Appendix B
Letter to the Clerk of the Committee from the
Department of
Trade and Industry
Proposal for the Regulatory Reform (Sunday Trading)
Order 2004: request for further information
Thank you for your letter of 31st October.
I enclose a joint response from ourselves and Her
Majesty's Custom & Excise. I also enclose a table which summarises
responses from Local Authorities.
Please let me know if further information would be
of assistance.
14 November 2003
DTI response to questions on Sunday Trading Act
1994 notification procedures & HMCE response to question 11
on the sale of
methylated spirits on a Sunday
Whether the proposal continues any necessary
protections (S.O. No. 141(6)(c))
Q1 Does the Department consider that large
shops are likely to change their Sunday trading hours more frequently
as a result of the change in legislation?
DTI Response
At present, subject to making the necessary notifications
— there is nothing to stop shops altering their Sunday trading
patterns every weekend if they so chose. We consider it unlikely
that removing the notification procedure would encourage large
shops to change their Sunday trading hours more frequently without
giving reasonable notice. If customers do not know what hours
stores are open, stores will simply lose business. It is likely
that customers would be annoyed and frustrated by frequent changes
in opening hours. It is also in the interests of stores to ensure
that their staff are available for work — they are essential
to the store opening and providing a good service. The implied
adverse impact on shop workers is therefore misleading.
Although USDAW mentioned this as a concern, they
did nonetheless support the proposal. When we spoke to USDAW officials
and explained our position, they found our points convincing,
but saw no need to write in again as they had already indicated
support for the proposal.
Q2 Does the Department consider that more
frequent changes to the Sunday trading hours of large shops may
be to the detriment of shopworkers?
DTI Response
The Sunday Trading Act 1994 provided comprehensive
protection (now consolidated into the Employment Rights Act 1996)
for shopworkers in England and Wales who do not wish to work on
Sundays.
All shopworkers, except those employed to work solely
on Sundays, have the right to refuse to work on Sundays and to
be protected against dismissal or detriment (for instance, refusal
of promotion or training opportunities) for doing so.
If shopworkers are willing to work on Sundays, their
hours—like other general terms and conditions of employment—are
a contractual matter for negotiation and agreement between them
(or their representatives) and their employers, as are any subsequent
variation in those hours. Even if shopworkers have entered into
a contractual agreement, they can elect to change this agreement
subject to a 3 months notice period.
As already indicated in our response to question
1, we do not consider that stores will wish to change their hours
frequently as a result of the removal of notification procedures
(the need to write one letter at a cost of approximately £12.50
is not a major disincentive to change hours frequently now if
they wished to do so, it is in our view simply an unnecessary
burden that they should have to do so.
Q3 What measures are presently in place to
monitor working patterns of Sunday retail staff?
DTI Response
The Labour Force Survey (LFS) is a quarterly sample
survey of households (around 60,000 each quarter) living at private
addresses. Its purpose is to provide information on the UK labour
market that can then be used to develop, manage, evaluate and
report on labour market policies. The LFS is carried out under
a European Union Directive and uses internationally agreed concepts
and definitions. For example it is the source of the internationally
comparable (International Labour Organisation) measure known as
'ILO unemployment'.
Given that the UK is obliged to carry out a quarterly
survey under a European Council regulation. The questions on whether
respondents work on a Sunday are a requirement of the EU Labour
Force Survey so should continue to be collected in the future.
The Spring 2003 LFS, indicates there were 2.51 million
employees working in retail industry in England and Wales, 23
per cent (579,000) 'usually' worked on Sunday. There are also
employees who occasionally work on a Sunday. On this basis there
were 1.13 million (45 per cent of all retail employees) working
on Sunday.
DTI very seldom receives correspondence about protection
for Sunday shopworkers in England and Wales. This is a strong
indication that it is not a matter of general concern to employees.
Shopworkers can complain to an employment tribunal
if they are dismissed or subjected to detriment for refusing to
work on Sundays. Numbers of complaints to employment tribunals
are very low. On average there have been 18 per year in recent
years. There were 11 in the 2002/2003 financial year.
Q4 What measures, if any, are proposed to
monitor the effect of the new arrangements on the working patterns
of Sunday retail staff?
DTI Response
None, beyond the continued Labour Force Survey.
The proposed notification changes will not affect the
rights of Sunday shop workers which are now contained in the Employment
Act 1996. (Please see also answer to Q3)
Q5 The Department has asserted, in its explanatory
statement, that members of the public do not ask to inspect registers
kept by local authorities. Please explain what the direct research
into use of the registers of Sunday opening hours referred to
in paragraph 34 of the explanatory statement consisted of, how
it was conducted, and what were the results of that research.
DTI Response
As part of their preliminary research, DTI officials
contacted a range of local authorities across England and Wales
determine how local authorities viewed the notification procedures
and if they considered that they could be removed, without jeopardising
the enforcement of the Sunday Trading Act. The authorities were
chosen to provide geographical spread, but focused on those authorities
where there were likely to be more large shops opening on a Sunday
and therefore most experience of the procedures. Most of the contact
was by approximately half-hour telephone conversations. Visits
were made to five local authorities to see exactly how the registers
are used and maintained. These were chosen in an attempt to coincide
the visits with other departmental business (in the case of Newcastle,
our other appointments were cancelled, so a planned visit became
a telephone conversation).
