Employment Rights Bill

Baroness Deech Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

I can see that an entrepreneurial country such as the UK might develop a flourishing free speech underground cafe and bar culture, but driving freedom of expression underground is the hallmark of totalitarian, repressive cultures. On my last visit to one such country, where I was giving university guest lecturer courses on late 19th and 20th-century British political history, I was advised to avoid the word “democracy” in public discourse. Later, the sponsor of the series explained that it was fine to speak freely on any subject in a setting such as a dinner in a restaurant; indeed, that was par for the course. Are we, in what has been a free country, to introduce a law that may lead to restrictions undreamed of even by totalitarian regimes?

[Baroness Deech (CB)]

I rise to support the noble Lord, Lord Young of Acton. It is great to have another champion of free speech in this House. I put my name to two amendments, Amendments 84 and 88, but I would happily have supported all the amendments in this group.

May I raise this to a slightly higher level? Earlier this afternoon, we heard a great deal of justified passion and appeal to principle in relation to creative rights. This time, we are talking about free speech, which I see as creepingly under attack in recent years—in fact, under this Government.

The situation is getting very bad: whether it is the halting of a higher education freedom of speech Bill or the failure, conversely, to stop hate marches proceeding through Jewish areas on Fridays and Saturdays or, indeed, outside this House; or whether it is arresting people for tweets, bursting into their houses with police because they have made an unpleasant tweet. We do not know where we are with freedom of speech any more. All we know is that we have to be very careful, and this is highly significant.

If the noble Baroness, Lady Carberry, was right in her analysis, we do not need Clause 20 at all; there is other protection for the sort of things that we are worried about. However, I will give your Lordships a couple of examples that puzzle me. I have read that the Co-op is now applying a policy of boycott, divestment and sanctions against Israel and Israeli products. Some would say that that is mere anti-Zionism; some would say that it is antisemitism.

Noble Lords will know that a yellow ribbon, which I see some Members of this House are wearing, stands for freeing the hostages. If I go into the Co-op wearing a yellow ribbon, am I offending those employees of the Co-op who are firmly anti-Zionist, anti-Zionism being a protected characteristic? If I go in there and ask for a tub of hummus and I am told that they do not have it, am I upsetting the employees or the policy of the Co-op? And what if there are Jewish employees of the Co-op who hold different views?

Noble Lords will know—I have often talked about this—that the main road from my home in Oxford to the station is completely blocked; one cannot get to the station except by walking about half a mile over cables and cones. I think it was yesterday that I picked my weary, arthritic way through this, and there was one of the builder’s employees pointing me in a different direction. I have to say that I lost my temper. I got worried afterwards that maybe I had harassed him but, frankly, the only way to stop harassment of those employees is for them to get that work done.

I mention those examples because I think the definitions will be extremely difficult. I am worried about freedom of speech, about the chilling effect that recent legislation and, indeed, social attitudes have had. Schoolchildren have recently been told that there should not be so much definition of their unhappiness as being about mental health. In relation to many things that are regarded as mental health issues, one might say, “Grow some grit”. I would say, “Grow some grit”, in relation to some things that people are worried about as expressed in Clause 20.

There is no right not to be offended, short of by hate speech or terrorism, let alone having someone else be offended on one’s behalf. Let us return to freedom of speech, uphold these amendments and get rid of Clause 20.

[Lord Strathcarron (Con)]

My Lords, I will speak to Amendments 83, 85, 86 and 88 in my name. I am sure noble Lords will have noticed that, after the Second Reading of this Bill, media reports the next day focused disproportionately on what was reported as the absurdity of employers being held responsible for employees who are offended by third parties in situations in which the employers had no control over who said what, to whom, when, why or where. The “where” aspect is important, because this also applies to real or imaginary offence taken by employees off-site of the employer’s premises. It was rightly reported the next day as an Alice in Wonderland proposal, where the whole concept of responsibility is turned topsy-turvy. Another reported it less kindly as “bonkers”, and yet another as a new way for unscrupulous lawyers to make a killing.

One can only imagine the fresh media ridicule to which your Lordships’ House will be exposed if it allows Clause 20 to go through unamended. Of course, it is no ridicule for employers, or taxpayers where this happens in the public sector, but potentially a very expensive and time-consuming burden on them, and wide open to vexatious misuse.

