Employment Rights Bill

Earl of Clancarty Excerpts

Report stage
Wednesday 23rd July 2025 Lords Chamber

Moved by

[The Earl of Clancarty]

160: After Clause 150, insert the following new Clause—
“Independent Freelance Commissioner(1) There is to be an office known as the Office of the Freelance Commissioner.(2) The Office in subsection (1) must be established by the Secretary of State by regulations three months after the day on which this Act is passed.(3) The Office of the Freelance Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Freelance Commissioner”.(4) The role in subsection (3) is referred to as the “Freelance Commissioner”.(5) The Freelance Commissioner may appoint staff to the Office of the Freelance Commissioner they consider necessary for assisting in the exercise of their functions in subsection (6).(6) The Freelance Commissioner is responsible for—(a) representing the interests of freelance workers in the application of employment rights under this Act,(b) ensuring fair treatment of freelance workers across different sectors,(c) regularly engaging with sectors with high proportions of freelance workers about the application of provisions of this Act,(d) gathering and analysing data about the freelance workforce,(e) identifying issues and finding solutions to challenges faced by freelance workers as a result of provisions in this Act, and(f) ensuring that the duty to consider the freelancer workforce under section (Duty to consider freelancer workforce) of the Employment Rights Act 1996 is discharged properly.(7) The Freelance Commissioner must publish an annual report on the discharge of their functions set out in subsection (6) and lay this report before Parliament.(8) For this purpose of this section, a freelancer is defined according to section (definition of “freelancer”) of the Employment Rights Act 1996.(9) Regulations under this section are subject to the negative resolution procedure.”Member’s explanatory statement
This amendment establishes the office of the Freelance Commissioner and makes provisions for relevant duties and responsibilities.

[The Earl of Clancarty (CB)]

My Lords, I will speak to my Amendment 160, although I support all the amendments in this group. I declare an interest as a self-employed visual artist. Amendment 160 seeks to establish a freelance commissioner. It is closely tied to consequential Amendments 161 and 162, in the name of the noble Lord, Lord Clement-Jones, which seek to define what a freelancer is and to give the freelance commissioner greater teeth. I am very grateful for the support on this from the noble Lord, Lord Clement-Jones, and I welcome the support of my noble friend Lord Freyberg and the noble Lord, Lord Sharpe of Epsom, as well as that of my noble friend Lord Colville, who I know would have signed this amendment if there had been room to do so.

The first thing to say is that the creative industries welcome the appointment of a champion for this sector, as announced in the industrial strategy after Committee, and are pleased that that champion will be a member of the Creative Industries Council. These are things that the creative industries have been asking for for a long time, so there is appreciation that the Government have listened in this respect. Yesterday, I also had sight of the draft terms of reference—which is, of course, interesting timing. Those terms of reference, which are the result of conversations between relevant organisations and the DCMS within the framework of the Good Work Review, are impressive, if not yet entirely comprehensive, tasks and concerns. It is important to stress that this also illustrates the immense challenges a freelance champion will have. Nevertheless, I applaud the Government for opening the lines of communication between the DCMS and other organisations; long may that continue.

However, there remain questions concerning the champion. What powers will the champion really have, if any significant powers at all? Is this to be a salaried position? How much, in practice, will the champion be able to cut across different departments? Will this role be more about guidance for the sector rather than the really necessary action required for freelancers in terms of the many rights that standard employees have—and to a large extent take for granted—but that freelancers lack? I would be very grateful if the Minister could fill in some of those gaps if she is able to do so.

There are broadly two reasons why we should have a statutorily appointed and independent freelance commissioner. The first is that we urgently need someone to look at the whole landscape of freelance and self-employed work, which constitutes a not-negligible 15% of the workforce—and this is a sector that is growing. As my noble friend Lord Londesborough pointed out in Committee, this includes not just the creative industries but construction workers, agricultural workers and others. My amendment covers that landscape, one that the Bill—which is supposed to be an Employment Rights Bill, not an employee rights Bill—does not cover. Instead, as freelancers are always asked to do, we are told to wait in line. This of course happened during Covid, when so many freelancers fell through the gaps in support.

Even looking just at the creative industries, there is a question as to whether the whole of the creative industries themselves would necessarily be served by the new champion, in whatever guise that comes. The DCMS’s current understanding of these industries may be narrower than the reality, and this is certainly true of those craft industries—hugely important for our economy—that may not necessarily fall within the champion’s remit because of the manner in which parts of the creative industries are currently defined. This is something for the Government to look closely at, and I know that my noble friend Lord Freyberg intends to flesh out some of the detail of this very real concern about invisibility in both this and the debate that follows.

The second crucial reason for having a statutory appointment is not just that that role would have the requisite powers to argue for and effect real change, with the necessary authority to do so, but that it is a long-term position that cannot be rescinded easily because we are in this for the long haul. There is no doubt that freelancers’ concerns—this is certainly true of the creative industries—have grown more critical in terms of rights; income; the problems with late payment; Brexit, which has affected and continues to affect so many of our creative industries, not just music; AI, of course; and, crucially, the downturn in the funding of the sector. All these things have become immense pressures, which demand the appointment of an independent commissioner with the requisite powers to effectively address all these concerns and influence government policy.