For further details, please see the attached table
which summarises our findings. Although we contacted only 12 local
authorities directly, we did ask if officers knew of other local
authorities who may have different views. We have no reason to
believe that our findings are not truly representative. This was
confirmed by a lack of concern from the Local Government Association
(see table).
Q6 Please also indicate any other evidence
which has led the Department to conclude that registers of Sunday
opening hours are not consulted and that maintaining them serves
no purpose.
DTI Response
USDAW officers confirmed that they had never consulted
the register. The Keep Sunday Special Campaign group, who do not
support the proposals on principle, were unable to give any concrete
examples of how the register served a useful purpose and did not
consult the register themselves.
Q7 Please indicate whether there is any evidence
to suggest that registers of Sunday opening hours are used in
a systematic way by local authorities or other bodies concerned
with the monitoring of Sunday opening hours (e.g. trading standards
officers).
DTI Response
There is a wide variety of methods used to maintain
the register, ranging from simple ring binder files to storing
the data as part of a much larger database (e.g. some Local authorities
use "Flare" computer database).
One local authority considers the register useful
for checking advertisements in newspapers (although it is not
clear how often it is used for this purpose). Another local authority
had consulted the register on 6 occasions since its inception
in 1994, on four occasions to answer queries from shoppers who
wanted to know if a store they wanted to visit in the city centre
would be open on a Sunday, twice to confirm to staff that their
shop was permitted to open on a Sunday.
DTI does not consider these uses of the register
to provide a reason for maintaining it. advertisements can be
checked by simply calculating if the hours are legally permissible.
Shoppers can ring the store they wish to visit rather than local
authorities. Staff can tell local authorities what hours their
store is opening to check their legality, without recourse to
the register.
If the size of the store is in question, that matter
can only be resolved by checking the retail floor space, whether
or not the store has registered its opening hours. (This was not
in fact raised as a concern by any of the local authorities we
contacted or by other respondents to consultation.)
Q8 Please provide the Department's assessment
of the standard to which the present requirement for the maintenance
of a register of Sunday trading hours is observed by the relevant
local authorities.
DTI Response
From our observations and what we have been told,
it appears likely that local authorities do presently have reasonably
full and accurate records of hours which large stores have notified
to them. We have no way of assessing their adequacy or if hours
have changed and not been notified. It is possible that since
the 'big bang' change to the process in 1994 the procedures may
have been ignored by some stores, however if this has happened,
we came across no reason to suppose that this had caused difficulties
or illegal opening hours being kept.
Whether the proposal has been the subject of,
and takes appropriate account of, adequate consultation (S.O.
No. 141(6)(d))
Q9 Please explain how the pre-consultation
with local authorities on the use of their registers was conducted;
which local authorities or representative bodies were approached;
which ones responded, and what were the results of this pre-consultation.
DTI Response
Please see also the answer to question 4 above and
attached table.
DTI staff contacted the local authorities listed
in the attached table and spoke to officials responsible for Sunday
Trading matters, including notification procedures and maintaining
registers. The majority of the local authorities saw no purpose
in maintaining the registers and volunteered the suggestion that
removing this requirement would enable them to put resources into
other activities, such as enforcement and health and safety activities.
Of the 12 local authorities contacted, only Manchester and Haringey
reported that they found the register at all useful:
— Manchester
had consulted the register on six occasions since 1994 - four
times to answer queries from the public who wanted to go shopping
and were enquiring if a particular store were open on a Sunday
and twice when retail staff rang in to check if their store were
allowed to open on a Sunday (they were open). Despite finding
the register useful for answering enquiries from shoppers, Manchester
still supported removal of notification procedures.
— Haringey had found the register useful
for checking newspaper advertisements - to ensure that shops were
advertising legal opening hours. During our telephone conversation,
it was not clear if they none the less supported removal of the
procedure. Their subsequent letter however did not indicate support
as they still considered the register useful for that purpose.
DTI considers that the hours during which a large shop can open
(up to a maximum of 6 continuous hours between 10am and 6pm) is
sufficiently clear to check newspaper advertisements without recourse
to a register.
Q10 Please indicate what discussions the Department
has had with the Local Government Association concerning the proposed
modification of local authority enforcement of Sunday trading,
and whether the Association is content with the proposals.
DTI Response
The Local Government Association were contacted by
telephone on several occasions. They did not consider it necessary
to meet with DTI officials (although a meeting was offered). They
were sent the consultation document in writing asking for their
views. The LGA decided not to respond formally and told us on
the telephone that they were content for its members who dealt
with this issue to respond directly to us, if they so wished.
