outside the House—I do not mean parliamentarians or those who follow our proceedings closely—have always believed. It is the simple statement that no worker will be forced to work on a Sunday. The Minister genuinely believes that no worker who does not want to work will be forced to work on a Sunday; but we live

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in the real world, and in the various ways that I have explained pressure may be imposed. The lower paid, part-time worker, possibly a woman, who desperately needs the £35 or whatever it may be, will be more vulnerable to the pressures that I am talking about.
The noble and learned Lord, Lord Simon, talked about the problem of a garage proprietor who engaged a worker on a six-day basis and then wished to operate on a seven-day basis. He has three female employees, one of whom decides that she does not wish to work. That creates a problem.
Lord Simon of Glaisdale: My Lords. I probably did not make it clear. My point was that she had agreed to do so. That was the case that I was putting. The number of days does not matter; it is a certain number of days including Sunday. I was assuming that she had agreed to do so.
Lord Graham of Edmonton: My Lords, I take the point. That goes back to the previous amendment which the noble and learned Lord did not support. Some people may agree to work on a Sunday but then find that it is not convenient and so wish to break the agreement. We thought that we had a form of words to cover the option or the trial period.
Every day in a retail establishment the manager who survives is faced with a great many problems. They are problems which may be solved on the spot by using his good sense. He has to keep the business going. Problems are part and parcel of every-day retailing, just as they are in industry and so on. One should not therefore fear that what we propose raises a problem. However, when it comes to the question of an employee unfairly, in my view, reneging on an agreement, upon which a manager has decided to organise his business, I would have no time for that employee.
7 p.m.
We come back to the Minister who, not for the first time, used the example of an employee who, in a cavalier fashion and without notice, failed to turn up for Sunday work. I would have no time for that conduct either. The integrity of the worker and his relationship with the employer are precious factors. In my experience, the overwhelming majority of employees—men and women, young or old, and whatever their business—would not last long with a good employer if they treated their responsibilities as an employee, at the lowest or at the highest level, in a cavalier fashion. No trade union, in my view, would automatically represent a worker who was unfair or cavalier in behaviour.
I accept what the Minister has said. There seems to be adequate protection in the Bill to take account of the situation to which I have referred. I am bound to say, however, that there will be a rude shock for tens of thousands, if not hundreds of thousands, of shopworkers who genuinely believe that it will be as simple as saying to their employer, after the commencement date, "I don't wish to work on a Sunday". That has been the genesis of the new clause. Nevertheless, I take the Minister's point that, in his view, it is not needed. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 15 not moved.]
Lord Graham of Edmonton Lord Graham of Edmonton had given notice of his intention to move Amendment No. 15A:
After Clause 2, insert the following new clause:
("Meal times
.—(1) Intervals for meals shall be arranged so as to secure that no person shall be employed for more than 4 hours without an interval of at least 10 minutes being allowed during the course thereof.
(2) Without prejudice to the foregoing provisions—

(a) where the hours of employment include the hours from 12 noon to 2 p.m. an interval of not less than 1 hour shall be allowed between these hours for lunch; and

(b) where the hours of employment include the hours from 5.00 p.m. to 6.30 p.m. an interval of not less than half an hour shall be allowed between those hours for tea.

(3) Shop assistants shall be entitled to take their meals and spend any rest period in a room which is apart from the public areas of the shop.
(4) Provided that an assistant employed in the sale of refreshments or in the sale by retail of intoxicating liquors need not be allowed the interval for lunch between the hours of 12.00 noon and 2.00 p.m. if he is allowed the same interval so arranged as either to end not earlier than 11.30 a.m. or commence not later than 2.30 p.m. and the same exemption shall apply to assistants employed in any shop on the market day in any town in which a market is held not more than once a week or on a day on which an annual fair is held:
Provided that this section shall not apply to a shop if the only persons employed as shop assistants are members of the family of the occupier of the shop, maintained by him and dwelling in his house.
(5) In the case of any contravention of the provisions of this section, the occupier of a shop shall be liable to a fine not exceeding—

(a) in the case of a first offence, £25;

(b) in the case of a second offence, £25; and

(c) in the case of a third or subsequent offence, £25.

In considering for the purposes of this subsection whether an offence is a first, second or subsequent offence, any offence under subsection (3) of section seventeen of this Act shall be treated as if it were an offence under this subsection.").
The noble Lord said: My Lords, the noble Lord the Minister may be able to guide me in the light of the earlier amendment that was carried. If this amendment falls because the attempt that it makes to strengthen the meal break rights has been overtaken by the previous amendment, I shall be happy not to move it.
Lord Glenarthur: My Lords, I am grateful to the noble Lord. What this amendment would do, I believe, is to leave us with two sets of provisions, The best solution, I feel, in the light of the amendment of the noble and learned Lord, Lord Denning, having been carried, is for us to go away and reflect upon the implications of that upon what is contained in this amendment and also Amendment No. 22D. Otherwise, we might get ourselves into a dreadful muddle.
Lord Mishcon: My Lords, I am sure that the noble Lord the Minister is right. All that I would add is that we now have only one further stage of the Bill at which amendments can be put forward. That is the Third Reading. It must therefore be the understanding, I would have thought, between all parties, that the view of the Government, following upon the passing of the amendment moved by the noble and learned Lord, Lord Denning, will be made known to those who are particularly interested in the question of terms and conditions of service at a very early date, so that a decision can properly be taken as to what action should be adopted at Third Reading on this matter.
Lord Simon of Glaisdale: My Lords, I agree entirely with the noble Lord the Minister and the noble Lord, Lord Mishcon. I should like to be added to any list of recipients. I rise, however, to say that the amendment that was carried on Clause 2 may well have repercussions on Amendment No. 19. The noble Lord the Minister will probably want to consider what those repercussions are, and to advise us in due course.
Lord Glenarthur: My Lords, with the leave of the House, I take note of what the noble Lord, Lord Mishcon, says. I shall look at the amendment and at exactly what has transpired. I undertake certainly to let all those who are interested know precisely what our thinking is, if that satisfies the noble Lord. That will be done as soon as possible in the course of the next few days—perhaps by the weekend or at least as soon as we have been able to work it out. On the question of Amendment No. 19, raised by the noble and learned Lord, Lord Simon of Glaisdale, I agree that I shall not be moving that amendment.
Lord Rochester: My Lords, I take it from what the noble Lord the Minister says that he will be kind enough to let me have that information also, not as a representative in any sense of those speaking from these Benches but as someone coming from them.
Lord Graham of Edmonton: My Lords, I am very satisfied with the tenor and sense of the discussion. It will guide us on the remaining amendments that are on the Order Paper. They contain one or two implications. I am also conscious of the timescale that has been announced—of when, for instance, we are going to have our own supper or meal break. I look to Ministers to help me keep the debate going until at least that time.
Lord Mishcon: My Lords, with the leave of the House, there is one option which I do not know whether the House wishes to consider. It is whether there should be a meal break in view of the progress that has been made together with the fact that we are considering the effect of an amendment—the amendment of the noble and learned Lord, Lord Denning—that has been passed. Whether the Government Front Bench would approve of the idea of our continuing, so that we finish at a civilised hour for a change, is a matter for them.
Lord Glenarthur: My Lords, with the leave of the House once more, I understand that there is no question before the House at the moment. I am not sure therefore that we are not straying from our rules of order. The best solution, I would suggest, in the light of the fact that there are one or two amendments which may have some relevance, is that we take them as they come and that as we approach the magic time of 7.30 we shall see precisely where we are then.
The Deputy Speaker (Lord Hayter): My Lords, we were discussing Amendment No. 15A, to insert the clause as set out on the Marshalled List.
Lord Graham of Edmonton: My Lords, not moved.
[Amendment No. 15A not moved.]
[Amendment No. 15B not moved.]
Clause 3 [Rights of established shop workers concerning Sunday working]:
[Amendment No. 16 not moved.]
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 17:
Page 2, line 3, leave out ("at the commencement of this Act").
The noble Lord said: My Lords, I wonder whether the Minister sees in this amendment the germ of a possibility for a short debate. As the Minister will recall, we had a useful discussion led by the noble Lord, Lord Renton, and supported in effect all round the House that Clause 3—
Lord Simon of Glaisdale: My Lords, not by me.
Lord Boyd-Carpenter: My Lords, nor me.
Lord Graham of Edmonton: My Lords, I know just how cross some Benches can be. Clause 3 states:
"Schedule 1 to this Act shall have effect for the purpose of giving certain rights concerning Sunday working to persons employed as shop workers at the commencement of this Act".
We are talking, in effect, about the rights that exist not merely being extended to those who are shopworkers at the commencement of this Act but, as the amendment seeks, in deleting the words,
"at the commencement of this Act"
being extended to all shopworkers. I wonder whether the Minister is in a position to say that this is a separate argument from the successful amendment carried earlier. If it is separate, then I am certainly authorised by the noble Lord, Lord Renton, to press the debate. I am not talking about votes. The amendment in my name, that of Lord Renton, that of the noble Viscount, Lord Brentford, and that of my noble friend Lord Mishcon, is designed further to amend the Bill by taking out the words,
"at the commencement of this Act".
We come back to the argument which has been deployed by a number of Members around the House as to what is "special" in shopwork and what is "special" in working on a Sunday? We have argued that what is special about shopwork is that hitherto working in shops has not involved consideration of working on a Sunday. What is special about working on a Sunday? We take the view that the overwhelming majority of people in this country, if they were free to do so, would not wish to follow their normal work on a Sunday.
Arguments put forward that there are 4 million people regularly working on Sunday do not cut much ice with me because in my view many people who now work on a Sunday would rather not. Train drivers and transport workers have been mentioned. Because of the cash nexus or the collective agreement which the worker has with his employer in order to get premium and shift rates and special allowances, Sunday has been somewhat changed so that if the nature of the work calls upon one to work one says, "All right, I will work". We are talking about people and businesses which have said that they do not normally work on Sundays.
The proponents of Sunday trading have said—and they may be right—that once this Bill comes into force not only will consumers want to shop on Sunday but

