§ No person shall be employed for more than 2 hours and less than 4 hours without a break of at least 10 minutes.
§ No person shall be employed for 4 hours or more, but less than 6 hours, without a break of at least 20 minutes.
§ No person shall be employed for 6 hours or more, but less than 7 hours, without a break of at least 45 minutes.
§ No person shall be employed for 7 hours or more without 3 breaks, one of not less than 45 minutes and two of not less than 10 minutes each, spaced at reasonable intervals throughout the shift.".").
§ The noble Lord said: The object of this amendment is to amend Schedule 3 to the 1950 Act, which also remains, and it deals with the intervals for meals. The Committee will remember that the Minister has said that there ought to be more flexibility. He has said in several ways that this part of the Act is out of date. What we are suggesting is that the situation should be changed so that it is more flexible and in a way more modern.
§ The present position is that workers covered by this part of the 1950 Act are entitled to a 20-minute break after six hours, to a three-quarters of an hour dinner break if they are employed over the period 11.30 a.m. to 2.30 p.m. and to a half-hour tea break if they are employed from 4 p.m. to 7 p.m. It is reasonable to suggest, if this is what the Government are telling us, that this was a system of rights introduced for workers who were overwhelmingly full-time—shopworkers who overwhelmingly were expected to work, the great majority of them, through the period from 11.30 a.m. to 2.30 p.m. unless they had a specified meal break. It was to deal with a pattern of work which was very largely full-time in the 1950s and beyond that these provisions were enacted in the first place.
§ It is the case now—and in this sense we admit it—that there are aspects of the 1950 Act which require bringing up to date. It is the case now that far more people than shop assistants are working part-time. Women are working quite fragmented work patterns and shift work. Therefore what our amendment seeks to do is to provide a system of breaks which is not related to the hour of the day but which is related to the length of time which people work. What it provides is a 10-minute break between two and four hours, a 20-minute break between four and six hours, a 45-minute break between six and seven hours, and a 45-minute break plus two 10-minute breaks for a period of over seven hours. We accept openly that this is an attempt to improve the provisions made for those workers who are now covered by the Act but we think there is widespread evidence that this is necessary.
§ One of the central arguments that has been between us in this Committee all day has been that the Government assert that circumstances have changed for the better. We argue that in many respects they 206 have changed for the worse. We argue that the kind of workers who are coming into shopwork now are much more difficult to organise. They find it more difficult to act for themselves and therefore they need statutory protection that much more. We argue that although there may be many good employers who would make all such provisions whether or not they were statutory, there are also many employers who would not. There are many cases where we have evidence that employers are not observing the rights that exist now.
§ We therefore accept that circumstances have changed; but in the respect with which this amendment is concerned, we say that they have changed for the worse. That is the argument for our amendment.
§ Lord Glenarthur
As the noble Lord has described, this amendment attempts to update the existing provisions of the Shops Act by replacing the third schedule to the Act, which sets out the intervals for meals for shopworkers, with a detailed schedule of the breaks that employees must be given depending on the number of hours worked. I believe that I am right in saying that as a result of the noble Lord, Lord Graham, not moving his earlier amendment, we are now in rather the same position as before in respect of that amendment, in that Amendment No. 20 can now apply only to young shopworkers. I see that the noble Lord nods in assent.
Our aim in this Bill is to deregulate the restrictions on the working hours of adults, and I cannot believe that the Committee would wish to see those restrictions replaced with more detailed provisions that would place an additional burden on employers and make hours or work less flexible for employees. Moreover, the Government's proposals to retain the existing provisions for young people are more generous than the provisions suggested in the noble Lord's amendment. Where the hours of work of young people are between 11.30 a.m. to 2.30 p.m. or from 4 p.m. to 7 p.m., a dinner break of at least 45 minutes and a tea-break of 30 minutes will continue to be given under the 1950 Act. Under the noble Lord's proposal, a young person employed for up to four hours at whatever time would get a break of only 10 minutes. That does not seem to be particularly helpful to young shopworkers and I hope that the noble Lord will not press his amendment.
§ Lord Brougham and Vaux
I have never worked in a shop but I have worked in the City. I was employed under an agreement that set out my wages, my time off for holidays, my hours of work and my lunch breaks. Surely a shop would do the same, whether it was a large shop or a small shop. In the case of shops owned by Pakistanis or Indians, they are usually small shops that are run by a family. A family shop would not need such a provision because the brother would go off for one break, and then the sister would go for another, and so on.
In the case of a larger shop employing four or five people, they would stagger their meal breaks and coffee breaks. In a larger shop still, it would be up to the managers of the departments—whether it was 207 the cosmetic department or the department selling socks—to decide when each of their staff will take their coffee breaks and meal breaks. One cannot legislate as to when people must take such breaks, because that would cause the whole shop to close down.
Whether an employee works for a shop, a bank or a stockbroker, he will sign a piece of paper stating that he is being employed at a certain salary and that his holidays and meal breaks are such and such, depending upon the number of employees working in that company or, as we are discussing, store. The staff will take their breaks in rotation. One day a person may break at 11 a.m. and on another day at 11.30 a.m. One cannot put such provisions in legislation. The noble Lord, Lord McCarthy, must surely realise that.
§ Lord Graham of Edmonton
The world referred to by the noble Lord who has just spoken would be nice if everyone who worked in shops was covered by circumstances of the sort he has outlined. Of course, the overwhelming majority of those whom we seek to protect already have good protection, either under the law or under collective agreements—collective agreements which are industry-wide, and in which the employers are well organised enough and sensible enough to combine and the trade unions with members in those industries do likewise, so that agreements are made.
Even when agreements are not made, in that kind of enterprise there are a range of others where sensible, commonsense, fair arrangements are made between the owner or manager and the 20, 10, 6 or 60 people who are working in the enterprise. That is absolutely right. But at a time of high and rising unemployment, and at a time when there is, we maintain, an attack upon the protections which workers enjoy, it is not unreasonable to think in terms of those who will be looking towards Parliament for their protection and not to the beneficence of employers.
