Sunday Trading (London Olympic Games and Paralympic Games) Bill [HL]

Lord Davies of Oldham Excerpts

Thursday 26th April 2012 Lords Chamber

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?

[Lord Davies of Oldham]

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.

[Lord Davies of Coity]

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.

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Moved by

[Lord Davies of Oldham]

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).”

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Moved by

[Lord Davies of Oldham]

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.”

[Lord Davies of Oldham]

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.

[Lord Sassoon]

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.

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[Lord Davies of Oldham]

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.