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

Lord Elton Excerpts

Thursday 26th April 2012 Lords Chamber

[Lord Bates]

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.

[Lord Elton]

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.

[Lord Sassoon]

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.