§ Lord Brougham and Vaux
With great respect to the noble Lord, if we do that we are setting a precedent for every Tom, Dick or Harry, who will rely on Parliament to say what they are to do. They will all lobby their MPs and we shall have masses of legislation determining what meal breaks we have, whether we can sleep, die, eat, drink, go to a disco or to the pub, or whatever.
§ Lord Graham of Edmonton
The noble Lord raises the spectre that if we are to envisage every aspect of life—
§ Lord Graham of Edmonton
With great respect, I am not. I am saying that the people covered by this Bill, who are affected by this particular provision, deserve consideration.
208 Clause 2, which now stands part of the Bill, saw fit to strike Sections 17 to 22, inclusive, from the existing Shops Act 1950. There was a purpose and a reason. I hear the Minister, and I can follow the argument about them being out of date and the intention to replace them. But that does not stop me, from my experience—which is not greater than that of anyone else here, but comes simply from keeping my eyes and ears open—and with some current experience in retailing (with interests which I have declared), fearing the possibility that if, by not being a member of a trade union, people are denied the opportunity of collective agreement, then they must look to Parliament. That does not mean to say that every aspect of our life is to be the subject of parliamentary control and oversight.
I genuinely believe that this attempt is designed to try to get the Government to see that we are concerned and worried about the situation. Noble Lords on this side of the Committee are not speaking, as it were, out of the blue. We have been advised by our friends outside in the trade union movement that they want to see these protections retained. We believe that a good case has been made.
§ Lord McCarthy
The noble Lord the Minister makes two arguments. One of them is much more effective than the other. He says that it cannot be done because the object of the Bill is to deregulate. Every time an amendment is tabled which arrests the inevitable and inexorable process of deregulation he believes that the Government can stop us by just saying, "We cannot have that because it arrests the process of deregulation". We say that deregulation irrespective of the consequences for workers' rights and the protection of workers is something that we do not support. That goes back to the speech much earlier today of the noble Earl, Lord Stockton. He said that in this Bill the Government are giving us another example of deregulation and nothing but deregulation irrespective of the consequences and in particular irrespective of the consequences for workers' rights.
The Conservative Party has always in the past believed that the employer has a natural power in the labour market and that it is stronger, more powerful and more effective in general than the power that the individual worker has. That is the argument which justifies the legalisation of trade unions—that workers have a dependent relationship and need combination to match employer power. It follows from that that if for some reason they cannot match employer power, the state steps in in certain limited respects and protects them by law.
What is involved in this legislation, and what has been said, I am afraid, by the noble Lord, Lord Glenarthur, tonight, is that the matching power argument, which has justified legislation to allow trade unions and to regulate matters on behalf of workers who are not thought to be able to organise trade unions, no longer applies if the object of the exercise is the inexorable process of deregulation. If that is the case I do not know what it is that the noble Lord is going to find for us and what is to come.
I accept his second argument but I do not think that it is an argument against us. It was put forward in reply 209 to the noble Lord, Lord Brougham and Vaux. He says that there are some respects—and I accept this—in which my amendment gives workers fewer rights than they have now. That is true in a narrow area, but it exchanges them for more rights in a wider area, which shows what a modest, moderate amendment it is. We do not want to regulate everything. We are trying to bring matters up to date. We think that in broad terms the proposal is preferable, but it is not a revolution. It is not regulating people so that employers cannot run jobs. It is a modest example of the matching power argument, but this Government do not believe that argument. In the argument for deregulation everything must go. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Baroness Turner of Camden moved Amendment No. 23:
After Clause 2, insert the following new clause:
§ ("Holiday entitlement for shopworkers.
§ .—(1) Any shopworker who has worked for an employer for a period of one year or more shall be entitled to receive from that employer a minimum period of paid annual holiday for four weeks.
§ (2) For the purposes of subsection (1) above "paid annual holiday" means time off paid at the level of remuneration that the employee would normally receive if they had been working.
§ (3) Shopworkers with less than one year's service shall be entitled to minimum holiday allowance calculated on a pro rata basis according to the proportion of the year that they have worked.)
§ The noble Baroness said: I rise to move Amendment No. 23, and perhaps this time the Minister will smile upon an amendment and we can achieve something at the end of this debate.
§ Baroness Turner of Camden
Indeed, I hope to be lucky. The reason for the amendment is that we wish to put into the Bill provision for shopworkers to have a statutory entitlement to holidays. Again, I refer to the Auld Report and to the same paragraph to which I referred earlier, paragraph 287, which states:We set great store by the preservation of the role of Wages Councils in fixing statutory minimum weekly rates, holidays and holiday pay for the retail trades".Paragraph 288 states:We understand that the Government has been considering the abolition of the 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".That was referring to exploitation in relation to holiday entitlement.
Already the holiday entitlement of shopworkers as provided for in wages council regulations at a maximum of four weeks falls behind typical rates in more organised sectors of the economy. Five weeks is quite a standard entitlement in many well organised areas of industry and commerce.
Earlier one noble Lord asked whether we had legislation on everything. We do not have very much legislation in that area in this country, but in virtually all European countries, unlike Britain, there are across the board legal minimum entitlements to holidays for all workers. In Denmark, France, Luxembourg, Spain 210 and Sweden the basic entitlement is five weeks. In Belgium, Greece and Norway it is four weeks. In West Germany and the Netherlands there are legally enforceable minima as well. But in Britain, if the Government proceed with their intention to prevent wages councils from setting legal minimum holiday rates, and if there is no protection at all for holidays in this Bill, it is our view that many workers will find themselves deprived of paid holidays altogether. For example, I understand that a recent survey of instant print shops in London—a new development and a new type of shop in a highly competitive area not covered by wages councils—found that three out of 10 firms gave no paid holidays of any kind to their workers.
§ Lord Brougham and Vaux
The noble Baroness has mentioned European countries. Can she give a wages and holidays comparison of what happens on the Continent and in the United Kingdom? We would then be able to understand the argument.
