Committee and Remaining Stages
Clause 1 : Suspension of restriction on Sunday trading hours
A1: Clause 1, page 1, line 4, leave out subsection (2)
My Lords, the noble Lord, Lord Kakkar, and I have decided that we will not be moving any of our amendments to the Bill today. Last night I had a courteous and positive meeting with the Leader of the House of Commons and we seemed to be making progress towards an agreement that would allow our simple internal housekeeping measure to proceed separately from all the debates on fundamental Lords reform. That, I think, would be the wish of the House and I am ready to try to accommodate that.
Yesterday, some of my friends and colleagues accused me of throwing my toys out of the pram. I plead guilty to that. I am prepared to put them back in the pram on the clear understanding that I might throw them out again on Monday if we do not get these assurances firmed up between now and then. Therefore, I shall not move the amendment.
Amendment A1 not moved.
Amendments A2 and A3 not moved.
Clause 1 agreed.
1: After Clause 1, insert the following new Clause—
“Opting out of Sunday work
(1) Where a shop worker gives an opting-out notice in the pre-Games period that relates to work at an exempted large shop, section 41(3) of the Employment Rights Act 1996 has effect as if the notice period in relation to the shop worker were the period which—
(a) begins with the day on which the notice is given, and(b) ends two months after that day, or with Saturday 21 July 2012 (if that is later).(2) Section 42(2) of that Act accordingly has effect in relation to the shop worker as if the reference to three months were a reference to the notice period as it is modified by subsection (1).
(3) Where the opting-out notice includes an express statement to the effect that the shop worker objects to Sunday working only during the suspension period, the shop worker is to be treated for the purposes of that Act as having given an opting-in notice at the end of that period.
(4) The “pre-Games period” is the period which—
(a) begins with the day on which this Act is passed, and(b) ends with Monday 9 July 2012.(5) An “exempted large shop” is a shop to which paragraph 2(1) of Schedule 1 to the Sunday Trading Act 1994 would apply during the suspension period were it not for the disapplication made by section 1(1).
(6) In this section—
“opting-in notice”, “opting-out notice” and “shop worker” each have the same meaning as in the Employment Rights Act 1996, and
“suspension period” has the meaning given in section 1(3).”
My Lords, we had a very good Second Reading debate two days ago, so I was not intending to preface my remarks with an extended speech about the purposes of the Bill. However, I remind the Committee that the Bill is a time-limited and temporary measure to allow flexibility in trading hours on the eight Sundays that bracket and include the Olympic and Paralympic Games. This is a unique occasion for this country. We want to demonstrate that we are truly open, flexible and accommodating of all the athletes and visitors who will be in the country for the Games, and indeed that for all the millions of UK citizens who take advantage of the Games, watching on big screens and taking part in the other events around the country, we make the experience as good as it possibly can be. In achieving that, there may indeed be opportunities for economic benefit and for some people to earn extra money at a time when the economic conditions are not great. Therefore, this is a temporary Bill that is important to the overall Olympics and Paralympics experience.
As I said on a number of occasions at Second Reading, not only is it temporary but it has an explicit sunset clause. If at any stage the Government were to come forward with a further measure on Sunday trading, which is not planned, then of course that would involve the full consultation, impact assessments and all the other things that permanent measures have.
With that brief preface, I shall talk to Amendment 1. This amendment will insert a new clause into the Bill to deal with concerns that shop workers who want to opt out of Sunday shop-working in time for the start of the suspension period, by exercising their opt-out right under Part 4 of the Employment Rights Act 1996, may have to have given their opting-out notice prior to the Bill receiving Royal Assent. This is because the usual period for such opting-out notices is three months, and there will be a bit less than three months between Royal Assent in early May and the start of the suspension period on 22 July.
The first question that might arise is: why is this being brought forward as an amendment rather than having been in the Bill in the first place? The reason is that we had initially believed that the amendment was not necessary, as we would expect shop workers who do not wish to work on a Sunday at all for religious reasons to have either already exercised their right to opt out or to have come to an arrangement with their employer. Furthermore, many employers require only a one-month notice period, whether in the terms of their employment contracts or in the good practices that they adopt. At Second Reading I gave a number of examples of that from major retail groups. In fact—this is an important point for the Committee to understand—a one-month period is the default under the Employment Rights Act 1996 if an employer has not informed employees of their right to opt out of Sunday working. Therefore, the back-stop of a one-month opting-out period is there in the Act.
Nevertheless, initially we had constructive discussions with the Opposition about the Bill. We would not have brought it forward under the fast-track procedure if we had not had indications and discussions with the Opposition on this issue. The amendment was tabled following a request from the Opposition, which we quite understood, to make it clear what the protections were and to put in another layer of protections. I am disappointed that, notwithstanding the opposition Front Bench making it clear at Second Reading that the Opposition would not oppose the Bill, further points have now come up which we will be debating this afternoon.
In addition to the government amendment, as I already committed to the House at Second Reading in response to other good points that were raised by the Opposition, the business department will be putting out on its website full guidance notes if and when the Bill gets Royal Assent so that employers and employees will understand the full ramifications. This is not an easy area of law, so it was a helpful suggestion which we are committed to following up. In response to their concerns and those expressed by the Federation of Small Businesses, and indirectly by the Association of Convenience Stores, I have also committed that if the Government were to bring forward further measures on flexibility of trading hours on Sundays for large shops, the impact of this temporary measure would be taken into that assessment.
Turning to the amendment, it is important to remember that shop workers already enjoy strong employment protections around Sunday working. Their rights specifically in relation to Sunday working are unique and are not shared by almost all other sectors of the working population who may be required to work on Sundays. To take one example that is close to the retail industry, workers in the catering industry are not protected and, of course, may well be asked to work extended hours around the Olympics, as they can be at other times. The rights in relation to Sunday working were put in place to give protection to those shop workers who did not wish to work on a Sunday as a matter of principle—for example, for religious reasons. As I have said, shop workers who do not wish to work on a Sunday at all for religious reasons may well have already either exercised their right to opt out or would have come to an arrangement with their employer. If their employer has not already brought to their attention the terms of the Act on their right to opt out, then indeed they have a fall-back period of one month.
However, the Government have listened to the concerns and share the concern that some shop workers may wish to exercise their right to opt out of Sunday working during the suspension period, given the possibility of having to work longer or different hours, and will not have enough time after Royal Assent to give their employer the usual three months’ notice in time for the start of the suspension period. For many workers in large retail groups, the notice period is only one month, and these employees will be totally unaffected by the amendment. We have met the trade unions, businesses and other interested parties to ensure that we are protecting the rights of shop workers to opt out of Sunday working in the least burdensome way possible, both for employees and employers.
Subsection (1) of the proposed new clause has the effect of temporarily shortening the usual three-month notice period that applies in respect of opting-out notices given by shop workers to their employers. An opting-out notice is a written notice whereby the employee indicates to his or her employer that he or she objects to Sunday working. The effect of serving a notice is that following the notice period the employee can refuse to do shop work on Sundays and will be legally protected in that regard. It would be unfair dismissal to dismiss an opted-out shop worker because of their refusal.
It may be relevant in that context to draw the Committee’s attention to a piece of evidence in the equality assessment that was part of the assessment that we put out yesterday to help discussion of the Bill. It covered the number of cases around this issue that went to employment tribunals. Noble Lords may have seen that between 1997 and 2005, after the right was introduced, only 176 cases for unfair dismissal or detriment caused by refusing to work on a Sunday were brought before employment tribunals. Noble Lords may say that there are pressures on employees—the noble Lord, Lord Glasman, is nodding—and I appreciate that the number of cases that reach an employment tribunal will not fully reflect these pressures. However, if the Committee will hear me out, the relevant point is that in the latest year for which figures are available there were 218,000 employment tribunal cases, while over a number of years only 176 concerned detriment or unfair dismissal related to Sunday trading. We take the issue very seriously but we should put it into perspective—and of course we are talking here only about a subset of the retail sector, while the figures may have covered other shops as well.