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workers will want to work on Sunday, in which case there is little argument. It is the law of supply and demand. The Scottish experience, the experience of certain big retailers in England today who get what they want because everyone else is closed, may very well be a foretaste of the future—that there will always be enough workers to work. In that case why not provide that in the future workers who are taken on by a large company—and I would not be specific in case one says the wrong thing—which is open on six days and which then decides in the future, because the law allows it, that it will open seven days, may say, "Although I am presently not protected by 'at the commencment of the Act' I do not wish to work"?
I think that the Government and their supporters are over-protective with regard to the ability of major employers to run their businesses successfully. I am certainly not going to say that every trade unionist, or every person who represents trade unions, can, with their hand on their heart, say that all of their members do not want to work on Sunday. Many of them want to work because they need the money. The wages they earn by working five or six days a week are not as much as they need to live decently.
I am not attacking wage rates. I am talking about a person who is earning on average £100 a week. I have given the House the figures. Any man who takes home £100 a week, having a wife and two children, needs more money from some source. If working on a Sunday provides that I can see that there will be some of the thousands, if not tens of thousands, of shopworkers, whose representatives have been saying, "We are against the Bill", who will say, "We want to work".
In the interests of a fair debate and in response to the signs and signals for which I have been looking and which I have seen in the last minute or two, I shall sit down in order that the Minister can respond to what is a probing amendment. I beg to move.
7.15 p.m.
Lord Mishcon: My Lords, I hope indeed that this can be a short debate because a principle is involved. I want to add only a couple of sentences on that principle. We have been told that this Bill is to set the people free. We have been told repeatedly that nobody need trade on Sunday unless he wants to. We have been told that no customer need enter a shop unless he wishes to do so. Let the Government realise that, in regard to shopworkers who were not shopworkers at the date of the Act, what they are saying is that in many cases they will have to work on Sunday if they want to get the job. That is something which does not set the people free. That does not give the element of consent that we have been told is the principle behind this Bill.
Lord Denning: My Lords, may I also add one word. I supported the amendment of my noble friend Lord Renton. My noble friend gave the illustration of the father who was employed in a business before the commencemnt date and continues not working on Sundays. The firm then changes to working on Sundays. Then the father's son is a new recruit who joins the same firm. Is the son to be in a different
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position from the father, or the father from the son? One is bringing all kinds of inequalities into the statute.
It seems to me that the illustrations of the noble Lord, Lord Renton, were very good. We would do well to leave the protection to the individual to pursue. Even after the Act comes into force, if a new recruit is taken into the business and is dismissed because he says that he does not want to work on Sundays—the business is starting Sunday trading—then he should have a right to go before a tribunal and get compensation accordingly. At all events, I would support the amendment.
Lord Simon of Glaisdale: My Lords, I opposed this amendment at Committee stage and I shall not repeat the argument. However, my noble and learned friend puts this altogether too simply when he says that an employee, albeit if he enters his contract of employment after the Act, should be entitled to say, "I do not want to work on Sundays" if the employer has decided on a seven-day opening instead of six. It is not a matter of saying, "I do not want to work on Sunday". This amendment gives the employee a right to say, "I don't want to work on Sunday, but I claim that I am entitled nevertheless to work on six days a week whether it suits you or not, and even though it might suit you very much better to employ somebody who will work on a Sunday".
The other point that I protested against in Committee was treating shopworkers in this respect entirely differently from all other types of employees. The noble Baroness, Lady Seear, on a later amendment brought in her usual douche of good sense and said that it is unreal to compare shopworkers with air hostesses. I do not know where she got the example of air hostesses from. I have certainly never thought that they were comparable. However, what are comparable are the office cleaners, for example. I gave the example of the shops in Fleet Street connected with all the Sunday working to produce Monday's newspapers for your Lordships to read, and even to be read by the occupants of the Benches at present vacant. Why should the office cleaner in the newspaper office not have the rights that are claimed for the shopworker employed by the shopkeeper in Fleet Street and Holborn who wishes to open to serve the newspaper office?
Curiously enough another example was before my eyes shortly after the Committee stage. That was at the Royal Academy, where some of your Lordships have lent pictures to the current splendid exhibition. There you have the Royal Academy shop between two galleries of pictures, each of which has a warder. You have shop assistants within 10 yards of people of their own age and status in society. Why should you treat the shopworker in the Royal Academy shop any different from the attendant a few yards away? I noticed the hungry tone in the voice of the noble Lord moving this amendment, and I hope he will not press it to a Division.
Lord Graham of Edmonton: My Lords, that is my normal tone.
Viscount Brentford: My Lords, it seems to me that there is here an anomaly between the new shopworker

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and the existing shopworker which this amendment would remove. We are dealing here only with the case where a contract of employment is silent on the question of Sunday working. The protection will not be effective for the shopworker whose contract of employment indicates that Sunday working is permitted.
I believe that many shopworkers have no written contract of employment, and therefore terms are likely to be silent on this. This amendment would remove the anomaly and give protection for the future for shopworkers who have no contract to work on Sunday. The train driver presumably has a contract of employment under which he can be made to work on Sunday, but that is not true in the case of a shopworker.
Lord McCarthy: My Lords, I wanted to remind the House that we are not talking about the right not to be dismissed at all. There is no right not to be dismissed. In Schedule 1(4) the heading is "Right not to be dismissed", and one might think, without reminding oneself, that that is being offered to all shopworkers in future. What there is is a right to compensation if one is unfairly dismissed. What is being proposed is that we should establish a new right, which would not exist without the schedule, for shopworkers who have been unfairly dismissed because,
"the shopworker has refused to do uncontractual Sunday work".
Lord Simon of Glaisdale: My Lords, the noble Lord may know much more about this than I do, but there is a right to be reinstated. I know it is not used very much but it exists in the 1978 Act, I think I am right in saying, subject to correction.
Lord McCarthy: My Lords, I am afraid that that is not correct. It is true that once again we use the language of "right to reinstatement", but, if the employer refuses to reinstate or re-engage, there is no right of reinstatement. There is simply an additional award of compensation. All you get is compensation.
If you look at decisions of the industrial tribunals I do not believe that they would not construe "refuse", or they would not construe "uncontractual". They would not grant this right to everyone however arbitrarily or unreasonably he or she insisted on not doing Sunday work.
Moreover, the compensation which most people receive will be very minor. Compensation for unfair dismissal averages between £40 and £50. We are not giving vast rights to people. We are not making it impossible for employers to get Sunday work done. We say that the modest right to get compensation should go not just to workers who are established there now, but also to those who come in the future.
Lord Harmar-Nicholls: My Lords, I do not think that there is any need to spend a great deal of time on this amendment because I understood the noble Lord, Lord Graham, to say that he intended it only as a probing amendment. He really wanted it discussed. Therefore, we need not spend a great deal of time on it. If we are going to probe it and have something on the record, we ought to accept the common sense of the noble and learned Lord, Lord Simon.
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Why should shopworkers be treated any differently from other workers? What is the special need for that? Is it fair to all the others? I was interested to hear my noble friend say that a contract is only a contract when it has been written by a lawyer, and signed, sealed and delivered, as one used to say. There is no question of having to have a written contract of employment before you know what you are going to do.
When you apply to become a shopworker in a shop or in a business you know whether they are likely to be open on a Sunday or not. We own a few hotels, and when we set on a porter, or a receptionist, or anybody, they know that they are coming into a business which will be open on a Sunday. If their feeling is such that they do not want to work on a Sunday, then they do not come along to get the job at all. Whether it is in writing or not, and that making it a statute gives it some special significance, I do not think enters into it.
I do not object to discussing these various amendments. It is very right, and we should give a lot of thought to how they are going to affect the employees, the people working in the shops, whether they are new entrants or not. But let us give a little thought to the shopkeeper, the one who is investing his money, or the man borrowing money from the bank in order to set a business on the move. I would tell your Lordships, as one at the operating end of this, that these various statutory restrictions, however attractive and sentimental they may be made out to be in the sort of debates that we are having in this House, do affect whether or not individuals will start a business or extend a business. I give that assurance. I have never known anybody dismiss a good employee for silly reasons such as are dragged up here. Any employee who takes on any job anywhere knows what he is taking on.
The existence of these statutory protections adds to the obstacles in the way of people deciding whether they are going to take a risk and open a shop, and stock it, and all that sort of thing. We ought not to start on the presumption that all shopkeepers want to take advantage of some young person who does not want to do certain things. They are reasonable people. They know that they have to have a reasonable group of assistants, otherwise their businesses will not be a success.
The problem when you put these matters in a statute is that you then have to have shop inspectors to go round. The way inspectors deal with this is that they usually like to protect themselves, and I understand that. They want to work it to the absolute letter, and sometimes the discretion which we would hope they would use they do not use.
It is that sort of interference which affects the encouragement that we ought to be giving to get people to invest, to employ people, to deal with the unemployment problem and to help increase the wealth of this country. The noble and learned Lord, Lord Simon of Glaisdale, put that firmly, and although I understand that this is only a probing amendment, I feel that we have on the record the two points of view, and that is fair enough.
Lord Graham of Edmonton: My Lords, I apologise if I have misled the House. I said that the amendment I moved was, in effect, the major property of the noble Lord, Lord Renton, who is sorry not to be here tonight. He wishes to see the amendment not pressed

