Sanitary and Phytosanitary Measures
Baroness Jones of Whitchurch Excerpts(1 week, 5 days ago)
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Viscount Trenchard
To ask His Majesty’s Government, given their intention to align dynamically with the sanitary and phytosanitary (SPS) regime of the European Union, whether they intend to comply with Chapter 7 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership on SPS measures.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, the UK and the EU are working towards establishing a common sanitary and phytosanitary area that will remove trade barriers for areas within the scope of the agreement. The UK will not be rejoining the single market or customs union. Our focus will be to regulate consistently with the EU on specific rules in the scope of the CSPS area. We expect the agreement with the EU to be consistent with our international obligations, including those under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. We have entered negotiations with the European Union in full awareness of those international commitments.
Viscount Trenchard (Con)
My Lords, I thank the Minister for her reply but I do not share her optimism that dynamic alignment with the EU’s SPS regime will be compatible with our membership of the CPTPP. The CPTPP’s processes depend on the assessment of equivalence, rather than alignment or harmonisation, between two party’s specific SPS measures. Our CPTPP partners are concerned about our proposed dynamic alignment under the European court for many reasons. For example, the EU’s GMO, gene editing and beef hormone bans are not based on sound science. The EU could put us in breach of the CPTPP’s SPS and TBT rules. A challenge would have to go through Brussels, but the EU is not a CPTPP member. Does the Minister not agree that we would do better to retain responsibility for our own rules and avoid the risk of protracted and expensive litigation?
Baroness Jones of Whitchurch (Lab)
My Lords, quite rightly we have reset our relations with European partners to improve our diplomatic, economic and security co-operation following Brexit. We are now looking at the opportunities that can follow on from that. The discussions with the EU are at an early stage. We signed a common understanding in May this year, and there will be further negotiations that may lead to a new formal agreement in some of these areas. That may require primary legislation for domestic implementation of the agreements in the UK once finalised. Formal negotiations on the EU SPS agreement have not yet begun and we will set out further details, but we will, of course, make sure that anything we do will be consistent with our international obligations and other arrangements with trading partners.
Lord Watts (Lab)
My Lords, does the Minister agree with me that the Opposition’s obsession with being isolated from the rest of Europe is very damaging to Britain and the industries?
Baroness Jones of Whitchurch (Lab)
My Lords, as I say, we see huge advantages to our reset with our European partners. The fact is that UK agri-food trade with the EU has, since 2018 to 2024, fallen by 21% for exports and 7% for imports. It is important that we re-establish those relationships so that our own trade can benefit from the new opportunities that we will have with the reset arrangements following that common understanding with the EU.
Lord Fox (LD)
My Lords, I think we are all grateful to the noble Viscount for causing the Minister to put her trade hat on. It is good to discuss trade. The Financial Times recently reported an influx of Australian steak, which is undercutting British beef. Does the Minister agree with what the Liberal Democrats said at the time: that the Australian FTA, which was made in haste by the Conservative Government of the time, sells out British farmers? What will her Government do to try to protect them from this problem?
Baroness Jones of Whitchurch (Lab)
My Lords, we remain committed to our high agriculture and food standards. As the Trade and Agriculture Commission report has confirmed, all food and drink products imported into the UK will still have to meet our existing import, food safety and biosecurity requirements. We have not lowered our standards to join the CPTPP. For example, hormone-treated beef and ractopamine—I knew I would fall when attempting to pronounce that—pork remain banned in the UK, as will other products affected by pesticides. We will maintain our existing food standards.
Lord Hannay of Chiswick (CB)
My Lords, since we are a member of the CPTPP, can the Minister tell us whether any of the other members of that organisation have raised this problem with us and said there will be any incompatibility? After all, our intention to sign an SPS agreement with the EU is a matter of common knowledge.
Baroness Jones of Whitchurch (Lab)
My Lords, these issues are, as ever, discussed at the CPTPP ministerial meetings. We have assured all those partners that we will maintain our existing agricultural standards, as I have confirmed.
Lord Jack of Courance (Con)
My Lords, our membership of CPTPP is facilitated by our ownership of the Pitcairn Islands. Can the noble Baroness confirm that the Government are not planning to give that island away as well?
Lord Teverson (LD)
My Lords, I will try to avoid long acronyms in my question. We had the negotiation back in May for the sanitary and phytosanitary agreement. Nothing has happened yet. My colleagues in the inshore fishing sector in the south-west of England want to understand whether they will be able to export to Europe in the way that they used to, without all the red tape and bureaucracy they have had since Brexit.
Baroness Jones of Whitchurch (Lab)
My Lords, as I have said, the discussions are only just beginning, and we will set out more details, including with respect to our other trade obligations. I assure the noble Lord that we will do everything we can to remove a lot of the red tape that was introduced, quite unnecessarily, when we left the European Union.
Lord Frost (Con)
My Lords, on 27 August, the responsible Minister, Nick Thomas-Symonds, said that any disputes under the SPS agreement
“go to international arbitration, not the European Court of Justice”.
However, the Commission’s negotiating mandate, agreed in July, says that the SPS agreement is based on EU law and
“should ensure uniform interpretation and application”
of EU law, and that
“the Court of Justice of the European Union is the ultimate authority for all questions of European Union law”.
Can the Minister explain how those two statements can be reconciled?
Baroness Jones of Whitchurch (Lab)
My Lords, I have not seen that piece of advice. I assure noble Lords that, as those discussions continue, we will continue to keep Parliament updated, no doubt in your Lordships’ Chamber as well as through our standing parliamentary committees.
Lord Lilley (Con)
Can the Minister confirm that the value of goods exported by the EU to us that will be relieved of any liability to SPS checks is five times the value of the goods that we export to the EU? So this deal is five times as valuable to the EU as it is to us. I have no objection to being generous to the EU, since I am a French farmer myself, but was it necessary to pay for the privilege of being generous by also giving away 12 years of our right to enhance our rights over fishing in UK waters, and to agree that we would pay for the privilege of implementing this deal and give up sovereignty over our right to control our SPS rules over the rest of the world?
Baroness Jones of Whitchurch (Lab)
We will maintain our SPS standards, as I have consistently said. I remind noble Lords that the EU remains the UK’s largest trading partner for agri-food and vice versa, so there are huge benefits in maintaining or re-establishing a lot of those European trading partners, which will benefit our farmers and consumers as well.
Lord Sharpe of Epsom (Con)
My Lords, I will develop a theme that was started by my noble friend in his supplementary question. Given that the UK is ahead of the EU in developing a proportionate regulatory framework for gene editing and that the sector has attracted significant inward investment positioning Britain as a potential global leader, will the Minister confirm that an exemption will be secured for gene editing in any SPS agreement?
Baroness Jones of Whitchurch (Lab)
That issue will be discussed as part of these agreements; it is not specific to the discussions that we are having at the moment. I remind noble Lords that we see ourselves as a global trading partner: the fact that we already have deals with India and the US and are now developing them with the EU will ensure that we can provide food on a cheaper basis for consumers while maintaining our own established food standards. That is the way that we should go in the future.
Employment Rights Bill
Baroness Jones of Whitchurch ExcerptsWednesday 3rd September 2025
(1 week, 6 days ago)
Lords ChamberRead Full debate Employment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 129 Running list of amendments - 28 August 2025 - (28 Aug 2025)
Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)
My Lords, I have it in command from His Majesty the King to acquaint the House that His Majesty, having been informed of the purport of the Employment Rights Bill, has consented to place his interest, so far as it is affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, before the formal Third Reading of the Employment Rights Bill, I will make a brief statement on its devolution status.
During the Bill’s development and parliamentary passage, the Minister for Employment Rights, Competition and Markets has regularly corresponded and engaged with his devolved Government counterparts. This has been supported by weekly engagement between officials. As a result, I can confirm that legislative consent Motions have been successfully agreed in both the Senedd Cymru and the Northern Ireland Assembly. The Scottish Parliament has also agreed an LCM that covers the majority of the Bill’s provisions.
However, we consider that certain amendments relating to the social care negotiating body, tabled in my name on Report and accepted by your Lordships’ House, also engage the consent process. Owing to the date that these amendments were tabled and the Scottish Parliament’s Summer Recess, it has not been possible for a further supplementary LCM to be secured by the time of this statement. Now that the Scottish Parliament has returned from recess, and noting that the Bill has the support of the Scottish Government, we are hopeful that the process around this supplementary LCM will progress swiftly.
More broadly, I am grateful to Ministers and officials in the Scottish Government, the Welsh Government and the Northern Ireland Executive for their positive and collaborative approach towards this legislation. We remain committed to sustained engagement with the devolved Governments for the remainder of the Bill’s passage as we look ahead to its implementation, the benefits of which will be felt across the United Kingdom.
Clause 162: Commencement
Amendment
Lord Burns (CB)
My Lords, this is a tidying-up amendment and I hope it will not delay the House too long. It is consequential on the House’s decision on Report to leave out Clause 59 on members’ contributions to trade union political funds. The amendment leaves out a now redundant reference to it in the commencement clause. It introduces and involves no new issues. I beg to move.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank the noble Lord, Lord Burns, for tabling this amendment, which I acknowledge is a simple tidying-up one, following changes made to the Bill on Report. It is non-controversial tidying-up amendment and therefore we are content to accept it.
Baroness Jones of Whitchurch (Lab)
My Lords, it has been a privilege to be responsible for the passage of this landmark piece of legislation since its arrival from the other place in March. The Bill is a cornerstone of our manifesto commitment to make work pay. It seeks to address outdated provisions and gaps in the current employment law framework and helps us turn the tide on the damaging trend of in-work poverty. It would benefit millions of people across the country, and this is particularly the case for those in insecure and low-paid employment. As just one example, over 2 million people on zero-hours or lower-hours contracts could benefit from the right to guaranteed hours and to payment for shifts cancelled, moved or cut at short notice. Alongside our newly published industrial and trade strategies, it will also help increase productivity and create the right conditions for long-term, sustainable and secure economic growth.
Throughout the Bill’s Second Reading, 11 days in Committee and four days on Report, noble Lords from across your Lordships’ House carefully scrutinised its provisions. While we may not have agreed on every issue, I believe we do agree on the importance of the Bill, as well as on the need to improve workers’ rights and level the playing field for good employers. Therefore, I am grateful for the pleasure of engaging with noble Lords inside and outside the Chamber, and I would like to thank all noble Lords whom I and my ministerial colleagues have spoken to for their time and wisdom.
To mention every Member of your Lordships’ House whom I have engaged with would risk taking almost as long as Committee did. While I will refrain from doing that, I would like to particularly thank a number of noble Lords. My first words of thanks must go to my noble friends Lord Leong and Lord Katz for their dedicated support from the Front Bench. Over the course of the Bill’s passage, we have collectively had over 50 engagements with stakeholders, including noble Lords and external bodies. My noble friends have been generous with their time and wisdom, and I owe them a great debt.
Similarly, I must give thanks to my noble friends Lord Collins of Highbury, Lord Hendy of Richmond Hill, Lady Smith of Malvern and Lady Merron, all of whom represented from the Dispatch Box in Committee. This represents a whole of government approach to bringing about long-overdue improvements to workers’ rights.
It has been a pleasure debating the Bill’s many clauses with noble Lords, including the noble Lords, Lord Sharpe of Epsom and Lord Hunt of Wirral, who have continuously made the case on behalf of the Official Opposition, and the noble Lords, Lord Fox, Lord Goddard of Stockport, Lord Clement-Jones and Lord Palmer of Childs Hill, and the noble Baroness, Lady Kramer, who have made meaningful contributions on behalf of the Liberal Democrats. This includes contributions in relation to non-disclosure agreements, where I was delighted to see the amendments I brought forward on Report being accepted to introduce a world-leading framework on NDA protections. I would like to say how gratifying it is to see the noble Lord, Lord Fox, back in his place. I am sure I speak for all noble Lords when I say how thankful we are for his continued recovery to good health.
I also pay particular tribute to the contribution of the noble Lord, Lord Goddard. While of course the wisdom of the noble Lord, Lord Fox, could never be replaced, the noble Lord was a worthy and often entertaining substitute. I am also grateful to my noble friends Lord Hendy, Lord Brennan of Canton, Lady O’Grady and Lady Lister for their valued contributions in relation to seafarers, bereavement leave, trade unions and parental leave, respectively.
Lord Londesborough (CB)
My Lords, I think we have spent 13 days in this Chamber scrutinising this critical Bill. I salute the Ministers and Front Benches for their stamina and perseverance. The Bill has tested the patience of noble Lords on all sides of this House, so I will not test their patience further by going over the same arguments we heard during Committee and Report—very often the same arguments. I will simply raise one overriding question expressed by the FSB, the CBI, the ICAEW, the British Chambers of Commerce and, indeed, pretty much the whole private sector. They are asking, in light of the Bill, how committed the Government really are to delivering on their overriding number one mission—real, sustainable economic growth —and how the Bill will impact on the two crucial ingredients behind growth: job creation and, as we have heard, productivity.
On job creation, vacancies have now fallen to an effective 10-year low when you exclude the exceptional pandemic years. The Bill looks set to accelerate that downward trend. On the need for greater productivity across our 30-million workforce, employers are currently paying, on average, 5% annual wage increases for close to zero productivity gains. The Prime Minister and Chancellor have hailed this as an achievement, putting more pounds in workers’ pockets, but I am afraid that it is as illusory as it is inflationary, and will only contribute to ever-widening black holes.
The Bill will, as the Government admit, push up even further the costs of employment and damage the risk/reward equations behind recruitment, probation and employers’ ability to conduct those crucial performance reviews for staff. That is bad news for productivity, and I fear it will not go unnoticed by investors.
Baroness Jones of Whitchurch (Lab)
My Lords, first, I will respond to my noble friend Lady Warwick about Universities UK’s concerns. Given the stage of the parliamentary passage that the Bill has reached and the fact that the House has agreed that Clause 36 should stand part of the Bill, the clause will not be considered further during ping-pong. But as my noble friend knows, I have written to her on this issue, and the letter is available for all Members to read. We fully recognise the need not to impose disproportionate burdens on smaller procuring organisations such as universities and, to this end, we intend to consult in the autumn on the detail and scope of the two-tier code. The consultation will consider the extent to which certain public authorities, including higher education providers, are required to follow its provisions. While I cannot comment on whether we can carve out particular sectors before this consultation, I can assure my noble friend that we will carefully consider the issues, particularly applying to higher education providers.
Secondly, I thank the noble Lord, Lord Goddard, for his kind comments. I think it is fair to say that we have enjoyed working with him.
I am sorry that we have ended on a note of discord in this debate. I thought that we had, up until this point, had very courteous discussions around all this. The fact that there are relatively few issues remaining between us is a sign of the enormous work that this House has done over the last few months on this issue. I hope that, because there are so few areas of continuing disagreement, we can reach a conclusion on this Bill very quickly.
I do not want to rehearse the debates that we have had again. Listening to this debate this afternoon, it is a miracle that only 10 or so issues are still outstanding because it feels as if we are back at square one. But I feel that we made some progress during the course of the discussions.
When we came into office we inherited an economy that was on its knees and employment rights that were way out of date. We have been working and continue to work to address these issues. We are doing it in all sorts of ways. The small business strategy that we launched over the summer, the industrial strategy and the trade strategy are all designed to make the UK a place to do business with on an international basis and where jobs will be protected in the future.
On the state of the economy—because I have been provoked on this—in the three months to June, GDP grew by 0.3%, meaning the cumulative growth this year has already exceeded the OBR’s forecast for the whole of 2025. Since the start of the Parliament, 380,000 jobs have been added. Britain has become the most attractive place to invest in the world, joint top with India following its deal with the US. The FTSE 100 index smashed through the 9,000-point mark this July, with sustained growth throughout last month. Middle market businesses are growing at their fastest rate since the last election, according to research from NatWest. Confidence among UK businesses has grown, with 54% of companies feeling positive about the current environment, according to the Lloyds Business Barometer. I could go on.
We are positive about the opportunities ahead for our economy and, in that context, we are positive about the jobs that will be provided. They will be good jobs where people feel that they have a stake in their employment and a positive future. I am sorry we ended up on that discordant note, and of course I am sure we will come back and continue to try to iron out the remaining points of difference. In the meantime, I beg to move.