§ Baroness Turner of Camden
In relation to shops and shopworkers, I do not think that that is terribly relevant. It has already been pointed out that shopworkers are among the lowest paid in this country. Indeed, wage rates for women working full time in the industry were quoted at less than £75 a week. These are very low wage rates indeed. If you compared them with wage rates for similar grades of people working on the Continent you would find, I believe, that they compared very badly. I do not think, with respect, that what the noble Lord says is relevant to my argument so far as holiday entitlement is concerned.
The aim of the amendment is to make some basic provision for shopworkers. Without that, it is our fear that they will not have, in some instances, any holiday entitlement at all from some of the more unscrupulous traders and employers.
The Minister has referred earlier to the way in which he believes that the terms and conditions should be regulated so that the individual should be free to bargain terms and conditions of employment with his employer. That argument, it seems to me, proceeds from the assumption that the individual applicant, looking for a job in a labour market that is already over-stocked, with large numbers of people after each job, is on all fours with the employer with whom he is negotiating the terms and conditions of employment. That is patently not the situation. My noble friend Lord McCarthy made the position clear when he spoke on his amendment.
This is not a situation of equality. The individual now seeking employment in a shop—this involves mostly women—has very often to take what is on offer because that is the only job available. In that situation, unless there is statutory protection from Parliament, the individual is going to suffer. As already indicated, shopworkers are not easily capable of being organised into units for various reasons. I shall not go over the reasons again; they have been thoroughly explored in previous debates. I commend the amendment to your Lordships.
§ Lord Boyd-Carpenter
My noble friend the Minister will no doubt deal with the basic question as to whether it is right to insert in the Bill a statutory provision in respect of paid holidays for shopworkers. I have some doubts as to that general issue, but it is, I believe, a matter for my noble friend to deal with. I wish to raise only two specific points on the amendment that the noble Baroness has moved.
The first subsection referring to "any shopworker" would seem to include part-time as well as full-time shopworkers. I do not know whether the noble Baroness is really arguing that a part-time shopworker, perhaps working only a limited number of hours on a limited number of days in a week, should really be entitled to four weeks' paid holiday from her employer. That would seem to me a very serious imposition on the employer, and quite unjustified. If the noble Baroness would be kind enough to give me her attention—I am sure that she is getting terribly good advice from the noble Lord, Lord Graham of Edmonton, but I happen to be in possession of the Committee at the moment—I also have considerable doubts about subsection (3). It means, as I understand it, that if somebody has been employed for only three months he will then be entitled to a week's paid holiday. I think that that will make it extremely difficult for those small shopkeepers who take on a shopworker for a limited time. I should have thought that that was a very oppressive provision to insert.
However, on the basic issue I express a doubt as to whether this should be made statutory. I think that that is for the Minister to deal with.
§ Lord Glenarthur
The noble Baroness has set out her amendment very reasonably indeed. While I should be delighted if I were in a position to say that this was appropriate, I am afraid I have to disappoint her again and say that I cannot say it is appropriate to the Bill. It seems that what the noble Baroness is trying to achieve here is to incorporate into the Shops Bill provisions broadly comparable with provisions currently in wages orders issued by wages councils. The objective seems to me to circumvent the Government's proposals to reform wages councils which we have talked about earlier.
Perhaps I should say that under the wages councils legislation we are retaining only the most important elements of pay—the minimum rate and the overtime rate—in the interest of deregulation and removing burdens from employers. All other matters, including holiday provision, will be left for negotiation between employer and worker, always remembering that the terms and conditions of existing contracts cannot be varied unilaterally.
I must make clear to the noble Baroness that your Lordships will have ample opportunity in due course to consider that legislation as it passes through your Lordships' House. I do not believe, since it relates so closely to that Bill, that this is necessarily the right place to discuss this, although I fully understand the reasons for the noble Baroness bringing this forward. That is perfectly acceptable.
I have to say also that the Shops Act does not currently make provision for the annual leave entitlement of shopworkers. I cannot see any reason why this Bill should be extended to do so. I very much 212 share the view of my noble friend Lord Boyd-Carpenter that this is a matter which is best left to the collective or individual arrangements between employers and employees. It is not a subject which requires the full force of the law to be brought to bear, with all that that implies in terms of inflexibility, enforcement burdens and bureaucracy. I hope that the noble Baroness will see the force of that argument as well.
§ Lord Graham of Edmonton
I wonder whether the Minister would care to say what kind of opportunity or avenue of redress there would exist for those workers in such establishments who are not able to secure sound sensible, amicable arrangements with their employers, not merely for holiday entitlement but for other matters. The Minister is perfectly entitled to say that the majority of workers—whether they are in shops or in other establishments—with good employers, as most of them are, see the sense of coming to terms on a range of matters, one of which is holiday entitlement. But my noble friend gave an illustration of a survey taken—not in 1950 but in 1985—of certain workers in certain circumstances whose employers are not as enlightened as many others. I wonder whether the Minister would care to tell us, in the absence of some statutory provision, what kind of redress would be available to an employee who is not receiving his fair entitlement in such an organisation, shop, or establishment, and who is fearful of raising the matter in such a way in the present climate of unemployment. What avenue of redress has such a worker who is not getting his fair entitlement?
§ Lord Glenarthur
The answer to the point made by the noble Lord lies in the fact that there are many other workers—the majority, it appears from the figures which have been bandied about, certainly of those who are not retail workers—who come to arrangements with employers to meet the very concerns which the noble Lord expresses. We have had examples quoted very often during today's proceedings about employees who work in other areas on whatever day of the week it may be. Although ultimately, of course, there is recourse to law in the fact that a contract will have been entered into if employees are to be employed in shops, I honestly cannot see that sensible and totally practical arrangements for the benefit of both employer and employee cannot be reached in a rather more civilised fashion than through the court, although at the end of the day the court obviously exists.
I sincerely believe that we are delving into the realms of fantasy here. I take the noble Lord's point that not every shopkeeper will necessarily be as good as his word. Sadly it is a fact of life that that will perhaps be the case. On the other hand, there are a great many shopkeepers—and I am thinking particularly of small shopkeepers—who at some time will have been workers in shops themselves, will have become attracted to the profession, and will know precisely what difficulties lie in store for their workers if they start to impose conditions—and unacceptable conditions at that—which they would not like to have applied to them.