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to a vote but argued. I did not use the word "probe" in the sense that it is merely an exercise. I was also careful to get from the Minister by a nod of the head that this stood separate from the major turmoil of the other matters. Whether I press it to a vote or not still remains to be seen.
7.30 p.m.
Baroness Seear: My Lords, I must take issue with the noble Lord, Lord Harmar-Nicholls. I do not think that he is arguing about the realities of the position. He says that people take on work voluntarily and they know that they are engaged to take on Sunday work when they take the job, but the kind of people who enter the retail trade are women for whom alternative work does not exist in the great majority of cases. If they want to have a job the retail trade is the obvious place for them to go. If they have no alternative but to work on Sunday or not have a job, they will work on Sunday because they want a job, but not because they want to work on Sunday. It is fanciful to argue that they will weigh up the pros and cons and will do something else if they do not like the conditions of Sunday work. It is not that at all.
When a woman with no alternative for work is looking for employment it is not a basis of an equal bargain between equally weighted parties entering into a contract: it is a woman who desperately wants a job against an employer who may have a queue of people waiting to take the job. That is the nature of the bargaining process and what the legislation means, whether the Government intend it or not. I am sure the noble Lord, Lord Glenarthur, does not want to drive hordes of women against their will into working on a Sunday but that is the effect here.
The noble Lord, Lord Harmar-Nicholls, says that there will be hordes of inspectors going round who will do this, that and the other. The factory legislation for over 100 years has been enforced by a small number of factory inspectors. There were about 400 at the last count.
Lord Graham of Edmonton: My Lords, that number is going down.
Baroness Seear: My Lords, the noble Lord is correct. Some people thought that 400 was too few, but they covered all of industry in this country. There do not have to be hordes of inspectors. We have heard far too much about the problems of enforcement. There has been enforcement in the factories because if a person feels he has been injured because of the misbehaviour of an employer he has himself written or asked a friend to write to the factory inspectorate and an inspector has then taken up the case. There have not had to be hordes working. I was for 10 years in industry and used to deal with the factory inspectors myself. They came rarely, but sometimes they came because somebody who felt he had been injured had been in touch. This is an easy way of enforcement. We have heard far too much about the difficulties of enforcement. Such a method of enforcement is not difficult.
For a large number of women who are at the bottom of the employment level and who have no other
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options of employment we are asking that they should not be forced into working on Sundays when they have no wish to do so.
Lord Glenarthur: My Lords, as I promised we would during the Committee stage, we have carefully considered all the arguments put forward by your Lordships during that stage that these two new rights should be extended to employees entering the industry after commencement date. After a very careful consideration however of the arguments, we have decided that it would not be appropriate to give new entrants these rights. We have, however, been able to make a small concession to extend these rights to existing employees who subsequently change employers. I will discuss that in detail when I move my amendment to Schedule 1.
There are a number of reasons why we have come to this conclusion. There are strong grounds for giving statutory protection to existing shopworkers. As was pointed out most forcefully by my noble friend Lord Boyd-Carpenter during the Committee stage, this Bill will alter the expectation of existing shopworkers as to the possibility of Sunday working. This would be unfair to existing shopworkers. The Government recognise the need to safeguard the existing position of established shopworkers and to grant them special protection. It is possible, for example, that some of them may have been attracted into retailing in the first instance because, by and large, they would not have been expected to work on a Sunday.
The position of new recruits is entirely different. People joining the retail trade after the date of commencement will do so in the full knowledge that, at the very least, Sunday working is not excluded by statute. This is the position in which millions of workers elsewhere—as we have heard from my noble friend Lord Harmar-Nicholls and from the noble and learned Lord, Lord Simon—who already have to work on a Sunday find themselves. It is a fact which I fear your Lordships may get tired of my rehearsing as the Bill progresses, but large numbers of people in many walks of life have to work either regularly or occasionally on a Sunday. About 40 per cent. of the workforce already have some commitment to Sunday work. Sunday working is found throughout the economy in all industries and occupations.
There is really no justification for extending this protection to new recruits. That would be to put them into a privileged class compared with employees in other activities who have to work on a Sunday. The Government have been criticised for creating a two-tier workforce in retailing, but if we extended protection to new recruits we would be creating a two-tier workforce in the economy as a whole, with special privileges for shopworkers. I strongly believe that it is correct in principle to differentiate between established shopworkers before commencement date and those who join thereafter. But I do not see any principle whereby we can distinguish between new shopworkers and other employees who have to work on Sunday. Why should new shopworkers, who may be required to work on a Sunday, have special privileges that the millions of other people who work on a Sunday do not enjoy? I have to agree with the noble and learned Lord, Lord Simon of Glaisdale, when he at Committee said that those who argue that these rights should be