If the Committee will bear with me, I will go into some important technicalities about how the scheme will operate through the weeks in question. For opting-out notices given between 22 May and 9 July, the notice period will be shortened to two months. For opting-out notices given between Royal Assent in early May and 21 May, the notice period will be more than two months and will vary according to when the notice is given. The effect will be that the notice period will automatically end at the end of Saturday 21 July, just before the suspension period starts. That will ensure that a shop worker who serves an opting-out notice shortly after Royal Assent will not be opted out before the Sunday opening hours restrictions are lifted.
Opting-out notices given after 9 July will not be affected by the amendment. The current and usual three-month notice period will apply as it would otherwise have done. This is because, even if the notice period were to be shortened to two months for such notices, they would still take effect only after the end of the suspension period on Sunday 9 September, by which time shops will have had to revert to current restricted Sunday opening hours. Therefore, there is no reason for the shorter two-month notice period to apply to notices given after 9 July. It will apply only in relation to shop workers who work in shops that are able to open for longer, earlier or later on Sundays as a result of the Bill. The Government do not see any reason to shorten the opting-out notice period for workers in shops that already have no restrictions on their Sunday opening hours.
I recognise that some shop workers may be happy to continue working their usual Sunday hours during the suspension period but will not want to work longer or different hours. If their contract allows their employer to require them to work more hours on Sundays, such employees will have to use this opt-out right to opt out of Sunday working altogether if they wish to avoid any risk of being made to work longer or different hours. The amendment does not provide them with any new right to opt out during the suspension period of working additional or different hours from their current usual hours.
We have considered this point carefully and such an amendment is likely to be complex to frame and would also go well beyond the rationale of the existing Sunday opt-out right; namely, to protect those who have a fundamental objection to Sunday working, as opposed merely to giving shop workers a choice about what Sunday hours they would prefer to work. Instead of opting out, such workers could seek to agree a variation to their contract with their employer to avoid having to work longer or different hours. In our discussions with businesses, we have been emphasising the need for them to treat their staff fairly during this temporary suspension. Indeed, it is important to remember during this debate that many of these issues will be resolved perfectly amicably between employers and employees without the need for reliance on the statutory protections. At Second Reading, I gave the example of one of our largest retail groups for which opting in on Sunday is entirely voluntary and which is already anticipating a very large take-up. The picture is very different according to the particular employment contracts of the large retail groups. Most of those we have heard about give considerably tighter protection in their contracts of employment or their working practices than the fallback in the Act. On top of that, we do not believe that any of these retail groups will want adverse publicity during the period of the Games, given the particular spotlight that will be on their behaviour, partly as a result of the very proper discussion in your Lordships’ House.
Subsection (2) of the proposed new clause contains a consequential amendment only. As there might be some shop workers who wish to opt out only in relation to the suspension period, we have included a provision which would make it easier for them to opt back in at the end of the period. Subsection (3) allows the shop worker to include a statement in their opting-out notice which makes clear that they object to Sunday working only during the suspension period. If they include such a statement, they will be deemed to have served an opting-in notice at the end of the suspension period, although they would then still need to reach an express agreement with their employer to do Sunday shop work. We think that this will be beneficial for shop workers who want to opt out of Sunday working only for the duration of the suspension period and for their employers. Shop workers will not have to give their employer a separate opting-in notice not long after giving an opting-out notice and it may help employers to plan ahead if they know that an opted-out worker wishes to opt back in after 9 September. The other government amendments in this group are technical amendments, although I am happy to explain them in more detail if noble Lords would find that helpful.
Finally, the issues that I have explained in relation to the government amendments are very much interlinked with the amendments that I am sure the noble Lord, Lord Davies of Oldham, will speak to shortly, although if he wants not to move them, that would be fine. However, I will hold back my remarks that relate to both the government amendments and the other amendments we may go on to discuss until a little later in this discussion. I beg to move.
Amendments 1A to 1D (to Amendment 1) not moved.
My Lords, having lived with Sunday trading for as long as the Bills have existed, it is with very deep regret that I cannot be present this afternoon due to the short notice with which this Bill is intended to be read, combined with the fact that I cannot put off the arrangements I have made for this afternoon. I apologise.
I support everything the Minister has said about this sensible and compassionate little Bill, whose provisions last only for a limited time. There is no question of them being enlarged for the future. Last Sunday at my garden centre, the workers were all laughing at this House for making a fuss about such a very short Bill, under which I hope that most employers, if not all, will treat their employees with respect and in agreement.
My Lords, on an amendment of this kind it is very tempting to be drawn into a Second Reading contribution. Of course, that must be avoided, although I think the Minister pushed things a little far with his introductory statement reminding us what the Bill was all about.
Some of us cannot countenance this amendment because, whatever it may do to modify the original suggestions, it does not meet the fundamental objections that we are putting forward. The first fundamental objection is that there is an extraordinary paradox that when we are celebrating athletic achievement in the context of recreation, we are deliberately taking a step to encourage people to forego their recreation in order that others may be able to shop—not actually to watch the Games or cheer the Games on but to shop. The burden is clearly being put on the workers.
We know from the research that has been done that barely more than one worker in 10 is in favour of such a proposition. The overriding majority have severe misgivings, and in the real world in which they live—not the theoretical world of policy-making in Whitehall or here—they know the pressures that will be put upon them to comply with the proposal. That is one concern.
My other concern is that we have reached a settlement—or I thought we had reached a settlement, but of course that goes for a lot of social legislation which I thought was a wonderful achievement in the history of Britain, much of it done with bipartisan support to create the sort of Britain in which many of us wanted to live, but apparently there are no lines drawn under any of that; everything is open for destruction. Leaving that wider, very disturbing reality of the political age in which we are living on one side—if one can—and looking specifically at this, the settlement is that shop workers have the arrangements that are now in place. Those arrangements are being suspended.
I cannot for the life of me see how we can say, in terms of elementary justice, that it is the responsibility of the worker to seek to opt out of those arrangements. Surely if the existing arrangements are wantonly being put aside for a time, there should be an opportunity for the worker to opt in to the possibility of this. The onus is completely on the wrong foot.
Perhaps I might make just one other point. At Second Reading and today, the Minister has made this reference to the number of people who are not covered by the shop workers’ legislation. Of course, that is the reality, but we must recognise that that does not make their position right and the position of the shop workers questionable. It is a shortcoming in the rest of society. The ideal is what shop workers enjoy but because of the way we, as a society, have become dependent on the way in which we are organised, unfortunately, that is not extended to everyone. Very real arrangements are in place to ensure that where the rights enjoyed by shop workers are not available elsewhere, arrangements are made to ensure that those people can have adequate compensation for not having the privilege that shop workers have.
This is just another manoeuvre—if I may put it that way—to try to make palatable what many of us see as a basically unsatisfactory and unacceptable Bill. In a way, the Government undermine their own position by being so emphatic that it is a temporary measure that will be lifted at the end of the Olympic period, which suggests that they cannot justify it on a long-term basis. If temporary measures of this kind are being taken in contradiction of the whole spirit of recreation and the enjoyment of sport, why is the onus being put on the employee to opt out as distinct from the opportunity—I can be seduced into using that word in this context—for a worker to opt in if he or she so wished?
My Lords, opposition Amendment 1E is an alternative to the one described by the Minister in his opening speech. It is there because we have not been able to reach agreement on how to safeguard shop workers’ rights during this period. He is absolutely right and I very much applaud the way in which he has approached this Bill. He has sought to consult as effectively as he could, as have we on our side. We have met him and have talked with as many interested parties as we have been able.
