House of Commons Hansard Debates for 23 Feb 1994

Mr. Hutton : I am grateful to the Minister for giving way again--he is being very indulgent.

If it is appropriate for the amendment to specify a procedure giving the authority the power to grant exemption from the 9 o'clock rule, why is it not appropriate for the Government to introduce in the House a procedure for allowing the local authority to revoke such permission ? The Minister has rightly described a number of administrative and procedural methods that a council can use. But, in the context of such an important issue, if it is right to specify how the permission should be granted, should not it also be right to introduce a procedure for the withdrawal of that consent ?

Mr. Lloyd : It would certainly not be wrong. As I said, I am perfectly prepared to look at the hon. Gentleman's suggestions. I do not want to make the procedure too complicated. I want to retain the benefit that the provision grants to local authorities--it gives them extra muscle. It does not give them powers that they could never acquire under other legislation, but it allows them to gain powers more speedily and accurately so that they can deal with the problems that arise, even now, early on Sunday mornings.

The hon. Member for Wolverhampton, North-East (Mr. Purchase) seemed confused when he said that my response to one of my hon. Friends had confused him further. He was definitely confused. Were a council to impose a ban

Column 298

that was then challenged at judicial review, the ban would remain in place until the court set it aside. So the hon. Gentleman's worry about the matter going on for several years should be entertained no longer.

Mr. Cryer : The Minister answered an earlier point about a council's ability to revoke a decision and the fact that nothing on that matter is included in the Bill. He will be sensitive to the problem that councillors have been surcharged. If they revoke a decision, they can be surcharged by a district auditor. If there must be clear rules within which councils can operate, in circumstances where two factions are arguing, such as residents and a large store, would it help if the Government made it clear that a local authority that decides for or against will not be subject to local authority surcharge ?

Mr. Lloyd : This is not a matter of surcharge. The hon. Gentleman is muddling it up with a different worry. I agreed with the hon. Member for Barrow and Furness that the new clause was brought in rapidly to take account of a real worry expressed by hon. Members on both sides of the House. In the light of this debate and, particularly, anything that local authorities may wish to tell us--we have already conversed with them--I shall look at the matter again. We want the new clause to be effective and clear. I hope that that also satisfies the hon. Member for Bradford, South (Mr. Cryer). The hon. Member for Hampstead and Highgate (Ms Jackson) asked a number of questions, including whether we would give financial assistance to local authorities. I responded to that point on an intervention by another hon. Member earlier and said that those were not the sort of circumstances in which we would consider doing so. Rather than giving new powers and responsibilities to a local authority, the Bill enables them more speedily and effectively to discharge the responsibilities that it already has.

The hon. Lady's second point was about parking in some of the streets in her constituency. That is a problem for the store concerned and those delivering to it. If, early in the morning, cars are parked in such a way as those delivering to the store cannot make an early-morning delivery, that is a problem not for the local authority but for the store and those who deliver to it. They need to find an acceptable way to make that delivery, perhaps adapting the size of the delivery vehicle. The point is not directly germane to the powers of the local authority.

Ms Glenda Jackson : The point that I was trying to make was that those matters all affect my constituents. If the local authority assented to such a request, it would mean, in the street that I have in mind, the local authority having to introduce earlier than it intended a residents parking scheme to facilitate the entry of lorries to stores. That will have a knock-on effect on the lives of my constituents and also involve the local authority in additional costs.

Mr. Lloyd : As matters stand, deliveries may be made very early in the morning. The new clause will give local authorities the power to say that deliveries may not be made before 9 am. I do not believe that the new clause worsens the position of local residents or creates an additional problem for the council. Rather, it gives local authorities a new weapon with which to deal with such a problem. The local authority associations say that they are

Column 299

already engaged in consultation with local residents and retailers throughout the country about perfectly lawful Sunday deliveries for perfectly lawful Sunday opening. But they do not have specific powers to deal with them early on a Sunday morning, which is what we are providing.