§ Baroness Turner of Camden
I am sorry that the Minister thinks that this is not an issue upon which he can come to terms with us on this side, although I accept the force of some of the arguments he has made. On the other hand, it seems to me that the only real reason for pressing this amendment was our fear that if the wages councils disappear there will simply be nothing left there at all. That is why we wanted to table an amendment that protected the position of these shopworkers. As I said earlier when I made a statement in support of the amendment on which the Committee divided, deregulation of shop hours is one thing and protection of workers is quite another. It was in that context that we put down on the Marshalled List this set of amendments.
As regards the points raised by the noble Lord, Lord Boyd-Carpenter, if I may take subsection (3) of the amendment first, it is not unusual to have situations outside shop working where people have a holiday entitlement pro rata during their first year of employment. It is very common. We find that in many agreements that are negotiated in various parts of industry.
As to the point about people who are employed part-time, Clause 2 states that paid annual holiday means time off paid at the level of remuneration that the employee would normally receive if he had been working. If he had been working part-time, it would be part-time remuneration. However, in view of what has been said and in view of the late hour, I beg leave to withdraw my amendment having made those points in its favour.
§ Amendment, by leave, withdrawn.
§ Clause 3 [Rights of established shop workers concerning Sunday working]:
Lord Renton moved Amendment No. 24:
Page 2, line 3, leave out ("at the commencement of this Act.")
The noble Lord said: I beg to move Amendment No. 24, which is to leave out the words:
at the commencement of this Act",
at the end of Clause 3. Its effect would be to give to shopworkers employed after Royal Assent the rights given by this clause and the first schedule to those employed at the time of Royal Assent. If this amendment is made, some consequential and rather technical amendments would have to be made to the first schedule which would shorten it and simplify it. Indeed, that would be an advantage because, to put it mildly, the first schedule is a bit of a jumble as it is at present drafted.
§ I have not drafted those consequential amendments, partly because the amendment that I am moving is enough to enable the principle to be decided, and partly because the consequential amendments to the first schedule would be better done by parliamentary draftsmen and it would give them a chance to reconsider the drafting of the schedule as a whole.
I should like to invite noble Lords' attention to the Explanatory and Financial Memorandum on the first page of the Bill where it refers to Clause 3 and Schedule 1. It says that they are to:
establish two new statutory rights for shop workers who are in employment before the commencement date. These are a right not
to be dismissed for refusing to do shop work on Sunday; and a right not to have other action, short of dismissal, taken against them by their employer because they have refused to do shop work on Sunday".
I should point out that these new rights are not confined to those shopworkers who already work legitimately on Sunday or who work in shops which are already open on Sundays, whether legally or illegally.
§ As this is my first speech on this Bill, may I say that I support the need for it and the broad logic of it, but I am genuinely worried by the anomaly created by Clause 3, which is good in itself so far as it goes, but the consequences have to be considered. I am glad to say that my noble friend Lord Wolfson, with his unrivalled experience of the retail trade in Scotland as well as in England and Wales, is also worried about it, as he will tell your Lordships.
§ I understand that my noble friend Lady Trumpington was originally going to reply to this amendment, but alas she has had to retire to her bed as she is not feeling well, and so I look forward to what my noble friend Lord Glenarthur—who has played such a splendid lone hand, and perhaps a more lonely hand than he is accustomed to playing—has to say.
§ These new rights under Clause 3 are given to all shopworkers on the day that the Bill receives Royal Assent. Of course one is glad that the Government have proposed this against the advice of my learned friend—if I may so describe him; he often used to appear before me when I was Recorder of Guildford, and in fact more than anyone—Mr. Auld and the two ladies who sat with him.
§ Let us just think this Clause 3 through for a moment. Consider, for example, a man working in a shop which does not yet open on Sundays, and assume that after the Bill is passed the shop opens on Sundays and the man concerned refuses to work on Sunday mornings or evenings because he sings in this church choir. Thankfully he will not have to do so because Clause 3 protects him and preserves his rights.
§ But suppose his 18 year-old son also sings in the choir and is now at school, but after Royal Assent leaves school and joins the retail firm in which his father is employed, and wants to do so and considers that he has good prospects there. If that firm then decides to open its shop on Sundays and the boy, like his father, wants to go on singing in the choir and refuses work, he will not have the benefit of Clause 3. I suggest that that is a ridiculous situation, and one which the Government should no longer tolerate.
In fairness to the Government, I assume that they did not foresee this anomaly. If they had done so, it would not have been said at Second Reading on 2nd December last, as my noble friend Lady Trumpington said at col. 1169:
I do not believe it would be right, nor could we defend a decision, to give special privileges to new recruits after commencement date".
I hope it may console her and my noble friend Lord Glenarthur to be reminded of the words of the famous Sir Winston Churchill when he said:
During a long life I have had to eat my own words many times, and I have found it a very nourishing diet".
I therefore hope that we shall not hear that said again, because the example that I gave is not an isolated one.
It could be multiplied and varied many times when religious and family reasons are remembered.
§ The purpose of this amendment is to get the Government off the hook of an anomaly which, possibly accidentally and with the best intention, they have created. It accepts the principle of the Bill; it does not interfere with Sunday opening or Sunday trading; it does not restrict the hours when it may take place. However, I suggest that this amendment would make the law more workable because nothing could be more awkward in a retail business than having some workers in a shop entitled to refuse work on Sundays and others in the same shop compelled to work against their will, thus creating a sheep and goats situation. It is almost unbelievable.
§ Some noble Lords have said at earlier stages of this Bill that lots of people have to work on Sundays so why should shopworkers be exempt. My answer to that is that there are quite enough people who, even with the flexibility which employers try to achieve, have to work on Sundays, are compelled to do so, not always willingly, and the fewer the people who have to be compelled as a result of the law the better. We pride ourselves on being citizens of a free country and we should try to preserve the freedom of all our people to work or not to work on Sundays so far as that can be achieved.