Let me make absolutely clear, as I did at Second Reading to which the Minister paid due regard, that we are in favour of this Bill. We want it to become law because we think it enhances the potential experience of the Olympic Games, albeit to a limited extent in so far as it creates consumer opportunities and shows Britain open for business. Nevertheless, it is an advantage and our existing shopping legislation would have looked odd in that the Games are on for a limited period. In particular, as I pointed out at Second Reading, the shops would close before the closing ceremony of the Games had even begun, which would have been a nonsense. We are in favour of change and we are broadly in favour of the Bill.
Our difficulty is how to safeguard the rights of shop workers. I am not prepared to accept the argument—as I am sure other noble Lords are not—to say at this stage, “Well, of course, shopkeepers are somewhat favoured in comparison to others who work on Sundays because of the existing provisions of Sunday trading law”. Shopkeepers are in that position but only because we have been concerned to circumscribe the hours of shopping on Sundays with the broad agreement of our community. Every test of public opinion at the present time reflects the fact that broadly what obtains in the generality is acceptable.
Shopkeepers have proper rights in relation to this, which were provided for in previous legislation. Now, a significant change is to be effected for this limited period. Consequently, we have sought to address ourselves to ensure that workers’ interests are protected. Although I have one other dimension in a later amendment, I emphasise that in all other aspects we are in favour of the Bill and wish it a safe passage. But we want to put before the House the critical issue of how shop workers’ interests are safeguarded.
We think that either the government amendment or ours is necessary because we need to be specific on how workers are to be treated over this period, but we have severe reservations about the government amendment. We discussed as fully as we could with the Government how to reach agreement. I regret, as does the Minister, that we have not been able to reach that agreement, which would have facilitated the passage of this legislation and kept the terms on which we have considered this Bill on the equable lines that they were at Second Reading. When discordant voices were expressed, they were about the whole principle of Sunday opening and not really related to the Bill.
We have tabled Amendment 1E because we think it makes absolutely clear the legislative position as it will affect shop workers over this period. I accept what the Minister said about this being merely a backstop. Many large organisations may have arrangements with their workers, which in some cases are likely to be more favourable to their workers than those provided in the Bill. But the law is an important backstop, which properly constrains the way in which these arrangements can be made, and it is necessary.
The Minister said that he has had wide consultations and knows that a large number of organisations will act entirely properly, and I accept that. But there are some organisations about which we will have more doubts. Certainly, independent shops may avail themselves of these opportunities but I doubt that the Minister is fully apprised of their arrangements and we are certainly not. One might say, “Well, you should be better advised on this”, but this Bill has come through under the emergency provisions. It is a rushed Bill due to the Government’s failure to recognise the necessity that such a provision was possible. That is why many of the difficulties we have in how to interpret the needs outside are less intensive than we would have hoped them to be.
However, we are sure that we need the law to be clear. An amendment is important and our Amendment 1E has considerable advantages over the government amendment. It calls for employers to give employees two months’ notice if they wish them to work on one of the Olympic Sundays. After all, this is a unique change and workers need to be informed about it. A request to work is a straightforward way to facilitate this.
Let us not underestimate the problems facing shop workers. This is a period of very significant unemployment in this country. We all know that work in shops is on a mixture of contracts. For a time we even had arrangements whereby people worked in shops on a voluntary basis while they got work experience. That has changed now but it reflects the complexity and the variety of provision in large commercial organisations. That is why we need clarity. We need it also because workers are likely to feel somewhat vulnerable at this present time. It is not easy to say no to an employer when there are 10 people at the gate for every job inside. This context has to be appreciated in recognising why those who represent shop workers are very concerned about the Bill.
Our Amendment 1E gives real clarity on the issue. It requires workers to submit an opt-out notice one month before the relevant Sunday. This builds in a period of time to make a decision between a request to work and having to submit the request to opt out. Our amendment is clearer than the Government’s and it is intelligible. It backs up the workers’ position in a clear and explicit way. Workers’ and employers’ rights and responsibilities are clearly stated in our amendment because it goes back to the first principles. It is not entirely incompatible with the amendment of the noble Lord, Lord Sassoon, because, as he has indicated, we have sought to achieve a consensual view with regard to this measure, and in broad terms we have obtained that. We are not changing the original Sunday Trading Act; we are merely putting forward an amendment which is preferable to the Government’s in its clarity and intelligibility. That is why, in due course, I hope to press Amendment 1E.
My Lords, I regret that I was not able to be in the House on Tuesday and therefore could not participate in the Second Reading debate. However, I take the point of view of the noble Lord, Lord Judd, with regard to the protection of shop workers. In the Second Reading debate the noble Lord, Lord Cormack, said that he had been involved prior to 1986. So was I as the general secretary of the Union of Shop, Distributive, and Allied Workers. We fought strenuously up and down the country and we took a view. The only reason that we won the vote in the Commons under Margaret Thatcher, who I believe put a three-line Whip on the vote, was because 70-odd Conservative Members rebelled and supported the Opposition. At about 1 am on 16 April 1986 Neil Kinnock, the then leader of the Opposition, phoned me at home to tell me how successful they had been. It is the only time in Margaret Thatcher’s term of office that she was defeated, and that is important.
Shop workers, mainly women, are vulnerable, low-paid workers. A high proportion of them are part-time workers. They are people who need as much protection as they can possibly get. I take the view that opting in would have been better than opting out. But you have heard the spokesman for the Opposition saying that the Labour Party accepts this Bill so we will support it as being the best that can be secured. About 11 per cent of the working population in Britain today is employed in retailing. As I have said, they are mainly women workers and they need the greatest degree of protection. The noble Lord, Lord Judd, hit the nail on the head when he stated that these people should be asked to opt in and not to opt out. It looks as if we are going to have an opting-out exercise, so there we are. But I support the view that we should protect shop workers as much as we can.
My Lords, I want to make a brief intervention. I listened to most of the Second Reading debate. My noble friend Lord Newby spoke on behalf of this bit of the coalition and we felt that one speech between us was probably enough on that occasion. What we have here is a temporary situation that is on very sensitive ground. We all agree there. I do not know if the noble Lord, Lord Sassoon, is getting an award for this, but he gave the most detailed explanation of an amendment that I have heard over many years in this House.
A noble Lord
It might have been long but it was appropriate—the right thing done at the wrong time. What I would like him briefly to clarify again is what the Government will do to make sure that everybody is aware of this change. I do not think that the amendment of the noble Lord, Lord Davies, will be necessary if we get greater assurance that the Government intend to place a duty on employers to make sure that their workers know what is coming.
There are other issues to do with Sunday trading. If we had the Olympics every six or seven cycles, I am sure that we would have rather more of a point to make. The fact of the matter is, we do not. Most people in this Chamber will not see the Olympics in this country again in their lifetime—virtually all of us, I suspect. It is a special event and a special occasion. If the Minister can give us some assurance that, in the context of these new rights for this special occasion, a real effort will be made to make sure that nobody finds themselves in the situation of thinking, “I did not think I had to do that but I am doing it,” then I think that many of the objections here will be removed.
This is a very direct and important point. I gave confirmation on Second Reading but let me do it again. Not only do I have my noble friend Lady Wilcox from the department here but I am sure that the walls have ears and the department will hear the message loud and clear. It has committed to putting out clear guidance, if and when the Bill gets Royal Assent, so that both employers and employees understand exactly the position under the Bill. That guidance will go beyond narrow legalistic explanations to try and be helpful about what should be done and how and about the timescales. I will make sure that my honourable friend the business Minister, who will be taking this Bill through another place if it passes your Lordships’ House, gets these messages loud and clear. I know that he is going to continue to discuss these issues with business and employee groups. I hope that that helps my noble friend.
That is exactly what I wanted to hear.