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extended to new shopworkers are suffering from tunnel vision. It looks only at the retail trade and closes its eyes to all other areas of economic activity.
During Committee some of your Lordships complained that it was unfair and unreasonable that shopworkers working side by side would have different rights regarding Sunday work according to the date they joined the industry. That was very much the theme of my noble friend Lord Renton. The noble Baroness, Lady Turner, said that it,
"is divisive among workers and contributes to the downgrading of certain workers compared with others."
What we propose is not unique, and there are other precedents where workers joining before a certain date have rights which those joining later do not have. To my knowledge this does not cause division between employees or make it more difficult for management to manage. An example where people working alongside each other do not necessarily enjoy the same privileges is that, for example, of a worker who joined his employer before 1st June 1985 who needs to work one year in order to be able to gain sufficient qualifying service to be eligible for the normal unfair dismissal provisions of the 1978 Act. Anyone who joined his employer after this date must work two years before becoming eligible.
I am not convinced that those who have argued that many people will not want to work on a Sunday are correct. As I have said in the past, many workers find that Sunday is a convenient day to work. The noble Baroness, Lady Seear, just now used the words
"drive hundreds of women into working on Sunday",
but it is true of working mothers that they can work on Sunday in the safe knowledge that their children are being looked after by their father. I think that is a valid point to make, and I cannot see that there will be a huge outcry from most new recruits about having to work on Sunday. Instead I believe, and experience shows, that many shopworkers will be eager to do it. Because many shopworkers will be eager to work on a Sunday I think that in practice those workers who do not wish to work on a Sunday will not have to do so.
During the Committee stage the noble Baroness, Lady Seear, claimed that because of high unemployment and a lack of alternative jobs new recruits will have little choice and will be forced to accept jobs even if they include a commitment to Sunday work. My Lords, I do not wish to deny that for some people the number and range of jobs on offer is limited, but I ask again: why should special privileges be given to prospective shopworkers? We do not allow prospective bus drivers or prospective ticket collectors the right to refuse to work on a Sunday because there are relatively few alternative jobs available. High unemployment, or the unavailability of alternative jobs, cannot be a reason why prospective entrants to shopwork should enjoy rights that those looking for jobs in other industries and occupations do not enjoy.
I should like to clear up one other point of uncertainty that arose at our earlier Committee stage. The Bill does not place any obligation on new entrants to work on Sundays. There is nothing in the Bill which obliges any new entrant to shopwork to work on a Sunday. Whether they work on a Sunday is a matter of negotiation between themselves and their employer. Employees will be able to negotiate with their
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employers a contract which stipulates that Sunday working will not be required. Such a contract can be altered only if both sides agree. If an employer attempted unilaterally to alter a contract of employment, there are legal remedies available to the employee. Moreover, if an employer dismissed an employee who refused to accept a unilateral change to his contract, the employee could go to an industrial tribunal to claim unfair dismissal.
If new entrants to shopwork are uncertain about whether they wish to work on a Sunday, they could agree with their employer a trial period of, say, one, two or three months or so, without prejudice to a permanent commitment to work on Sundays. It is very much the theme of what we said earlier. At the end of this trial, a more permanent arrangement could perhaps be negotiated.
The noble Lord, Lord Graham, I think raised the question of the average figure for unfair dismissal. Maybe it was the noble Lord, Lord McCarthy, who I see is not in his place. I think he perhaps indicated that it might be as low as £40 or £50. I cannot give a precise figure, but it seems to me to be an extraordinarily low suggestion because I think the maximum is £12,650 for normal unfair dismissals.
Extending the rights in Schedule 1 to new recruits would in any event prove of limited value. It would only extend protection to new employees after commencement date. It would provide no real safeguards for those unable to get jobs because they are not prepared to enter into a contractual obligation to work on a Sunday. It will be possible for employers to ask potential entrants to agree to work on Sunday as a condition of being offered the job. If applicants do not accept this condition, they may not be offered the job.
I have spoken very fully on this amendment because I agreed at Committee to look into it very carefully. I realise the spirit in which the noble Lord, Lord Graham, is moving the amendment. I am sorry that it has taken so long to explain it fully but I hope that it has helped to convince the noble Lord that there is no new principle involved because new entrants to shopwork may have to work on a Sunday. They will be in a similar position to millions of other workers, as the noble and learned Lord and others have said, who already have voluntarily agreed to work on a Sunday. There is no reason whatsoever for differentiating between entrants to shopwork after commencement date and other Sunday workers. No one can be obliged to work on a Sunday in a shop; the employee has to make a voluntary agreement.
I hope that, with that full explanation of the thinking that lies behind the view that we have taken, the noble Lord will feel able, on this occasion, not to press the amendment.
Lord Graham of Edmonton: My Lords, I am grateful to the Minister because quite genuinely he has taken great care in marshalling his arguments and he has dealt with all the points that were raised. I should remind him that that is against the background that when this amendment appeared at Committee stage, surprisingly late at night, there were eight speakers. Eight Members were moved, four of them from the noble Minister's side of the Committee, and they all spoke in strong terms in support. It was against that

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background that the Minister made conciliatory noises at Committee stage, and he certainly did not give a commitment other than to do what he has done tonight; that is to study with care, as he always does, and to come back and tell us the net result.
I honestly feel that the Minister is misjudging how the real world, in this circumstance, works outside. He knows, because I have told him, that there are employers now, and these were last year (I gave the names: Gateway and Debenhams), who are not waiting for the law to be changed. They are getting new employees now, before the Act comes into existence, to sign contracts of employment which specifically preclude, if and when the law is changed, their rights not to work on a Sunday. That has happened and is happening now; and they are signing.
The noble Minister said that it is all voluntary. That is possible. Of course it is voluntary. In an academic world, every employee reads every word of every clause in every agreement: in the real world he does not. Such employees may know that it is the intention for them to work on a Sunday and that they have the right not to sign. They are after a job, and in order to obtain that job they sign a contract. In that contract it says that the employer shall have the right to ask them, to force them, to make them, to request them, to work on a Sunday. That is the reality.
The Minister tried to have it both ways. He said that there will be many people who want to work on a Sunday. He still tried to make something of the differentiation between existing workers, such as the train driver and the bus driver, and the shopworker. That is for the simple reason that whenever anyone has hitherto applied to be a bus driver he has known that part of the raison d'être of being a bus driver was to work on a Sunday. On the other hand, the Minister tells us that there will be no shortage of workers who voluntarily want to work on a Sunday. We are saying: why not take out those offending words at the commencement? In my view, that would be clean, neat and tidy.
We have not finished the argument by a long stroke, but I see we shall get no further on this amendment tonight. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Davidson: My Lords, this seems to be a convenient moment to break for dinner. I suggest that we do not resume the Report stage of the Bill before 8.45 p.m., and I therefore beg to move that the House do now adjourn during pleasure.
Moved, accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.47 until 8.45 p.m.]
Clause 4 [Short title, consequential amendments, repeals and extent]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 18:
Page 2, line 8, leave out subsection (3).
The noble and learned Lord said: My Lords, this was an amendment that I put down at the Committee
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stage. It involves an obscure and particularly baffling piece of statutory interpretation. I think that the noble Lord the Minister was not really prepared for the point that I had to advance in Committee and he very kindly said that he would consider it and write to me. The noble Lord was obviously extremely industrious and assiduous throughout the time between Committee and Report, because I myself got a number of letters and copies of letters sent to other of your Lordships. However, until a day or two ago, I did not get an answer relating to my point on Clause 4(3) and therefore I wrote to the Minister and put down the amendment so as to reserve the position.
I need hardly say that my letter crossed with one from the noble Lord himself. I am afraid that I was not convinced by it and therefore I wrote back giving my reasons for thinking that the Bill was wrong. It does not seem to me to be in the least the sort of point that can possibly be discussed on the Floor of the Chamber but I left the amendment down in the hope that the Minister might say that he would consider my further points—I offered to discuss it directly with the draftsman if he wished—and also because it seems to me that some of your Lordships may have come across the problem on the ground.
It relates to the extraordinary difficulty of reading Sections 21 and 25 of the Shops Act together. For all those who are so enamoured of the 1950 Act, I ask them to try to read those two sections together. It is far worse than an Ximenes crossword puzzle. The point is really this. Section 21 gives an exceptional regime for premises where refreshments are consumed on the premises and it applies on the face of it both to adults and to juveniles, young persons. It deals with hours of work but also with other conditions of employment. I also said that Section 21 requires a notice to be put up of the various conditions and that that notice must be in the prescribed form; hence the words in Clause 4(3).
Section 25 is devoted to young persons, but it also covers expressly the case of young persons employed on premises where refreshments are consumed. So there is obviously an overlap between those two sections; but Section 21 goes beyond hours and Section 25 goes beyond those particular types of premises.
Your Lordships will see the difficulty. Incidentally, I ought to have said earlier that Section 25 requires a notice of the Section 25 conditions to be displayed "in the prescribed form": the same words. As I said, it seems to me that the matter is best pursued in correspondence and private discussion, but your Lordships may have come across the situation in practice either through trade union contacts or through private or co-operative employers. Naturally, having said that, I shall not press the amendment, but in the meantime I beg to move.
Lord Glenarthur: My Lords, the noble and learned Lord has described the purpose of his amendment, and indeed I did offer to write to him. I did so, and I received the noble and learned Lord's further thoughts on the subject just before the start of the Report stage last Thursday. Since then I have been giving further consideration to the points raised and I can say now there is a measure of common ground between us. However, there are still several matters I should like to