§ I understand that the Government might say that it is up to an employee, any recruit (if I may borrow the phrase again) joining a retail firm after Royal Assent to get a clause written into his contract, with or without the help of his trade union, exempting him from Sunday working. But why should employees, who may feel strongly about this, have to risk refusal of such a clause and the disadvantage which refusal could bring? Surely it is wrong to place them in that position. It would be better to protect them by statute than by forcing them to find their own protection in negotiation from what may be a position of weakness. I hope that I have said enough to convince my noble friend.
§ Lord Mishcon
Your Lordships will have noticed the anxiety that I have in supporting everything that the noble Lord, Lord Renton, has said and to do so officially from these Benches. He has advanced so many reasons so well that I do not intend to make a repetitive speech. It is far better to leave it with what the noble Lord said. I am sure that when we listen to the noble Lord, Lord Wolfson (whom I am so glad to hear is supporting this amendment), we shall find possibly that the hours from seven o'clock this evening until half past ten tonight will be known in your Lordships' House as "In Search of the Thing". At last we have found it!
§ 10.30 p.m.
§ Lord Simon of Glaisdale
I trust that your Lordships will not accept this amendment and that the Government will consider it with considerable reserve. Far from correcting an anomaly, it creates a whole number of new ones. What it seeks to do is to ensure that persons entering shopworking employment after the commencement of the Act should have the right not to work on Sunday without being punished for 216 their refusal. In other words, to give them the exceptional right that is given to pre-commencement employees.
There are three reasons why that is unacceptable. The first is the compelling one that no one is compelled to enter employment. It is quite true that one does not have complete freedom in this world; but, on the other hand, you cannot isolate shopkeeping and shopworking from all other activities. They are all part of a total employment situation. That is enough in itself to negative the amendment. No one is compelled to work on Sunday who enters employment after the Act comes into force. It is purely a matter of agreement between him and his potential employer. Let us look at it from the point of view of the potential employer. Why should he be compelled to accept someone for weekday working only when he wants an employee who will work on Sundays? It may be for a few weekdays only in the week: it may be only for half days; but if he wants someone to work Sunday, albeit that man wants to sing in the choir, why should he be compelled to take that man?
But the second reason, quite apart from the fact that no one is compelled to work on a Sunday without being penalised—it is purely a matter of his choice—is that this amendment, like so many others we had earlier in the Bill, exemplifies the tunnel vision. It looks only at the retail trade. It closes its eyes to all the other economic activities. Why should a potential shopworker in the retail trade be treated any differently, for example, from a potential attendant at a cinema? Yet nobody suggests that a potential worker in a cinema should be given the right to demand that he or she should be employed only on weekdays because he or she wants to sing in the choir on Sundays.
The noble Lord, Lord Renton, still lives in Gray's Inn, I think, when he lives in London. He shakes his head. But he did so recently. All round him, all round Lincoln's Inn (where my noble and learned friend used to live and may still do so) and around the Temple, where we live, every Sunday there is the banging and rattling of printing presses. On the Embankment and in Holborn the streets are lined with the cars of the workers in the newspaper offices. The narrow streets between the Embankment and the Strand are blocked by enormous juggernauts loading and unloading enormous bales of paper. To all that hubbub, all that concourse and all that activity, the ears of the proponents of this amendment are absolutely deaf. Their eyes are blind, their nostrils are closed at the stench. Why? It is because all their senses are concentrated in horror at the shops in Gray's Inn Road, in Holborn and in the Strand that might open on Sunday in order to serve the people who are working in the newspaper offices. They are working in the newspaper offices to produce Monday newspapers which, for all I know, are delivered to the premises of right reverend Prelates and certainly to your Lordships' Library, where they may even be glanced at by the proponents of this amendment.
That is the occupational tunnel vision; but there is also the geographical tunnel vision. So far as I know—though the noble and learned Lord, Lord Wilson, may be going to tell us to the contrary—there 217 has been no call for this sort of amendment to the Scottish law, where retail trade is unregulated. So you get an occupational tunnel vision and a geographical tunnel vision.
The third reason is that, to all intents and purposes, this amendment is unnecessary because the law substantially (and I do say "substantially") does what this amendment does. For that it is necessary to go to the schedule. It is very complicated, as the noble Lord, Lord Renton, says, particularly because it is couched in the negative. But if one turns it round and looks at it positively, I can give the argument but I come to this summary: a shopworker is bound to do Sunday shop work and I think his employer is bound to employ him and pay him to do so, if either of two matters arises. One of them is if, previous to the Act, he was doing shop work on Sunday under a contract of employment, whether written or unwritten. That of course does not apply to the persons covered by the amendment, because they were, ex hypothesi, not in employment and not doing shop work before the commencement of the Act. But he is also bound to do Sunday shop work if he agreed in writing on or after the Act to do the shop work. That is the only situation to which this amendment can apply; but under the opening sections of the employment protection Act of 1978, which the noble Lord, Lord McCarthy, to our commiseration, knows off by heart, every contract of employment has to be reduced to writing. So the only difference is that the contract is in writing under the schedule or has to be reduced to writing under the employment protection Act. So for those three reasons I hope the Government will resist this amendment.
§ Lord Denning
I take a different view. I hope this amendment will be carried by your Lordships' Committee. My noble friend Lord Renton has given you a good illustration, if you please, of a man who goes regularly to church on Sunday morning and Sunday evening. If he is employed before the commencement of the Act and is afterwards required to do Sunday work and he says, "I can't: I want to go to the choir", he has a remedy for unfair dismissal, if he is dismissed on that account. But then, as my noble friend says, take his son, 18 years old. Three weeks after the Act is passed he does just the same: he is employed by that employer and when he wants to go off to the choir the employer says, "Oh no; you've got to do your Sunday work." That young man has no remedy at all according to this clause.