My Lords, it is good to see the Minister back on the Front Bench. We missed him yesterday when we discussed the progress of convergence under Maastricht. He would no doubt have been as surprised as we were on this side of the House that in an important economic debate there was not a single speaker from the coalition government Benches in support of the Government’s economic policy.
I declare an interest as a former retailer, not as distinguished in my achievements as the noble Lord, Lord Alliance, who I see in his place, but as a previous chairman of Marks & Spencer.
I join my noble friend Lord Davies in making it clear that we on this side of the House support the fundamental intention of the Bill. We will take issue in Committee not with its intent but rather with its phrasing. That said, it is lamentable and shambolic that the Bill should be before the House now, so that the three-month notice period which the law allows for those who work in retailing in other circumstances will not apply. It is a shambles, although I do not think that that is the Minister’s fault.
The economic case that has been made for this proposal is equally shambolic and flimsy. I am sorry that I was not here for the Minister’s speech on Second Reading but I have read it in Hansard. It was a very good speech and he explained the situation very carefully. I was disappointed not to be here for what may well have been the Minister’s parliamentary high point in terms of his contributions to the House. He made an extraordinarily good speech on the issue of Sunday trading. However, the economic case—which is presumably one of the reasons why the Treasury is taking responsibility for the Bill—is extremely flimsy. On every key quantifiable metric we are told, “Not applicable”. Net present value: “Not applicable”. Impact on economy: “Not applicable”. To every question we receive the reply that it is not applicable. Indeed, no acknowledgement is given at all in the narrative to substantial data and evidence suggesting that the total number of visitors to the United Kingdom might be lower as a result of the Olympics. Those who come specifically to participate in, celebrate and observe this wonderful event—which we are clearly going to do a great job in hosting—will be offset by those who say, “It is not probably a good time to go to the United Kingdom”.
It does not seem that the Government have done a great deal of research among retailers. It has been difficult to find leading retailers that are enthusiastic about the intention of the Bill. Indeed, Mr Justin King, the chief executive of Sainsbury’s, who is Mr Boris Johnson’s representative on LOCOG, has said that he does not support this proposal. I find it extraordinarily difficult to imagine a family, having observed Usain Bolt in the 100 metres, deciding that now is a good time to go and do the weekly shop at Tesco. I do not think that the economic case that has been made is particularly good.
I have been following what the noble Lord has said very carefully and wonder if he can help me on this. I understand from papers available in the Printed Paper Office that the Centre for Retail Research estimates that the impact of relaxing these laws will benefit retailers by £189.8 million and that food stores will enjoy a boost of £61 million. That is clearly documented in papers available to the House today.
Those data were not included—I shall give way to the Minister if he wishes to correct me—in the Bill’s economic impact assessment, at attachment C, when I obtained the documents from the Printed Paper Office yesterday morning.
I do not like to intervene often but as the noble Lord, Lord Myners—who I know likes occasionally to intervene on me, quite properly, while I am at the Dispatch Box—has invited me to do so, it might help if I say that a formal impact assessment under the accepted procedures is not required in this case because this is a temporary measure. Such an assessment is not required precisely because, among other things, it is often difficult with a temporary measure to make an assessment that is up to the very high standards imposed on full impact assessments.
I thought that it would help the House if there were an assessment that, although not a formal impact assessment, would give a great deal of relevant and, I hope, helpful information—and my noble friend has just quoted from it. I make no apologies that boxes which would have been filled in for a formal impact assessment were not filled in in this case, as that would give a spurious impression of accuracy. We did not have to give the House anything in this form but we thought that it would help the debate to provide such information as is available. My noble friend has given some of that information but it also includes statistics from USDAW and others and I believe that it presents a balanced picture. The noble Lord, Lord Myners, should understand that this was never intended to give, nor should it give, a spurious, false picture. It is not up to the standards that would be required for Bills that have permanent effect.
I am grateful to the noble Baroness, Lady Browning, for her intervention, and to the Minister for correcting the noble Baroness by saying that there was no impact assessment and that the data from which the noble Baroness quotes do not constitute an impact statement. The numbers quoted by the noble Baroness, incidentally, are probably less than a week-end’s takings at Westfield and take no account of displacement—that is to say, the spending which would have taken place in any case but is now being brought into these Sunday trading permitted-hours figures or displaced from smaller stores to larger ones.
I should like to talk about treating people fairly, because that seems to be the issue on which the House wishes to focus in Committee.
Will the noble Lord allow me to intervene?
I will give way in a moment, but I want to talk about treating people fairly.
This is an issue of ensuring that employees have adequate notice. Sunday is a special day: many choose not to work on Sundays or to limit the number of hours they work. We know from research by USDAW that a very high percentage of shop workers already feel under great pressure to work on a Sunday when they would rather not do so and would rather be with their families, and to give people inadequate time to make a decision is a most regrettable outcome.
We have two amendments, but I believe that the amendment proposed by my noble friend Lord Davies of Oldham is superior in its precision of expression. The key issue is to ensure that we treat employees fairly and that they do not feel pressurised—that they have time to reflect, to consult their families and to take into account other options that might be available to them. They should not be strong-armed and muscled into doing something that they do not want to do but perhaps feel they cannot avoid given the extraordinarily bad employment situation facing the economy.
I am willing to give way to the noble Baroness, Lady Browning, but I do not think that we disagree on the data. The data to which she refers are of course helpful and the Minister has explained, in a correct and proportionate way, that a full impact assessment would not have been justified for the proposal as made. However, it is clear that a very poor economic justification has been given. I shall support the amendment of my noble friend Davies of Oldham if I have the opportunity.
My Lords, I wish to speak very briefly in the debate because it is important and I want to make certain that the voice of shop workers is heard. I do not have the credentials of my noble friend Lord Davies of Coity to speak on behalf of USDAW, but I have been sent a brief by it and some of the points it raises are very important.
I begin by declaring an interest. My stepdaughter works in the retail trade for a large company, often on a Sunday against her will. She has to do that, as we have already heard from other speakers. Unfortunately, it is not always the choice of the workers themselves to work on a Sunday.
USDAW wanted to ensure that its advice to legislators about the Government’s proposals was based as closely as possible on the current views of its membership. Therefore, it commissioned an objective survey, by telephone, of over 20,000 of its members working in retail in England and Wales. I draw to the Committee’s attention some important statistics that came out of this research. Of the 20,000 interviewed, 78 per cent opposed longer openings on Sundays during the Olympics. That is quite a large percentage and we should bear that in mind in our discussions. Only 11 per cent supported it. Fifty-one per cent of staff are already under pressure to work on Sundays—as is my stepdaughter, as I have explained to the Committee—when they do not really want to. Seventy-three per cent of shop workers believe that longer Sunday opening will lead to more pressure to work on Sundays against their will. Many of us in this House would not agree with pressure being put on workers in that way. However, that was the result of the survey.
I also draw three points to your Lordships’ attention. Many workers said that they want to be able to enjoy the Olympics on Sundays with their families, along with the rest of the country. That has been mentioned and it is an important issue. Why should the rest of us be able to enjoy the Olympics on a Sunday when workers who may have had some pressure put on them would not be able to? Shop workers want to be able to spend time with children, partners and families on a Sunday. Again, that is a perfectly understandable response from the workers involved. The shorter trading and working hours mean that this is often the only time they can spend together as a family during the week.
Lastly, many staff find it very difficult to work on Sundays. This point has not yet been raised. There are practical problems with transport, particularly in rural areas due to a lack of Sunday bus services, and with childcare, especially for single parents. If people in rural areas are asked to work during the Olympics on a Sunday, they will face even more difficulties than those in urban areas.
I raise these issues because I think they should be borne in mind during this debate. Along with the noble Lord, Lord Myners, I think that Amendment 1E is worthy of support and I will support it.