Employment Rights Bill
Baroness Jones of Whitchurch ExcerptsWednesday 23rd July 2025
(1 month, 3 weeks ago)
Lords ChamberRead Full debate Employment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 113-IV(b) Manuscript Amendment for Report (Supplementary to the Fourth Marshalled List) - (23 Jul 2025)
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
The words that the noble Lord just said come from the Opposition Benches and do not reflect what we are intending by the Bill, or indeed these particular clauses.
I will first speak to government Amendments 156 to 158 in my name, which are minor but important technical amendments to Schedule 10. Amendment 156 makes a small correction to paragraph 36(6), replacing the phrase “that subsection” with a reference instead to “subsection (3)” of Section 15 of the Gangmasters (Licensing) Act 2004. Amendment 157 ensures that Schedule 1 to the Immigration Act 2016 is repealed following the abolition of the Director of Labour Market Enforcement, and Amendment 158 removes specific reference to paragraphs 9 and 11 of Schedule 3 to the Immigration Act 2016. The purpose of these changes is to ensure that the provision functions as intended and provides legal clarity. They do not alter the policy or substance of the Bill in any way but ensure that the schedule functions as intended.
On Amendment 154 tabled by the noble Lord, Lord Carter, the Government were elected on a manifesto pledge to deliver the plan to make work pay in full. This sets out that the new employment rights enforcement agency would have the power to bring civil proceedings to uphold compliance with employment law. This clause delivers that pledge.
The noble Lord, Lord Carter, referred to the precedent, and yes, the precedent that we are citing is the example of the Equality Act 2006, Sections 28 to 30 of which are the precedent for Clauses 113 to 115. Section 28 of the Equality Act enables the Equality and Human Rights Commission to assist an individual who is or may become party to legal proceedings. Section 30 of the Equality Act, which is the precedent for Clause 113, affords the EHRC the capacity to institute and intervene in legal proceedings, including for breach of EHRC rights, even though it is not a victim.
The noble Lord, Lord Carter, said there was not an example of where the EHRC had taken over a case. However, in the case of MS (Pakistan) v Secretary of State for the Home Department, the EHRC in fact substituted itself once the original appellant withdrew from the proceedings. This was a substitution, with the consent of the Supreme Court, by the EHRC in the same way that the fair work agency could substitute itself in place of a worker without their consent.
The EHRC uses Section 30 strategically to clarify the law and act where there are egregious breaches. We envisage that the fair work agency, rather than the Secretary of State as such, will use this power in Clause 113 similarly. Noble Lords have misrepresented what is intended by this clause. It is intended to address some of the worst employment practices that current regulations do not adequately cover. I agree with the noble Lord, Lord Marks, that there are of course cases where individuals or groups of workers are unable or reluctant to take a case, but that does not necessarily mean that the case should not be taken, because there are wider issues at stake. For example, the fair work agency could use the power to clarify entitlement to holiday pay where enforcement officers do not have enough information to confidently issue a notice of underpayment, or the fair work agency could exercise the power to clarify the employment status of a group of individuals. Currently, employers may misclassify workers as self-employed to get out of giving them the rights that they are entitled to. Without this power, the fair work agency has no ability to challenge such claims.
To give a specific example on the possible application of Clause 113, the Director of Labour Market Enforcement has flagged endemic bad practice in the hand car wash sector. A particular challenge in this sector is misclassification of workers, which stymies HMRC’s efforts to enforce the minimum wage. Currently, if a hand car wash claims that its workers are self-employed, HMRC has no means to test this in the courts. It must go through the full notice of underpayment process and wait for the employer to appeal against the notice of underpayment. This can lead to nugatory work if the appeal is upheld and otherwise delay workers getting their due rights. This is a gap in the existing system of state enforcement, which this power will go some way to remedy.
Just as the current system works, the fair work agency will take a whole-employer approach to enforcement. This has the advantages of a resolution for more workers than individual cases against the employer. But in such circumstances, where the fair work agency may be taking action for hundreds or thousands of workers, it is simply not practical to get consent from every individual concerned. As a strategic approach, this power will be used when acting in workers’ best interests to clarify the law. As with the EHRC’s powers under the Equality Act, the fair work agency will not need the consent of each individual concerned to take on cases. The fair work agency will therefore be able to decide when to seek clear, neutral and authoritative guidance from a tribunal on the application of employment legislation.
As we know, in the worst cases of serious exploitation, workers may be reluctant to give their consent due to fear of retribution from the employer. The noble Lord, Lord Goddard, was quite right to say that there are circumstances in which we have the responsibility to look after the individuals who are suffering at the hands of rogue employers and feel powerless in those circumstances. We know that many migrant workers with legal rights to work in the UK, particularly low- paid workers, are reluctant or unable to enforce their employment rights. These workers have understandable concerns, including fear of retaliation, lack of awareness or language barriers. For legal migrants, employment is their prerogative and, for those workers, there are wider implications in challenging an employer that could bring about repercussions for their employment or potentially impact on their visa. We believe that requiring consent from workers would make it easier for employers to attribute blame to individual employees, and they would suffer as a result.
Baroness Jones of Whitchurch (Lab)
I am going to carry on. When exercising this power—
Baroness Jones of Whitchurch (Lab)
My Lords, we have had advice already about what the Companion says on this. The noble Lord has spoken once.
Baroness Jones of Whitchurch (Lab)
I think that the Companion overrides anything that I have to say.
When exercising this power, the fair work agency will of course act in accordance with the rights under the European Convention on Human Rights, including Article 8, and comply with data protection legislation. In doing so, it must act in accordance with the law and for a legitimate purpose.
The noble Lord, Lord Marks, raised the issue of anonymity. In appropriate cases, the fair work agency will consider applying under Rule 49 of the Employment Tribunal Procedure Rules 2024. Rule 49 allows the tribunal to restrict public disclosure of aspects of the proceedings. That means that workers’ names can be kept from the public domain—
Baroness Jones of Whitchurch (Lab)
The point that we were making is that this is about test cases, which, as we know, is a frequent way of clarifying legislation, rather than primary legislation.
The noble Lord, Lord Marks, raised the issue of anonymity. In appropriate cases, the fair work agency will consider applying under Rule 49 of the Employment Tribunal Procedure Rules 2024. Rule 49 allows the tribunal to restrict public disclosure of aspects of the proceedings. That means that workers’ names can be kept from the public domain to protect their anonymity and to protect them from any reporting in the media, where it is necessary to do so in the interest of justice or to protect their convention rights. When deciding whether to give an order, the tribunal must give weight to the principles of open justice and the convention’s right to freedom of expression. The tribunal can do this on its own initiative, or the fair work agency can apply for such an order. The fair work agency must also comply with convention rights and data protection legislation, ensuring appropriate protections for individuals and fairness of proceedings.
I understand noble Lords’ interest in how this power will operate and confirm to the House that the Government will publish guidance on how the fair work agency will exercise this power in practice. We will develop detailed guidance, following deep and extensive engagement with social partners and the fair work agency’s advisory board. It will then be for the fair work agency, acting within this guidance, to determine which cases it brings to the tribunal. That will ensure that this power supports those who play by the rules. This approach enables the fair work agency to protect workers’ rights and to tackle injustice and abuse against legitimate workers.
This clause presents an opportunity to make a genuine difference in tackling the scourge of labour exploitation in the UK. Unchecked labour exploitation is unfair on the individuals who are being exploited. It is unfair on the majority of employers, who want to do right by their staff, and it is unfair on workers who are denied jobs by employers exploiting loopholes. The new power will complement the existing powers of the fair work agency, such as the powers to issue notices of underpayment, while enabling the fair work agency to act where these powers cannot be accessed. The fair work agency will exist to end labour exploitation and create a fair and level playing field for employers and for workers. A fair work agency with any less power to act for these most vulnerable would be an unacceptable failure for workers’ rights.
To the noble Lord, Lord Carter, I remain open to discussing how best to deliver this power and to ensure that it is appropriately safeguarded. However, I reiterate that this power is neither novel nor unprecedented and that it delivers a manifesto commitment. I therefore ask the noble Lord to withdraw Amendment 154.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am sorry to get up again, but would the Minister like to say something about adverse costs orders against workers?
Baroness Jones of Whitchurch (Lab)
My Lords, when we debated this in Committee, we made it clear that there would not be any cost to workers. The noble Lord, Lord Carter, suggested that the worker would be liable to costs where they had not consented to the Secretary of State taking a case on their behalf. Let me be clear that the worker will not be liable for the costs in these circumstances.
Lord Carter of Haslemere (CB)
My Lords, I am grateful for all the powerful interventions we have heard this evening from very eminent speakers indeed, including the noble and learned Lord, Lord Garnier, the noble Lords, Lord Murray and Lord Pannick, and the noble Baronesses, Lady Fox, Lady Neville-Rolfe and Lady Falkner. Some really powerful points have been made around the importance of personal autonomy, the unworkability of the clause in relation to witness summonses and adverse witness results, and a duty to consult, which was a powerful point made by the noble Lord, Lord Pannick.
The noble Lord, Lord Marks, referred to the fact that the worker might not want to bring proceedings and therefore would be happy for the Secretary of State to do so in his or her place. That misses the point, which is that the worker might object to legal proceedings being brought in their name and might not give their consent. That is, for me, fundamental in this whole clause.
I believe that this is legally unprecedented—we can have further discussions about that. I think it is unworkable. I think it is completely unnecessary, given that the Secretary of State can support a worker to defend proceedings themselves. I read the manifesto and all I saw was “make work pay”. Those three words cover a multitude of sins. There was no mention of a power to bring proceedings on behalf of a worker—I read it very carefully. I feel that there has been enough power and passion in this debate to warrant seeking the opinion of the House, which I now do.
Member’s explanatory statement
This amendment corrects an incorrect cross-reference.
Lord Hunt of Wirral (Con)
My Lords, I do not believe that for a moment.
This has been such an important debate. I thank the noble Earl, Lord Clancarty, the noble Lord, Lord Freyberg, the noble Viscount, Lord Colville of Culross, and my fellow lawyer—not solicitor—the noble Lord, Lord Clement-Jones, for what has certainly been a long-standing advocacy on behalf of freelance workers. As my noble friend Lord Parkinson of Whitley Bay said, with all his experience as a Minister, there is no doubt that freelancers play a vital role in our economy and their interests deserve proper attention.
We on these Benches have also made the case that this issue is likely to become more urgent after the passage of the Bill. We cannot avoid the suspicion that the Bill is going to drive more workers into at least considering turning freelance. Time will tell, but as the noble Lord, Lord Londesborough, pointed out, the number could rise towards 3 million freelance workers.
We are all very grateful indeed to the Minister for organising an important meeting on this subject, because it was most useful. We welcome the Government’s intention to create a freelance champion, announced last month as part of the creative industries sector plan. That may be half a loaf, but it is a welcome enough commitment. We recognise the intent behind the amendment to establish a freelance commissioner, but at the moment, in the light of the assurances given by the Minister, we feel that the Government should have the benefit of the doubt for now, not least because we are not totally persuaded that the creation of another public body is the only solution.
What freelancers certainly need is clarity, simplicity and proportionate support. If the new champion can deliver that, all well and good. But we remain of the opinion, as came across in some of the contributions we had in Committee and just now, that socialists despise the very concept of freelancing. “How dare workers choose to avoid our elaborate structures?”, some of them say. So we will be watching with a very keen eye to see how this proceeds, particularly in the light of the speeches we just heard from the noble Lords, Lord Hendy and Lord Berkeley.
As we salute the expertise of the noble Earl, Lord Clancarty, on the creative arts, I take this opportunity to assure him that if he is unsatisfied that the Government’s measures adequately address the issues that have been raised, we will certainly be on his side. So I encourage him to remain vigilant and to keep the Government’s feet to the fire. In the meantime, we look forward with great interest to what the Minister will say in response to the many questions that have been raised in this debate, in particular about the urgency of this problem.
Baroness Jones of Whitchurch (Lab)
My Lords, I am very grateful to all noble Lords who have spoken in this debate. We have indeed had a very good debate, which once again has identified the significant contribution that the creative and cultural sector makes to our industries and our lives. The Government share your Lordships’ passion for supporting the creative and cultural sectors, and we previously spelled out in detail the significant work we are already doing in this area.
The creative industries and cultural sectors are a distinct part of the wider UK workforce. They have a significantly higher proportion of self-employed individuals, reflecting the sector’s entrepreneurial and freelance nature, which is one of the points that has been well made this evening. In the latest published data, as of 2023, there were 2.4 million filled jobs in the creative industries and 666,000 filled jobs in the cultural sector. Of these jobs, 49.6% in the cultural sector were self-employed, and 27.9% in the creative industries, compared with 14% of UK jobs overall. This reiterates the point that noble Lords have made about the significance of freelancers in the cultural and creative sectors. This flexibility not only drives innovation but supports the more project-driven nature of the creative industries. However, we also know that freelancers’ creative careers, while offering a more flexible and autonomous way of working, can also be precarious and come with lower job security.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the noble Baroness, Lady Bennett, for tabling Amendment 184B.
We recognise that workplace temperatures are changing, especially as the climate changes. We are committed to ensuring that workplaces are safe in the modern world, and we committed in Next Steps to Make Work Pay to look at how to modernise health and safety guidance for extreme temperatures.
The Health and Safety Executive is Britain’s national regulator for workplace health and safety. It is dedicated to protecting people and places, and helping people lead safer and healthier lives. To deliver on our commitment, the HSE is reviewing the approved code of practice for the Workplace (Health, Safety and Welfare) Regulations 1992 to ensure it is fit for purpose for a modern workforce. This includes monitoring emerging evidence around the impact of extreme temperatures on workplaces. The HSE will bring forward detailed proposals on workplace temperature in due course and there will be an opportunity to comment, which I encourage the noble Baroness and others to respond to.
I assure the noble Baroness that the workplace regulations currently require that, during working hours, the temperature in all workplaces inside buildings should be reasonable. All employers must make a suitable assessment of the risk to employees and take action where necessary. This includes assessing the risk from heat stress. The Environment Agency has also issued guidance on how employers can plan for climate change impacts to their sites of work and integrate climate change adaption into their management systems. Nevertheless, I hope this broad scope of work, which is currently under way, provides the noble Baroness with the reassurance that this is a matter that we already recognise as important, and that we are actively taking steps to address the impact of increasing temperatures on health and safety at work.
Before we conclude this group, my noble friends Lord Leong and Lord Katz and I would like to thank your Lordships’ House for the extensive and energetic debates that we have had throughout Report, as well as its continued engagement and scrutiny. Indeed, we have held over 50 engagements with noble Lords since the Bill came here from the other place, excluding the debates here in the Chamber.
This Bill will benefit 15 million people—half of the UK workforce. We were elected with a manifesto commitment to make work pay, and the Bill is a vital step in delivering that commitment. With that, I ask the noble Baroness, Lady Bennett of Manor Castle, to withdraw Amendment 184B.
Online Safety Super-Complaints (Eligibility and Procedural Matters) Regulations 2025
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Baroness Jones of Whitchurch
That the draft Regulations laid before the House on 9 June be approved.
Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 15 July.
Employment Rights Bill
Baroness Jones of Whitchurch ExcerptsMonday 21st July 2025
(1 month, 3 weeks ago)
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The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, I will begin with Amendment 111ZA, moved by the noble Lord, Lord Clement-Jones, and Amendments 168, 169, 171, 172, 175 and 176, tabled by the noble Lord, Lord Holmes, whom I thank for his engagement on these important issues.
I start by reassuring all noble Lords that we agree that AI should be deployed and used responsibly, including within the workplace. As the noble Lord knows, in January 2025, we published the AI Opportunities Action Plan, which included a commitment to
“support the AI assurance ecosystem to increase trust and adoption”
of AI. One of the key deliverables in this area is the AI management essentials tool. We are developing this tool to support businesses, particularly SMEs, to implement good AI governance practices. Following public consultation earlier this year, I hope to update your Lordships’ House on the consultation response and an updated version of that tool soon.
Regarding these amendments, I remind noble Lords that our plan to make work pay makes it clear that workers’ interests will need to inform the digital transformation happening in the workplace. Our approach is to protect good jobs, ensure good future jobs, and ensure that rights and protections keep pace with technological change.