That was the employee's side. Now I want to take the case of the employer, the shop, which up to the commencement of the Act has not opened on Sundays and has employed no people on Sundays. In those circumstances, there is no trouble. Then, three weeks or so after the Act is passed the shop owner says, "We are going to take advantage of this new Act; we are going to open on Sundays". Then someone says, "I don't want to work on Sundays; I want to go to church or to choir on Sundays". The employer replies, "Oh, no!—we can't have you going off there. You must work on Sundays when we want you to, and if you won't work on Sundays you are sacked". Ought not that man to have his compensation for unfair dismissal? Surely he should. That is my first point. That is the practical situation, which has been illustrated so well by my noble friend Lord Renton, of 218 what happens when the employee changes, and I have spoken of what happens when the employer changes, to Sunday working.
But the crucial criticism of this clause is that it brings in this terrible Schedule 1. I have never seen a more appalling piece of drafting, with references and cross-references. In order to understand it, you have to find out what an "established shop worker" is. If any of your Lordships or any lawyer tried to find out, it would be an awful job. He has to be employed on the day before the commencement of the Act and have beencontinuously employed as such during the period beginning on that day and ending with the relevant time".You then have to turn over the page and see what "the relevant time" means. Then you have to go to some section of a 1978 Act and you have "in relation" to one paragraph and "in relation" to another paragraph. Good gracious! it is a most impossible piece of drafting which the Government have tried to introduce in order to support this clause.
I hope sincerely that this amendment will be accepted and, if it is, that that schedule can be made very simple, in a sentence or two. So I hope that your Lordships will accept this amendment.
§ Lord Wolfson
After the very stimulating remarks of the noble and learned Lords, Lord Simon and Lord Denning, I feel that I am entering a minefield, but I do so with my eyes and ears open. I think one should get the matter into perspective; namely, that the Sunday shopping Bill is about retail trading and is not about cinema ushers, nor is it about choir singers. I hope that the Government will give favourable consideration to the reasoned amendment expressed so sincerely and ably by my noble friend Lord Renton and supported by the noble Lord, Lord Mishcon, and the noble and learned Lord, Lord Denning, concerning the provision of uniform employee protection. This does not derogate in any way from the main purposes of the Bill. Indeed, I believe that they would be enhanced by removing an obstacle to its harmonious implementation.
Like many of your Lordships, I feel distinctly unhappy about the proposed differential between existing and new staff. For those holding religious beliefs, or wanting to spend Sundays with their families, it would be quite invidious to differentiate between people at present in retail employment and those seeking entry. In practice, I doubt whether it would be effective. As one engaged in the retail trade, I believe that the clause as it stands could lead to an anomalous situation in the future, such as the Bill is seeking to eliminate from the past. An employee now enjoying protection would lose it on joining another firm, and would apparently not be covered in the event of rejoining the original employer. This could well lead to resentment and would not be helpful to good human relations in the trade. This is one of the most important facets of business. It could also have the effect, which is not intended, of inhibiting occupational change.
The overall objectives of the Bill are sensibly seeking to bring legislation into line with modern conditions. Scotland has had Sunday trading for many years and in my experience it has worked successfully without 219 two-tier staff arrangements. I believe that the objectives of the Bill would be fully met by the same treatment in England and Wales. As the noble Earl, Lord Stockton, said in his inimitable manner, these objectives are to allow shopping on Sunday and not to penalise anyone in the process. I hope that the Government will look upon this reasoned amendment with sympathetic understanding.
§ 10.45 p.m.
§ Lord Shaughnessy
I should like to support the amendment under discussion. I was under the impression that we were here to deal with the Shops Bill but I understand that we are back to the tunnel again, according to the noble and learned Lord, Lord Simon of Glaisdale.
Simply stated, my reason for supporting this amendment is that I think Clause 3 is clearly discriminatory. A set of rules apply to somebody on day one, and on day two when this Bill becomes law another set of rules apply. As the noble and learned Lord, Lord Denning, suggested, Schedule 1 is totally incomprehensible. It is to me as a tyro. It also has a mistake, I think. Page 4, line 24 reads:or, if more than one, the principal reason"—which I think should read "reasons". Surely that should be straightened out. Whether that is or is not an error, I want to support the amendment because it is clearly an attempt to eradicate what is an instance of discrimination in this Bill.
§ Lord Boyd-Carpenter
Whatever view your Lordships may take on my noble friend's amendment, I am sure they will wholly agree that Schedule 1 is a miracle of bad drafting. I hope that my noble friend will speak somewhat firmly to his department and to the parliamentary draftsman and ask them not in future to serve up to Parliament such a professionally incompetent piece of work. But that does not conclude the issue.
I differ from my noble friend Lord Renton, as he knows, always with regret, as I do with the noble and learned Lord, Lord Denning. My noble friend Lord Renton posed the issue in a quite emotional way of the regular shopworker bringing his 18-year old son in for the first time and the son wanting to sing in the choir. I am bound to say that at 18 I should have thought his voice would have broken anyhow, but that is by the way.
The real difficulty about my noble friend's amendment can be summed up in a couple of sentences. The Government, I think rightly, are seeking to secure the position of existing shopworkers because they joined this trade on the basis of the law being that shops did not open on Sunday even though, as your Lordships know, they have in fact been doing so for years. But they joined on that basis. Then when Parliament in its wisdom decides to change the law they should be protected from adverse consequences of the change of law. I think that is a reasonable provision such as has quite often been included in Acts of Parliament. But it is quite a different thing to say that people who become shopworkers after the 220 commencement of the Act, coming into a trade which they know can and does involve opening on Sundays, should be given similar protection.
It seems to me difficult to justify such protection for this reason. Every day people are joining other professions or taking jobs in other occupations that involve Sunday work. Indeed, we heard earlier a most dramatic account of the noise created by those who work in Fleet Street.
§ Lord Boyd-Carpenter
I will just finish the sentence and then I shall give way to the noble Lord with the greatest pleasure. I was only going to say that a great deal of noise emerges from Fleet Street of one sort or another.
§ Lord Graham of Edmonton
The noble Lord poses possibilities and makes presumptions on the part of employees entering the retail trade. I pose this situation to the noble Lord. Take the case of an establishment that, when this Bill becomes law, states that it has no intention of opening on Sundays because it does not believe in Sunday trading. Say that a person becomes an employee of that company in such circumstances—because it is that shop's policy not to open on a Sunday. What if subsequently the firm is compelled to open on Sundays owing to competition? What kind of redress does the noble Lord envisage such an employee would have?