Prior to our own enquiries, an official from the
LGA (Education and Social Policy Unit) told Cabinet Office, as
a personal view, that he had 'never seen any benefit from this
requirement' and that 'it would seem a sensible piece of deregulation
for businesses and LAs as Local Authorities have to keep a register
which in my own experience is never enquired about or referred
to'.
We have no reason to believe that the LGA are concerned
by our proposals.
Q11 Please explain the reasons why local authorities
were not approached directly for their views during the formal
consultation exercise.
DTI Response
We directly approached some 12 local authorities
(see attached table) who were likely to have had significant experience
of dealing with Sunday Trading Act notifications. We discussed
sending the consultation document directly to all local authorities
with the Local Government Association and with LACORS, but were
advised that this was not necessary. The LGA considered that their
newsletter and website were adequate methods of consulting their
membership.
Other matters arising from the Committee's
consideration (S.O. No. 141(5))
Q12 Please indicate what discussions the Department
has had with the Scottish Executive about the co-ordination of
the repeal of section 26 of the Revenue Act 1889 in England and
Wales, Scotland and Northern Ireland, should the RRO succeed.
Q13 Please indicate what discussions the Department
has had with the Scottish Executive about the co-ordination of
the repeal of section 26 of the Revenue Act 1889 in England and
Wales, Scotland and Northern Ireland, should the RRO succeed.
Response from HMCE
Background
Repeal for Scotland will follow repeal for the rest
of the United Kingdom, should the RRO succeed.
After Customs became aware that section 26 of the
Revenue Act was still extant, they made attempts to include repeal
within two Westminster Bills. Firstly, they attempted to incorporate
the measure within the Finance Bill; however, this method was
ultimately rejected by the House Authorities on the grounds that
the section did not have any current connection with excise duties
and must be regarded as a Sunday trading rather than a revenue
matter. Secondly Customs attempted to have the measure incorporated
within the 'Alcohol and Entertainment Licensing Bill'. Again,
the House Authorities rejected this as it would have meant extending
the nature of the Bill to Sunday trading issues.
In the context of the inability of Customs to progress
the matter as part of a scheduled Bill, the Regulatory Reform
Order being worked upon by the DTI seemed an appropriate mechanism
for achieving the timely repeal of section 26, with the one drawback
that separate means would be required for Scotland.
Discussions with the Scottish Executive
Customs first wrote to the Scottish Executive on
13 January 2003, notifying them of the problem caused by section
26 and their desire to incorporate repeal within the Regulatory
Reform Order being progressed by DTI. The departments have remained
in correspondence since. The Scottish Executive has confirmed
that section 26 remains extant for Scotland and that, like Customs,
they see it as an antique provision.
Repeal for Scotland requires either primary legislation
in the Scottish Parliament or possibly an Order under the Deregulation
and Contracting Out Act 1994 (in the case of the latter, the Committee
will be aware that the provision in that Act that would have allowed
for repeal has itself been repealed by the Regulatory Reform Act,
save as respect orders made by Scottish Ministers in the Scottish
Parliament).
The Executive is now considering the options they
have for repeal, including the vehicles that might be used and
in what timescale this can be achieved.
Local Authority consultation: summary
of findings by DTI officials
DTI staff contacted the local authorities listed
in the table and spoke to officials responsible for Sunday Trading
matters, including notification procedures and maintaining registers.
The majority of the local authorities volunteered the suggestion
that removing this requirement would enable them to put resources
into other activities, such as enforcement and health and safety
activities. Of the local authorities above, only Manchester and
Haringey reported that they found the register at all useful:
Manchester had consulted the register on six
occasions since 1994 - four times to answer queries from the public
who wanted to go shopping and were enquiring if a particular store
were open on a Sunday and twice when retail staff rang in to check
if their store were allowed to open on a Sunday (they were open).
Despite finding the register useful for answering enquiries from
shoppers, Manchester still supported removal of notification procedures.
Haringey had found the register useful for
checking newspaper advertisements - to ensure that shops were
advertising legal opening hours. During our telephone conversation,
it was not clear if they none the less supported removal of the
procedure. Their subsequent letter however did not indicate support
as they still considered the register useful for that purpose.
DTI considers that the hours during which a large shop can open
(up to a maximum of 6 continuous hours between 10am and 6pm) is
sufficiently clear to check newspaper advertisements without recourse
to a register.
Other consultation with local authorities:
Telephone
conversations with LACORS in August 2002 and December 2002. LACORS
(Local Authorities Co-ordinators & Regulatory Services) reported
that this was not a matter of concern to trading standards officers,
and that the appropriate organisation for us to contact was the
LGA (Local Government Association). However LACORS did put a link
to our consultation on their website.
Telephone
conversations with Local Government Association in August 2002,
November 2002 and April 2003. No concerns expressed about the
loss of the register expressed. LGA advised us that the best way
to consult their members would be through their newsletter, asking
for views. This was done in co-operation with the LGA, within
the consultation period. The LGA thought that a lack of response
suggested that their membership had no concerns about losing the
register. The LGA saw no need to put in a response as an organisation.
Local Authority consultation - summary
of findings by DTI officials