My Lords, first I want to say a word about the document that the noble Lord, Lord Myners, received yesterday morning in the Printed Paper Office. Your Lordships will remember that in the original Explanatory Notes issued by the Government in connection with this Bill, there was reference to an Appendix C, which I came across in the course of my preparation for Second Reading. When I drew this to my noble friend’s attention, the immediate reaction was that this would be published the next day, which was a very generous and ready response. It is 100 per cent obvious, I think, that this document was not intended to be published and that the reference to Appendix C in the Explanatory Notes was a mistake—and which of us has not made a mistake? When you see the document, it demonstrates quite plainly that it was not intended to be published. However, my noble friend on the Front Bench had no reason whatever to seek to suppress a document to which reference had been made, so that we could see it for what it is.
I also emphasise, as my noble friend did at Second Reading, that the Government were not emphasising that an economic case had been established for this particular Bill and that it depended on more general considerations, which he gave. However, this document does contain some figures, and the £61 million is referred to in it. I would not wish to analyse it as it does not have the polish that you would expect from the Department for Business, Innovation and Skills if it were intended for publication. The mysterious passive comes into it quite a number of times: “it is to be considered”, or, “are considered as”, and so on. It does not say who the subject of the consideration is or who actually reached that point of view. Again and again, it mentions that any detriment would be time-limited, which seems a glimpse of the obvious since a suspension is only for a limited period. On the other hand, it repeatedly refers to Great Britain being open for business. The obvious conclusion is that that also is time-limited and is therefore not much of a point, to my mind. I have to say, in fairness to my noble friend, that he did not really make that point as part of his submissions in support of this Bill.
We are concerned today only with the amendments, and I am not going to take up time in dealing with any other matters. However, I will just say what my approach to the amendments is. First, under the present law, a shop worker is entitled, if he or she is working for one of these large stores as defined in the Bill, to opt out of Sunday work. The statutory requirements are very clear and are, as my noble friend has explained, a statutory back-up. A good number of retail businesses operate within that system, but with much less requirement for notice than the statutory requirement of three months. The point that I find difficult in trying to deal with the alternative amendment put forward by the noble Lord, Lord Davies of Oldham, is that, in the ordinary course of events, workers in this industry who have not opted out would expect to be working on the days to which this suspension applies. Therefore, if they did not wish to work on these days in any event, they would have already opted out.
The only problem is that because this Bill has come rather late, Royal Assent will be too close to the first day of suspension for the ordinary provisions of the Act to apply. Therefore, the Government have sought to deal with that point in their amendment. They provide for two months to be the proper limit for notice in that case. That seems reasonable, in the sense it will be more than two months from Royal Assent to the first day on which the suspension operates. However, I do not see that two months is particularly sacrosanct, and if that is all there is between the two amendments, I hope that by the time we get to Report later in the afternoon, it will be possible to reach an agreement. The old arbitrators’ agreement is the one that might work. Between one month and two months, six weeks would be a reasonable compromise.
It seems that this matter can readily be compromised and I see no necessity for workers to be told that they are expected to work on these Sundays. They would have to do that anyway if they had not opted out under the ordinary regime. They may have better arrangements within the retail business than statute requires, but we are concerned only with the statutory safeguards. All that is really required is that there should be a reasonable notice period for a worker who has not already given their notice but who wants not to work on the suspended Sundays for reasons connected with that. So long as a reasonable period of notice is given to him or her, that seems sufficient. I hope it will be possible to compromise on this point and forget the question of the employer having to give written notice that the employer expects the worker to work on these Sundays, because that would happen in the ordinary course of events anyway. The only difference between these Sundays and ordinary Sundays is that the hours are a bit longer. I see no need for notice and therefore, so far as I am concerned, it should be possible to reach a reasonable period of notice as a matter of compromise between the amendments proposed by the noble Lord, Lord Davies of Oldham, and the one proposed by my noble friend.
My Lords, it is a pleasure to take part in this debate. I have form to the extent that during the 1980s I took a prominent part from this side of the House in putting forward primarily the views of the Co-operative movement. My noble friend Lord Davies of Coity referred to the victory in 1986, when the Bill brought forward by the Conservative Government was defeated. What we now have in law is, to put it crudely, a compromise that tries to meet the aims and objectives of a number of points of view. That, of course, like all compromises, needs to be worked on. It took some years. In 1994, we had the Bill. I am a registered compromiser, if compromising will make progress.
Many people have assumed that this was the end of the argument and that what was produced and is in law was going to stand, but we should not underestimate the durability and tenacity of the major retailers in this country. They would never accept the original proposal and are unhappy with the present law. I know, because of my connections on this matter, that they have been at it all the time, quite rightly, lobbying, discussing, and producing arrangements.
My question is who the Bill seeks to serve. One argument is that a number of people from all over the world will expect to be able to shop not merely for six hours on a Sunday but for 12. I asked the Library to let me have a piece of paper, which told me of the experience in those countries now. In Austria, shops are closed on a Sunday except at railway stations and airports. In Denmark, opening on a Sunday is generally prohibited, although most shops are open on eight Sundays before Christmas. In France, it is limited to selected retailers; in Northern Ireland, shops are open on Sundays from 12 till six o’clock; in Italy, shops are permitted to open for 12 Sundays per year in exceptional tourist areas; in Norway, shops are open on Sundays in December; in Portugal, high streets generally have no trading on a Sunday; and in Spain, shops on high streets are open from 10 till two o’clock on a Sunday once a month.
So when we try to anticipate whether the British people are satisfied with the existing law on a Sunday, who are we trying to appease or serve? Although I am a great supporter of retailing in general and have taken a part in various positions, we must not underestimate the fact that this can be the thin edge of the wedge in future. If it is proved afterwards that no harm has been done, those who want complete opening on Sundays, as they have always wanted, will take that as a green light. So while I appreciate what the Minister has said and done—and he has been very fair and not tried to bamboozle us—my word of caution is that we need to watch this situation like a hawk, and the major retailers, which have a great stake in this, with their business and profits. We have to be very careful that we do not go down the slippery slope and find distress.
There was an organisation in the 1980s that is still going strong, called Keep Sunday Special. The case that is made for Sunday being special, especially for shop workers, need not be stated again. It is a danger. I do not oppose the Bill, because I believe that it has good intentions, but we need to be very careful that we do not start something and finish up with less than we want.
It might be helpful to the noble Lord, Lord Graham of Edmonton, who went through a useful list of restrictions on Sunday trading in other countries, to refer to the restrictions in Germany, which I did not hear him mention. That country, which I think he will find on the list that he read out has very restricted weekend shopping hours, as we discussed at Second Reading, opened up that restrictive regime for the 2006 World Cup and it has now reverted to what it was before. That is a good, current European example of a very restrictive regime opened up for a major sporting event and then reverting to what it was before. That will give the noble Lord comfort that what we seek to do here is well precedented.
I may help the Minister by quoting from a document given to me by the Library called The Economic Costs and Benefits of Easing Sunday Shopping Restrictions on Large Stores in England and Wales, a report for the Department of Trade and Industry in May 2006. On Germany, it says that shops are closed,
“except convenience and travel goods at railway stations and airports. Local authorities may grant permission for retailers to open on Sundays (maximum 4 per year)”.
My Lords, that makes the point that Germany had a much more restrictive regime than the UK, and that country freed it up much more significantly compared with the normal regime for the 2006 World Cup to give everyone the sort of experience that we want for the Olympics here. Then it reverted to what it was before. I am grateful to the noble Lord for bringing up that point.
In the debate at Second Reading views were expressed on the broader issue of Sunday trading. The position that I stated in that debate was that I did not think that the economic case was at all convincing and that it did not manage to clear the retail growth review from the Treasury or clear the recent red tape review. A number of respondents did not say that this was something that they wanted to go ahead. The noble Lord, Lord Myners, who has very significant experience in this whole area, looked at the case and said that it was at least questionable, certainly ordinarily. I agree that we are talking about exceptional times. Normally the restriction on larger stores is not just a restriction on them but is to protect the smaller stores.
