Employment Rights Bill

Debate between Lord Watson of Invergowrie and Baroness Warwick of Undercliffe

Committee stage
Tuesday 3rd June 2025 Lords Chamber

[Baroness Warwick of Undercliffe (Lab)]

My Lords, I rise to speak to Amendment 143B standing in my name, regarding outsourcing measures and their applicability to higher education providers across England, Wales, Scotland and Northern Ireland. Universities, like other employers, are preparing for the enactment of the Bill and will be adapting to the new legislative expectations around workers’ rights. I want to stress from the outset that universities wholeheartedly support the Bill’s objectives to ensure fair employment practices for workers. They do, however, have some technical concerns about Clause 30. I hope that, through Amendment 143B, my noble friend can provide helpful reassurances to the higher education sector—so this is a probing amendment.

As noble Lords will be aware, Clause 30 outlines expectations that contracting authorities must treat any employee transferred from a contracted body no less favourably in the terms offered than core employees. Many universities consider themselves to fall within the definition of “contracting authority”, meaning they may inadvertently be caught by this clause. This is of great concern to the higher education sector and, so far as I am aware, does not appear to have been scrutinised in the Bill so far.

The enormous financial challenges facing universities are well documented, and I know are of grave concern to many Members of this House. The potential imposition of further costs for universities from Clause 30 should therefore be of concern. For the many universities that constitute as contracting authorities, there are likely to be significant cost implications, as well as increased difficulty in finding contractors as a result of this clause. Crucially, unlike with public bodies, these additional costs for universities will not be met by the Government.

In addition to the financial implications, there is also the potential for policy divergence across the UK. Given that Scotland and Wales will be able to set their own regulations and code of practice, there may be inconsistency in arrangements, which could discourage agreements with suppliers. This would have a particular impact in the complex environment that the higher education sector operates in and could have a significant impact on its moves towards greater efficiency.

I would appreciate assurances from my noble friend on three questions. The first is whether, and in what circumstances, universities will be considered to be contracting authorities for the purposes of this legislation. Has my noble friend’s department or the Department for Education made an assessment of the likely impact of Clause 30 on the university sector? Secondly, are the outsourcing measures defined in Clause 30 applicable to pension provision? Where employees are transferred to another organisation, will their pension arrangements form part of the requirement that they be treated no less favourably? Thirdly, what consideration will be given to the impact on shared services where many providers, including across UK nations, will work with the same body as a key driver of efficiency efforts? If my noble friend is unable to provide assurances from the Dispatch Box today, a letter would be very warmly received.

I urge my noble friend and her department to engage closely with the higher education sector to ensure that the implementation of Clause 30 does not inadvertently undermine the financial sustainability and operational flexibility of our universities. While of course we have to remain steadfast in our commitment to fair employment practices, we must also ensure that the legislation takes full account of the distinct nature of the higher education sector and supports our universities to continue their vital work.

[Lord Watson of Invergowrie (Lab)]

My Lords, I am pleased to speak in support of my noble friend Lady Warwick on an issue that, as far as I am aware, has not appeared anywhere else but is of some importance. There is growing unease in the higher education sector about the potential implications of Clause 30. Universities UK has said it is frustrated that its letters to both officials and Ministers—they would be the same thing, I imagine—remain unanswered. UUK is probably being a bit polite in saying that it is frustrated; I suggest that it is unacceptable for a letter from any UK-wide organisation not to receive a response. If nothing else, I hope my noble friend will be able to give an assurance in her reply that she will ensure that Universities UK receives a considered response to its very legitimate concerns.

As my noble friend said, the higher education sector is concerned at the potential impact of measures proposed in Clause 30, which relate to outsourcing, on current arrangements within the sector and on the viability of steps that universities have taken or are planning to take in order to stabilise their financial position. Many universities consider themselves as falling within the definition of contracting authorities and may therefore be inadvertently caught in this clause of the legislation.