To be clear, we are committed to working with trade unions, employers, workers and experts to examine what AI and new technologies mean for work, jobs and skills. We will promote best practice in safeguarding against the invasion of privacy through surveillance technology, spyware and discriminatory algorithmic decision-making. In response to the noble Lords, Lord Freyberg and Lord Hunt, of course we will put ethics and fairness at the heart of that.
I am keen to stress that we are taking steps to enhance our understanding of this area. This has included engagement and round-table events with a wide range of stakeholders and experts to help enrich our understanding. I reaffirm that we will consult on the make work pay proposals in due course.
The noble Lord, Lord Clement-Jones, asked what would be in the scope of the consultation. The consultation plan includes examining: what AI and new technologies, including automation and AI, mean for work, jobs and skills; how to promote best practice in safeguarding against the invasion of privacy through surveillance technology, spyware and discriminatory algorithmic decision-making; and how best to make the introduction of surveillance technology in the workplace subject to consultation and negotiation with trade union or employee representatives.
The noble Lord, Lord Holmes, asked whether or not this was going to be domain-specific. As the noble Lord, Lord Hunt, just reminded us, this was dealt with in an Oral Question earlier this afternoon, when my noble friend Lord Vallance said that existing regulators will oversee most AI systems, supported by enhanced AI skills and cross-regulatory co-ordination through forums such as the Regulatory Innovation Office. Some cross-cutting issues will be addressed also in the planned consultation on AI.
Looking specifically at Amendment 171, let me reassure the noble Lord that we believe that data protection legislation provides sufficient protection for workers and individuals where their personal data is being used in line with the key data protection principles, including lawfulness, fairness and transparency. Consent is a lawful ground to process personal data. However, due to the power imbalance between the employee and employer, it is often inappropriate for employers to rely on consent from employees to process their data. This is why we have an additional lawful ground to carry out such processing, such as legitimate interest under the data protection law. Therefore, we do not wish to limit data processing in these situations to consent alone. I also point out that while data protection principles establish the requirements that we expect the use of AI systems to adhere to, AI assurance provides ways to evidence that these requirements have been met in practice.
Amendment 170 tabled by the noble Lord, Lord Holmes, would require workers and employers to maintain records of data and intellectual property used in AI training and to allow independent audits of AI processes. As he will know, this issue was debated extensively during the passage through your Lordships’ House of the Data (Use and Access) Act 2025. Only last month I confirmed that we will publish a report, including on transparency in the use of intellectual property material in AI training, within nine months of Royal Assent to the Act, which will be due by 18 March next year. The Government have also committed to setting up expert stakeholder working groups to help drive forward practical, workable solutions in this area, alongside a parliamentary working group to engage with policy development.
Amendment 174 tabled by the noble Lord, Lord Holmes, proposes a review of the use of AI in recruitment and employment. As the noble Lord will be aware, last year the previous Government published detailed guidance on responsible AI in recruitment, which covers governance, accessibility requirements and testing. This was developed with stakeholders and relevant regulators, such as the Information Commissioner’s Office and the Equality and Human Rights Commission. Employers and recruiters may find this guidance useful to help integrate AI into their recruitment practices in a responsible way.
Furthermore, I am excited about the opportunities of AI in supporting the UK’s workforce, as well as creating jobs and growing our economy. However, we must also understand how it may affect the labour market, including any potential disruption. The AI Security Institute has begun assessing this issue, and I hope to be able to update your Lordships’ House on this as work progresses.
Regarding our position on general AI regulation and the establishment of a new AI regulator, we believe that AI is best regulated at the point of use by the UK’s existing sectoral regulators. As experts in their sector, they are in the best place to understand the uses and risks of AI in their relevant areas, and we will support them to do this. I emphasise that in response to the AI Opportunities Action Plan, we have committed to supporting regulators in evaluating their AI capabilities and understanding how they can be strengthened. I assure your Lordships’ House that we are committed to making sure that workers’ interests inform the digital transformation taking place in the workplace.
I am grateful to my noble friend Lord Pitkeathley for raising non-compete clauses. There has been extensive research and analysis in recent years looking at the prevalence of non-compete clauses in the UK labour market and their impact on both workers and the wider economy. Government research published in 2023 found that non-compete clauses were widely used across the labour market, with around 5 million employees in Great Britain working under a contract that contained a non-compete clause, with a typical duration of around six months. As my noble friend identified, this can adversely impact both the worker affected, through limiting their ability to move between jobs, and the wider economy, due to the impacts on competition.
It is often assumed that non-compete clauses are found only in contracts of high earners. However, research published last year by the Competition and Markets Authority found that while non-competes are more common in higher-paid jobs, even in lower-paid jobs 20% to 30% of workers believe that they are covered by non-compete clauses. The Government have been reviewing the research and work done to date on non-compete clauses, and I am pleased to be able to confirm that we will be consulting on options for reform of non-compete clauses in employment contracts in due course.
Finally, the noble Lord, Lord Hunt, asked for my suggested reading list following my noble friend’s kind offer earlier this afternoon. I can do no better than to recommend the excellent book by the noble Lord, Lord Clement-Jones, on AI. In that spirit, I ask the noble Lord, Lord Clement-Jones, to withdraw his Amendment 111ZA.
Lord Clement-Jones (LD)
The noble Baroness nearly won me over at that point. I thank her. I feel like someone who was expecting a full meal but receives a rather light snack. I will explain why as we go through.
I thank the noble Lord, Lord Holmes. I feel that I am somewhat upstaging him by putting an amendment at the front of the group, but we have many common themes that we both have pursued over the years together. I agree with him on the desirability of a cross-sector approach. He is much more patient than I am and, in putting down individual amendments and hoping that the Minister will give satisfactory answers, he is clearly more optimistic than I am. Whether his optimism has been justified today, I am not so sure.
The Minister could not even acknowledge the work done by the TUC, which has been ground-breaking in so many ways. It has taken four years, so it is extraordinary that the Government are doing what they are doing. I acknowledge what the noble Lord, Lord Pitkeathley, had to say. I was not quite sure how it connected to AI, but he very cunningly linked the subject of non-compete clauses to innovation, which does link to AI. I was encouraged by what the Minister had to say about consultation on reform.
The noble Lord, Lord Hunt, reminded me that I was a solicitor. Unlike him, I do not still have a practising certificate still, but there we are. He has much more stamina than I have. Non-compete clauses can be extremely important in making sure that know-how is preserved within an existing business. I thank the noble Lord, Lord Freyberg, for what he had to say on making sure that AI ensures human flourishing and that we preserve agency. That is what the amendments tabled by the noble Lord, Lord Holmes, and me are all about.
The Minister talked about an AI assurance ecosystem and AI management essential tools that there will be a consultation on, but I could not sense any intention to do anything other than a sort of voluntary approach. We have a lot of employment law that has developed over the years, but the Government seem to be allergic to doing anything with any teeth. She mentioned recruitment practices, but that again seems to be very much a voluntary approach. The AI Security Institute is not a regulator. I cannot feel that the Minister has given much more than the noble Lord, Lord Leong, gave last time. For instance, the Minister talked about consultation over make-work proposals. This involved talking about best practice on the adoption of AI and how best to deal with surveillance technology. Again, I did not sense any real intent to make sure that we have a new set of protections in the workplace in the face of AI.
I very much hope that, as time goes on, the Government will develop a much more muscular approach to this. As many noble Lords have said, AI presents a great number of opportunities in the workplace, but we absolutely do not want to see the opportunities overwhelmed by mistrust and a belief that AI presents unacceptable risks on the part of those employees. We want to see employees understanding that in the face of AI adoption, they have the right to be consulted and there is proper risk assessment of the introduction of these systems into the workplace, so that there is a proper, consensual approach to AI adoption.
I really do not feel that the Government are keeping up to date with the issues in this respect, and I am afraid that is rather reflected in some of the issues that we are going to talk about on Wednesday as well. In the meantime, however, I beg leave to withdraw the amendment.
Lord Sharpe of Epsom (Con)
My Lords, it is a pleasure to follow the noble Lord, Lord Goddard. I agree with pretty much all that he said. I thank my noble friend Lady Barran for her amendments. I thank my noble friend Lord Agnew for his interesting and timely perspective, and I salute the teaching assistant whom he mentioned.
Amendment 111B would ensure that the establishment of national frameworks does not, by accident or design, limit the ability of employers to go further in improving conditions for their staff. It makes it clear that, while national terms may set the floor, they must not become the ceiling.
As we have heard, we must leave space for innovation and ambition at the local level, particularly for those schools, academies and trusts that are actively seeking to lead in areas such as flexible working, staff well-being or enhanced support for recruitment and retention. This amendment does not undermine the national framework. On the contrary, it reinforces it, because it allows it to act as a strong foundation on which more can be built, where employers have the capacity and willingness to do so.
We should not inadvertently create a situation where the national body becomes a constraint rather than a support. I therefore welcome the clarity that this amendment brings. I commend my noble friend for bringing it forward and, if she decides to press it to a vote, we will support her.
Baroness Jones of Whitchurch (Lab)
My Lords, I will speak first to government Amendments 112 to 116. The school support staff negotiating body will recognise the essential roles and responsibilities of over 800,000 support staff working in our schools, supporting our children to achieve and thrive. Like the noble Lord, Lord Sharpe, I very much pay tribute to the teaching assistant whom the noble Lord, Lord Agnew, mentioned. We all know examples of support staff who have played significant interventionist roles in helping to run a school—roles that are often underrewarded and unrecognised. It is about time we put them and their pay and conditions on a proper footing.
It is right that we have a mechanism for employer and employee representatives to come together to negotiate and to agree pay and conditions that reflect the varied and vital role that support staff undertake. We have heard arguments made across the House that we must make the legislation itself clearer, that the SSSNB will not mandate a one-size-fits-all approach and that individual employees will be protected from any moves to their detriment as a result of the SSSNB process. We have listened to noble Lords on this issue and, while we have always been clear that this is the Government’s intent and can be achieved through existing provisions, we have decided to amend the SSSNB provisions to ensure that both principles are established in primary legislation.
This change will mean that all school support staff will benefit from a minimum offer—or floor—for pay and conditions, and that there will be no ceiling to prevent employers offering better pay or conditions. This protects individual employees and allows employers to go beyond agreements reached, should they choose to do so in response to their local circumstances. That was the argument made in Committee. A number of noble Lords argued that, particularly in academies, employers want to pay more and provide better conditions. We are making it clear that that is absolutely the right thing to do, and our amendments will deliver that.
I turn to the amendments tabled by the noble Baroness, Lady Barran. Amendment 111A would change the SSSNB’s remit for academies so that academy employers would be required to have regard only to the framework. As outlined in response to this amendment in Committee, it would be wrong to create a two-tier system for support staff. Since roughly half of the 22,000 state-funded schools in England are now academies, it is right that academies are included in the SSSNB’s statutory remit in the same way as maintained schools. There is no need to take a different approach for academies when there will be ample room for innovation for all schools, irrespective of their structure.
I hope the noble Baroness understands and agrees that all school support staff deserve to know what they can expect as a minimum for pay and conditions, and that they can continue to benefit from more favourable terms where employers offer them. However, her amendment risks creating a two-tier system that undermines the role of the new negotiating body in establishing minimum standards which will work for all schools and recognise the vital roles that support staff undertake.
“(6) Subsections (2) to (5)—(a) do not apply in relation to a term or condition of a person’s employment if, and to the extent that, giving effect to the agreement would alter the term or condition to the person’s detriment; (b) do not prevent the terms and conditions of a person’s employment from including a term or condition that is more favourable to the person than that which would otherwise have effect by virtue of those subsections.”Member's explanatory statement
This amendment provides that an agreement of the School Support Staff Negotiating Body cannot alter a person’s terms and conditions of employment to make the person worse off, and does not prevent an employer from offering more favourable terms and conditions than those provided for by the agreement.
“(5) Subsections (2) to (4)—(a) do not apply in relation to a term or condition of a social care worker’s employment if, and to the extent that, giving effect to the agreement would alter the term or condition to the social care worker’s detriment;(b) do not prevent the terms and conditions of a social care worker’s employment from including a term or condition that is more favourable to the social care worker than that which would otherwise have effect by virtue of those subsections.” Member's explanatory statement
This amendment provides that an agreement of a Social Care Negotiating Body cannot alter a person’s terms and conditions of employment to make the person worse off, and does not prevent an employer from offering more favourable terms and conditions than those provided for by the agreement.
Member's explanatory statement
This amendment is consequential on my amendment of clause 45 at page 67, line 10.
“(3A) Regulations under this section that by virtue of subsection (2)(b) make provision about the consequences of a failure to comply with a duty imposed by the regulations in relation to a provision of guidance or a code of practice must provide for the guidance or code to be laid before the appropriate legislature and subject to the procedure specified.”Member's explanatory statement
This amendment provides that, where regulations under clause 46 provide for the issuing of guidance or a code of practice by the Secretary of State, and make provision about the consequences of a failure to comply with a duty imposed in relation to the guidance or code, the regulations must provide for the guidance or code to be laid before Parliament and to be subject to the procedure specified in the regulations. The amendment also imposes an equivalent duty in relation to regulations made by the Welsh Ministers or Scottish Ministers.
Member's explanatory statement
This amendment is consequential on my amendment of clause 45 at page 67, line 10.
Lord Davies of Brixton (Lab)
Having raised these issues at the beginning of Committee, I just want to say that, following the favourable response of the Front Bench to the idea of arranging a meeting at which they can be discussed, I very much look forward—at least, I hope I can—to the reply of my noble friend the Minister.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank my noble friend Lord Hendy for moving his amendment.
Amendments 123 and 124 in my name relate to Clause 54, which provides powers to make regulations giving effect to two named international conventions and to give effect to international agreements as they relate to maritime employment. I thank the Delegated Powers and Regulatory Reform Committee for its thoughtful consideration of these powers, and its recommendation to amend the procedure for new Section 84A(2) from first-time affirmative to affirmative for all uses. I wrote to the committee on 7 July, setting out our response in full.
These amendments will change the parliamentary procedure applicable to regulations made under the power in new Section 84A(2) of the Merchant Shipping Act 1995, giving effect to international agreements as they relate to maritime employment. The amendments mean that all uses of the power to give effect to future or unspecified international agreements will now be subject to the affirmative procedure, and not just the first use. They will mean that Parliament has greater oversight of these agreements and amendments to them.
I turn to Amendment 122A tabled by my noble friend Lord Hendy. The amendment would specify that the statutory rights to which shore-based workers in the UK are entitled also apply to ships’ crews working aboard services that enter ports in Great Britain 120 or more times per year, or that operate
“between a place in Great Britain and another place in the United Kingdom”.
The scope of services covered follows the approach taken in Clause 29, where the Government have sought to ensure that those employed aboard these services are captured by the requirement to provide proposed notification of collective redundancy.
I thank my noble friend for this amendment on the application of employment rights to seafarers, and the maritime trade unions for their continuing engagement on these issues. I hope to be able to provide some clarity today, but we can also commit to continuing ongoing discussion about how we can ensure that seafarers are receiving robust protections.
The Government want to see stronger employment rights for seafarers. That is why, in addition to the broader changes to employment rights, we have included a package of maritime-specific measures in this Bill. As my noble friend knows, we are closing the loophole that meant that P&O Ferries could avoid prosecution for failing to provide advance notice of proposed collective redundancies. We are also providing powers for a mandatory seafarers’ charter, which will allow us to set a higher minimum standard for wages and for how long seafarers can spend at sea without a break. This will establish a level playing field that will help prevent the undercutting of working conditions in the way that P&O Ferries sought to do.
The new power to give effect to the Maritime Labour Convention, and other international agreements as they relate to maritime employment, is also important. Where international agreement is needed to improve protections, we can implement those changes.
Member’s explanatory statement
This amendment, together with my other amendment of this clause, provides that regulations under new section 84A(2) of the Merchant Shipping Act 1995 giving effect to international agreements relating to maritime employment will be subject to the affirmative resolution procedure.
Post Office Horizon Inquiry: Volume 1
Baroness Jones of Whitchurch Excerpts(1 month, 4 weeks ago)
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Baroness Brinton (LD)
My Lords, the noble Lord, Lord Sharpe of Epsom, has spoken about the Green Paper, but I understood that we were responding only to the Post Office Horizon inquiry’s first report. I apologise if we are meant to cover the Green Paper, but, having had that instruction, I have rewritten my speech accordingly.