The noble Lord, Lord Myners, referred to Justin King from Sainsbury’s serving on LOCOG and asked whether the position was different given that Mayor Boris Johnson had put him forward. Like others on this side of the House, I am spending a fair bit of time campaigning for Boris Johnson at the moment. He has made a great priority of strengthening the high streets and supporting small business. That is essentially what this measure is about.
That point made, I turn to the amendment, which I welcome. Let us be clear what we are talking about on the date, which as it stood in the Bill was at 24 April. We were effectively going to say that the minimum notice period that had to be given under the Bill was that, two days ago, before this legislation had been passed, somebody would have had to give notice to their employer that they did not want to work on 22 July. On that point it is obvious and the Minister, who is wise in these things, has brought forward this amendment, which is very simple in its present form. I do not buy in any sense the idea that Amendment 1E, tabled by the noble Lord, Lord Davies, simplifies the thing. If anything, it makes it more complicated because you almost go back to the potential for three months, with a two-month notice period then a one-month response period to come back in. You are potentially going back into this very difficult situation.
It is also worth noting a little more about which Sundays we are talking about, because we know where this argument is coming from. It is from the big stores, particularly the London-based stores and development companies that sponsored the research pointing to the benefit, to which my noble friend Lady Browning referred. In fairness, I did not mean that as a jibe. We are in a recession and we want to make money. When we have people actually coming here, we want jobs so they absolutely ought to try to make the case. I am simply pointing to the fact that there is an element of that. The impact assessment refers to the fact that there will be 450,000 visitors, but they are not going to stay for the whole period. They will predominantly be clustered around the summer Olympics rather than the Paralympics. I would wish it to be the other way round, because the Paralympics espouse to me more of what the Olympic spirit is all about, but the reality is that most of the attention will come from 27 July, when the opening ceremony takes place. Therefore, the first Sunday on which there will be the desire to celebrate sporting achievements by visiting shops for more hours, for which we accept the case because the cake will be larger, will be 29 July and not 22 July. Moreover, the Games will be going on until 12 August, which happens to be a Sunday in my diary, while on Sunday 19 August, for which liberalisation is being made, nothing will be taking place—other than a lot of people working very hard to get the site ready for the Paralympic Games to start. However, those Games do not start on 26 August; they actually start on 29 August. To add insult to injury, the dates finish on the closing date of the Paralympics themselves, 9 September. That part is absolutely right.
This is a simple adjustment. The opposition amendment makes this not simpler but more complex. Most of the visitors and the economic activity will be early on, which again is the reason for giving maximum notice to people. If they have problems, we need to make sure that that happens as quickly as possible and therefore the adjustment to two months, as proposed in my noble friend’s amendment, would seem sensible in this case.
My Lords, the noble Lord, Lord Myners, greatly underestimates my noble friend Lord Sassoon’s ability if he thinks that my noble friend’s excellent speech—I agree about that—at Second Reading is anything like the high point of his parliamentary career, as the noble Lord said it would be. My noble friend has a long way to go. Now he is looking at me as if he is wondering what is coming next, which is quite right.
I simply want assurance on what I think are called Pepper v Hart terms—in other words, for the guidance of people trying to work out what this law is meant to mean when they come to examine it in court. I am concerned rather along the lines that the noble Lord, Lord Graham of Edmonton, put forward. I am an inveterate opponent of Sunday opening in principle, but the House has given a Second Reading to the Bill. I accept that so what we are discussing are the means of exempting on grounds of conscience those who do not wish to be ruled by it—and of course I am in favour of that. However, throughout the Second Reading debate and in conversations thereafter, everybody has been seeking reassurance that this is not to be used as a precedent. The phrase actually used was “stalking horse”; I take it that that means a precedent. When the noble Lord, Lord Graham, made that point forcefully he got a reply from my noble friend with some information in it, but not an avowal again that this is not to be used as a precedent or that that is not the Government’s intention. All I ask is that my noble friend reiterates that assurance, so that it will be on the record in this debate as well as at Second Reading.
My Lords, I am happy to reiterate for my noble friend Lord Elton the assurances on that point which I gave at Second Reading.
The debate was going so well that I had thought that there might be more points. It has been a good debate around this subject, but perhaps I might make some remarks about Amendment 1F, which the Government do not see merit in. That amendment, as we have heard, seeks to require employers to give two months’ written notice to any shop worker who works only in a large shop affected by the Bill, and who has not already given an opting-out notice that they wish to work on a Sunday during the suspension period, requesting them to do so. I may have said Amendment 1F; I meant Amendment 1E. I apologise to the Committee. My notes say Amendment 1A, but I think that was probably the Government’s amendment. For the avoidance of doubt, I am objecting to Amendment 1E, while the Government’s amendment is the one in which I hope the Committee will see merit.
Amendment 1E gives the shop worker an opportunity to give a written objection to the request within one month. If done, this has the effect of making the employment contract unenforceable to the extent that it requires the shop worker to do shop work on Sunday during the suspension period—in other words, it gives a temporary opt-out. This amendment is unnecessary, as I will come on to explain, but in introducing it I think that the noble Lord, Lord Davies of Oldham, said on three occasions that it was a clear amendment. I suggest that it is not clear and, regrettably, certainly not workable. Let me explain its unworkability, because it is quite important and comes to some of the points that noble Lords have made in the debate.
First, if a large retailer was concerned about the additional burden that this amendment, if passed, would place on them and went to seek legal advice, it is my belief that any competent employment lawyer could pick this provision apart in minutes. The amendment’s main fault is that it contains no effective sanction against non-service of the proposed notice from the employer. If the employer does not serve this notice, the effect is that the shop worker never acquires the right to opt out of Sunday working during the suspension period as envisaged by subsection (3) of this proposed new clause. As there is no sanction in place for non-service of the notice, the advice from an employment lawyer would likely be to ignore this provision in the Act, as it would then be.
In addition, I suggest that the amendment would have some strange and undesirable effects. First and foremost, it could constitute a huge burden upon employers, particularly large ones with many staff. Doing this in respect of every employee who might be asked to work by a large retailer would be a substantial burden, added to which there would be staff hours involved in producing the notices and monitoring the responses. Employers might also need more than one notice per employee, as the requirement relates to each individual Sunday. I accept that employers could roll them up into one notice, but that is not what the amendment says. If circumstances changed—for example, if a retailer did not get enough staff for a particular Sunday—they might need to serve some more notices, assuming that they had the time to do so. And so on.
The provision does not give employers much time to plan. They might not know until one month after the date of their notice that the employee was not going to exercise their right. It would also have the effect that even those employees currently contracted to work only on Sundays would find themselves receiving a notice from their employer that they were requested to work on one Sunday or more during the suspension period. While I understand that the underlying concern here is a perfectly reasonable one, the effects of the amendment begin to get into Alice in Wonderland territory if people contracted to work only on Sundays were required to get notices from their employer. They would then have an opportunity to object to this within one month, even though they were contracted to work only on Sundays anyway.
Similarly, a notice would have to be given to those shop workers for whom the employer does not propose to make any changes to their usual or contracted hours for the Sundays concerned. The amendment would even have the rather bizarre effect that a large shop currently subject to the restrictions, even if it did not intend to change its opening hours during the suspension period, would still have to serve this notice on its shop workers to be able to be staffed for its current opening hours. This plainly means that that employer would face a burden in just opening at all, even if it did not seek to change its current opening hours. That would be totally contrary to the intention of the Bill.