The hon. Lady and several other hon. Members mentioned extra costs imposed by traffic regulation. The Chartered Institute of Public Finance and Accountancy thought that, on balance, there would be no extra cost because local authorities would gain back any extra costs from parking charges and other such imposts. On policing, the Association of Chief Police Officers said that, if Sunday trading produced any extra work at all, it would be minimal and manageable. So the problem is one of enforcement rather than cost.

The hon. Member for Ogmore (Mr. Powell) asked whether the Government would make local authorities use that new power and I replied that, obviously, we would not. We are giving the new authorities a power that they want, but it will be up to the local authority when to use it. If they do not use it when they should, that is matter between them and angry local residents and voters, not a matter for the Government.

Question put and agreed to.

Clause read a Second time, and added to the Bill .

New Clause 2 --

Construction of certain leases and agreements

(1) Where any lease or agreement (however worded) entered into before the commencement of this section has the effect of requiring the occupier of a shop to keep the shop open for the serving of retail customers

(a) during normal business hours, or

(b) during hours to be determined otherwise than by or with the consent of the occupier,

that lease or agreement shall not be regarded as requiring, or as enabling any person to require, the occupier to open the shop on Sunday for the serving of retail customers.

(2) Subsection (1) above shall not affect any lease or agreement (a) to the extent that it relates specifically to Sunday and would (apart from this section) have the effect of requiring Sunday trading of a kind which before the commencement of this section would have been lawful by virtue of any provision of Part IV of the Shops Act 1950, or

(b) to the extent that it is varied by agreement after the commencement of this section.

(3) In this section "retail customer" and "shop" have the same meaning as in Schedule 1 to this Act.'.--[ Mr. Peter Lloyd. ] Brought up, and read the First time .

Mr. Peter Lloyd : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker : With this it will be convenient to take Government amendment No. 51.

Mr. Lloyd : The hon. Member for Hampstead and Highgate (Ms Jackson) and some other hon. Members expressed the concern in Committee that a small shopkeeper might not wish to open on a Sunday but might be obliged to open by virtue of a general provision in his or her lease requiring him or her to open during normal business hours. I undertook to consider whether it was possible to frame a narrow provision to meet this concern, which is what the new clause does. We have been helped considerably in framing the new clause by information and advice offered by Mr. Silman, a solicitor referred to us by

Column 300

the hon. Member for Hampstead and Highgate, the John Lewis Group, the Boots Group and others, and I am grateful for that help. The new clause provides that, where any term in an existing lease or agreement, however phrased, has the effect of requiring the occupier of a shop to open during normal business hours or to open otherwise without the occupier's consent, such a term cannot oblige an occupier to open on a Sunday. That does not extend to the situation where a leaseholder--perhaps a newsagent--can already engage in lawful Sunday trading under the 1950 Act and has a lease that provides for that. Nor does it extend to leases entered into in the future.

Rather, the new clause deals with the central concern expressed in Committee, particularly by the hon. Member for Hampstead and Highgate, that shopkeepers should not be obliged by a general term in a lease to open on a Sunday. When a lease is taken out, there may be no consideration on either side of the possibility that phrases like "general business hours" might include Sunday. It would therefore be unfair if such a provision could in future, because of this legislation, involve a compulsion upon the leaseholder which he or she had not considered or agreed to when signing the lease.

Mr. Jim Marshall (Leicester, South) : Will the new clause apply to circumstances in which a local authority took a policy decision to open a market hall ? Would the protection then apply to the existing leaseholders of the shop units in the market hall where there is no current obligation to open on Sunday ? Were the local authority to change its policy, could it force unit holders to attend their stalls on a Sunday ?

Mr. Lloyd : It would depend on the nature of the previous agreement between the leaseholders--the stall holders--and the council. If the agreement said that they will open on a Sunday and if the council ever decided that Sunday opening would be introduced, the new clause would not protect them. If the agreement did not specify Sundays or said, "normal business hours", it would protect them. It depends on the nature of the agreement.

We are seeking to ensure--I think that we have succeeded in doing so--that, in the case of agreements entered into where there was no expectation of Sunday working and where the prospect was not taken into account in the drafting of the agreement, this change in the law will not oblige a leaseholder to do what he or she does not want to do, had never intended to do and had not reasonably been in a position where he or she might have expected that it could happen.