§ Lord Boyd-Carpenter
I believe that such an employee should certainly be able to obtain redress under his contract of employment. If his employer seeks arbitrarily to alter the terms of his employment after he has joined the firm, I have not the slightest doubt that he would have a remedy there. He would have also a very genuine cause for complaint.
The noble Lord distracted me—I am sure inadvertently—from what I believe to be the core of this matter. It is this. Every day people are joining trades that involve Sunday work. Every day, after this Bill becomes law, people will be becoming shopworkers knowing that it is a trade that involves Sunday opening too. What justification is there for discriminating between those two classes of people by providing for those who go into shop work protection that would be given—rightly, I think—to those already at work there? Anybody else going to work in transport, on the railways, or in Fleet Street—any of the 8 million people we are told will be involved—will not be given such protection. This seems to be the most indefensible discrimination between one man and another.
If your Lordships will reflect on the fact that it involves discrimination in respect of people going into new jobs, then many of your Lordships will see how unfair it would be to the great mass of workers to give a special privilege to those entering shop work simply because shop working on Sundays was illegal in the past although it is going to be legal now.
§ Lord McNair
It is very late and I shall be very brief, but I should not like the noble Lord, Lord Renton, to feel that he has no support from this corner of the 221 Committee. He moved his amendment most eloquently and I certainly hope that I shall have an opportunity to support him, if not tonight them on some other occasion—if necessary, in the Lobbies.
When this Bill was first introduced I found myself in a great quandary. I was not sure what I thought of it, and I am certain that I was not unique in that. I therefore went out of my way to ask all sorts of people their views of the Sunday opening of shops. One of course receives many different answers, but the most common response—and I am sure that it is the one that would command the majority of the whole country—is, "Yes, let shops open on Sunday if they want, provided that nobody is compelled to work on Sunday if they do not wish to do so". That seems to me to be the purpose of the noble Lord's amendment and it has my full support.
§ Lord Sanderson of Bowden
I have listened and if I have tunnel vision then I plead guilty to having tunnel vision; but I am not convinced by those who do not support my noble friend Lord Renton and his amendment tonight. I feel very strongly, as the noble Lord who has just spoken said, that the crucial part of the whole business of repealing the Shops Act is that there should not be coercion to work on Sunday.
Coming from Scotland, as I do, I have seen the working of Sunday shop opening for some considerable time and I firmly believe that those who work in those shops on Sundays feel quite happy about so doing. However, I see a case arising where, under this two-tier arrangement—if I may call it so—which this plan of the Government seems to envisage, considerable trouble could be caused particularly for those who have strong consciences about working on Sunday. Therefore, it worries me considerably that a Government who believe in the freedom of the individual are pressing this sort of arrangement at this time in this Bill.
I say only this to the Minister. I believe this is a case where it would be helpful if he could look again at the intended arrangements, because there is one certainty that has come from the discussions; that is, that the laws passed in 1950 are not working. We are clearly dealing with a situation where the law is being flouted and if we are to deal with the situation properly we must ensure that any laws we pass do work in the future.
§ Lord McCarthy
The centre of the argument against the amendment seems to be that nobody need work on Sunday and that nobody need work in a shop. With great respect, that seems to be a tunnel vision 1950s argument. Perhaps it was true in 1950, when unemployment was 2 per cent. or less, that nobody need work in a shop or on a Sunday because there were plenty of jobs available for everyone.
But now unemployment is much, much higher and for large numbers of people, particularly married women, employment in a shop is the best available opportunity of employment. If they refuse employment in a shop, and if they do so three times, and give as a reason that they would have to work on Sundays, they might not get any unemployment benefit, because it would be disallowed. Large numbers of people might have to work in shops and 222 might have to work on Sundays or get no work at all. That is why they ought to have some rights of the kind suggested by the noble Lord, Lord Renton.
§ Viscount Brentford
I briefly make a couple of points in support of the amendment of my noble friend Lord Renton. Anomalies are being flung around in both directions, so far as I can see. It seems to me that the biggest anomaly in this part of the Bill is that arising from whether one person is employed a week or two earlier than another. What is a week or two in a situation which may arise five or 10 years hence? I believe that that anomaly should be ruled out. The amendment will help to prepare the way for other amendments which are to come which will tidy up the first schedule. I therefore support this amendment.
I have the deepest sympathy for the noble and learned Lord, Lord Simon of Glaisdale, in what he suffers on Sundays. I hope that my noble friend the Minister will look favourably on any subsequent amendment that the noble and learned Lord may introduce in order to give him more rest in his area on Sundays.
§ Lord Simon of Glaisdale
I am grateful to the noble Viscount but I fear I do not deserve his sympathy because I no longer live in the area concerned.
§ Viscount Brentford
I thank the noble and learned Lord. This amendment does not affect the principle of the Bill. It bears saying again that this amendment is purely to remove an anomaly from the Bill. I hope that my noble friend the Minister will look sympathetically at it.
§ 11 p.m.
§ Lord Glenarthur
After the various examples that have been given perhaps I ought to declare an interest and say that I sing in the choir and so does my son! Be that as it may, my noble friend Lord Renton has made it clear that the intention of his amendment is to extend the protection offered by the Bill to new recruits, if I may use the word that he used, and not to confine it, as the Bill now does, to shopworkers employed on the day before commencement of the Act. As he said, the amendment would not have quite the effect that he intends because it does not amend Schedule 1, in which the proposed new rights are set out in substance.
My noble friend went on to say—and I was delighted to hear it, coming from my noble friend, who usually has helpful suggestions to make about either the draftsman or the drafting—that in this case he was sure the parliamentary draftsman would be able to put the matter right. I note the points made about drafting.
If I may correct a point made by the noble Lord, Lord Shaughnessy, that in paragraph 4 "reason" should perhaps have an "s" at the end, I can assure him that if he reads the passage with great care he will find that the word should be in the singular because it refers to the principal reason.