The amendment is unworkable and in the view of the Government, as I said, it is also unnecessary. We should not lose sight of the fact that if a shop worker does not want to work on Sundays, whether for religious reasons or any other reasons, they will already have been able to exercise their right to opt out or will be automatically protected because their contract cannot require them to work on Sundays, as my noble and learned friend Lord Mackay of Clashfern has already pointed out.
At this point it is right to think a bit about the views of employees. This important issue has been raised by the noble Lords, Lord Judd and Lord Davies of Coity, and the noble Baroness, Lady Gibson of Market Rasen. These are important points, but we must remember that there may be many employees who would like the opportunity of a few extra hours as they could make some considerable extra money if they wanted to work on all eight Sundays. In these times, we should not be dismissive of that and just look in dramatic terms at the other side of the argument.
Yes, there was an USDAW poll. I have seen its document that talks about polling 10,000 of its members. I think that the noble Baroness, Lady Gibson, talked about 20,000 members but the document that all Peers received talked about 10,000. At one point the poll was described as independent but I am not sure that that is right, as USDAW says that it did it itself, and it was taken from only 10,000 or perhaps 20,000 out of its 414,000 members. It would be good if we had some independent polls that we could debate but I do not think that we do. My noble friend Lady Trumpington carried out more of an in-depth qualitative survey that came to a rather different view; she told us that the people she had talked to during her research were perfectly relaxed about this. All I can say is that the evidence we have on this is incomplete at best, and we have to regard it in that way.
There may be a number of different effects on families. The noble Baroness, Lady Gibson, referred to it being harder to arrange childcare on weekends, but interestingly the submission from Working Families, a group that represents working families, to what was then the Department of Trade and Industry on its informal consultation on Sunday trading in 2006, said that it was beneficial for many parents to work on Sunday as childcare is easier to arrange than on other days of the week. Although this is a second-order effect of the Bill, it is also right to recognise, because all these concerns are being raised, that it is a perfectly reasonable concern but the Working Families submission made the point that the Bill could give families some greater flexibility over the eight-week period. I do not dismiss these concerns but we should look at them in a balanced way.
We should also remember that in many cases the main national retailers are already in discussion with their staff on this issue. They are not waiting; they have to plan ahead. I think that the noble Lord, Lord Myners, said at one point that no major retailers support this. He indicates that he did not—maybe I misheard him—but he certainly quoted the example of one major retailer. To take a major retailer that has made a statement on this, Morrisons says that it is excited, like its customers, that the Olympics are almost upon it and welcome the Government’s decision to relax the Sunday trading laws during the Games. We know that other retailers are already planning ahead because there will be very little time between the Bill receiving Royal Assent and the start of the suspension period. That is why the government amendment proposes a simple reduction in the opting-out notice period from three months to as little as two months.
In seeking to protect the rights of shop workers, as I have tried to explain, the Opposition have come up with a bureaucratic nightmare for employers, the vast majority of which want to co-operate with their employees to reach mutually acceptable agreements regarding working arrangements, and a potentially confusing measure for employees who would find themselves served with one or more notices stating that they might be required to work on a particular Sunday but not necessarily specifying the hours that they were required to work, nor indeed explaining why the notice was being given out. My noble friend Lord Bates referred to the complexity of all this and I can only underline that.
The amendment could have the no doubt unintended consequence that employers served this notice on all their employees to ensure that they had sufficient staff to cover not only the extra opening hours, if they decided to take advantage of the flexibility under the Bill, but also their current opening hours. Indeed, one of the major supermarket groups has estimated that it would have to serve 180,000 such notices to comply with this amendment, so the amendment would be costly and unnecessary for employers if they even decided to comply with this provision.
I shall say a word or two about the economic impact, about which things have been said. The main purpose of the Bill, as I explained at Second Reading and as my noble and learned friend recognises that I have explained, is to enhance the Olympic experience for all concerned. But of course another purpose of the Bill is to make sure that we do this in a way that is capable of contributing to an economic boost, not an economic cost, to the country. Clearly, individual retailers will make up their minds in respect of this, but if retailers find that they need to serve hundreds of thousands of these notices, any gains that the Bill would otherwise have are likely to be wiped out in whole or in very considerable part by compliance with that amendment. I hear what my noble friend Lord Bates and the noble Lord, Lord Myners, say about the economic impact. The one thing that we absolutely do not want to do is to put in place something that imposes an economic cost.
We know that some large retailers already operate a one-month opting-out notice. I cannot imagine why on earth these stores in particular should have to serve an additional notice to their staff when the notice period that they already apply is more generous than the three-month one, when their staff will have adequate time to opt out before the suspension period begins. Again, the amendment would get us into perverse territory. We know already that some employers are talking to their staff via their store management teams. We are told that another has started a staff availability survey that specifically asks staff whether or not they would like to volunteer to work additional time on Sundays during the suspension. This is a sensitive process that the people who we have talked to appear to be putting in place. We understand that one retailer has already made it clear to its staff that no one will be forced to work additional hours during the suspension period, and any request from management to change current Sunday working times will be done on a purely voluntary basis. So far, this store has had more than enough volunteers to work the additional time on Sundays during the suspension period. It will have no trouble resourcing its stores during the suspension. I would very much like to put names to these stores, but noble Lords will understand that, because they are in the middle of these discussions with their staff and the commercial arrangements around what they decide in terms of opening, they would rather their names were not made public in this debate.
In summary, for all of these reasons, the amendment of the noble Lord, Lord Davies of Oldham, is unnecessary. As I have explained, it is also unworkable. I appreciate that there have been constraints on time that may have contributed to it being less well thought out than might otherwise have been the case. It would be very burdensome for business and confusing for the shop workers that it is designed to protect. I ask the Committee to vote, if invited to do so, against the noble Lord’s amendment, but to support the government amendment, which gives proportionate protection in the context of this Bill.
26 April 2012
Division on Amendment 1
Amendment 1 agreed.View Details
1E: After Clause 1, insert the following new Clause—
“Employer and employee duty to give notice regarding Sunday working during suspension period
(1) This section applies to any shop worker who is—
(a) employed to work only at an exempted large shop; and(b) not already subject of an opting-out notice under the Employment Rights Act 1996.(2) Where an employer wishes a shop worker to whom this section applies to work at an exempted large shop on a Sunday falling within the suspension period, the employer shall, not later than two months before the Sunday in question, give that shop worker a written, signed and dated statement of the request to work on that Sunday.
(3) A shop worker who receives a notice under subsection (2) who wishes to opt out of Sunday working during the suspension period shall, not later than one month after the request in subsection (2) was made, give a written, signed and dated notice that he or she objects to working on that Sunday.
(4) Where a shop worker gives his or her employer a notice under subsection (3), the contract of employment under which he or she was employed immediately before he or she gave that notice becomes unenforceable to the extent that it requires the shop worker to do shop work on Sunday during the suspension period.
(5) An “exempted large shop” is a shop to which paragraph 2(1) of Schedule 1 to the Sunday Trading Act 1994 would apply during the suspension period were it not for the disapplication made by section 1(1).
(6) In this section—
“shop worker” has the same meaning as in the Employment Rights Act 1996; and
“suspension period” has the meaning given in section 1(3).”
26 April 2012
Division on Amendment 1E
Amendment 1E disagreed.View Details
Amendment 1F not moved.
Amendment 1G (in substitution for Amendment 1F)
1G: After Clause 1, insert the following new Clause—
“Opening hours during the suspension period
( ) An exempted large shop which opens on a Sunday during the suspension period, will be able to open only during the hours of 10am and 11pm.
( ) For the purposes of subsection (1), an “exempted large shop” is a shop to which paragraph 2(1) of Schedule 1 to the Sunday Trading Act 1994 would apply during the suspension period were it not for the disapplication made by section 1 above.”