I talked at some length in Committee about these increasing pressures as they affect the creative industries, and I will not repeat those arguments, except to add some conclusions from a survey to be published tomorrow by the organisation Freelancers Make Theatre Work—I am grateful for its permission to do so. It says:

“A striking headline in this year’s data is that 44% of respondents earned less than the 2024 UK National Living Wage in the 23-24 tax year … a significant worsening of the already critical situation from the previous year … where the equivalent figure was 34%”.


It goes on to say:

“These levels of pay would be illegal in salaried positions”.


I was worried by Chris Bryant’s recent evidence to the Culture, Media and Sport Committee, in which he said that he wants to see a reduction in the number of freelancers over the next 10 years. My understanding was that he is thinking about workers such as his mother, a make-up artist for the BBC, who lost their salaried jobs and were pushed into becoming freelancers. However, this is but one part of the landscape, and this exclusive emphasis ignores all the other freelancers, many of whom are creators—artists, writers, composers and many others—for whom there never has been any option other than being a freelancer for the work they do. Again, we need to understand the whole landscape—the reality of that landscape and the ecology of that landscape.

It becomes difficult to imagine how effective a champion with close proximity to the DCMS will be if the DCMS is actively trying to reduce the total number of freelancers—something it ought to be agnostic about. We need an independent commissioner—in other words, someone in a position of authority—who will support and, importantly, promote the practice of freelance work. We need it in law; we need it in the Bill. I beg to move.

[Lord Clement-Jones (LD)]

My Lords, it is extremely disappointing that we are debating something of this order of importance at this time of day and at the fag-end of this Bill. However, unusually, I shall try to ingratiate myself with the House by being as brief as possible.

First, I want to thank the noble Lord, Lord Katz, for his letter of 30 June and for the publication of the draft terms of reference for the freelance champion, referred to by the noble Earl, Lord Clancarty, who set out the stall extremely cogently for these amendments. I do not need to go over the ground that he has explained extremely well. The lack of a single clear voice representing the interests of freelancers to government is what this is all about—a clear definition of what a freelancer is and clear duties for the freelancer commissioner.

The freelance champion has some similar characteristics to the freelance commissioner, but there are significant differences from the independent freelance commissioner. It is not going to be a statutory office, unlike the freelance commissioner. The structure proposed in our amendments would be more permanent and more independent of government. The terms of reference explicitly state that the champion will focus on freelancers working in the creative industries only, so it will not be cross-sectoral. As we heard from the noble Lord, Lord Londesborough, it is clear that freelancers are extremely prevalent not only in the creative industries but in many other industries as well, including construction, professional, scientific and technical activities, business support, health and social work, IT, digital services and education and training.

While welcome, the freelance champion for the creative industries under the sectoral plan does not go nearly far enough across the board in making sure that there is a real advocate and one with teeth who is able to influence policy towards freelancers across all those different sectors. The question really is why the Government have failed to grasp the urgency and widespread nature of the challenges faced by freelancers across all sectors. It is not unclear that freelance work covers much broader areas than just the creative industries. These amendments would offer recognition to a workforce that contributes enormously to our economy and cultural life and is too often unprotected and unheard in legislative terms.

I urge the Government, even at this time of day and at this time in the Bill, when they cannot really change their approach, really to think about this. We have heard so much about how, on AI or dependent contractors, the Government are considering these things. They really need to shape up in terms of the modern economy. Freelancing is on the increase and they need protection—and the freelance commissioner would be by far the best way forward.

--- Later in debate ---

We recognise the importance and urgency of taking these issues forward. I am happy to continue discussing how best to support the freelancers and the creative industries more widely. However, with this, I ask the noble Earl to withdraw Amendment 160.

[The Earl of Clancarty (CB)]

My Lords, I thank the Minister for that response, for the meeting that we all attended a few weeks ago, which was very useful, and, perhaps, for future meetings, because we want to know much more about what this champion will do. The Minister says that the champion will be independent. That is very interesting.

Three key themes have come out of this discussion. A number of noble Lords talked about whether the champion will be able to move between departments. This is really important. A number of noble Lords raised the question of visibility, including my noble friend Lord Freyberg and the noble Lord, Lord Parkinson, who talked about his insights into the visibility of freelancers. There is visibility and invisibility in a number of ways, which the Government must look at very carefully. There was also an interesting sub-debate from the noble Lords, Lord Hendy and Lord Berkeley. I was trying to work out how it fitted into the debate. It fits because this whole area is so interconnected. I take that on board.

Crucially, as we drafted in the amendments, the commissioner will have those powers and the authority to do what we worry that the champion will not be able to do and will be able to effect those changes. We wish the champion well. We hope that the champion will be able to do these things. This is an area that we will come back to, not least to see how effective the champion will be. For now, I beg leave to withdraw the amendment.

Amendment 160 withdrawn.