We need time to consider the inquiry’s first report. The Statement expresses many of the sentiments that we often hear at the Dispatch Box: admiration for the fearless and diligent work of Sir Wyn Williams, the bravery of the postmasters, and descriptions of what the Post Office, and through it, Governments, have done over a number of years. All that is true, but the problem is that, once again, a judge leading an inquiry has had to call out the lack of delivery and transparency, and, frankly, the re-victimisation of the postmasters and their families. It is just unacceptable. It is close to the old-fashioned saying about cheques: “words and figures do not agree”.
My first question to the Minister is: will the Government review all Sir Wyn’s recommendations, and, as importantly, the evidence of poor delivery in the compensation scheme that he cites, and report back to Parliament in three months? This cannot go on. Some postmasters are dying; until all have realistic offers of compensation, they remain in a financial limbo created by the Post Office and Whitehall.
To give the House an example from the report, page 48 sets out the design of the scheme, which was meant to be “user friendly”. Sir Wyn says that it was so chaotically delivered that, as described in paragraph 4.23, a postmaster’s eligibility criteria were
“determined by employees of the Post Office”
and not by people independent of it. Employees then decided whether the postmaster had suffered a shortfall. Assessors from the Post Office’s solicitors would value that and then write a recommendation for the independent panel. The independent panel’s overriding priority, set by the Post Office, was speed and to assess via its terms of reference, created by the Post Office.
That is just one example from Sir Wyn’s excellent report, but it demonstrates once again why such compensation schemes must be run truly independently from the body that caused the damage. He recommends a truly independent body and not one at arm’s length like the Infected Blood Compensation Authority, because not even that is truly independent. Are the Government going to consider this seriously? From what was said in the Statement, it does not sound like it.
I ask the Minister what it will take to change this. We now have or have had problems with the Post Office Horizon scheme, the Windrush scheme and the IBCA scheme. The government approach to redress and remedy, regardless of the Government, fails time and again; even worse, the problems last longer because there is no real desire to change.
Then there is the issue of Fujitsu. Sir Wyn says that the Post Office and the Government must start discussions with Fujitsu on its contribution to this scheme. Will the Minister provide a timetable for those discussions? There is also another Fujitsu issue: it is now clear from the evidence heard at the public inquiry that it was complicit at the very least, and proactive at worst, in helping the Post Office in its cases in court against postmasters over many years. We know the police are now investigating this, including for perjury and other very serious crimes.
There is a further question. Why does government continue to recontract Fujitsu in other areas? Can the Minister reassure your Lordships’ House that the Government are completely confident that Fujitsu meets the high standard of probity required of large IT contracts?
It is good that it is proposed that the family members of postmasters who suffered because of the scandal will receive redress. But before the Government copy the arrangements for the infected blood scandal, will they please look at the very large problems that the affected victims’ scheme already has? It still has 18 months before it offers its first compensation.
In opposition, Labour repeatedly promised that a duty of candour would be one of its priorities to ensure that discussions start at an early stage as it becomes clear that there are problems somewhere. But the Government have delayed the introduction of the Bill. Can the Minister say when that legislation will be presented to Parliament?
From these Lib Dem Benches, we believe that is not enough. It is essential that whistleblowers have a safe place to air their concerns. We believe that, given the repeated slapping down of anyone expressing concerns—which, by the way, delayed so many truths coming out—an independent office of the whistleblower must be set up. The decades of wrongdoing are a shameful episode in this country’s history. We need mechanisms in place to ensure that this never happens again.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, I thank both noble Lords for their comments. The inquiry under Sir Wyn Williams has asked some wise and penetrating questions and has scrutinised more than 2 million pages of evidence. I extend my thanks to Sir Wyn and his team for their commitment to confronting the impact of this terrible scandal. I also thank the Horizon advisory board, including the noble Lords, Lord Beamish and Lord Arbuthnot, for its hard work in helping to improve the delivery of redress. We will continue to seek its guidance on how we can continue to improve delivery, particularly in light of the recommendations made in Sir Wyn’s report.
The volume published last Tuesday is only the first volume of Sir Wyn’s final report. It focuses on the human impact of the Horizon IT scandal and the redress delivered to its victims, and we look forward to receiving the subsequent volume from the inquiry when it is published in due course. Sir Wyn’s report lays bare the wide-ranging suffering endured by victims of this scandal—the distress and severe disruption experienced so acutely. Victims lost money, their health and their liberty, and in the most tragic cases they lost their lives. We owe it to them to have proper redress for all crimes that have been committed.
Sir Wyn’s report focuses on the redress scheme set up by this and the previous Government, with 19 recommendations made for the Government to consider. The Government welcome these recommendations, which we have committed to respond to by 10 October. In answer to the noble Baroness, we will of course review all the recommendations and the evidence behind them in detail. I hope to be back here at the Dispatch Box in October to update Parliament on the progress we are making.
We have already announced that we will accept three of Sir Wyn’s recommendations, which include extending redress to the most severely affected family members and introducing a best offer approach in the GLO scheme. The Government are keen to ensure that we get redress to those affected as soon as possible. We recognise that delays have been unacceptable and that some sub-postmasters have found the schemes adversarial and difficult to navigate. Over the past year, we have made improvements that have significantly sped up the process of claims. In the last 12 months, this Government have more than quadrupled the total amount of redress paid, which now stands at nearly £1.1 billion. But we recognise that there is more to do.
Horizon, which sparked this whole scandal, should have gone long ago, but the task of replacing it is hugely complex and cannot be done overnight. In the meantime, it remains critical to the delivery of the essential Post Office services on which people depend. We are determined to end the use of Horizon and so draw a line under Fujitsu’s involvement with the Post Office. As part of over £500 million of investment during this Parliament, we have committed up to £136 million this financial year to invest in new technology and replace Horizon.
I turn to some of the questions. The noble Lord, Lord Sharpe, asked about the Green Paper. Twelve months ago we inherited a Post Office in crisis, with declining financial sustainability, unstable leadership, a network struggling to maintain services and a reputation shattered by the Horizon scandal and its appalling treatment of sub-postmasters, as Sir Wyn Williams’s report has underlined. The Green Paper published this week begins a national dialogue on the future of the Post Office so that we can create a modern, resilient and financially sustainable organisation.
Although we recognise the Post Office’s history, this Green Paper is about looking forwards, not backwards. We also need to recognise the serious cultural issues of the past and ensure that, going forwards, the Post Office has a positive postmaster-focused culture and is run in an accountable and transparent way. We also of course recognise the points raised by the noble Lord about the important role that post offices can play in rural areas and as banking hubs, particularly in disadvantaged areas.
The noble Lord asked about the progress and possible changes of governance. No decision on changes to governance will be made by the Government until the inquiry’s final report, to allow the Government to consider the inquiry’s recommendations on governance issues together with the Green Paper responses.
The noble Baroness asked about Fujitsu and the technology. The Post Office is committed to moving away from Fujitsu and the Horizon system. Post Office has a plan to introduce a new IT system in stages for postmasters and strategic partners. Post Office’s future technology portfolio is designed to transform technology and data across the Post Office while supporting the transition of Horizon out of Fujitsu. As I said, the Government have confirmed that they will provide up to £136 million for this project in the financial year. The noble Baroness wanted to see some speed in this. This is a complex programme of work that cannot be completed overnight, given the range of transactions that the IT system needs to support. Nevertheless, we will move at pace to try to bring those changes about.
The noble Baroness also asked about Fujitsu’s continued involvement. The first thing to say is that Fujitsu has acknowledged its moral obligation to contribute to the cost of the scandal, and the Government welcome this. The extent of Fujitsu’s culpability for the scandal will not be clear until all parts of Sir Wyn Williams’s inquiry report are published. In the meantime, Fujitsu has begun talks with the Department for Business and Trade on the company’s contribution to the cost of the scandal. That includes whether any interim payments should be made.
The noble Baroness asked about the progress on redress. We share the postmasters’ frustration that redress has been too slow. However, we have massively increased the pace. We have paid out nearly £1.1 billion—four times what had been paid when we took office. We have already made some other positive interventions, including introducing the £75,000 fixed offer for the HSS claimants; launching the HCRS and merging Post Office’s redress for convicted claimants into it; launching the HSS appeals scheme; and promising redress for Capture victims. We will continue to look at Sir Wyn Williams’s recommendations to see what more we can do.
It remains the mission of this Government to bring the victims of the Horizon scandal the justice they wholly deserve and to make sure that a miscarriage of justice does not happen again. But as well as fixing the past, we must build on the future. As I say, the Green Paper published earlier this week begins a national dialogue on the future of the Post Office. Our priority now is building a modern and financially sustainable Post Office that is run in an accountable and postmaster-focused way, and I hope noble Lords will support those objectives.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I was astonished by the contribution from the Opposition Front Bench, not just because, as the noble Baroness from the Liberal Democrats said, I had assumed this was specifically on the report and not on the Green Paper, but because the noble Lord was talking about the future of the Post Office, and indeed mentioned Royal Mail, without acknowledging that the demise of the Post Office and the Royal Mail has been under the Tory party over the last 14 years. It has. If we look at other countries, we see a much better system continuing in most of our competitors.
I want to raise two points, the first of which was raised by the noble Baroness from the Liberal Democrats. The Minister said that the Government expect Fujitsu to contribute and that discussions are under way, but has Fujitsu been given a deadline by which this must be agreed, and how much do we expect it to contribute? It needs to be a great deal; otherwise, the taxpayer is undertaking the cost again, as we have done with so many things, and as we are going to have to do with the Afghan compensation, and it should not be the taxpayer in this case—it should be Fujitsu.
My second question is about prosecutions. Everyone seems to get away without any prosecutions in these kinds of things. Will the Minister talk to the Attorney-General and ask when some of the people who were responsible for the terrible tragedy that so many sub-postmasters and sub-postmistresses suffered will be held to account? It is about time that they were.
Baroness Jones of Whitchurch (Lab)
I thank my noble friend. He is quite right that this scandal occurred over many years, and it has taken a long time for both the previous Government and now this one to really get to grips with the action that needs to be taken. That is why the report from Sir Wyn is so important to provide extra clarity on the further actions that we need to take. My noble friend talked about Fujitsu. As I have said, the Government are having active discussions with Fujitsu about its contribution. We are still awaiting Sir Wyn’s second report to get a better sense of the complete culpability of Fujitsu, and we cannot pre-empt that, but I think Fujitsu recognises that it has a role in making amends, and we are in active discussions with it.
My noble friend asked about criminal prosecutions and accountability. I think everybody shares his frustration that this is taking so long, but the action on accountability must await the conclusions of the second part of the Williams inquiry—obviously, we all await those with interest. He will know as well that the Metropolitan Police investigation, which is independent of government, is ongoing. The Met is a core participant in the Williams inquiry, but it also has around 100 staff engaged on Horizon matters, looking at whether there are any criminal issues that need further following up, and I know that it will be doing that in a very active way.
Lord Arbuthnot of Edrom (Con)
My Lords, the Minister is quite right that this matter has taken place over many years, under Labour, Lib Dem and Conservative Ministers. We should all, frankly, hang our heads in shame. I went along to the Oval last week to listen to Sir Wyn give his excellent report, and he used a telling phrase about Fujitsu; namely, that it was kicking the can down the road. That is exactly what it is doing. The longer it thinks it can stave off paying a single penny towards the victims of this matter, the less it thinks it will have to pay. Do the Government recognise that the only way we can change that behaviour is to stop giving it contracts?
Baroness Jones of Whitchurch (Lab)
First, I pay tribute to the noble Lord for all his involvement in this running scandal over many years and for helping to bring the scandal to light. He asked about Fujitsu. As I say, we are in active dialogue with Fujitsu. He will know that Fujitsu has announced that it will not voluntarily bid for new contracts, unless requested by the Government, and we welcome that as the right course of action. The extent of Fujitsu’s role in the scandal is not fully known and therefore we feel it would be inappropriate to take further action until we have all the parts of the inquiry before us. At the moment, Fujitsu has not been found guilty of any wrongdoing and as such it continues to deliver government contracts where these are already in place. However, as I say, it has announced that it will not voluntarily bid for new contracts, but I share the noble Lord’s frustration with the current situation.
Lord Berkeley of Knighton (CB)
My Lords, I will not repeat everything that we have heard. I agree very much with the noble Baroness, Lady Brinton, but on one point she brought up, surely one way that we could allay the suspicions of the general public, which are mighty at the moment, to do with infected blood and this scandal, would be to get on with interim payments. That would at last begin to give these poor victims, and the general public, some confidence that we all mean what we say and that money is going to be forthcoming before some of these victims die.
Baroness Jones of Whitchurch (Lab)
The noble Lord is right that we need to speed up the payments and, as I set out earlier, we are taking steps to do that. The Government have already taken major steps to improve the delivery of redress, leading to nearly £1.1 billion having been paid to more than 7,900 victims, more than four times the total amount paid before last year. We need to continue to work on this issue. We have taken a variety of measures to speed up redress, including the introduction of the £75,000 fixed offer for HSS claimants, and we recently announced that we are introducing facilitated discussions in the GLO scheme, as requested by claimants’ lawyers. We will not rest until all those affected have received redress. That is absolutely the determination of the Post Office Minister and it is absolutely our determination. It is very frustrating when these things get held up, and we are trying to unblock any blockages that still exist. It is an absolute determination of this Government that individuals and their close family members receive the redress that they are due.
Lord Weir of Ballyholme (DUP)
My Lords, I join others in welcoming the first stage of this very important report into an appalling scandal which has blighted so many lives and which we know has, sadly, actually cost lives as well. Sometimes we are faced with a scandal, such as we debated yesterday, that has been caused by a single cock-up. That is not the case here. There have been years, if not decades, of conscious decisions leading to culpability. It is right, as we move ahead with this inquiry, that those who are culpable are held directly to account, so I welcome the Government’s opening of discussions with Fujitsu.
While we cannot, at this stage, work out the quantum of the compensation Fujitsu owes, will the Government give an assurance that should Fujitsu, or indeed anyone else that is culpable in this situation, either not produce compensation or offer an inadequate compensation package, they are prepared to take action to compel those who are culpable to provide compensation? Further, will the Government give an assurance that whatever sum of compensation is provided by Fujitsu or anyone else, it will not be at the expense of calling off criminal prosecutions? Will they ensure that those who have committed criminal acts are ultimately held responsible for their behaviour?
Baroness Jones of Whitchurch (Lab)
My Lords, as I say, the extent of Fujitsu’s role in the scandal is not yet fully known, so we await the second stage of Sir Wyn Williams’ inquiry report. I very much hope that that will lay down some very clear rules for how we should proceed on this issue. Fujitsu has not been found guilty of any wrongdoing; nevertheless, the Government are in constructive discussions with Fujitsu, and I think it understands its responsibility to make amends when the final recommendations come out. I do not detect any sense from Fujitsu that it will not comply with the desire for proper redress.
Lord McNicol of West Kilbride (Lab)
My Lords, like others across the House, I welcome Wyn Williams’s first report into this IT scandal, and it is an IT scandal. It is clear from looking at the Green Paper that there are huge historical failings across the Post Office’s management and board—serious cultural failings. How do His Majesty’s Government see this Green Paper redressing those failings and setting up new structures for the future of the Post Office so that no sub-postmasters or sub-postmistresses are ever left to face these appalling situations again?
Every speaker in this debate has touched on the financial compensation, and I add my weight to that. The Statement made in the other place on 14 July said that £500 million of taxpayers’ money will be committed to bringing in and supporting a new IT system. That is before we even touch on the compensation packages. The Minister said that Fujitsu has a moral obligation. I think Fujitsu has far more than a moral obligation when we look at the situation that far too many of those sub-postmasters and sub-postmistresses were put into. They were ostracised within their communities, some took their own lives, and they were treated to years of not being believed and a legal system that believed a computer over their word in far too many cases. Fujitsu is on the hook for more than a moral obligation. It has a financial obligation to deal with both the redress and the implementation of a new and fairer IT system.