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think about at length later, including the noble and learned Lord's offer to talk directly to those who are experts in this field.
If the noble and learned Lord is agreeable, what I should like to do is to take up his generous offer to delay for a few days my full reply. Then perhaps I can write to him at the earliest opportunity, and of course copy my reply to my noble friend Lord Renton. I agree that it is a very difficult subject to tackle in detail at the Box, and so I hope the noble and learned Lord will agree to my proposal.
Lord Simon of Glaisdale: My Lords, it only remains for me to say that that is most generous and how grateful I am to the noble Lord the Minister. I will gladly withdraw the amendment. It is the sort of amendment that can go down, if necessary, on Third Reading but it is a comfort to know that there is some common ground between Section 21 and Section 25. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 19 not moved.]
Schedule 1 [Rights of established shop workers concerning Sunday working]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 20:
Page 5, line 17, leave out ("not").
The noble Lord said: My Lords, I rise simply to move the amendment but I wonder whether I might ask for a quick clarification from the Minister and whether he could help me. Page 5, line 17, of the original Bill relates to restrictions on contracting out. I think I am right in saying that I cannot find any reference to that subsection in the revised schedule. Am I right?
Baroness Trumpington: My Lords, I just wish to confirm that.
Lord Graham of Edmonton: My Lords, if in fact it is not there I wonder whether the Minister could take just half a minute to explain why it was deleted. I beg to move.
Baroness Trumpington: My Lords, in the revised draft of Schedule 1, paragraph 8 is omitted because we believe it is now obvious from the new paragraph 3 that a shopworker who agrees to do shopwork on a Sunday will not to that extent enjoy the rights in the schedule.
Lord Simon of Glaisdale: My Lords, at Committee I surmised that paragraph 8 was merely declaratory, and the noble Lord the Minister agreed with that. That being so, it could be either dispensed with or be preceded by words showing that it was purely a declaratory provision. I am very glad that in fact the course was taken of removing it and I do not think that the noble Lord, Lord Graham, is, from his point of view, in any way prejudiced by that.
Lord Graham of Edmonton: My Lords, by leave of the House, not at all; but what we have got in
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paragraph 3 is the very point that has been made before, because here we are saying that the employee was obliged to act in a certain way on the Sunday in question by virtue of an agreement made by him before the commencement date. That is an aspect of the whole business which we on this side of the House find very offensive. That is the whole purpose of our amendment to take out the word "not" from the existing provisions.
This is not the time to argue the case at length, but if the Minister confirms that in effect the new paragraph 3 in the schedule is virtually rewritten—in other words, is the same as paragraph 8—then technically we ought to have sought to amend paragraph 3 in the schedule if we dislike what it says. Is that correct?
Baroness Trumpington: My Lords, by leave of the House, the noble Lord is quite correct. Although we think paragraph 8 is no longer necessary, we have not altered the principle that shopworkers can waive their right by agreeing to work on Sunday.
Lord Graham of Edmonton: My Lords, it is quite clear that if we dislike the waiver rights, which are part of the terminology of the discussion in recent months—and the Bill provides for the worker to waive his rights—we shall have to seek some other opportunity, either in this House or in another place, to test whether that is valid or not. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Seear Baroness Seear moved Amendment No. 21:
Page 5, line 19, at end insert—
("Time off in lieu of Sunday working.
9. Any employee who has worked on five days during the week and also works on the Sunday following, must be given 2 days leave during the following week.").
The noble Baroness said: My Lords, when I spoke to, but did not move, this amendment at Committee stage the noble Lord, Lord Glenarthur, spoke to it as if it was of no interest at all to the Government Benches. I am asking him to reconsider this matter tonight. I think if he considers my reasons for moving the amendment he will see that in some respects, at any rate, the reasons are such that I would expect them to appeal to the Government.
There are several reasons for asking for this paragraph to be inserted. One is, quite simply, that if you give this extra benefit of two days off in lieu of working on Sunday it makes the employer think a great deal more about doing Sunday work and employing people on Sunday who have worked during the week than might otherwise be the case, because it would be a considerable inconvenience to employers to have to give people two days off in the subsequent week. Of course, it would not make it impossible for them to work on Sunday, but it would make them unwilling to do so unless there was a very strong reason in trading terms by which there was going to be a benefit to the employer in working on Sunday. To that extent it would have a restraining influence on Sunday trading, except where there was a really good commercial reason for so doing.
9 p.m.
I should have thought, in view of the extent to which Members on all sides of the House have been anxious to avoid turning Sunday into Saturday—to use the phrase which has been commonly used—that some sort of impediment of this kind would help to bring about that situation. It is also a way in which the people who have worked five days in the preceding week would not be put in the position of working on the sixth and seventh days, and would have an opportunity of being at home with their families on Sunday, which is something which again, on all sides of the House, Members have felt would be highly desirable. So many married women with family responsibilities work in the retail trades, and, if they can be encouraged without too much difficulty to be at home on a Sunday, that is surely something which, for social and family reasons, will recommend itself to a great many Members of your Lordships' House.
But the vital reason, and from my point of view almost the main reason, why I put down this amendment is that it is a way of doing something which I understand the Government are very anxious to do; that is, to develop opportunities for regular part-time work. That is surely something which the Government, in their anxiety to reduce the number of people who are entirely dependent on unemployment benefit and social security, should welcome. The major point of this amendment is to encourage employers to take on as a week-end shift people who have not worked during the week, letting off in the ordinary way, for the ordinary week-end, people who have worked during the week.
We have talked so often in other contexts, when we have been discussing employment questions, of the benefit of getting a sharing of work, of getting more people into part-time business and of getting the long-term unemployed at work. The retail trade is an excellent opportunity to do this, because people who would be extremely difficult to draw into employment in other fields of work can be trained, without too much difficulty, to do work of the kind which they would be required to do on Saturday and Sunday retail work shifts.
On top of this, the Government might be prepared to reconsider how much people are entitled to earn and still keep their benefit. I understand that money earned on Sunday is not counted against benefit, and there would not even have to be a change in order to allow people who are on social security or unemployment benefit to take work and earn on Sunday. I should have thought that it was highly desirable to encourage this to be done.
The kind of people who are long-term unemployed, people in the lower grades of clerical work or in certain kinds of manual work who have lost their job, who are not going to get back into work of that kind and who will never get training in any other kind of work, could be drawn in on the week-end shift. This would have many advantages in a great number of ways which are obvious to your Lordships.
If the Government do not like the form of this amendment, but like the idea of doing something to encourage part-time work at week-ends, instead of
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people who have done a full week having to work on Sundays, would they consider coming up with something of their own by which part-time work at week-ends would be encouraged? If they would, I should then be willing to withdraw this amendment. Otherwise, I should like to test the opinion of the House, because this is an approach to the whole question which needs to be more fully explored. My Lords, I beg to move.
Baroness Trumpington: My Lords, in the debate on Second Reading and at Committee stage the noble Baroness, Lady Seear, put forward the proposals which she is raising again on this amendment. Her reason for so doing was that she believed it would encourage shops to employ part-time staff at weekends, thereby encouraging more part-time jobs and providing an incentive for work-sharing. I hope that my explanation will be helpful to the noble Baroness. Although I applaud her sentiment, as my noble friend Lord Glenarthur explained at Committee stage, we do not agree that this amendment would necessarily have the effect that the noble Baroness intends. More full-time employees may be encouraged to work on Sundays and may not wish to give up this opportunity to part-time employees.
During the Committee stage, the noble Baroness drew our attention to the fact that women and young people working in shops were not unique in their hours being controlled by statute. The noble Baroness accurately pointed out that legislation also restricts the hours of young people and women who work in manufacturing. The restrictions are contained in the Factories Act 1961 and in secondary legislation made under it—the Hours of Employment (Conventions) Act 1936 and the Mines and Quarries Act 1954. Broadly, the restrictions prevent shift and night-work, because employment may not start before 7 a.m. nor end after 9 p.m. Also, total hours worked must not exceed 10 a day or 48 a week and overtime working is curtailed.
In 1979, the Equal Opportunities Commission's report on health and safety legislation Should We Distinguish between Men and Women? recommended the removal of all discriminatory legislation on hours of work which treated men and women differently. Alternatively—
Baroness Seear: My Lords, is the noble Baroness speaking of the Bill which comes up the week after next?
Baroness Trumpington: My Lords, perhaps the noble Baroness will hear me through. I am very anxious to get this on the record, which is why I am rattling along. Alternatively, where health, safety and welfare demand it, that legislation should be replaced so that it applies equally to men and women. Not only are these restrictions discriminatory, preventing women from having the same freedom of choice as their male counterparts, but they are putting an unnecessary burden on employers and have little effect in practice.
Under the Factories Act 1961, employers can apply to the factory inspectorate for the restrictions to be lifted. No application has been turned down in recent years. As a result, some 200,000 women in the