Mr. Alton : Will not the Minister again admit that the decision to introduce the proposal is a tacit admission that those pressures will be placed on shops ? However good the agreements are, shops will face commercial pressure to open because of the profit factor. Shops-- particularly if they are up against the wall and face bankruptcy--will have no choice but to open, regardless of how many worthy clauses of this sort are included in the Bill.

5 pm

Mr. Lloyd : The proposal is a sensible change to ensure that such pressures are not put on small leaseholders. Of course, if businesses want to open, they may do so. Some will not want to open for commercial reasons- -they may not think that they will do enough trade on Sundays. No

Column 301

pressure should be placed on them to do so. The new clause makes a small, useful change that takes care of a problem identified by the hon. Member for Hampstead and Highgate. On that basis, I commend it to the House.

Ms Ruddock : I am again grateful to the Minister for the way in which he has explained the new clause. He mentioned my hon. Friend the Member for Hampstead and Highgate ; in Committee, she and other Labour Members envisaged that an existing lease that provided for a general trading agreement could be interpreted to mean that small shops in, for example, a shopping centre could be obliged to open when they considered that it was not in their interests to do so. We are all familiar with the concept of the shopping centre that contains a large store, which will perhaps exercise its right to open for the limited period provided for in the Bill. As a consequence, the freeholder might attempt to ensure that the maximum amount of trade occurs and might ask all leaseholders to comply with the new Sunday opening arrangements. That would be grossly unfair and we are pleased that the Minister has found a way to give force to our argument.

We are aware that it was exceedingly difficult to do so. We are particularly pleased that Mr. Silman, the constituent of my hon. Friend the Member for Hampstead and Highgate, has assisted the Government. I sent the new clause to Mr. Silman and he responded immediately, so I shall tax the Minister a little further. Mr. Silman has told me that the reference to the occupier in the second and penultimate lines of new clause 2(1) may present a problem. I am aware that throughout the Bill "occupier" is the relevant term, but Mr. Silman, who I presume is an expert on commercial leases, suggested that a contract could be with a tenant, but the covenant could be with the original tenant and could still make that person liable, although he or she is not now the occupier. Will the Minister respond to that small point ?

In the main, we very much support the new clause. It appears to achieve our aim of ensuring that small shops or leaseholders do not have to open if they do not wish to do so. They may believe, for example, that it would not be economic to open. Small shops in shopping centres may employ only a few workers who might not want to work and employers may accept that working on a Sunday should be voluntary. For all those reasons, the new clause is very satisfactory.

Ms Glenda Jackson : I thank the Minister for his kind words, but credit should first go to Mr. Silman, who brought the loophole to my attention. I also thank my hon. Friend the Member for Lewisham, Deptford (Ms Ruddock) for facilitating my approach to the Minister. I thank the Minister for giving his time and attention to Mr. Silman. I hope that he will pay due heed to the point that he has raised via my hon. Friend and will change the wording of the Bill because that matter greatly concerns many shopkeepers, especially those in small shopping centres. Many are single-man businesses and I know that they, Mr. Silman and I are most grateful to the Minister.

Mr. Lloyd : I am grateful for the remarks that have been made and I hope that the House will support the new

Column 302

clause. I should be most interested to receive Mr. Silman's letter, to which the hon. Member for Deptford referred, so that I may consider the matter.

Question put and agreed to .

Clause read a Second time, and added to the Bill.

New Clause 3 --

Meaning of "local authority"

.--(1) In this Act "local authority" means any unitary authority or any district council so far as they are not a unitary authority. (2) In subsection (1) above "unitary authority" means

(a) the council of any county so far as they are the council for an area for which there are no district councils,

(b) the council of any district comprised in an area for which there is no county council,

(d) the Common Council of the City of London, or

(e) the Council of the Isles of Scilly.'.-- [Mr. Peter Lloyd.] Brought up, read the First and Second time, and added to the Bill.