Baroness Jones of Whitchurch (Lab)
I thank my noble friend for those questions. He asked first about the cultural issues, and we all understand just how poorly the Post Office has been run over many years to allow this scandal to appear and not be addressed, given the increasing amount of evidence that was presented to the leadership in the Post Office. We are taking steps to address this. There is now, as my noble friend will know, a new leadership in the Post Office. The Green Paper gives us an opportunity to revisit what we want from the Post Office, which ought to remain a vital part of UK life in our communities and on our high streets, providing small business opportunities for many people. It is potentially a huge reset that will take place in the Post Office.
We are committed to maintaining it as a strong, accessible network. The noble Lord, Lord Sharpe, asked about the size. It is our preferred option that the overall size and shape of that network would remain the same. My noble friend is right about the cultural issues. For us, there are other issues about governance going forward, but the key thing is to make sure that postmasters and postmistresses play a critical role in shaping and designing the future of the Post Office, because they know what works, they know their communities and, as we know, we really have not listened to them sufficiently in the past. I am confident that they will very much be part of shaping the future of the Post Office as the consultation goes forward, and it will be all the better for that.
My noble friend asked about the technology. We are working to replace Fujitsu as quickly as we can. The development of the technology is based on a test and learn approach, so we are working to make sure that the replacement of Fujitsu is done right in a robust system. Post Office Ltd’s IT transformation is ensuring that the hardware that was purchased for NBIT will now be used to refresh counter devices across the network and that the software that was developed will still be used for drop and collect services. We need to get the technology right and there is money going into it, but the important thing here is that we really listen to those people at the heart of it, the postmasters and postmistresses.
Lord Mawson (CB)
My Lords, this is a very sad story about the failures of a very large business, the Post Office—which many years ago I used to work for—and its culture, and about the failure of the machinery of the state, which has had very serious impacts on the lives of many human beings and their families. It has cost us all hundreds of millions of pounds, is still costing us all large amounts of money and is still affecting these people, despite all that has happened. What are the Government intending to do to drill into and come to terms with those failures in the machinery of the state and what the real lessons learned might be? Some of us in our working life have seen these same kinds of failures in other areas of public life, in the NHS and in the public sector. What lessons are going to be learned from this, given the human tragedies that we can all clearly see in this set of affairs in plain sight?
Baroness Jones of Whitchurch (Lab)
The noble Lord is right. From the top down, we all bear some responsibility for this, although I pay tribute to the MPs and the Members of this House who used their positions to highlight and eventually bring to account some of the individuals involved in this scandal. The Green Paper is attempting to address exactly those issues about the machinery of state and whether the Post Office should be reconfigured and run in a different way. We want to make sure that it is financially viable on a longer-term basis. This is an opportunity for us to make sure that the future of the Post Office is robust and that we learn the lessons from previous scandals for how government listens and flags issues going wrong at the kind of level that occurred with the Horizon scandal. We will look at whether there are any crossover lessons from other scandals that we can take forward. I understand that the second volume of Sir Wyn Williams’s report will also look at some of those wider issues.
Online Safety Super-Complaints (Eligibility and Procedural Matters) Regulations 2025
Baroness Jones of Whitchurch Excerpts(2 months ago)
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Baroness Jones of Whitchurch
That the Grand Committee do consider the Online Safety Super-Complaints (Eligibility and Procedural Matters) Regulations 2025.
Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee. Special attention drawn to the instrument
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, as the Online Safety Act sets out, the Secretary of State must make these regulations under Sections 169(3) and 170(1) of the Act. They enable the super-complaints regime to operate by establishing the eligibility criteria that entities must meet to submit a super-complaint, as well as the procedural matters relating to Ofcom’s assessment of super-complaints.
Super-complaints are an integral part of the Act’s complaints handling, reporting, and redress mechanisms. They provide a means for eligible entities, including civil society groups with expertise in online safety matters, to raise systemic issues about the features or conduct of one or more regulated services with Ofcom, the Act’s independent regulator.
Super-complaints cannot be made by individuals, nor can they be made about individual pieces of content. The Act establishes, under Section 169, the scope of issues that super-complaints can address. This includes where the features and/or conduct of regulated services may be causing significant harm to, significantly adversely affecting the freedom of expression of, or otherwise adversely impacting users, particular groups or the public. We expect super-complaints to typically be about cross-platform, systemic issues. However, a complaint may cover a single service if the complaint is particularly important or impacts a large number of users or members of the public.
The SI sets out several eligibility criteria that an entity must meet to be able to submit a complaint to Ofcom. Entities must: represent the interests of users of regulated services, particular groups, or members of the public; have a composition, governance and accountability arrangements that mean it can be relied on to act independently from regulated services, although funding, or representation in the entity’s governance from platforms, is allowed; contribute to public discussions on online safety matters as an expert; and be capable of being relied upon to have due regard to any guidance published by Ofcom. These criteria aim to ensure a wide range of entities are eligible while safeguarding the integrity of the process and reducing the risk of vexatious complaints.
In addition to the eligibility criteria, this SI also sets out the process and timeline for assessing super-complaints. Ofcom must assess the would-be complainant’s evidence against the eligibility criteria and determine whether an entity is eligible within 30 days. Ofcom must then inform an entity whether they are eligible or not and explain why. The time for assessing eligibility reduces to 15 days where entities have been found to be eligible within the past five years. In such circumstances, an entity must submit information to show that it is still an expert contributing significantly to public discussion on online safety. Eligible entities must also present current, objective and relevant evidence to support their view that one of the grounds for a complaint under the Act is met.
When assessing the admissibility of the complaint and the substance of the complaint itself, Ofcom must typically respond 90 days following the eligibility determination. This means that, as standard, the entire super-complaints process will conclude within 120 days, or 105 days where there is retained eligibility status. Ofcom may however stop the clock in certain circumstances, such as if additional information is required from the entity and the complaint cannot be progressed without it. But Ofcom may only stop the clock by the amount of time it takes to receive the requested information. Where Ofcom has determined that an entity is eligible, it must consider the complaint and evaluate the evidence presented to it. At the end of the process it must publish a response, including its determination on the matter. This may include what further action, if any, it anticipates.
In developing these regulations, the Government have consulted Ofcom and there has been a public consultation. We have listened closely to the views of stakeholders and, where possible, made changes to the policy consulted on. These changes are set out in further detail in the Government’s policy response published in June this year. In tandem with this SI being laid, a round table was also held with key civil society groups to set out the changes and our response to the concerns raised during the consultation process. These changes include lowering the bar for eligibility to enable new expert organisations to make complaints and removing the requirement to pre-notify Ofcom ahead of submitting a complaint.
The online world is complicated and ever-changing. As the Government, our aim is to remain agile and keep pace with emerging online harms. These regulations have been drafted to do just that, by ensuring Ofcom is made aware of emerging technologies, market operators and subsequent harms. I beg to move.
Lord Stevenson of Balmacara (Lab)
My Lords, I welcome my noble friend’s comments, which set the context for this interesting statutory instrument.
In the process of consultation that led to the final decisions, was there time for the department to begin to implement the Parkinson rule? When my noble friend and I last met some time ago, we discussed how and under what conditions one might be able to allow Select Committees in the Commons and here with expertise in these matters to look at SIs before they are laid. I notice that this was laid on 9 June, which is well after that meeting. Was there time to let the Select Committees see this and were there useful results from that? If not, can she give us some indication of when the department will be in a position to begin to process the Parkinson rule in relation to this?
I am grateful to the Secondary Legislation Scrutiny Committee for its very full 29th report, which went through this SI in somewhat surprising detail—we do not normally get four or five pages on an instrument each time, but that tells the story behind some of my concerns about the department’s approach to this. The committee’s first conclusion is that:
“The draft Regulations are drawn to the special attention of the House on the ground that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House”.
We are grateful to it for doing that. These are interesting and important issues.
The committee’s first point for consideration is that it worries whether the regulator, Ofcom, will have the resources to carry out the sort of work envisaged in this SI and the much larger scheme of work that it is involved in. I would be grateful if my noble friend could give some thought to that in her response. I do not think she mentioned it. We understand the basis on which Ofcom makes its funding needs available—there has been notification of that recently around the level of fees to be exercised on the companies in scope of the regulator—but that is not the narrow point raised here. It is more about the question of capacity and scale, and the ability to think more widely about the system it is trying to regulate, than it is just about the money. I would be grateful if my noble friend would say a few things about how the department judges that and how it thinks Ofcom will be able to scale up its current work, which is immense. It is very important to include this activity, which in the Bill was originally intended to be of assistance to Ofcom, although some of the way it has come out does not seem to have delivered on that.
Secondly, I recollect that we spent quite a long time on the Bill working out why the Government of the day did not think it necessary to have some form of ombudsman system in place for internet matters. I am sure the noble Lord, Lord Clement-Jones, will make some points about this. This was well argued and well thought through in our debates, and we had many meetings offline to try to find a way forward. We did not get what we wanted, but it was a very big Bill and other things perhaps took priority. However, we did get agreement from Ministers, in the Bill, that there would be a review shortly after its implementation— I think within two years—of how the complaints processes for users of IT systems in this country, particularly in new media, were being dealt with by individual companies. Clearly, the expectation is that each company will have its own structure but that, on occasion, issues would be raised across more than one provider. The question was how an ordinary citizen would cope with that if there was not some form of ombudsman system. I strongly believe that there needs to be an ombudsman system for this whole area, and I hope that the review to be carried out by Ofcom within two years will recommend that. This is not referred to in this SI. Will the Minister say a few words about the department’s current thinking on that?
Viscount Camrose (Con)
To pick up exactly where I left off, as with any regulatory mechanism, transparency is key to ensuring public trust and parliamentary accountability. We therefore urge the Government to clarify how the outcomes of this process will be communicated to Parliament and the public, particularly where serious harms are identified. Only then can we be confident that this mechanism will not only protect users but uphold the openness and scrutiny that must underpin all aspects of the Online Safety Act.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords for their valuable contributions to this debate, including those who have rightly identified that we have taken the comments from the stakeholder engagement to heart and made changes to the eventual proposals. I will go through the very many questions that noble Lords have asked. I pay tribute to the work of the Secondary Legislation Scrutiny Committee; we welcome its report and the scrutiny it has given to our proposals.
In no particular order, I will first pick up the question of scrutiny. The noble Lord, Lord Stevenson, asked about Parkinson’s law—if I can put it that way. We have spoken about this and there have been a number of different discussions about it. We recognise that the Science, Innovation and Technology Committee and the Lords Communications and Digital Committee play a vital role in scrutinising the regime. The SI was shared with those committees in advance. He will know that Parkinson’s law is not as emphatic as it might be—it is a caveated law—but we nevertheless take on board the concerns raised about it and have met the chairs of those committees to talk about how we can take these issues forward. We have had a very good dialogue with them, on the understanding that we do not want to delay what can sometimes be very important and game-changing regulations by having a long extra scrutiny process. Nevertheless, we are trying to find a way to resolve this issue and discussions are continuing with officials.
Lord Clement-Jones (LD)
I am sorry to interrupt the Minister, but she said 2028. When will the actual review begin? That sounds an impossible end date for anybody to be satisfied with progress on an ombudsman being considered, let alone appointed. Does the review start in 2028, or in 2026? When does it start taking input?
Baroness Jones of Whitchurch (Lab)
The only information that I have is that we are anticipating that the report would be published and available in early 2028—so, obviously, it would need to start well before then. The noble Lord will know that setting up ombudsman schemes is not a simple process. However, we look forward to the outcome of that report, because we recognise some of the issues being raised.
Lord Clement-Jones (LD)
But if the report will be available only then and the regulations need to be made, the prospect of having an ombudsman is not there until 2029—something like that—or maybe 2030. Does not the Minister find that rather unsatisfactory, especially given her knowledge of the benefits of ombudsman services?
Baroness Jones of Whitchurch (Lab)
I can only repeat what I said. Ofcom is going to produce a report on this; it will look at the pros and cons of the issue and it may decide that there are other ways in which to deal with individual complaints that would not necessarily be an ombudsman service. We have to give it the space to do that thinking and develop that work; it will also need to look at how the tech companies themselves respond to complaints and what gaps need to be filled by that process. So it is not a simple process—but I understand the noble Lord’s frustration with this. If we have any more information about the timescale for this, I shall write to the noble Lord.
Lord Clement-Jones (LD)
I am sorry to interrupt again, but it partly depends on how much confidence we have in the tech companies in terms of how they deal with complaints.
Baroness Jones of Whitchurch (Lab)
We will know the outcome of that much sooner than 2028, because I am sure that we will all have experience of complaints that go forward and whether they are responded to efficiently in the coming months, because there will be the opportunity to do that. In the regulations, as the noble Lord knows, all the regulated companies are required to have a named individual and a process for people to raise complaints.
The noble Lord, Lord Stevenson, asked about appeals. I reassure noble Lords that Ofcom’s response will be informed by its regulatory experience, as well as the information presented as part of the complaint and any additional information that has been requested, before arriving at an appropriate determination. I also remind the Committee that the objective of a super-complaint is, ultimately, to bring to the attention of Ofcom an issue, a risk or a harm that it might otherwise have been unaware of. It is not to adjudicate an individual decision or necessarily to trigger enforcement action. Ofcom has the flexibility to use any of its online safety regulatory powers to address issues raised by the super-complaint. This may include a formal enforcement action, a change in guidance or codes of practice or, indeed, no action at all.
Lord Stevenson of Balmacara (Lab)
I may not have made the point as clearly as I should have. It is not the fact that Ofcom will be unaware of an issue that is being raised as much as that the need to get a super-complaint going may frustrate Ofcom finding out about small but high-risk activity that is remote from its main activity. We went through this in some detail towards the end of the Bill and in recent SIs that have stemmed from it. Size is never the only issue that will affect how individuals are being attacked or treated by these companies. I feel very uncomfortable about a situation where a super-complaint cannot be mounted because of lack of experience or a lack of quality in its processes, when the issue itself will then get ignored. I ask the Minister to perhaps reflect on that later.
Baroness Jones of Whitchurch (Lab)
As I have said, small organisations can get involved in the super-complaint process. The wording is designed as it is to allow new campaigning organisations, if you like, to come through, because this is a new territory that we are operating in, and we do not want to consult with or hear messages from just the usual, established organisations. I think that Ofcom will be sensitive about all this, but it will also, as we know, be able to enforce against small but risky services.
Ofcom is looking at what is happening in the smaller sphere, if I can put it like that. Ofcom has already started enforcement action against some of the non-compliant small but risky services. For example, it is investigating whether small services such as 4chan are complying with the illegal safety duties. There are other small services that Ofcom is now taking action against as well. I hear what the noble Lord has said, and I am confident that Ofcom will want to hear from all voices, not just the large players in this sector. I should also say that Ofcom is subject to standard regulatory redress mechanisms, such as judicial review.
The noble Baroness, Lady McIntosh, asked when the guidance will be in place. The Government expect Ofcom to have finalised the guidance by quarter 1 of 2026. This instrument comes into force on 31 December 2025. The guidance does not need to be finalised before the regime can come into effect. The guidance will contain important and useful information, so complainants may wish to wait until the final guidance is published before submitting a complaint, and Ofcom will consult on that guidance. But those organisations who know exactly what consumer complaints they wish to pursue do not have to wait for the guidance.
The noble Lord, Lord Wrottesley, and the noble Viscount, Lord Camrose, asked about Ofcom’s transparency and whether it will produce statistics on the evidence that it is acquiring. Ofcom recognises the importance of transparency around the work that it does and is considering how best to publish that information about super-complaints as it implements the new regime. Ofcom will publish responses to accepted super-complaints, including if they are rejected on admissibility grounds, and summaries of these complaints as required under the regulations.
Again, Ofcom and the Government will continue to communicate and develop those risks and make sure that the codes are kept under review. It is about not just producing the reports but communicating to the wider public if new risks are identified. We all accept that one purpose of the super-complaints is to bring things to Ofcom’s attention of which it might not otherwise be aware to enable it to move quite quickly to address those issues.