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manufacturing trade are already working at normally prohibited times. For these reasons, the Government propose to lift all restrictions on adult women's hours of work contained in factories and associated legislation. The Sex Discrimination Bill, which was introduced in this House on Thursday, 6th February, contains the provisions necessary to achieve this.
I hope that this explanation of Government policy, although, I agree, not directly related to this Bill, serves to correct any misunderstanding that arose during the Committee's debate and that the record has now been set straight. Of course, the amendment of the noble and learned Lord, Lord Denning, now means that the Government take back the whole issue of Part II of the 1950 Act for consideration. Pending that, I urge your Lordships to reject this amendment.
Lord McCarthy: My Lords, will the noble Baroness allow that she has totally bemused us? We appeared to be discussing an amendment put forward by the noble Baroness, Lady Seear, about time off in lieu of Sunday working, which so far as I can see makes no reference whatever to sex discrimination or to any of the matters with which the noble Baroness has just regaled the House. The amendment says:
"Any employee"—
not an employee of any particular sex—
"who has worked on five days during the week and also works on the Sunday following, must be given 2 days leave during the following week".
What we require from the Government is an answer to this amendment. Many things could have been said but none of them has been said. We have been given a speech about the Sex Discrimination Bill which has not yet been introduced. When are we to have an answer to this amendment?
Lord Graham of Edmonton: My Lords, I very much hope that the noble Baroness has found the right set of notes because I fear that we are going to hear the same set of notes on a different Bill. In fact this was a dress rehearsal. It is quite ludicrous. This may be a principle which the noble Baroness and her advisers do not like. In any one week of seven days an employee who works on six days, one of which is a Sunday, will be entitled to the two days off in the next week.
The noble Baroness, Lady Seear, acknowledges that this may cause problems and that it raises very big principles; for example, the work sharing principle. I can understand the difficulties for shops from the management point of view, but they are nothing if we are serious about doing a number of things. Not only are we serious about trying to get updated the out-of-date Shops Act 1950, but we are also about trying to be fair to millions of workers who are low paid and are badly organised in general. One of the passes that has been sold is that for many years people agitated and worked for a reduction in the working week. At one time, whether people liked it or not, they worked at least six days. That came down to five and a half days and then to five days. It sticks in my craw when I see people who have a five-day week trying to find means of working six days and seven days, when at the same time I see people who cannot even work five days because jobs are not there.
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This is a serious attempt to try to use the peg of this Bill to test a theory and to get a reaction. I think that the noble Baroness, Lady Seear, is absolutely right. What we want is a serious response from the Government, because that is on whose behalf the noble Baroness speaks, and very competently. We want the Government to recognise that this is a serious argument. We do not want to be fobbed off. The noble Baroness's reply was very revealing because she told us that, somehow or other, there was something wrong and that women are held to be inferior because there is a legal provision to prevent them working shifts and nightwork. A great many people will want to see proscriptions of that kind continued. We shall want to read what the noble Baroness said in her trailer. As she said, she gabbled along and was anxious to put it on the record—she was in the groove for most of the time. I hope that when she gets back her breath she will be able to respond a little more helpfully; otherwise, if the noble Baroness, Lady Seear, decides to test the view of the House, I shall certainly be with her.
Baroness Trumpington: My Lords, by leave of the House, I think there is here a little bit of the pot calling the kettle black, because we have had a rehearsal for the Wages Bill as well this evening. We from our side did not laugh; we listened with great courtesy.
Perhaps I may reiterate the fact that the amendment of the noble and learned Lord, Lord Denning, means that the Government are going to look at the whole issue of Part II of the 1950 Act, and are going to consider it. The amendment of the noble and learned Lord, Lord Denning, means that time off in lieu for Sunday working is kept for all workers. This amendment will mean that to a certain extent those provisions are duplicated. The Government wish to consider the noble and learned Lord's amendment before they can make any commitment to consider favourably the amendment of the noble Baroness, Lady Seear.
Baroness Seear: My Lords, the amendment moved by the noble and learned Lord, Lord Denning, and time off in lieu is one day off in lieu of Sunday work. My proposal is two days off. This would be unfavourable for employers, and the point is to discourage them from employing people on Sundays who have been employed during the week in order that—this is the big principle—we should seize the opportunity which the Bill gives us (whether we like the Bill or not, it is going to become law) to develop a useful means of job sharing which we have all said we want as a useful way of getting into work some longterm unemployed people who will not otherwise get employment unless we use these opportunities. It is the principle of taking the opportunity which the Bill presents, to get more people back into work, that I am asking the Government to consider. I do not think that we shall get very far with further discussion, but I should like to test the opinion of the House.
9.14 p.m.
On Question, Whether the said amendment (No. 21) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 56.

Division No. 3

CONTENTS

Airedale, L.

Mishcon, L.

Ampthill, L.

Molloy, L.

Brooks of Tremorfa, L.

Nicol, B.

Carmichael of Kelvingrove, L.

Ogmore, L.

Coleraine, L.

Raglan, L.

David, B.

Ritchie of Dundee, L.

Dean of Beswick, L.

Robson of Kiddington, B.

Denning, L.

Rochester, L.

Elwyn-Jones, L.

Seear, B. [Teller.]

Gallacher, L.

Simon, V.

Graham of Edmonton, L. [Teller.]

Stoddart of Swindon, L.

Strabolgi, L.

Houghton of Sowerby, L.

Swinfen, L.

Kagan, L.

Wedderbum of Charlton, L.

Kaldor, L.

White, B.

Kilmarnock, L.

Wigoder, L.

McCarthy, L.

Winstanley, L.

McNair, L.

NOT-CONTENTS

Airey of Abingdon, B.

Henley, L.

Arran, E.

Hooper, B.

Auckland, L.

Hylton-Foster, B.

Beloff, L.

Inglewood, L.

Belstead, L.

Kimball, L.

Biddulph, L.

Layton, L.

Boyd-Carpenter, L.

Long, V.

Brabazon of Tara, L.

Lucas of Chilworth, L.

Brougham and Vaux, L.

Lyell, L.

Butterworth, L.

McFadzean, L.

Caithness, E.

Macleod of Borve, B.

Camegy of Lour, B.

Margadale, L.

Cork and Orrery, E.

Mersey, V.

Cox, B.

Monk Bretton, L.

Crathorne, L.

Montgomery of Alamein, V.

Davidson, V.

Mountevans, L.

Denham, L. [Teller.]

Norrie, L.

Elliot of Harwood, B.

Orr-Ewing, L.

Elliott of Morpeth, L.

Rochdale, V.

Elton, L.

St. Davids, V.

Ferrier, L.

Shannon, E.

Fortescue, E.

Skelmersdale, L.

Glanusk, L.

Swansea, L.

Glenarthur, L.

Swinton, E. [Teller.]

Gray of Contin, L.

Trumpington, B.

Grimston of Westbury, L.

Vickers, B.

Hailsham of Saint Marylebone, L.

Whitelaw, V.

Young, B.

Harris of High Cross, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.22 p.m.
Lord Glenarthur Lord Glenarthur moved Amendment No. 22:
Leave out Schedule 1 and insert—