New Clause 4 --

Non-abatement of statutory provisions

(1) Any provision in an agreement between a shop worker and his employer (whether a contract of employment or not) shall be unenforceable to the extent that it purports

(a) to exclude or limit the operation of any provision of this Act, and

(b) to preclude any person from presenting a complaint to or from bringing any proceedings before an industrial tribunal under any provision of this Act.

(2) For the purposes of this section "shop worker" has the same meaning as in Schedule 4 below.'.-- [Mr. Purchase.]

Brought up, and read the First time.

Mr. Purchase : I beg to move, That the clause be read a Second time.

I agreed to withdraw a similar new clause in Committee so that the Minister could explain why he thought it was unnecessary. He suggested that employment protection issues had already been properly and fully covered in the Bill--I think he said that there were "no loopholes". I am not sure that that is relevant to my new clause, which aims to pick up on the International Labour Organisation's views about non-abatement and minimum rates of pay under the British wages councils.

I have tabled the new clause because the Bill has few enough provisions on worker protection and it will require a great deal of effort if a worker wants to enforce any of them. The new clause would at least help workers in the difficult task of trying to prove their case against an employer.

The Minister confidently suggested that there were no loopholes, but I refer him to a national newspaper article that appeared on 21 February 1994, with the headline "Gap in code on Sunday working". It dealt with an industrial dispute at a Tesco distribution complex at Crick, near Northampton. People involved in the dispute believe that a loophole in the Sunday Trading Bill

"will leave tens of thousands of workers without protection". The article continues :

"Tesco management is demanding that nightshift workers at the warehouse. . . put in at least three in seven Sundays from April in response to extra weekend demand at Tesco stores."

Although the Bill is not yet law, we are already starting to see how it is structuring employer-employee relationships. The employee is an exceedingly vulnerable

Column 303

position in relation to Sunday trading. There is a massive reserve army of people waiting to walk into jobs at any rate of pay and under any conditions or terms that are offered. That is happening in advance of the Bill becoming an Act and we shall see what transpires when we vote later.

Mr. Ray Powell : I am grateful to my hon. Friend for referring to the article in The Guardian on 21 February. He missed out the last paragraph of the article, which referred to a person who would not be able to go out with his family and young children, go fishing or enjoy the the pleasures of Sunday because of the present circumstances and pressure from Tesco, which has disrupted his family life.

Mr. Purchase : I did not overlook the final paragraph and I shall come to it in due course. I agree with my hon. Friend that it is important in the context of what is happening while the Bill is still being processed.

Dame Elaine Kellett-Bowman : If the hon. Gentleman and his hon. Friends had listened to our warnings we would not now be in this position.

Mr. Purchase : Many a true word is spoken in jest. I welcome the hon. Lady's support, but she must be jesting because I did my best to warn many people about the Bill's inherent dangers. I coerced many of my hon. Friends who have great knowledge and experience in these matters to vote against Sunday opening. I am glad that the hon. Lady was with us on that occasion.

The heart of the matter is that many of my hon. Friends have been misled, not least by having sprung upon them the new Deregulation and Contracting Out Bill. As I have said before, with the advent of deregulation, people's shopping wants should be fully met by the shops that will remain open until perhaps midnight. People who have said that because of their hours of work they cannot do their big shopping until Sunday morning, will be able to choose to do their shopping over a longer period. That will impose enormous strains on workers.

The Government's concessions on the Bill are completely inadequate and will not provide even slight worker protection. That is important because my hon. Friends did not know that the Deregulation and Contracting Out Bill was on the way. My hon. Friend the Member for Wallasey (Ms Eagle) said that she believed that, in good faith, the Government would include worker protection in the Bill to enable her to support the six-hour option. As my hon. Friend has said, she is disillusioned and will certainly not vote for the Government's proposals.

I should like to refer to a paper prepared by the Small Business Research Centre at the department of applied economics at Cambridge university. It states :

"In the absence of controls on trading hours, employment protection legislation is unlikely to provide effective guarantees for the rights of retail workers not to work on Sunday and to receive a wage premium for... working."