Employment Rights Bill
Baroness Jones of Whitchurch ExcerptsMonday 14th July 2025
(2 months ago)
Lords ChamberRead Full debate Employment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 113-I(a) Amendments for Report (Supplementary to the Marshalled List) - (11 Jul 2025)
“Contractual duties of confidentiality relating to harassment and discrimination(1) The Employment Rights Act 1996 is amended as follows.(2) After section 202 insert—“Harassment and discrimination: contractual duties of confidentiality
202A Contractual duties of confidentiality relating to harassment and discrimination(1) Any provision in an agreement between an employer and a worker of the employer (whether a worker’s contract or not) is void in so far as it purports to preclude the worker from making—(a) an allegation of, or a disclosure of information relating to, relevant harassment or discrimination, or(b) an allegation, or a disclosure of information, relating to the response of an employer of the worker to—(i) relevant harassment or discrimination, or(ii) the making of an allegation or disclosure within paragraph (a).(2) Harassment or discrimination is “relevant” for the purposes of subsection (1) if—(a) the harassment or discrimination consists of, or is alleged to consist of, conduct engaged in by—(i) an employer of the worker, or(ii) another worker of such an employer, or(b) the person who is, or is alleged to be, the victim of the harassment or discrimination is—(i) the worker, or(ii) another worker of an employer of the worker.(3) Subsection (1) does not apply to provision in an agreement (an “excepted agreement”) that satisfies such conditions as the Secretary of State may specify by regulations.(4) But the Secretary of State may by regulations provide that any provision in an excepted agreement is void in so far as it purports to preclude the worker from making an allegation or disclosure within subsection (1)(a) or (b)—(a) to a specified description of person;(b) for a specified purpose;(c) in specified circumstances.(5) The Secretary of State may by regulations—(a) provide for this section to have effect as if references to a worker included a specified description of individual who is not a worker as defined by section 230(3) but who—(i) works or worked, or is or was provided with work experience or training, in specified circumstances, or(ii) has entered into, or works or worked under, a relevant contract of a specified description;(b) make provision as to who is to be regarded as an employer of such an individual for the purposes of this section.(6) In subsection (5), “relevant contract” means any contract, other than a contract of employment, whether express or implied and (if express) whether oral or in writing, by which an individual undertakes to do or perform (whether personally or otherwise) any work or services for another party to the contract whose status is by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.(7) Regulations under this section may—(a) make different provision for different purposes;(b) make consequential provision. (8) For the purposes of this section, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as a police cadet is to be treated as employment by the relevant officer under a contract of employment.“The relevant officer” has the meaning given by section 43KA(2).(9) Nothing in this section affects the operation of any other enactment or rule of law by virtue of which provision in an agreement may be void.(10) In this section—“discrimination” means discrimination within section 13, or any of sections 15 to 19A, of the Equality Act 2010;“harassment” means harassment of the kind described in subsection (1), (2) or (3) of section 26 of that Act;“specified” means specified in the regulations.”(3) In section 192(2) (provisions of Act which have effect in relation to armed forces)—(a) omit the “and” at the end of paragraph (e);(b) for paragraph (f) substitute—“(f) this Part, apart from section 202A, and(g) Parts 14 and 15.”(4) In section 193 (provisions of Act which do not apply in relation to the security services), for “section 47B” substitute “sections 47B and 202A”.(5) In section 194(2) (provisions of Act which have effect in relation to House of Lords staff)—(a) omit the “and” at the end of paragraph (g);(b) for paragraph (h) substitute—“(h) this Part, apart from section 202A, and(i) Parts 14 and 15.”(6) In section 195(2) (provisions of Act which have effect in relation to House of Commons staff)—(a) omit the “and” at the end of paragraph (g);(b) for paragraph (h) substitute—“(h) this Part, apart from section 202A, and(i) Parts 14 and 15.”(7) In section 236(3) (regulations subject to affirmative procedure), after “125(7)” insert “, 202A”.”Member's explanatory statement
This new clause provides that provision in an agreement between an employer and a worker is void in so far as it purports to prevent the worker making an allegation or disclosure of information relating to certain work-related harassment and discrimination.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, this amendment is on the important issue of non-disclosure agreements. NDAs have their legitimate purposes, but they should never be used to take unfair advantage of workers and to cover up workplace misconduct. Evidence has emerged in recent years that some employers have been doing just that.
I praise the work of campaigners who have brought this evidence to light—notably Can’t Buy My Silence, spearheaded by Zelda Perkins, who has been an impassioned campaigner for change for many years and is one of many brave victims who have spoken up. This evidence shows that some employers exploit the inherent imbalance of power they have with their workers and get NDAs signed, fostering a culture of silence and impunity.
I acknowledge the strength of feeling expressed across the House in Committee and thank noble Lords —as well as those in the other place—for raising the evidence for change in Parliament and for their powerful interventions on this issue. I thank in particular the noble Baronesses, Lady O’Grady, Lady Chakrabarti, Lady Kennedy, Lady Morrissey, Lady Goudie, Lady Harman and Lady Kramer.
The Government have listened to those calls for action and tabled Amendment 46. This amendment will void any provision in an agreement, such as a contract of employment or settlement agreement, between a worker and their employer in so far as it prevents a worker speaking out about relevant harassment or discrimination.
Let me be clear that this amendment will not impact on the legitimate use of NDAs—for example, to protect commercially sensitive information, ideas or intellectual property in business transactions. Relevant harassment or discrimination is defined in line with the existing definitions in the Equality Act 2010 and is conduct which the worker or a co-worker has suffered or is alleged to have suffered, or conduct carried out or alleged to be carried out by the employer or a co-worker—for example, where a colleague tells another colleague that their boss has sexually harassed them. This will mean that workers who have experienced harassment or discrimination can speak up, as well as those who have witnessed misconduct or who have knowledge of it.
Lord Hunt of Wirral (Con)
My Lords, this has been a very important debate and I thank the Minister, the noble Baronesses, Lady O’Grady of Upper Holloway, Lady Goudie and Lady Ramsey of Wall Heath, the noble Lord, Lord Cromwell, and my noble friend Lord Lucas for their contributions. In particular, I congratulate and thank the noble Baroness, Lady Kramer, especially for Amendments 95 and 96. They are vital and long overdue, and I support them very strongly indeed. They strike at the very heart of what it means to have a fair, transparent and accountable workplace. Too often, whistleblowers have faced retaliation, dismissal and isolation, not because they have done anything wrong but because they have identified where something has been severely wrong. That is a moral failure in our system, and it is one that this House must now move to correct.
Workplace harassment, abuse, corruption and mismanagement are not minor private inconveniences to be swept under the carpet but serious matters of public interest. It is precisely in the public interest that these amendments redefine what constitutes a protected disclosure and establish an independent office of the whistleblower. As the noble Lord, Lord Cromwell, just pointed out, this new body would be more than just symbolic. It would enforce real standards, offer real protections and provide real redress for those who are brave enough to come forward. It would finally send a clear signal to employers that retaliation is no longer ever going to be tolerated and that burying the truth behind legal threats and non-disclosure agreements has to stop.
It is particularly important that these protections extend to disclosures around violence, harassment and abuse in the workplace. These are areas where silence is too often enforced and where whistleblowing can save others from further harm. I urge the Government to take this opportunity to stand firmly on the side of transparency, accountability and justice.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords for their support for our amendment. I assure your Lordships that we will follow it through to full implementation.
The noble Lord, Lord Lucas, asked a number of specific questions. There will be further consultation on the regulations, but I assure all noble Lords around the House of the Government’s absolute determination to get this and the regulations on to the statute book. I know that noble Lords will hold our feet to the fire; I will be doing that as well, to my own Government. We will deliver on this.
Moving on to Amendments 95 and 96, whistleblowers play an important role in exposing wrongdoing and malpractice in the workplace. It is vital that workers are able to come forward with concerns without suffering adverse treatment by their employer. That is why whistleblowers have been protected from dismissal and detrimental treatment under the Employment Rights Act since reforms were introduced in the UK in 1998 through the Public Interest Disclosure Act. However, some time has passed since these world-leading reforms were introduced. The Government acknowledge concerns from noble Lords and others that the whistleblowing framework may not be operating as effectively as it should be.
That is why we are taking a range of actions to strengthen the framework. Through the Employment Rights Bill, we are introducing a measure that will expressly make sexual harassment the basis for a protected disclosure. This will provide welcome clarity for workers and have wider benefits, including encouraging more workers to speak up about sexual harassment by using whistleblowing routes. The measure will signal to employers that workers who make protected disclosures about sexual harassment must be treated fairly, as workers will have legal recourse if their employer subjects them to detriment as a result.
Additionally, we have committed to implementing professional standards for NHS managers to hold them accountable for silencing whistleblowers or endangering patients through misconduct. Most recently, the Government amended the Public Interest Disclosure (Prescribed Persons) Order 2014 to allow workers to make protected disclosures to relevant government departments on suspected breaches of sanctions. These changes will help workers to qualify for employment protections when disclosing information on financial, transport and other trade sanctions to government and to seek redress should they suffer detriment or dismissal due to making a protected disclosure.
The amendments proposed in this group would make substantial changes which should be considered as part of a broader assessment of the operation of the whistleblowing framework. For example, the amendment that would create an office for the whistleblower would introduce a significant structural change to that framework. The Government also note that there are differing views among stakeholders about the role of a new body.
However, as an indication of the continued movement in this space by the Government, I am pleased to announce that the Government are today publishing the research report on the whistleblowing framework, which was undertaken by the previous Government. The report provides observations and insights about the operation of the whistleblowing framework, obtained from stakeholder engagement, and a literature review, which will be a positive contribution to debate. The Government look forward to engaging stakeholders about that report and the proposal for reform. On that basis, I ask the noble Baroness, Lady Kramer, not to press Amendment 95.
Lord Lucas (Con)
I beg the Minister, if I might, for a letter in response to my questions. I quite understand that she cannot answer them now.
Baroness Jones of Whitchurch (Lab)
I am sure that we can write and provide some clarification on that. I commend Amendment 46 to the House.
Employment Rights Bill
Baroness Jones of Whitchurch ExcerptsMonday 14th July 2025
(2 months ago)
Lords ChamberRead Full debate Employment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 113-I(a) Amendments for Report (Supplementary to the Marshalled List) - (11 Jul 2025)
Lord Londesborough (CB)
My Lords, I support all the amendments in this first group, but I shall speak briefly to Amendment 9 in the name of the noble Baroness, Lady Noakes, which, as she explained, is an amendment to the Government’s Amendment 8, and Amendment 22. I want to interrogate the wording of the Government’s Amendment 8. We have a 309-page Bill. There is a lot of concern outside, at the coal face, from businesses about definitions and what the Bill means. This is a good example:
“In exercising the power under subsection (6) the Secretary of State must, in particular, have regard to … the desirability of preventing this Chapter from having a significant adverse effect on employers who are dealing with exceptional circumstances”.
Can the Minister explain how these exceptional circumstances are defined, and how significant does the adverse effect need to be for it to be regarded by the Secretary of State?
I ask that mindful of the latest survey from the Federation of Small Businesses, just a couple of days ago, which surely signals significant adverse effects for the majority of small and micro-businesses. For the first time in its history, the FSB reports that more UK small firms expect to shrink, sell up or shut down over the next 12 months than anticipate growth. The FSB’s Q2 small business index shows that 27% of small businesses expect to contract, close or be sold, outstripping the 25% which are planning for growth, and it marks the first time that the balance has tipped towards pessimism since the index began. As the noble Baroness, Lady Noakes, points out in her amendment, there is no need to layer “exceptional circumstances” on to already significant adverse effects on employers. It would be far neater, of course, to exempt small and micro-businesses from Clause 1, as I and many others argued throughout Committee.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, I first thank your Lordships’ House for the extensive engagement, debate and scrutiny that this Bill received throughout Committee. Indeed, we have held over 50 engagements with noble Lords from across your Lordships’ House since the Bill left the other place. As we progress Report, I need to remind noble Lords that the Government were elected on a manifesto commitment to make work pay. This Bill marks the first phase in delivering that commitment. Once implemented, it will raise the minimum floor of employment rights, provide a level playing field for businesses which are already engaged in good practice and raise living standards across the country. Alongside the new industrial strategy, the Bill will support our mission to increase productivity and create the right conditions for long-term, sustainable, inclusive and secure economic growth.
Turning to the amendments, I have listened carefully to the comments of the noble Lord, Lord Goddard, on Amendment 1. I remind noble Lords that as of March 2025, there are around 1 million people on zero-hours contracts in the UK. About 33% of them have been with their current employer for less than 12 months and 51% for less than two years. These are the most vulnerable individuals in the workforce. The Government are therefore committed to ending exploitative zero-hours contracts, which the noble Lord, Lord Goddard, quite rightly describes as “precarious employment”.
Lord Wolfson of Aspley Guise (Con)
Would the Minister accept that setting a cap on the number of hours still gives the Secretary of State flexibility to determine exactly what the number of hours is, while giving industry the security, comfort and certainty it needs to carry on investing in its shops, pubs, restaurants and care homes?
Baroness Jones of Whitchurch (Lab)
My Lords, we intend to consult on this, and of course we will take the comments and concerns of business into account; it is our absolute intention to do that. What we do not want to do is pre-empt that by setting out the conclusions of the consultation in advance. I hear what the noble Lord says, but I do not think that fits with our model of wishing to take this and consult further on it. But of course we will take business views into account.
I turn to the amendments tabled in my name. We listened to concerns raised by parliamentarians and business stakeholders, and responded promptly by amending the Bill. The Bill allows regulations to specify circumstances in which the duty to offer guaranteed hours does not apply or for a guaranteed offer once made to be treated as withdrawn. We expect that this power will be used narrowly in response to changing circumstances to address situations where the measure would have significant adverse impacts. The Delegated Powers and Regulatory Reform Committee recommended restating this power with greater precision.
In response, we have tabled amendments to constrain the use of this power. Our amendments require that, in exercising this power, the Secretary of State must have regard to both the benefit to workers of receiving a guaranteed-hours offer and the desirability of preventing the provisions having a significant adverse effect on employers who are dealing with exceptional circumstances. Where this power is exercised and the duty to offer guaranteed hours does not apply, a further amendment clarifies that the exception will operate in relation to a single reference period, rather than being open-ended.
Circumstances specified in regulations would need to be specific, factual and narrow enough so that it is crystal clear that the duty then does not apply or no longer applies. There will be no room for discretion from the employer or the worker. The Government will consult on any use of this power. This way of constraining the exercise of the power still allows flexibility to determine the specific circumstances once all interested parties have had a chance to input.
Corresponding amendments are made to the provisions for agency workers. In addition, under the Bill’s current provision, an agency worker who accepts a guaranteed-hours offer from an end hirer becomes directly engaged by the hirer. The worker could then be entitled to another initial reference period as a directly engaged worker. Amendments 6 and 23 clarify that agency workers who accept a guaranteed-hours offer will not benefit from a new initial reference period. This aligns their rights with directly engaged workers and eases employer burdens.
Regarding Amendments 12 to 19, the Bill usually requires a guaranteed-hours offer to be made to a qualifying agency worker on no less favourable terms and conditions taken as a whole than those under which the agency worker was engaged during a relevant reference period. We have heard concerns about instances where agency workers are paid a significant premium in recognition of, for example, the temporary and insecure nature of their work. As the Bill stands, such pay premiums could be carried over into a guaranteed-hours offer, putting those agency workers at an unintentional advantage compared with directly engaged workers in similar roles. This could also cause employers to move away from hiring agency workers in the first place. These amendments will allow less favourable terms and conditions relating to pay to be proposed in guaranteed-hours offers to agency workers, to ensure alignment with comparable directly engaged workers, maintaining flexibility for businesses and supporting consistency in treatment of the workers.
I turn to Amendments 9 and 22, in the name of the noble Baroness, Lady Noakes, which seek to amend the amendments in my name that I have just justified. I listened carefully to the noble Baroness’s points, but accepting her amendments and removing the reference to employers dealing with exceptional circumstances would not address the DPRRC’s criticisms regarding the breadth of the power. It would also not be clear what the Secretary of State would need to consider when setting out the specified circumstances. I reassure the noble Baroness that, once the Secretary of State has considered these matters, he can still decide to make regulations to set out the circumstances in which the duty to make guaranteed-hours offers does not apply, which may not relate to exceptional circumstances.
I therefore ask the noble Lord, Lord Goddard of Stockport, to withdraw his amendment. We very much share his objective to address the imbalance of power, and I hope he has heard our case about why we believe that what is currently in the Bill is the best way to do that. I also commend to the House Amendments 6 to 8, 12 to 21 and 23 in my name.