SCHEDULE 1 RIGHTS OF ESTABLISHED SHOP WORKERS CONCERNING SUNDAY WORKING
Right not to be dismissed for refusing Sunday work
1. Subject to paragraph 3 below, the dismissal of an employee who is employed as a shop worker and was employed as such on the day before the commencement date shall be regarded as unfair for the purposes of Part V of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act") if the reason for the dismissal (or, if more than one, the principal reason) is that he has refused to do shop work on a Sunday.
Right not to have action short of dismissal taken for refusing Sunday work
2. Subject to paragraph 3 below, every employee who is employed as a shop worker and was employed as such on the day before the commencement date shall have the right not to have action (short of dismissal) taken against him by his employer for the purpose of compelling him to do or agree to do, or penalising him for refusing to do, shop work on a Sunday.
Exclusion for contractual Sunday working
3. Paragraphs 1 and 2 above do not apply where the work in question is work which at the time of the dismissal or, as the case may be, of the taking of the action the employee was obliged to do on the Sunday in question by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date.
Modifications of 1978 Act in pargraph 1 cases
4. Section 54 of the 1978 Act (right not to be unfairly dismissed) shall apply to a dismissal regarded as unfair by virtue of paragraph 1 above regardless of the period for which the employee has been employed and of his age; and accordingly sections 64(1) and 64A(1) of that Act (which disapply the right not to be unfairly dismissed in cases where the employee has not been continuously employed for qualifying periods or has attained retiring age) shall not apply to such a dismissal.
5.—(1) Where in the case of a dismissal regarded as unfair by virtue of paragraph 1 above an additional award falls to be made under section 71(2)(b) of the 1978 Act (compensation where employee not reinstated or re-engaged in accordance with an order for reinstatement or re-engagement following unfair dismissal), the amount shall be not less than twenty-six and not more than fifty-two weeks' pay.
(2) For the purposes of this paragraph the amount of a week's pay shall be calculated in accordance with Schedule 14 of the 1978 Act.
6. Subsection (3) of section 57 of the 1978 Act (determination of question whether dismissal fair or unfair) shall have effect subject to paragraph 1 above.
Application of 1978 Act provisions in paragraph 2 cases
7.—(1) Sections 24 to 26 and 133 of the 1978 Act (complaint to industrial tribunal, compensation and conciliation officers) shall apply in relation to paragraph 2 above as they apply in relation to section 23 of that Act.
(2) The following provisions of the 1978 Act, namely—
section 129 (remedy for infringement of certain rights), section 132 (recoupment of unemployment benefit and supplementary benefit),
section 136 (appeals), and
Part IX (miscellaneous and supplemental provisions), shall apply as if paragraph 2 above were contained in Part II of that Act.
Meaning of "shop worker"
8.—(1) For the purposes of this Schedule a shop worker is an employee who under his contract of employment is engaged to do shop work (whether or not he is also engaged to do other work).
(2) Where on the day before the commencement date a shop worker's relations with his employer have ceased to be governed by a contract of employment, he shall nevertheless be regarded for the purposes of paragraphs 1 and 2 above as having been employed as a shop worker on that day if that day falls in a week which counts as a period of employment with that employer under paragraph 9 or 10 of Schedule 13 to the 1978 Act (absence from work because of sickness, pregnancy etc.).
(3) Where section 56 of the 1978 Act (failure to permit a woman to return to work after confinement treated as dismissal) applies to an employee who was employed as a shop worker under her original contract of employment she shall be treated for the purposes of this Schedule as if she had been employed as a shop worker on the date on which she is treated as dismissed under that section.
General interpretation
9. In this Schedule—
"action", "contract of employment", "employee", "employer", "employment" and "original contract of employment" have the meanings given in section 153(1) of the 1978 Act;
"commencement date" means the date on which this Act is passed;
"dismissal" has the same meaning as in the 1978 Act;
"shop" includes any premises or other place where any retail trade or business is carried on and, for the purposes of this definition, "retail trade or business" has the same meaning as in the Shops Act 1950;
"shop work" means work in or about a shop;
"the 1978 Act" means the Employment Protection (Consolidation) Act 1978;
"Week" means a week ending with a Saturday.").
The noble Lord said: My Lords, during the Committee stage the drafting of Schedule 1 was roundly criticised by many of your Lordships. I promised to see whether it could be revised, and that has been done. But before discussing the merits of the revised draft I should first like to say something about the small extension of these rights that we have made, to which I referred on an earlier amendment.
Though we cannot accept that new entrants to shopwork should enjoy these rights, we feel that one small but significant extension of these rights is appropriate. The original intention was that persons who were employed as shopworkers on commencement date could retain their rights only as long as they remained with the same employer as shopworkers. This meant that existing shopworkers who subsequently left their original employer and joined another retail employer would lose their rights, as would shopworkers who, while remaining with their original employer, moved to non-shopwork and back again to shopwork.
During the Committee stage my noble friend Lord Wolfson voiced his concern about this feature of our proposals. My noble friend thought that it:
"could well lead to resentment and would not be helpful to good human relations in the trade".
He went on to say that:
"It could also have the effect, which is not intended, of inhibiting occupational change".
On further reflection I think that my noble friend was right, and when redrafting Schedule 1 we have made this change, so enabling shopworkers who are employed before commencement date to retain their rights if they subsequently change employers or jobs. The new position is that shopworkers will be able to claim these rights if they were employed as shopworkers on the day before commencement date and are also employed as shopworkers when they are dismissed or have action short of dismissal taken against them. Whatever they do in between those dates will not disqualify them from being able to exercise these two new rights. But I should point out to your Lordships that if a shopworker with these rights attempts to move to employment with another shop he may not be offered a job unless he agrees to waive his rights and to work on a Sunday.
I turn now to the detail of the revised draft of Schedule 1. I shall concentrate on the changes and not go into great detail about the points that I hope will be reasonably clear. During Committee stage, as I said, the draft of Schedule 1 was criticised, especially by the noble and learned Lords, Lord Simon and Lord Denning, and by my noble friend Lord Renton. We have carefully considered what was said. Although this new draft appears in its structure and form somewhat different from the original Schedule 1, the eligibility, scope and extent of the new rights are essentially the same, apart from the amendment I have just spoken about, as those incorporated in the earlier draft. I hope that your Lordships will agree that the new draft is a substantial improvement on the earlier one and will be fairly easily comprehensible to shopworkers and shopkeepers, which was a concern raised at Committee stage.
As regards changes in the eligibility, scope and extent of protection between these two drafts, the
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revised draft, of course, includes our decision that existing employees who subsequently change employers or jobs can retain their statutory rights. The small extension of these rights has, additionally, simplified the drafting of Schedule 1, because we have been able to dispense with the rather lengthy and involved definition of "established shopworker", which was a point that we stuck on at some length during our earlier discussions. This has also meant that we no longer require the concept of continuous employment from the Employment Protection Act 1978.
I hope that it will not be necessary for me to go over all the points in detail, as I am sure that your Lordships will have examined the new schedule carefully. But I mention briefly paragraph 6, which is a new provision that on reflection it is thought should be included. It merely records that Section 57(3) of the 1978 Act, which deals with whether a dismissal is fair or unfair, shall have effect subject to paragraph 1 of this schedule. This is because a dismissal falling within paragraph 1 is automatically unfair if the reason for the dismissal was the refusal to work on a Sunday.
During the Committee stage—and here I return to the point raised by the noble Lord, Lord Graham, when he was questioning my noble friend Lady Trumpington just now on the old paragraph 8—several noble Lords questioned the purpose and effect of paragraph 8 of the previous version of Schedule 1. It was included for the avoidance of doubt, so that Section 140 of the 1978 Act (which prohibits contracting out of the statutory rights and which applies to both the rights in the schedule) would not prevent a shopworker agreeing to do shopwork on a Sunday. On reflection we consider that this provision is now no longer necessary. It is obvious from the new paragraph that a shopworker who agrees to do shopwork on a Sunday will not, to that extent, enjoy the rights in the schedule.
I should like to study what the noble Lord, Lord Graham, said. I believe that we have genuinely met the concern that he feels. There is no attempt to pull the wool over anybody's eyes. We put the provision there originally purely to try to clarify matters, but we now believe that doubt is avoided by the existing drafting. I hope that he will be satisfied on that point. I thought that I should return to it in some detail because it was a point about which he obviously did not feel confident. I feel much more confident that he does; indeed, I am entirely satisfied, although I shall, as I said, look at what he said.
I hope that with that explanation of the way in which it has been possible to simplify Schedule 1 your Lordships will agree that what is now in the Marshalled List of amendments is indeed an improvement. I beg to move.
[Amendments Nos. 22A and 22B, as amendments to Amendment No. 22, not moved.]
9.30 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved, as an amendment to Amendment No. 22, Amendment No. 22C:
Line 34, after ("age") insert ("or where the normal number of weekly hours are below sixteen").
The noble Lord said: This amendment in effect seeks to ensure that the protections are enjoyed by part-timers, or even part-part-timers. I wonder whether the Minister has a note, at the top of which, clearly, is the word "Resist", with which he may very well be able to help us in respect of Amendment No. 22C. My recollection is that it seeks to ensure that those employed in retailing (where, very often, workers are not only not full-timers but are limited part-timers) enjoy the protections.
Lord Glenarthur: My Lords, the short answer to the noble Lord, Lord Graham, is that everyone does enjoy that which he seeks. I could explain at some length, having expected the noble Lord, Lord McCarthy, to move Amendments Nos. 22A and 22B. I would have been able to explain that what he proposed was unnecessary because paragraph 4 already achieves the intention of the amendments. It is not necessary to disapply the rules in Schedule 13 as to what counts as a period of continuous employment. There may be a misunderstanding on this. I hope that the noble Lords, Lord McCarthy and Lord Graham, will accept what I have said.
The Deputy Speaker (Lord Ampthill): My Lords, if the noble Lord the Minister will forgive me, the Question is, That Amendment No. 22C shall be agreed to?
Lord Graham of Edmonton: My Lords, I beg leave to withdraw the amendment.
Amendment to Amendment No. 22, by leave, withdrawn.
Lord Wedderburn of Charlton: My Lords, the noble Lord the Minister has, I believe, moved Amendment No. 22, and it is to that amendment that I would ask noble Lords to address themselves again. The Minister has already said that paragraph 3 is a crucial paragraph, if not the crucial paragraph, to the new Schedule 1, which, as the Minister said, is a complete redraft following what was said in Committee. Indeed, the noble Baroness, Lady Trumpington, relied on paragraph 3 when answering a point about the old paragraph 8 as to why Section 40 should not be disapplied. It is indeed paragraph 3 that is the crux of the new draft. I wonder whether the Government have intentionally changed something that is the crux within that draft.
In the old definition, if I may put it briefly at this late hour, the criticial definition of contractual Sunday work related to what the worker was obliged, under the contract of employment, to do on a Sunday, or what he had agreed in writing, on or after the date of commencement of the Act, to do on a Sunday. A very different formula appears in paragraph 3. In paragraph 3 we find that the exclusion for contractual Sunday working relates to,
"the taking of the action the employee was obliged to do on the Sunday in question by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date".
We find, in place of the test of the obligations in the contract of employment, the test of the existing agreements that the worker has made. There must be significance in that change. In other words the
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agreement does not relate only to the agreement that he has made with his existing employer at the time of the commencement. It must therefore include agreements made with others, with customers, with fellow workers, with wives and with previous employers. Indeed, what the noble Lord the Minister said alerted me to points that I had not seen; that the whole question of agreements with previous employers might be relevant to this paragraph. If the Government do not intend that, they must change their drafting again.
It may be said that agreements with these people—that is, people other than the employer on the date of commencement of the Act—will not be legally binding. That might well be so. Agreements with the wife to work on Sunday might not be legally binding. But the Act does not say that it has to be legally binding. It says:
"by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date."
The word "agreement" is put in place of the word that was in the original Bill, "employment contract". There is a difference, and the Government must intend that difference. The question I ask is, why? This is not a technical point. We have seen already that paragraphs 1 and 2 depend upon paragraph 3. Indeed they are subject to it. But the workers' rights, or lack of rights, in regard to unfair dismissal in paragraphs 4, 5 and 6 depend upon paragraph 3. The workers' rights in regard to action short of dismissal depend upon paragraph 3. Indeed in paragraph 8 the Government themselves have highlighted the distinction because once again in paragraph 8(3) it refers to the original contract of employment, not just some agreement made with someone. I find this a quite astonishing new draft, in a Bill which has been lambasted in this House and elsewhere as oppressive to shopworkers, to say that they will be held to any agreement, whatever that will mean, in the tribunals—the EAT, the Court of Appeal and elsewhere—leaving them as it were at risk of some agreement that they have made whereby all these great rights which are now established, it is said, under the new Schedule 1 collapse like a pack of cards.
I suggest to the noble Lord the Minister that if there is some simple answer to this point—I hope that it will not be a dazzling answer relating to the Salmon Bill or the public order Bill, but to this Bill—let us have it. But if there is not then I urge your Lordships to entreat the Government in the interests of certainty and of not promoting litigation—albeit I am a lawyer, there is no point in having legislation that promotes litigation—to clarify this schedule at least by amending the "agreement" referred to in paragraph 3 to the "contract of employment" so that the worker knows where he stands. At the moment the clause does not allow him to do that.
Lord Mishcon: My Lords, I wonder whether I may raise a point which arises out of the principle which was just explored, but which I believe rather takes me to a slightly different point. If the noble Lord the Minister cannot answer the question that I put to him now, I shall quite understand, but I should appreciate it if he could write to me with an answer.
Does Clause 3 mean this? An employee who has never before worked on a Sunday, and certainly not