The article to which I referred earlier mentions a new twist, the issue of shift working at the Tesco distribution complex at Crick near Northampton. It tells us that in advance of the Bill slightly different patterns of trade are emerging that necessitate deliveries and night shift working at the warehouse. People will be required to work four Sundays in seven. What new twist will there be in 12 months or in two years ? How will trade change after deregulation ? None of us can be sure about that, but we know that all the shops involved will be competing for the same amount of trade over a greater number of hours. The

Column 304

Small Business Research Centre paper states that we can expect increased Sunday trading to push up costs. The Deregulation and Contracting Out Bill will push them up further.

Mr. Pike : My hon. Friend quoted from a report which says that people will be required to work four Sundays in seven. Town centre car parking on Sunday is currently free because the parks are little used. Does my hon. Friend agree that if the Bill becomes law the attendants at those car parks will be required to work on Sunday, thereby being forced to change their working pattern ?

5.15 pm

Mr. Purchase : My hon. Friend makes an eminently sensible point. What he predicts is bound to happen. The shift pattern at Tesco in Crick is part of a new annualised system of hours of work. Some hon. Members may not have heard of this new phenomenon. It simply means that instead of working a weekly or daily number of hours people will agree, under their new contracts, to work an annual number of hours. They may be called on to work them at any time and in any sequence whether or not that suits their social or family arrangements. That change was implemented in industry some time ago and has created difficulties and now it is to extend to the retail trade. That system of annualised hours will have to be used to meet the new pattern of trading.

Mr. James Paice (Cambridgeshire, South-East) : Is not the hon. Gentleman confusing the retail trade with the distribution system ? I accept that they are part of the same company in his Tesco example, but does not he agree that distribution work on Sunday has been carried on for many years because of trading on Monday and has nothing to do with trading on Sunday ? Tesco already operates this system in four of its eight warehouses and has undertaken not to force the system into operation. It is currently consulting through the normal employer-staff channels at Crick.

Mr. Purchase : I am grateful for that intervention because it leads me nicely to another point about Crick. The article, and I have no reason to disbelieve it, states :

"Representatives of the Union of Shop, Distributive and Allied Workers say that workers, who earn £4.23 an hour, were repeatedly assured that Sunday working would not be introduced."

This is a case of the biter bit because unfortunately USDAW has been playing an odd game. It is common knowledge that people behind USDAW have been promising the moon, but I am sure that that will be reversed. The small print of the deal that USDAW thinks that it has reached with the employers includes an employers' clause saying that should trading conditions change, they reserve the right to change the agreement. That agreement is not worth the paper on which it is written.

Dame Elaine Kellett-Bowman : USDAW's specific instruction had three points

"Total deregulation... No ; Keep Sunday Special... No ; 6 Hour Option... YES."--[ Official Report , 8 December,1993 ; Vol. 234, c. 368.]

That is why we have reached our present position.

Mr. Purchase : I am sorry to say that USDAW will not emerge from this episode with an enhanced reputation.

Column 305

However, what it does should not impinge on the judgment of the House about the welfare of people who work on Sunday.

Mr. Llew Smith (Blaenau Gwent) : Does my hon. Friend accept that if any reputations are being damaged, it was not the annual conference of USDAW, but the executive who took that decision in isolation and in opposition to the conference ?

Mr. Purchase : I am not a member of that union, but I have read the same document as my hon. Friend. I understand that the USDAW annual conference voted against what has become the Sunday Trading Bill and that the executive, no doubt after some pressure, changed its mind. Part of that pressure was, to use a phrase that one of my very illustrious Labour colleagues used in the House many years ago, something of an unholy alliance between certain very large retailers and a union obviously wanting to do the best for its members. I understand that, but the massive pressure on workers and their organisations means that USDAW's decision may be understandable. Part of that pressure has manifested itself in the House. I understand that the alliance among employers to get the Bill through resulted in an average expenditure of £5,000 per hon. Member, in terms of the propaganda that they have sent us.