Lord Goddard of Stockport (LD)
I thank noble Lords who took part in this debate. The number of amendments in this group shows the depth of feeling on zero-hours contracts. I think it was the same story from the noble Baroness, Lady Carberry of Muswell Hill—for whom I have the highest regard—and the Minister. It was not a defence; it seemed to me that they were saying that giving employees this extra power would somehow not help them in asking for those contracts, as the employer might not like it.
That is the point of it. The Bill is supposed to address what employers and employees like. This is not an either/or; it is an “extra for”—an extra protection for workers. As the Minister herself said, 1 million people are on zero-hours contracts, many of which are exploitative. That should not remain after all this debate has taken place. All we are asking for is clarity and detail and all we are getting is consultation and manna tomorrow. That is not acceptable. There are 1 million people looking at this today, wondering what we are going to do. In my mind, what we should do, which I wish to do, is test the will of the House.
“(6A) See paragraph 5(3A) of Schedule A1 for provision about when the initial reference period is not a reference period in relation to a worker who is a former agency worker and that worker’s employer.”Member's explanatory statement
This amendment is consequential on my amendment to Schedule 1 at page 160, line 33.
“(6A) In exercising the power under subsection (6) the Secretary of State must, in particular, have regard to—(a) the benefit to workers of receiving a guaranteed hours offer under this Chapter, and(b) the desirability of preventing this Chapter from having a significant adverse effect on employers who are dealing with exceptional circumstances.” Member's explanatory statement
This amendment sets out a non-exhaustive list of matters that the Secretary of State must have regard to in exercising the power in new section 27BD(6) of the Employment Rights Act 1996.
“(b) must propose terms and conditions of employment relating to pay that comply with paragraph 2A, and(c) must propose terms and conditions of employment relating to additional matters—(i) that, taken as a whole, are no less favourable than the terms and conditions relating to additional matters that the qualifying agency worker had when working for and under the supervision and direction of the hirer during the relevant reference period,”Member’s explanatory statement
This amendment is consequential on my amendment to Schedule 1 that inserts a new paragraph 2A into new Schedule A1 to the Employment Rights Act 1996.
“(6A) In exercising the power under sub-paragraph (6) the Secretary of State must, in particular, have regard to—(a) the benefit to agency workers of receiving a guaranteed hours offer under this Part of this Schedule, and(b) the desirability of preventing this Part of this Schedule from having a significant adverse effect on hirers who are dealing with exceptional circumstances.”Member’s explanatory statement
This amendment sets out a non-exhaustive list of matters that the Secretary of State must have regard to in exercising the power in paragraph 4(6) of new Schedule A1 to the Employment Rights Act 1996. It is equivalent to my amendment to clause 1, page 9, line 36.
“(3A) Where, by virtue of sub-paragraphs (2) and (3), a qualifying agency worker and a hirer are treated as entering into a worker’s contract on a day, and accordingly from that day the qualifying agency worker becomes a worker and the hirer becomes that worker’s employer, Chapter 2 of Part 2A applies in relation to that worker and that employer as if in section 27BA (employer’s duty to make a guaranteed hours offer) subsections (4)(a) and (5) (which provide for the initial reference period to be a reference period and define the initial reference period) were omitted.”Member’s explanatory statement
This amendment produces the effect that where a qualifying agency worker accepts a guaranteed hours offer from a hirer under Part 1 of new Schedule A1 to the Employment Rights Act 1996, so that (respectively) they become a worker and an employer for the purposes of new Chapter 2 of Part 2A of that Act, there will not be a new initial reference period in relation to the former agency worker.
Baroness Lawlor (Con)
My Lords, I support Amendment 25 in particular, although I also support Amendment 24. This is about the freedom to be represented by people who represent you and your stance. Only 22% of employees in this country belong to a trade union, so surely it is right, as my noble friends Lord Sharpe of Epsom and Lord Hunt propose, that a relevant collective agreement for the purposes of Clause 5 will be invalid unless it is open to being struck with a body which is independent of a trade union and which is not just a trade union. Given that many workplaces, particularly small businesses, do not have trade union representatives and some 80% of employees do not belong to a trade union, there really is not a case, in terms of freedom, for restricting who should conduct the collective bargaining. It is important to send a signal that we believe in a free workforce and respect the freedom of working people to join, or not to join, a trade union.
Baroness Jones of Whitchurch (Lab)
My Lords, I have listened to the noble Lord, Lord Sharpe, and his explanation for Amendments 24 and 25, and note that these are similar to the amendments he tabled in Committee, but with some of the safeguards and requirements removed. While I respect the noble Lord’s views in this area, I feel this is going in the wrong direction. Staff associations and employee representative bodies can of course be a very positive way for staff and employers to engage. However, we are not convinced they are the suitable vehicle for deciding whether to modify or opt out of statutory employment rights. While many maintain a good balance between positive engagement and constructive challenge, we are not persuaded that they will, in all cases, argue as robustly as a trade union on behalf of workers. In addition, without a trade union representing them, workers will not have as many protections if their employer does not deliver promised benefits.
This is nothing to do with a closed shop or industrial bullying. Under our proposals, employees will continue to have the right to be, or not to be, a member of a trade union. The issue here is the right to be represented by a body that is truly independent. We remain of the view that agreements of this type are best made by trade unions which have been through all the steps to become listed and certified as independent. I would encourage any staff association or employee representative body that wants to negotiate on behalf of its members to register as a trade union and go through the steps to obtain a certificate of independence from the certification officer.
The second part of the noble Lord’s amendment sets out that a relevant collective agreement shall not be treated as valid if it meets conditions such as imposing detriment or disadvantage on a worker who is not a member of a trade union and terms being incorporated into a worker’s contract solely by reason of union membership status. We believe that these provisions are unnecessary. The Trade Union and Labour Relations (Consolidation) Act 1992 already provides sufficient protection by ensuring that workers cannot be subject to detriment for the purpose of compelling them to join a trade union. Furthermore, the application of the terms of collective agreements to workers generally depends on incorporation of them into their contracts, either expressly or by implication, in line with well-established contract law, rather than on the basis of a trade union membership.
I turn to Amendments 26 and 27 in my name. Currently, when the terms of a collective agreement cease to be incorporated, the worker’s initial reference period and initial information period recommence the next day. However, in some cases, there could be quite a gap between these terms ceasing to be in force and the worker next being employed by the employer to work. We heard the strength of feeling around business burden in Committee and, where it is possible to make tweaks, we will do so. In this case, we believe it makes more sense for the reference period to start the next time the worker is employed by the employer. This avoids businesses having to consider making a guaranteed-hours offer before it is sensible and necessary to do so.
We are also tabling a minor and technical amendment to new Section 27BY(8) to reflect that the duty relating to the information right in the existing provisions will be on agencies to inform potential eligible agency workers about the right to guaranteed hours in any relevant information period.
Finally, Amendment 27 ensures that the zero-hours measures in the Bill apply as appropriate to special categories of workers. This follows a long-standing precedent that these categories of workers should be treated as distinct, as they do not have a typical employment relationship or undertake a unique type of work. In line with this precedent, the amendment ensures that House of Commons and House of Lords staff, Crown employees and mariners benefit from the crucial protections the Bill provides on zero hours. It also ensures that duties made under provisions in the Bill do not apply where this would not be appropriate; namely, in relation to service personnel in the Armed Forces and police officers. I therefore ask the noble Lord to withdraw Amendment 24 and commend Amendments 26 and 27.
Lord Sharpe of Epsom (Con)
I first thank my noble friends Lord Jackson of Peterborough and Lady Lawlor for their comments. Employee representation must be plural and not monopolised by trade unions. There are many workplaces across the country where independent staff associations or employee bodies are trusted, respected and effective. These organisations are not lesser simply because they are not unions. In fact, they are often more in tune with their colleagues’ needs, less politicised and more flexible in resolving workplace issues—yet disappointingly, the Minister says they are not “suitable”.
The idea that only a union can be trusted to negotiate terms is a fiction—we just have to look at Birmingham to see the results of that belief. This amendment simply recognises reality: that employee voices come in many forms and the law should not shut out legitimate and independent associations.
Secondly and just as crucially, we cannot allow this legislation to leave space for any form of closed shop, not in name or in practice. It is true of course that compulsory union membership is already unlawful, as the Minister pointed out, but this amendment would ensure that there were no back doors. We do not think the law should have any ambiguity on this. No agreement should ever impose a detriment on a worker simply because they choose not to join a union, and as my noble friend Lady Lawlor pointed out, the majority choose not to—in fact, in the private sector, I think that the proportion who choose not to join a union is 87.7%. No terms should be granted only by virtue of membership. That is not freedom; that is coercion.
We therefore say again that collective bargaining should not become collective exclusion. These amendments would uphold freedom of association in both directions: the right to join and the right not to, but for now, I beg leave to withdraw the amendment.
“(b) in relation to a worker and the worker’s employer—(i) section 27BA(5)(a) has effect as if for sub-paragraphs (i) and (ii) there were substituted—“(i) where the worker is employed by the employer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or(ii) where the worker is not so employed, the first day after the effective day on which the worker is employed by the employer, and”, and(ii) section 27BF(3) has effect as if for paragraphs (a) and (b) there were substituted—“(a) where the worker is employed by the employer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or(b) where the worker is not so employed, the first day after the effective day on which the worker is employed by the employer.”,(c) in relation to an agency worker and a hirer for and under the supervision and direction of whom the agency worker works, paragraph 1(5)(a) of Schedule A1 has effect as if for sub-paragraphs (i) and (ii) there were substituted—“(i) where the agency worker is working for and under the supervision and direction of the hirer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or(ii) where the agency worker is not so working, the first day after the effective day on which the agency worker is working for and under the supervision and direction of the hirer, and”, and(d) in relation to an agency worker and the work-finding agency with which the agency worker has a worker’s contract or an arrangement by virtue of which the agency worker is (or is to be) supplied to work for and under the supervision and direction of a hirer, paragraph 6(3) of Schedule A1 has effect as if for paragraphs (a) and (b) there were substituted—“(a) where the worker’s contract or arrangement is in force on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or(b) where it is not in force on the effective day, the first day after the effective day on which it is in force.””Member's explanatory statement
This amendment ensures that the gloss in new section 27BY(8) of the Employment Rights Act 1996 operates effectively.
“18A In section 192 (armed forces), in subsection (2)(e), after “103” insert “, 104BA, 104BB”.18B (1) Section 194 (House of Lords staff) is amended as follows.(2) After subsection (2)(a) insert—“(aza) Part 2A, apart from Chapter 1 of that Part,”.(3) In subsection (2)(c), for “and 47E” substitute “, 47E and 47H”.18C (1) Section 195 (House of Commons staff) is amended as follows.(2) After subsection (2)(a) insert—“(aza) Part 2A, apart from Chapter 1 of that Part,”.(3) In subsection (2)(c), for “and 47E” substitute “, 47E and 47H”.18D (1) Section 199 (mariners) is amended as follows.(2) In subsection (8), for paragraph (b) substitute—“(b) Part 2,(bza) Part 2A, apart from Chapter 1 of that Part,(bzb) Parts 2B, 3 and 5,”.(3) After subsection (8) insert—“(9) In the application of subsection (7) to the provisions mentioned in subsection (8)(bza), the reference in subsection (7)(b) to a contract of employment is to be read as a reference to a worker’s contract.”18E In section 200 (police officers), in subsection (1)—(a) after “8 to 10,” insert “Chapters 2 to 4 of Part 2A,”;(b) after “47C,” insert “47H,”.”Member's explanatory statement
The paragraphs inserted into Schedule 2 by this amendment make amendments of Chapter 1 of Part 13 of the Employment Rights Act 1996 (particular types of employment) that are consequential on clauses 1 to 5.
Lord Goddard of Stockport (LD)
My Lords, I will speak on the important topic of statutory sick pay, particularly in relation to amendments in this group. I thank the noble Baroness, Lady Coffey, for signing the amendment. I listened to her very closely in Committee; she may have got a flavour of what I am about to say, because she has an excellent overview of these matters, and I think the House does listen. I also thank the noble Baroness, Lady Noakes, for her forensic examination of the financial cost, which should never be underestimated—these things are emotional, but there are costs to anything that anybody does. It is important that we understand where the balance lies.
I will speak predominantly to my Amendment 30, which is a probing amendment. We recognise that there are challenges in creating a two-tier employment system with different obligations depending on business size. For that reason, we will not press for a Division on this amendment. However, this amendment highlights the importance of recognising the potential impact that this might have on small and medium-sized enterprises due to the costs that they incur from statutory sick pay. SMEs form the backbone of our economy. It is essential that government policy takes full account of the financial pressures that businesses face.
Expanding statutory sick pay is an important and welcome goal, but it must be done with careful consideration of how the additional costs affect the viability and growth prospects of SMEs. That is why meaningful consultation with these businesses throughout the implementation process is critical. The Government should actively engage with SMEs to ensure that their concerns are understood and addressed, so that any changes to statutory sick pay are substantial and do not inadvertently place undue burdens on the very common businesses and people who are trying to drive the economy.
I will ask the Minister to confirm that, as the Government continue their thorough consultation as part of the implementation of the Bill, they do so directly and in close alignment with small and medium-sized businesses, not during the passage of the Bill but throughout its full implementation. Can the Minister provide reassurance that SMEs’ voices will be heard, and their concerns addressed, as the policy is rolled out? Because it is only through partnership with the SME community that we can ensure the statutory sick pay system is both fair for workers and sustainable for business. I look forward to the Minister’s response.
Baroness Jones of Whitchurch (Lab)
My Lords, I thank all noble Lords who have contributed. I will start with Amendment 28, which looks at retaining the waiting period for one day. The Government believe that removing the waiting period is essential in ensuring that all eligible employees can take the time off work they need to recover when sick. That is why we committed to it in the manifesto. This is particularly true for employees with long-term or fluctuating conditions, who should feel able to take a day of sickness absence to manage their condition or prevent it worsening. The noble Lord, Lord Hunt, said that the one-day waiting period that he was proposing should not be a punishment, but that is exactly what it would be under the proposals before us.
It is also worth saying that 25% of all employees receive only statutory sick pay, and many are forced to choose between their health and the genuine financial hardship during the first three days of sickness absence when they are not paid. Removing the waiting period will make a tangible difference to ensuring that the safety net for sick pay is available to those who need it most.
I understand that the noble Lord is concerned about the wider impacts on businesses of these changes, but, without the removal of the waiting period, many employees will be forced to continue to come into the workplace when they are sick. The pandemic exposed how damaging this can be for businesses and individuals, with WPI economic modelling telling us that presenteeism can lead to up to 12% of the workforce becoming sick from the illness of a single employee. By reducing such presenteeism, businesses may benefit from the overall productivity increase, which can also contribute to a positive work culture that better helps recruit and retain staff.
Of course, as we have debated before, employers will need to manage sickness absence, as they do at the moment. I listened to the noble Baroness, Lady Fox, on the cultural issues, and, yes, some of the things she identifies are real issues. We are addressing them across government, and she will have heard many of my ministerial colleagues set out how they plan to do that. But that does not alter the fact that, in this Bill, what we are proposing makes good sense for the lowest paid.
I also remind noble Lords that the additional cost to business of the statutory sick pay reforms is about £450 million annually—a relatively modest £15 per employee. It was quite rightly pointed out that these figures were modelled by the DWP, but it does have a reasonable track record of doing such modelling, and I do not think that the figures should be dismissed.
Amendment 29 seeks to exempt employers from having to pay the rate of statutory sick pay outlined in Clause 11 if they already provide a contractual scheme that pays at least 80% of normal weekly earnings. The rate of statutory sick pay is set out in the Bill as the lower of 80% of an employee’s weekly earnings, or £118.75. This already means that no employer will have to pay more than 80% of an employee’s normal weekly earnings. Therefore, an employer already paying 80% of an employee’s weekly earnings would be compliant with the statutory minimum set out in the Bill. As such, I am unclear on the intended impact of this amendment on employees or employers, as it does not appear to change the statutory sick pay entitlement.