My Lords, I apologise to the Committee that this is a manuscript amendment but the intention behind it is, as I indicated on Second Reading, that although we favour the extension of Sunday opening during the Olympic period, some limits should be put upon the opening hours of shops. The reason for submitting the manuscript amendment is that I discovered to my horror that the conclusion of the Olympic Games at the closing ceremony was not at 10 pm but at 10.30 pm. Given that the importance of the closing ceremony was germane to our case, I have submitted a manuscript amendment that extends opening hours to 11 pm.
We are of course in favour of the extension of opening hours, but there should be some limits upon the length of time that large stores and others can open during that period. The amendment goes some way towards recognising that Sunday is Sunday and is different from the rest of the week, and we are paying due regard to what is after all a widespread position held in the country on that matter. Our proposal to limit opening hours offers some protection to the workers. We have had a discussion on giving notice to people in the workforce of the intention to work on Sunday and the time in which they can reply. However, some constraint on hours offers at least an element of protection against possibly excessive demands made upon workers during the Games period.
The amendment also gives some recognition to the concern about this legislation that we discussed at Second Reading but was not germane to, or expressed during, our debate on the previous amendments—the concern of convenience stores and small shops that they will be adversely affected by the Sunday opening hours of large stores. The Minister recognises the difficulties that we all face, but the background against which the stores have been working is that the impact assessment provided by the Government is a fairly limited document. What is more, we received it after Second Reading and it is therefore difficult to make an assessment of its value. Moreover, if we are in that position, so are interests outside.
It is clear that convenience stores feel that they may well suffer during the period of extended Sunday opening during the Olympic Games because of the superior competitive power of the large stores. At least this limitation on the hours proposed in the amendment recognises that.
The noble Lord, Lord Bates, said today that shops will open only when they think that there is market potential. They will open when they will be profitable. This will operate for a limited period and it will be extremely difficult for people to make such assessments. Therefore, we think that, at the very least, the legislation should indicate for what time shops should be open. I recognise the limitations that not opening before 10 am, in particular, represents, but it goes some way towards the recognition of Sunday being a less busy and challenging day than the rest of the week in the wider community.
Finally, I hope that the Minister will be prepared to accept the amendment. That might be a forlorn hope, but all along he has been keen to emphasise that this is emergency legislation to deal with a limited, restricted period and that it is no precursor to widening Sunday trading in future; it is solely related to the Olympic Games. If he gives fair wind to the amendment, that would indicate that we are concerned about the implications of this change for the wider community. While realising all the potential benefits of Britain being open during the Olympic Games, there should also be some recognition that on Sundays, special hours should obtain. I beg to move.
My Lords, I will not disappoint the noble Lord, Lord Davies of Oldham. The Government do not see favour in the amendment. As he explained, its effect would be to restrict the Sunday opening hours of large shops deregulated by the Bill so that they can open during the suspension period only between the hours of 10 am and, now, 11 pm, the intention being to prevent large shops from being able to open any earlier on Sundays than they can now or until too late in the evening. I wish that, along with all the other things that we discussed with the Opposition, we had been able to discuss this before, because we might then have been able to point out one or two of the difficulties with the proposal.
The starting point is that the Government have been clear from the beginning that the Bill is about flexibility. It is not about the Government imposing opening and closing times on large stores during the suspension period; it is about allowing shops to make their own decisions based on what is best for themselves, their staff and their customers. I do not think that it is right for your Lordships’ House to second-guess any of that. It is not that all large stores will suddenly open for 24 hours a day during the Olympic period; that would be absurd. We have discussed opening times with the large retailers and it is clear that there will be a variety of opening and closing times within individual groups. Some will deal with it on a regional, geographic basis. Within the whole group, some will stay open late, some will open earlier, and some will not change their opening times at all. The important thing is that the Government want that to be a decision for them.
The amendment is unnecessary. I do not want to overlabour the point, but as we have seen from the scrabbling around by the party opposite, they realise that putting a 10 pm stop would be before the closing ceremony had finished. Well, putting an 11 o’clock closing time after an event where 80,000 people have to get out of a stadium, adding an extra half-hour, is absurd if the change to the amendment is intended to reflect what is really going on at the events.
Even to reflect the situation at the event that the noble Lord, Lord Davies of Oldham, identified, half an hour for 80,000 people to get to a large shop near the stadium is plainly not doable. There are events that will finish as late as midnight on a Sunday. The beach volleyball finishes at 10 to midnight on 29 July. What about all those events that start before 10 am? Why should not we allow shops, if they want to, to service all those people who will be going into events? Again, I could give a very long list, but if we just take 29 July, there is an 8.30 start for the badminton, 8.30 for the hockey, 9 am for the basketball, shooting and archery, and so on.
The amendment does not work in relation to the narrow Olympic events themselves. It does not reflect the fact that retailers are already taking individual decisions to open early, late or make no change at all. As with the other opposition amendment, I note that it does not impose any sanction or penalty for breach of the 10 am to 11 pm restriction, so large shops may well ignore it. It would be a duty with no sanction, which I suggest is simply bad law. That contrasts with large shops which breach the current restrictions, which can be fined up to £50,000, which is clearly a significant punishment in relation to the gain. It does not work, it is unnecessary and I ask the noble Lord to consider withdrawing his amendment.
I intervene briefly. Both my points relate to the earlier intervention by the noble Lord, Lord Elton. First, the noble Lord sought an assurance that this was not a stalking horse.
He is not in his place.
As the Minister correctly notes, the noble Lord is not in his place. This is not a stalking horse or a Trojan horse; this is strictly an emergency piece of legislation. However, one has to note that the central thrust of the Minister's response about customers and shops having freedom of choice would be exactly the same argument that would be brought forward were the Government to be proposing a much broader exemption to restrictions on Sunday trading. The noble Lord, Lord Elton, was right to seek the assurances that he did.
I also congratulate the noble Lord, Lord Elton, on his prescience. I observed that the Minister’s contribution to the Second Reading of the Sunday Trading (London Olympic Games and Paralympic Games) Bill was the high point of his parliamentary career. The noble Lord, Lord Elton, said that that would not be the case but I have to confess that, even in talking to this amendment, the Minister has in Olympic terms established another personal best.
My Lords, the Minister disappointed me and I am now going to retaliate by disappointing him because I shall not withdraw the amendment. He listed events that would go on beyond 10 o’clock as a point of absurdity in relation to shops being closed. I do not know how many people he thinks are going to go shopping after they have been in Horse Guards Parade watching beach volleyball on a Sunday evening after 10 o’clock, but to my mind such a notion beggars description. The Minister is always fertile with arguments that sustain his challenges but on this occasion I am going to disappoint him and test the opinion of the House.
26 April 2012
Division on Amendment 1G
Amendment 1G disagreed.View Details
Clause 2 : Duration, extent and short title
2: Clause 2, page 1, line 15, leave out “This Act is repealed at” and insert “Sections 1 and (Opting out of Sunday work) are repealed immediately after”
Amendment 2 agreed.
3: Clause 2, page 1, line 16, at end insert—
“(1A) Subsection (1B) applies in a case within section (Opting out of Sunday work) where—
(a) the opting-out notice was given less than three months before the end of the suspension period, and (b) section 42(2) of the Employment Rights Act 1996 (which sets out the case in which the notice period is to be one month beginning with the day on which the notice was given) does not apply.(1B) For the purposes of section 41(3) of that Act, the notice period (which, as a result of the repeal made by subsection (1), reverts to being the period of three months beginning with the day on which the notice was given) is to be treated as ending immediately after that repeal.”
Amendments 3A and 3B (to Amendment 3) not moved.
Amendment 3 agreed.
Amendment 3C not moved.
Clause 2, as amended, agreed.
In the Title
4: In the Title, line 2, at end insert “; and for connected purposes”
Amendment 4 agreed.
Title, as amended, agreed.
Bill reported with amendments. Report and Third Reading agreed without debate. Bill passed and sent to the Commons.