§ Lord Glenarthur
Not all all. But I go further and say that, although I honestly cannot claim that it is possible instantly to redraft, I understand the point that it is a complex schedule. I do not know whether there is scope for improvements in the drafting, and I take the point that my noble friend Lord Boyd-Carpenter made. I shall see what can be done, but it is very much in the hands of the parliamentary draftsman. The provision has been worded with great care. I should not like my noble friend to feel that I am holding out too much of an olive branch, but I shall see what can be done.
The reason why the Bill distinguishes between existing and future shopworkers is clear and straight-forward. It will radically alter the position of existing shopworkers, many of whom may have been attracted to shopwork in the first instance because they would not have to work on a Sunday. I can well understand the concern of existing workers, and our proposals recognise their special position. But I do not believe that a similar consideration applies to new recruits, despite the sincere way in which my noble friend Lord Renton proposed his amendment.
In what ways are shopworkers different from other employees in industry, or whatever, where Sunday working is expected? I am bound to say that I do not find a very great difference. They will join in the full knowledge that Sunday working is expected, and if they do not wish to work on a Sunday they can either come to some arrangement with their prospective employer or they can look elsewhere for an employer who will perhaps meet the needs that they have.
The Bill offers protection to those shopworkers in employment on the day before commencement but not to those joining the industry after that date. With respect, I suggest to my noble friend Lord Renton that that is entirely logical. It is important to provide protection as soon as possible once the Bill has become law and Sunday trading is legalised; but I feel that it would be wrong to make the protection retrospective.
Today people in many walks of life have to work, at least occasionally, on a Sunday. It is not only people in public service—such as the police, hospitals, transport and so on—but also those in manufacturing, agriculture and of course in the leisure industries. A recent study suggests that as many as 4 million people have to work regularly on a Sunday and almost another 5 million work occasionally on a Sunday. I have not seen any great outcry that people are working on Sundays at swimming pools, restaurants or at estate agents. We must recognise that the pattern of working life for many people includes an element of Sunday working.
Extending those rights to new employees would also place a great burden on employers, especially the small shopkeeper. If new full-time employees are able to refuse to work on Sundays, small shopkeepers with less labour flexibility than large stores may have to employ additional staff for Sunday working. This could increase their costs and reduce their competitiveness.
I must also point out that extending the rights in Schedule 1 to new recruits would, in any event, prove of very limited value. The proposed rights apply only to those in employment. This is covered in paragraphs 4 and 6 of the schedule. They cannot apply to, or protect, potential employees. Thus, an employer can 224 always refuse to take on an applicant if he does not agree to work on a Sunday. There would be no safeguards for those unable to get jobs because they were not prepared to enter into a contractual obligation to work on a Sunday.
We have heard many powerful speeches both in support of and against this amendment. They were compelling speeches that will need to be studied with great care. I noted particularly that the noble and learned Lord, Lord Denning, and the noble and learned Lord, Lord Simon, could not agree. It is always, I find, rather difficult to disentangle the various legal arguments when the noble and learned Lords on the Cross-Benches discuss matters in that way.
I wish, however, to say this to the Committee. I have the utmost respect for the manner in which my noble friend Lord Renton put forward the amendment. It would be dishonest of me to say anything other than that I do not hold out too much hope. The noble and learned Lords, Lord Denning and Lord Simon of Glaisdale, are in disagreement about it. Many statements drawing on experience have been made on each side. They have been made with great force. It is only right that I should read with great care all that has been said. I shall gladly do so. I do not know whether this is the elusive "it" to which we referred earlier. I hope that with the assurance that, many important points having been made for and against the amendment on all sides of the Committee, I shall study with great care all that has been said, my noble friend will feel able to withdraw his amendment.
§ Lord Renton
Of course, one must be thankful for small mercies. I am grateful to my noble friend for the clearest indication yet that the Government are prepared to think further about an amendment moved on this Bill. I shall say a little more about that in a moment. Meanwhile, I would like to thank the 10 noble Lords other than my noble friend on the Front Bench and myself who have spoken on the amendment. Eight of those noble Lords supported it; two of them did not do so. The arguments of my noble friend Lord Boyd-Carpenter and of the noble and learned Lord, Lord Simon of Glaisdale, must be carried to their logical conclusion. That is that everyone should have to work on Sundays if compelled to do so and that no-one should be given the kind of protection envisaged for existing shopworkers under Clause 3. Frankly, I do not find that—
§ Lord Boyd-Carpenter
Will my noble friend allow me to intervene? What he says is the exact converse of what I said. I went out of my way to make clear that I accepted the view that those who had joined the shop working trade on the basis of Sunday work being illegal should be protected but that there was no reason whatever for applying this to new entrants. That is quite the opposite of what my noble friend is trying to attribute to me.
§ Lord Renton
With deep respect to my noble friend, he has, I think, rather quickly misunderstood me. I was saying this. If you carry it to its logical conclusion, the argument of the noble and learned Lord, Lord Simon of Glaisdale, and the argument of my noble 225 friend Lord Boyd-Carpenter is that because some people inevitably have to work on Sundays no one should be given any protection at all except those already covered by Clause 3. I do not think, quite frankly, that that is a tenable position.
Perhaps I may say this also in the light of what was said by my noble friend Lord Wolfson, with his tremendous experience of the retail trade in this country. It is possible that few people carry a greater responsibility in the retail trade than he does. He came out quite clearly contrary to the view expressed by my noble friend, Lord Glenarthur. The noble Lord, Lord Glenarthur, said that this amendment would create a greater burden on employers. My noble friend Lord Wolfson said that if the Bill was not amended as proposed it would create an invidious position among the workforce in retail businesses. Therefore when my noble friend considers this matter afresh—and I am very glad that he is going to do so—I hope that he will bear in mind what my noble friend Lord Wolfson has said.
At this late hour it would be impracticable and not welcome for me to suggest that we should divide on this amendment. We shall trust that by the Report stage the Government will have had fresh, and I hope better, thoughts on the matter. In that hope, which I am sure is not a vain one, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.