181
agreed to work every Sunday, agrees to do so as a result of a request by his employer to make an exception and work on a specific Sunday—an isolated Sunday. That agreement takes the form of a letter from the employer to the employee saying, "I would so appreciate it if you did come in on this Sunday as an exception. Would you please agree to do so?" The employee writes back, saying, "Yes, I will". Then for some reason on that one Sunday alone he does not in fact turn up. If the noble Lord the Minister would look at the wording of new paragraph 3 he will see that at least I am entitled to ask the question whether that does not rob the employee of all his rights.
For the purpose of clarity I refer to the words I have in mind.
"Paragraphs 1 and 2"—
says paragraph 3—
"do not apply where the work in question is work which at the time of the dismissal or, as the case may be, of the taking of the action the employee was obliged to do on the Sunday in question"—
not all Sundays—
"by virtue of an agreement made by him before the commencement date or of a written agreement made by him on or after that date".
This is a terribly important point. I shall well understand it if, having thrown it at the Minister at this late hour, he requires a little time to reflect upon it; but it is something in the drafting which at the moment makes me feel that I may have raised a rather material point.
Lord Simon of Glaisdale: My Lords, as one of those who presumed to criticise the drafting of the original schedule it is only right that I should say that this seems to me to be a tremendous improvement. It can now be easily understood by the trade union officials and by the retail organisations and, I should have thought, by an individual shopkeeper who has been accustomed to the Shops Act 1950. That is the general position, so I express my thanks.
I should also like particularly to thank the noble Lord for meeting the point on "established shopworker". I ventured to suggest that there were only three possible cases. One was worth meeting, could be met simply, and indeed has now been met most felicitously, where the employee changes from one shopkeeper employer to another before the date of the action which is in question, the penal action. The other two cases were so remote that they were not worth considering. The draftsman has met that point entirely. We are now rid of the infelicity of "uncontractual Sunday work" and the extraordinary complexity of "established shopworker".
As for the point on the drafting of paragraph 3, I do not doubt that the noble Lord will want to consider the points that have been made. I am bound to say that it had not struck me that "agreement" in paragraph 3 could possible be read in any other sense than as an agreement between the employer and the employee relating to a shopworking contract. I have no doubt that the noble Lord will want to consider at leisure what has been said, but it would be inappropriate if one of those who criticised with some vigour the drafting of the original schedule did not now express gratitude, and I do so.
9.45 p.m.
Lord Coleraine: My Lords, I should like to say a word which may go beyond the drafting of paragraph 3. This is the question of the employee being
"obliged to do on the Sunday in question [work] by virtue of an agreement made by him before the commencement date."
In most cases a contract of employment will be to work specified hours, but there will be cases where somebody is obliged to work hours as required by his employer. If this were a contract made before the commencement date it would have obliged the employee to work on a Sunday, but he would have had no apprehension that this was the case, no understanding that he would be obliged to work on a Sunday. Similarly, if somebody is working under the same sort of contractual terms after the commencement date for a shop which had never worked on a Sunday, he also would have assumed, in the absence of any specific reference to Sundays in his contract, that he would not be obliged to work on a Sunday. But by the literal terms of the contract he would be obliged to work on a Sunday because the contract says that he works the hours required by his employer.
I should have thought that it would be better if paragraph 3 expressed the exclusion so that it would not just be an obligation to work on a Sunday by virtue of an agreement made, but by virtue of an agreement which expressly provided for working on a Sunday.
Lord Glenarthur: My Lords, I am extremely conscious, perhaps more conscious than some others, that on matters of employment legislation the noble Lord, Lord Wedderburn of Charlton, and the noble Lord, Lord McCarthy, are renowned experts. I very much remember my indoctrination on the Employment Bill 1982, I believe it was, when we debated for long hours, as far as 5 o'clock in the morning at one point, some fairly difficult concepts. May I assure the noble Lord, Lord Wedderburn, that there is no intention to indicate a change of policy by what has been put now in new paragraph 3. It is certainly not the intention that agreements made with people other than employers are covered by paragraph 3. It is intended that only legally-binding agreements are covered by that paragraph. I hope the noble Lord will remember, as I am sure he will, that it must be said that any agreement between an employer and an employee will form part of the contract of employment. I believe he will concede that.
So far as the point made by the noble Lord, Lord Mishcon, is concerned, I should like to study what he said. If it is in any way an answer to what he has put to me, I can say that if an employee has agreed to work on a specific Sunday, if he does not turn up he will be deprived of the rights in the schedule in respect of that particular Sunday, but not in respect of any other Sunday. But perhaps that does not meet the noble Lord's concern. I hoped it might have gone some way towards it.
I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for what he has said. I fear that my answer to my noble friend Lord Coleraine, will have to form part of what I shall now say to the noble Lord, Lord Wedderburn; that is, that I shall have to look carefully at all that has been said.

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If there has been any slip-up in the drafting here—it is a highly technical matter indeed—I can assure your Lordships that there has been no intention on anybody's part to bamboozle anybody into believing that any change has been slipped in. I hope that your Lordships will agree that that is the best way of proceeding this evening. I can give your Lordships that assurance.
Lord McCarthy: My Lords, before the noble Lord sits down, may I ask him this question? I am not quite sure what he is saying. Is he saying that he would come back at Third Reading, for example, and propose an amendment to paragraph 3, so that instead of reading "an agreement", it read, "a provision in the contract of employment"?
Lord Glenarthur: My Lords, with the leave of the House, what I am saying is that I shall have to study very carefully what has been said. I honestly do not think I can respond off the top of my head to the very detailed and technical arguments which have been put forward by the noble Lord, Lord Wedderburn of Charlton. I shall study that and I shall undertake certainly to correspond with all those who have taken part in this debate with a view to clarifying the position. It is conceivable that something has not been spelt out correctly. I should like to consider what has been said and I hope the noble Lord will agree that that is the best way forward.
Lord Graham of Edmonton: My Lords, I am grateful to the Minister for taking the care that he has. I should simply like to remind him that the amendment that we have made to the original paragraph 8, which was superseded by the new paragraph 3, requires to be studied with care by those outside the House as well as the Minister studying what has been said here. In the spirit in which he has said, without any commitment whatsoever, that he will see whether the points that he believes were due to be met have been met, I shall want to take advice from outside the House as to whether the concerns of those outside are being met in the Bill. I thank the Minister.
On Question, amendment agreed to.
[Amendments Nos. 22D, 23, 24, 25 and 26 not moved.]

Greater London Council (General Powers) Bill
The Queen's Consent signified and Bill reported from the Unopposed Bill Committee with amendments.
Australia Bill [H.L.]
Returned from the Commons agreed to.

British Railways Bill
Returned from the Commons with the amendments agreed to.
House adjourned at nine minutes before ten o'clock.