I turn to Amendment 30 in the name of the noble Lord, Lord Goddard, and I appreciate what he said about it being a probing amendment. As I have mentioned, the changes we are making to statutory sick pay will cost businesses around £15 per employee. This relatively modest amount compares with projected costs of up to £600 million a year to government of a rebate for the full amount of statutory sick pay for SMEs. I accept the arguments made by the noble Lord that this cost will of course depend on the size, scope and complexity of a rebate scheme. However, we have experience of administering such schemes. We previously delivered statutory sick pay rebate schemes such as the percentage threshold scheme. A review found that the employers underused it and found it was complex and time-consuming to administer. Any rebate system that maximises opportunity for business take-up, which I envisage would be the noble Lord’s intent in this amendment, would collectively be costly for the taxpayer as well, whereas the cost saving for individual employers would be small and a new administrative burden would be placed on them.
Previous statutory sick pay rebate schemes also did not incentivise employers to support their employees back to work or invest in their health and well-being. This, in turn, can affect overall productivity and staff retention. We know that employers have responsibility for paying sick pay, and that helps maintain a strong link between the workplace and the employee, with employers encouraged to support employees to return to work when they are able. I would also like to add that the Government have asked Sir Charlie Mayfield to lead the Keep Britain Working review, which will consider recommendations on how employers and the Government can work together to promote healthy and inclusive workplaces. A final report with recommendations is expected in the autumn.
I therefore do not believe that a rebate scheme is the best way to support our SMEs at this time, but, in response to the noble Lord, Lord Goddard, I say that of course we are continuing to have a dialogue with SMEs, and we take their concerns very seriously. I therefore ask the noble Lords, Lord Sharpe and Lord Goddard, not to press their amendments.
Lord Hunt of Wirral (Con)
My Lords, I would like to thank all noble Lords for their contributions to this important debate. I am particularly grateful to my noble friend Lady Noakes for reminding us all that one of the great difficulties we have in debating a subject such as this is the lack of a reliable evidence base, and that is particularly relevant to the debates on these amendments. The noble Baroness, Lady Fox of Buckley, quite rightly drew our attention to the unintended cultural issues, which worry us all so much and to which the Minister has just referred.
I remain wholly unconvinced by the Minister’s response when debating the removal of the waiting period for statutory sick pay. To remove any waiting period at all, and to introduce a day one entitlement without qualification, is not just a step too far but an unnecessary one. Having at least one waiting day does not undermine the Government’s stated intention to support those who are genuinely unwell. It is a modest safeguard that reflects the balance they claim to seek, and its removal creates perverse incentives at a time when we should be doing all we can to encourage people back into work.
On the issue of agency work and statutory sick pay, the Minister’s response is equally unconvincing. I did try to outline a scenario where individuals go off sick, claim SSP and then begin new assignments, while continuing to receive sick pay from another employer. I do not believe that the Minister adequately addressed that point. I suggest that perhaps we ought to put our heads together and try to find another solution. Having listened carefully to the debate, a system-wide mechanism, possibly administered by HMRC, to cross-check SSP claims across employers could serve as a much-needed safeguard. Perhaps she might reflect further on that on that idea, because I believe that such a mechanism would not target those with legitimate dual employment. We recognise that some workers genuinely hold more than one job in a given week, but it would introduce a basic layer of validation—a simple tool to distinguish between valid and dishonest claims. Without it, businesses, particularly small and agency employers, would remain exposed to fraudulent or inadvertent overclaims that could cost them thousands of pounds, all in the name of a policy that currently lacks real oversight.
I thank my noble friend Lady Coffey and the noble Lord, Lord Goddard of Stockport, for their important probing amendment. It has been a useful and interesting debate, but we still search for the solutions that will meet the problem. I urge the Government, in their phased consultation, to listen to businesses from across the board as they highlight their concerns. In the meantime, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment is consequential on my amendment of clause 18 at page 41, line 39.
“(ca) after subsection (3) insert—“(3A) For the purposes of subsection (1) an employee is also a “bereaved person” if—(a) the employee has suffered a pregnancy loss of a specified kind, or(b) the employee satisfies specified conditions as to relationship with—(i) a person who has suffered a pregnancy loss of a specified kind, or(ii) a child who had been expected to be born had a pregnancy loss of a specified kind not occurred.”;”Member’s explanatory statement
This amendment and my other amendments of clause 18 would enable the entitlement to bereavement leave conferred by section 80EA of the Employment Rights Act 1996 to be extended to cases involving pregnancy loss.
Member’s explanatory statement
See the explanatory statement for my amendment of clause 18 at page 41, line 27.
“(ga) in subsection (9)—(i) in the definition of “child”, after “stillbirths” insert “after twenty-four weeks of pregnancy”;(ii) after the definition of “child” insert— ““live birth” means the birth of a child born alive;“pregnancy loss” means—(a) the ending of a pregnancy after less than twenty-four weeks of pregnancy in any way other than by a live birth, or(b) the failure of an embryo to become implanted following a transfer carried out in the course of providing treatment services within the meaning of the Human Fertilisation and Embryology Act 1990;“specified” means specified in the regulations;”;”Member’s explanatory statement
See the explanatory statement for my amendment of clause 18 at page 41, line 27.
Lord Sharpe of Epsom (Con)
My Lords, I thank my noble friends Lord Young of Acton and Lord Holmes of Richmond for their amendments in this group. I join the noble Lord, Lord Goddard, in his remarks about the amendment of the noble Lord, Lord Holmes, in particular, which addresses an important point about the employment opportunities for blind and sight-impaired people. Unfortunately, the measures in the Bill make it significantly more costly to hire all individuals, and this will hit those on the margins of the labour market the hardest.
My noble friend Lord Young has made some very compelling points in Committee and now on Report on Clause 20, and this is where the noble Lord, Lord Goddard, and I differ. If the Government do not accept my noble friend’s amendments, we must consider the logical—and potentially absurd—consequences of allowing unqualified liability for indirect harassment.
Imagine for a moment that the same principle was applied here in this House, as the noble Lord, Lord Lucas, just did, while making some very good points. Suppose for example a guest in the Public Gallery was to lean over and whisper something mildly controversial—perhaps a pointed remark about constitutional reform. A doorkeeper standing nearby happens to overhear it and finds it offensive. Under the logic of indirect third-party harassment liability, would the Lord Speaker be expected to issue a formal apology? Would Black Rod be required to eject the offender and impose mandatory sensitivity training on all future guests? What would the “banter consultant” mentioned by the noble Baroness, Lady Fox, say about that?
This illustrates the unworkability and overreach of the current drafting. No one would expect Members of this House to be held responsible for the spontaneous and overheard utterances of strangers in the Gallery, and nor should we expect publicans, shopkeepers or venue managers to be so, either.
As to Amendment 193 standing in my name, the Government have already decided to delay many of the measures in the Bill. Originally, we were told that these measures would come into effect by 2026, but the Government’s decision to postpone parts of the Bill is, I believe, an implicit admission that their consultation process was inadequate.
The Government have now begun to recognise the very real and unintended consequences that could follow from some of these provisions. Clause 20, which seeks to impose liability on employers for third-party harassment, is one such provision that warrants further scrutiny and, at the very least, a longer lead-in time. This clause, while we accept it is well-intentioned in its aim to protect employees, risks, as we have discussed, casting too wide a net. It opens the door to legal uncertainty and potentially frivolous claims based on subjective interpretations of overheard remarks or perceived offence. Therefore, the Government must reconsider how such a broad definition of harassment could be interpreted in real-world settings, particularly in the hospitality and retail sectors, where employees regularly interact with members of the public.
As my noble friend Lord Young of Acton pointed out, recent warnings from the British Beer and Pub Association, which has announced that Britain is now losing a pub every day, should be heeded. This is not simply a matter of economics; it is a cultural and social loss, as my noble friend pointed out. Pubs are part of the lifeblood of our national identity. They are centres of community, debate and tradition, yet now, in addition to facing tax increases, rising costs and staff shortages, pub landlords are being told they may be held legally responsible for comments made by their patrons, even if those comments are not directed at staff. To quote again from the noble Baroness, Lady Fox, this is not made-up nonsense; this is factual.
I urge the Government to take this opportunity to reflect, to consult more widely and to ensure that they do not impose a law which may undermine business, stifle free expression and expose employers to unfair liability.
Baroness Jones of Whitchurch (Lab)
My Lords, this Government have provided assurances to your Lordships’ House throughout these debates, time and again, that Clause 20 will not have the chilling effect on free speech that is being claimed today. Therefore, we will resist Amendments 43, 44 and 45, tabled by the noble Lord, Lord Young of Acton, in relation to third-party harassment.
I make it absolutely clear at the outset that this clause is about addressing harassment, not about banter. We have overarching legislation in the Human Rights Act 1998 which guarantees freedom of expression in a way that is legally and constitutionally stronger than any amendment the noble Lord could make to the current Employment Rights Bill. Therefore, we do not accept the argument that carve-outs are required or that new concepts should be introduced that would complicate the law unnecessarily.
Employers are already obliged under the Equality Act 2010 to protect employees from harassment in the workplace. That has obviously not led to “banter bouncers” in the workplace. Therefore, employers already have an understanding of how to apply these protections in practice. Our aim is not to burden employers or prevent free speech; it is to deliver on our commitment to create and maintain workplaces and working conditions free from harassment, including by third parties.
The question was raised as to whether cases would go to a tribunal for people being oversensitive. It is important to note that in an employment tribunal claim for harassment, if certain conduct has a humiliating or degrading effect on the recipient but that was not its intended purpose, the tribunal must consider whether it was reasonable for the conduct to have that effect. The reasonableness and the facts of the individual’s situation must always be considered. It is not a purely subjective test based on the view of the recipient. In addition, there is a seriousness threshold. Conduct that is trivial or causes minor offence will not be sufficiently serious to meet that definition of harassment.
The protection we have proposed is welcomed by a recent nationally representative survey of 5,000 people by the TUC, which found that eight out of 10 people—
Baroness Jones of Whitchurch (Lab)
I do not know what is funny about that, because I do not know that I have heard any polls from the opposite side. The TUC poll found that eight out of 10 people—79%—support the plan to protect workers from harassment.
I remind noble Lords that the Government will be publishing guidance so that employers are supported with these changes. We will make it clear that they are not required to take unreasonable steps and we will set out how they can continue to effectively prevent harassment and protect free speech. No business will be required to hire staff to monitor speech or diversity under this provision.
Many public-facing businesses, such as pubs, universities, sports venues and public transport, already have posters that signal a zero-tolerance approach to any form of harassment at their venue or site, including harassment of their staff. We would consider this a reasonable step.
The noble Lord, Lord Lucas, raised the issue of this building, and this very building has notices detailing the behavioural code, making it clear that everyone on the estate should treat one another with respect and that unacceptable behaviour will be dealt with seriously. This has not had a chilling effect on free speech in this place.
Harassment is taking place in many workplaces that is not banter and, in some cases, employers are simply not doing enough to protect or support their employees. In a poll of 16 to 35 year-olds in 2018, the TUC explored the experiences and the impact of third-party harassment. For example, a young woman complained of
“customers sexually harassing staff members and myself whilst drunk. It also occurs when they are sober. It happens every time I work. My managers think it’s funny”.
Another customer, a sales assistant aged 18 to 21, said that they were constantly being sworn up by customers for no reason and called racial slurs, and had witnessed people being hit. I do not know what the answer of the noble Lord, Lord Young, is to all of that, but we have an answer, which is to take steps against third-party harassment.
My noble friend Lord Leong shared a very personal story about when he worked in a pub in his student days and was harassed constantly, being called all manner of racist names. He complained to the manager, who dismissed it as banter, but it was not banter, and he still finds it very difficult to talk about it to this day. He left the pub after two weeks because he could not take it any more. We do not want people to have to do that in future. It is very important to us that future employees do not feel this way.
Diversity in businesses can be linked to benefits, including improved recruitment, employee engagement, more effective teams and improved understanding of customer wants and needs. We also know that companies with the most diverse leadership teams are more likely than ever to outperform less diverse peers on profitability. A customer service survey by Hospitality UK and CGA found that almost two-thirds of customers think that a venue’s equality, diversity and inclusion policy is important, and a third said that they would be more likely to visit a venue if it had policies to promote equality. We are, therefore, convinced that very few businesses, if they want to keep their customers, would support the amendments from the noble Lord, Lord Young.
I now turn to Amendment 193, tabled by the noble Lord, Lord Sharpe of Epsom. As set out in our road map for delivering Labour’s Plan to Make Work Pay, we intend to commence the Bill’s protections against third-party harassment in October 2026. It is important that we get implementation and the details right to ensure that employers and employees understand the new law, and that it can be as effective as possible in ending third-party harassment. The approach we have taken and the timeline set out allow the time required to deliver effective implementation.
I assure the noble Lord that there is no need to delay commencement of Clause 20 until October 2027 due to concerns relating to free speech or burdens on business. Over the coming months, we will be engaging with stakeholders to ensure that guidance is fit for purpose. This will build on the consultation held in 2019 on introducing protections against third-party workplace sexual harassment, as well as on responses to the recently closed call for evidence on equality law. This timeline therefore accounts for the need for stakeholders to prepare for changes, and we will ensure that they are supported in their preparations. I remind your Lordships that, if a woman is sexually harassed by a customer at work today, she cannot seek individual redress, and if an employee experiences racial or homophobic harassment from a third party at work today, they have no protections under the Equality Act 2010.
I hope that we can all agree that employees should feel safe at work and be free of harassment. Therefore, we should not delay introducing these important protections any longer, and I urge the noble Lord, Lord Young, to withdraw his amendment.
Lord Young of Acton (Con)
I would just like to clarify that, when I referred noble Lords to my entry in the register of interests, I was referring them specifically to my job as the general-secretary of the Free Speech Union, which has been campaigning on this issue. I thank noble Lords for all their excellent contributions to this debate, particularly the noble Baroness, Lady Fox of Buckley.
I will quickly respond to a couple of points made by the Minister. I do not think she can justifiably claim that Clause 20 will be for the first time protecting workers from being racially abused by customers or members of the public. If someone racially abuses another person, as I understand it, that would be a racially aggravated offence under Section 5 of the Public Order Act 1986. So it is not as if there are currently no legal protections for workers who are abused in that unacceptable way.
The Minister said that the Government intended to publish guidance. on what “all reasonable steps” employers would be expected to take to protect their employees from third-party harassment. But, as I understand it from my reading of the Bill, the Government are obliged to provide guidance when it comes to protecting workers from third-party sexual harassment. They will set out what all reasonable steps are with respect to that, but there is no comparable clause in which the Government commit to providing guidance on what all reasonable steps are when it comes to protecting employees from third-party non-sexual harassment.
The Minister said that it would introduce an element of confusion into Clause 20 to accept either Amendment 43 or 44, because the things these amendments are trying to rule out of scope are already out of scope. If that is the case, and if the Minister genuinely believes that indirect harassment is not within scope, that banter is not within scope and that this is an exaggeration, a faux outrage, and if she genuinely believes that good-faith conversations about moral, political, religious or social matters, provided that they are not obscene, are out of scope, why not accept Amendments 43 and 44?
Doing so would provide the hospitality sector, and publicans in particular, with some clarity about what reasonable steps they can be expected to take to comply with this new clause. As it stands, there is a great deal of confusion. They will feel that they must err on the side of caution to prevent the possibility of being taken to the employment tribunal by aggrieved workers.
Pubs are on their knees. I ask the House not to impose these additional burdens on publicans who are already struggling to survive and keep their businesses afloat. If the Government genuinely believe in growth, and if they genuinely believe that pubs are an important British institution and want to take steps to preserve them, at the very least they should give publicans the clarity that accepting Amendments 43 and 44 would provide.
I am afraid that I am not satisfied by the Minister’s answer and so would like to test the opinion of the House.
Employment Rights Bill
Baroness Jones of Whitchurch Excerpts(2 months, 2 weeks ago)
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Baroness Jones of Whitchurch
That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 4, Schedule 1, Clauses 5 and 6, Schedule 2, Clauses 7 to 23, Schedule 3, Clauses 24 to 35, Schedule 4, Clauses 36 to 53, Schedule 5, Clauses 54 to 57, Schedule 6, Clauses 58 to 87, Schedule 7, Clauses 88 to 128, Schedule 8, Clauses 129 to 132, Schedule 9, Clauses 133 to 146, Schedules 10 and 11, Clauses 147 to 149, Schedule 12, Clauses 150 to 157, Title.