Amendment 83 would the remove employers having to be responsible for their customers being overheard talking about matters of the day. If the proposers of the Bill had visited a pub, for example, they would know that a pub is a Parliament in which customers have just as much right to discuss the ways of the world as we do here in this Parliament.

Amendment 85 refers to the hospitality sector, sports venues and higher education settings. To give an example close to home of why it is needed in the hospitality sector, let us say that I invited someone to visit me here in your Lordships’ House and this person did not have English as his or her first language. Let us say, further, that my guest had stopped off at the Red Lion on the way here for refreshments, and that, after our meeting, I took him or her down to the River Restaurant for a quick meal. If this guest happened to see that one of the items on the menu was a curry, and remarked to the unprotected-characteristic employee serving the curry that no one in England knows how to make a proper curry, and if that remark was overheard by a chef with a protected characteristic, then the overhearing person could take real or vexatious offence, and the House of Lords could be taken to the tribunal, or more likely, after several months and thousands of pounds, there would be a pre-tribunal taxpayer-funded pay-off.

I am sure that noble Lords do not need reminding that such vexatious claims are a significant contributor to the 50,000 tribunal case hearings and one-year waiting-time backlog. We would indeed then be laughing stocks for allowing our own legislation to be used against us like this, or even to exist at all in the wider context.

That Amendment 85 should apply also to sports venues would be obvious if the proposers had attended any sports event, where support for a competing individual or team is necessarily enthusiastic and often boisterous. The crowd’s speech is so impossible for the venue employer to control that, if a protected-characteristic steward took offence at a remark aimed indirectly at an official, the employer would inevitably raise waivers with the organisers, who might quite reasonably think the whole idea is not worth the candle, and so unintended consequences would strike again. This is what we recently saw with the Terrorism (Protection of Premises) Act, leading to long-standing local events—in one case, a 150 year-old local flower show—being cancelled because it was caught in the collateral damage of well-intentioned legislation, just like this part of the Bill that we are discussing now.

Amendment 85 also seeks to exempt higher education settings, where, surely, hearing and coping with diverse opinions is what education is supposed to be about. Amendment 86 seeks to remove any offence taken by casual overhearing if that happens just once, by applying a rule that would rely on the offender causing offence on purpose rather than by mistake, casually, or—with the recent enormous rise in employees whose first language is not English—doing so through an understandable lack of familiarity with the language, with its nuances, subtexts, sarcasms and ironies that a native speaker would understand.

Amendment 88 seems the most reasonable of all, removing the overhearing aspect of the legislation, which is the one most open to vexatious claims, and for which, surely, no employer can reasonably be held responsible in any foreseeable circumstances.

I hope that, after hearing all the arguments against Clause 20, the Government will agree that these amendments would remove the most egregious parts of it and bring an element of reality to bear on these unforeseeable and uncontrollable circumstances in which employers might find themselves.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I will attempt to update your Lordships’ House on these issues at the time the noble Lord has suggested.

[Baroness Deech (CB)]

Can I ask the Minister about one very troubling case, which I am sure is known to everybody? Professor Kathleen Stock of the University of Sussex faced three years of undoubted bullying and harassment because she held and still holds gender-critical views. She was bullied and harassed by students and other staff, which resulted in her resigning. The university was fined by the OfS for breaches of freedom of speech but still believes, according to the vice-chancellor, that being fined was wrong and that free speech was being hindered by—presumably—Professor Stock having to resign. How would Clause 20 affect this well-known situation—Professor Stock bullied for three years because of her gender-critical views? The university, like all universities, has signs everywhere saying, “We do not tolerate abuse” et cetera, but I do not know whether that does much good.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I do not think it is appropriate to talk about an individual case, but can I make it absolutely clear here that we are committed to defending free speech and upholding academic freedom? The significant penalty showed that the Office for Students will take robust action where universities fail to do so. If you go to university, you must be prepared to have your views challenged, hear contrary opinions and be exposed to uncomfortable truths. We recently announced that we are giving the OfS stronger powers on freedom of speech. The sector needs to take academic freedom and freedom of speech seriously. We hope that the OfS report and regulatory action will incentivise providers to fully comply with their freedom of speech duties.