As originally introduced, the public sector outsourcing provisions applied to contracting authorities in England only. However, Ministers introduced an amendment in Committee in another place, and provisions now apply to contracting authorities in England, Scotland and Wales. Again as my noble friend said, the major point on which clarification is essential is whether and in what circumstances universities will be considered to be contracting authorities for the purposes of this legislation.

There is also the question of whether the planned separate outsourcing rules for different UK nations will or even might create complex and prohibitive arrangements for universities. As an example, if an institution is working across the UK nations—a good example would be the Open University—that could mean it is subject to two or more sets of outsourcing rules, potentially providing a conflicting legislative framework for its operational practice. I hope my noble friend will be able to clarify how the Government envisage such separate outsourcing rules will operate, and that in doing so she will provide reassurance to many in the higher education sector who, as my noble friend Lady Warwick said, are very supportive of the Bill in general but fear that universities could become victims of unintended consequences.

Charities (Protection and Social Investment) Bill [HL]

Debate between Lord Watson of Invergowrie and Baroness Warwick of Undercliffe

Monday 29th June 2015 Grand Committee

[Lord Watson of Invergowrie]

My Lords, I argue that Clause 9 should not stand part of the Bill. I do so not because we do not wish this clause to stand part of the Bill but because we want to raise issues that have not had an airing through another amendment, and we have particular concerns over issues surrounding charities working in areas of conflict.

The Minister will remember that I raised that issue at Second Reading when I asked if he would speak with his ministerial colleague at the Home Office. I hope that he has now done so and will be able to make noble Lords aware of what that discussion produced. Again, I draw attention to the difficulties posed by current counterterrorism legislation to the protection of charities working overseas to deliver humanitarian aid. I accept that changes to the various laws that cover counterterrorism are not capable of being dealt with within the confines of the Bill. However, concerns were raised with the pre-legislative Joint Committee on these matters by several of those who gave evidence, in particular two umbrella organisations that cover NGOs that work abroad: Bond and the Muslim Charities Forum. They would welcome greater clarity from the Government, which would be helpful for all of us.

In response to the Joint Committee’s report the previous Government stated:

“Terrorism legislation is in no way designed to prevent the legitimate humanitarian work of charities, but it needs to be widely drawn to ensure that it captures the ever diversifying nature of the terrorist threat”.

That is understandable, not least in light of the unspeakably appalling events in Tunisia, Kuwait and France three days ago. However, in his evidence, the Government’s Independent Reviewer of Terrorism Legislation, David Anderson QC, told the Joint Committee that the use or suspected use of property for the purposes of terrorism was “monstrously” broadly defined in legislation. Coming from that source, such a comment carries significant weight, and you do not leave yourself open to charges of being weak or soft on terrorism—which we in the Labour Party most certainly are not—by seeking comment on a matter previously highlighted by the Government’s own Independent Reviewer of Terrorism Legislation.

Indeed, Mr Anderson pointed the Joint Committee in the direction of Australia and New Zealand, where specific exceptions exist in terrorism law to cover charities involved in the delivery of humanitarian aid. I am not comparing the UK to either of those countries with regard either to their size or the level of terrorist threat they face. However, given the similarities of the legal systems of all three countries, the possibility that such legislation might prove of value means that it should at least be examined. Again, I mention that the man who drew it to the attention of the Joint Committee can hardly be characterised as being other than committed to ensuring that the UK’s counterterrorism measures are as tight and effective as they possibly can be.

We acknowledge that the Charity Commission has been proactive on this subject and has meet with some of those NGOs faced with the kind of difficult circumstances to which I have referred, and the commission issues alerts and seeks to make charities as aware as possible of the risks involved. However, the current counterterrorism legislation, despite the fact that no prosecutions have been brought against UK NGOs that operate in conflict zones, is having a chilling effect on them, and undoubtedly makes it more difficult for those NGOs to deliver humanitarian aid.

The pre-legislative scrutiny Joint Committee highlighted this matter to the previous Government, who said in their response that they would,

“draw the Committee’s recommendation to publish guidance relating to prosecutions under counter-terrorism legislation … to the attention of the Director of Public Prosecutions”.