Rev. William McCrea : Does the hon. Gentleman accept that it is healthy if unions and others can change their minds after listening to the arguments and seeing what happens in the House and in Committee ? Would it not be equally healthy if hon. Members were prepared to change their minds, even at this stage, before the Bill becomes legislation ?

Mr. Purchase : It would be a wonderful world if we were all open to persuasion. I am open to persuasion and if the Minister can satisfy me on many points, I shall reconsider the entire matter. The hon. Gentleman is correct. I have already referred to the fact that at least two critical changes have taken place since the initial vote in the House and I shall enumerate them again. The first was the publication of the Deregulation and Contracting Out Bill and the second was the inability of the Opposition to make the Government put meaningful worker protection into the Bill.

Mr. Ray Powell : My hon. Friend mentioned the Deregulation and Contracting Out Bill, part of which refers to the extension of licences for shops to open perhaps 24 hours a day, six days a week providing 144 hours of shopping a week from Monday to Saturday. Therefore, there should now be no need for the Sunday Trading Bill. Perhaps the Minister should consider whether it would be better to abandon the Sunday Trading Bill and rely on total deregulation.

Mr. Purchase : My hon. Friend, with his vast knowledge of the subject, hits the nail on the head. The Bill would be better abandoned ; there is no question about that. However, the shopping needs of the entire population could well be met at hours convenient to them. The major shopping that households need to do can surely now be done between Monday and Saturday.

Column 306

Ms Glenda Jackson : Does my hon. Friend agree that, in effect, the pressing need for the large superstore managers is less offering service to their customers by opening on Sunday than increasing their market share ? One has already heard stories of such superstores closing on a Monday, for example, or cutting out the two additional hours for late-night shopping on a Thursday because they can increase their market share and their profit by opening on a Sunday. It has nothing to do with facilitating their stores being open to the will of the customer, and everything to do with cashing in on the profit that they can make on that one day of the week.

Mr. Deputy Speaker : Order. Before we go too far down that road, hon. Members are straying wide of the debate, which is about enforceable contracts.

Mr. Purchase : I understand what you say, Mr. Deputy Speaker, and I intend to speak to new clause 4.

I was trying to set the scene. I shall be brief in finishing that point, so that the Minister may get the flavour of what I am trying to achieve.

Mrs. Audrey Wise (Preston) : On enforceable contracts, does my hon. Friend agree that there is no need for the Deregulation and Contracting Out Bill because people could get their shopping perfectly adequately during the present legal hours, particularly if the supermarkets employed more people to staff their checkouts ?

Mr. Deputy Speaker : Order. The debate is now getting rather wide.

Mr. Purchase : It is almost irresistible, but I shall resist replying to my hon. Friends who raise valid points.

The Bill offers workers little protection.

Mr. Gordon McMaster (Paisley, South) : My hon. Friend will be aware that the long title of the Bill precludes any amendments covering Scotland. Does he agree that it is absolutely inconceivable for major store chains such as Tesco to adopt different employment practices in England and Wales from those in Scotland ? That is why I shall be in the same Lobby as my hon. Friend tonight.

Mr. Purchase : I take my hon. Friend's point which was well made. If, in its final form, the Bill were to include certain amendments, particularly in regard to premium pay, double time and time and a half, the need for my clause would be infinitely greater. In the current economic circumstances, the protection of those hard-won concessions on premium times, expressed in a later amendment, will need to be underwritten by the strength of the law. Notwithstanding how little protection there is in the Bill, there are so many ways in which employers can bring pressure to bear on their employees, that an additional safeguard such as I am proposing could do no harm at all.

If the Minister is minded to say that the Bill is already well covered by the worker protection measures it contains, such as they are--and I have to keep qualifying them--in terms of closing the loopholes, in the light of our experience with the Tesco distribution centre, as reported in the newspapers, anything could happen as a result of changed working patterns and changes in demand that cannot be anticipated in financial terms. When one prepares a budget, it is foolish not to make a provision for

Column 307

contingencies. When the bank asks what they are, one says, "I don't know. Although I do not know what will happen, I know that something will. That is the way of the world."

Next Section

Home Page