Given that three months have now elapsed and that—I think I can say this to the Minister—a clear line exists between the previous Government and the current one, will the Minister tell the Committee whether that has been done and, if so, what conclusions have emerged?

Finally, we believe that the commission and those charities which presently fear to tread in certain situations would welcome a form of words which went some way to providing more clarity—perhaps even legal certainty —on this important matter.

[Baroness Warwick of Undercliffe (Lab)]

My Lords, I support the probing questions of my noble friend Lord Watson of Invergowrie. At several stages in our pre-legislative scrutiny of the Bill, we became anxious about the breadth and vagueness of the powers which it bestows on the Charity Commission. These concerns were reinforced by a letter from the chairman of the Joint Committee on Human Rights, Dr Hywel Francis MP, in which he said:

“In the absence of further definition in the Bill itself, or other guidance, such broad and vague language significantly increases the power of the Commission and provides insufficient certainty to both individual trustees and charities about the possible consequences of their conduct”.

At each stage, when we had these concerns, we looked carefully at the evidence and concluded, as noble Lords will see from the report, that the powers were indeed justified in that they were likely to help to increase public trust and confidence in charities.

However, when it came to the inclusion of terrorism offences, as my noble friend has indicated, we received evidence that disturbed us. As noble Lords will know from our report, a number of witnesses expressed concerns over the difficulties presented by terrorism legislation in relation to the operational requirements of NGOs in challenging circumstances overseas. They were particularly concerned about charities operating in dangerous parts of the world for humanitarian purposes. My noble friend referred to the chairman of the Muslim Charities Forum, Dr Hany El-Banna, who told us that he thought counterterrorism legislation was,

“preventing us from having access to the neediest people”.

David Anderson QC, the Government’s Independent Reviewer of Terrorism Legislation, who has already been referred to, said concepts such as the provision of “indirect support” to terrorist organisations had,

“an impact on humanitarian charities, particularly when working abroad and when working in areas that are under the de facto control of a proscribed or designated group”.

He went on to say that charities operating in these areas ran the risk of falling foul of terrorism law by, for example, delivering relief to a general population which might include individuals or groups designated as terrorists. He suggested that an increased risk could deter charities and their trustees from delivering humanitarian support. Bond, the umbrella group, went on to suggest, in our words, that,

“the withdrawal of banking services exposed donor assets to greater risk because international NGOs had no option other than to use less secure money service bureaux or to carry sums of cash across borders”.

Nothing in what I have said undermines the need to deal with terrorism offences and to address legitimate concerns about the abuse of charitable funds in connection with terrorism. It does, however, raise questions about the uncertainty surrounding the application of terrorism legislation when it comes to charities operating in dangerous circumstances overseas. The pre-legislative scrutiny committee was offered the examples of Australia and New Zealand as places where Governments had addressed this issue and where specific exceptions in law existed to meet this point. We thought that this was worth pursuing, but when we raised it with the Minister for Civil Society, he said it fell outside his remit and was essentially a matter for the Home Office. He went on to say that it could be,

“chasing a problem that does not exist”,

since,

“no one has been prosecuted”.

I do not think that that is good enough. Clearly these charities are expressing real anxieties about the risks they might face and about the chilling effect of this legislation. The difficulties facing these charities are already enormous in Afghanistan, Iraq, Chechnya and Somalia, among other places. If it is possible to provide them with greater certainty in pursuing their important work and overcome this worrying and chilling effect, then we should try to do that.

Like my noble friend, I was disappointed with the Government’s response. The Government recognise that there are concerns, but points only to the problems of creating loopholes without even addressing the suggestion that they might look at the examples of Australia and New Zealand to see whether and how those countries have overcome this danger. I ask the Minister to think again and at least to consider whether other countries can provide some inspiration about whether there are ways to provide greater legal certainty.

Finally, the Government have said they will draw to the attention of the Director of Public Prosecutions our recommendation to publish guidance. I hope they will agree to do rather more than that and to put their weight behind the need for guidance to address the current uncertainty, which was revealed in our evidence and which the Government acknowledge.