Employment Rights Bill

Baroness Chakrabarti Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I rise to support the amendment ably and comprehensively moved by my noble friend Lord Hunt of Wirral, which would, as he explained, insert a new clause. It is an eminently sensible amendment. The noble Lord, Lord Fox, described the arguments put by this side in the previous debate as straw man arguments. He was like Don Quixote tilting at windmills, because his claim that they were straw man arguments was comprehensively eviscerated by my noble friend Lord Young of Acton. They were substantive arguments and substantive concerns, notwithstanding the noble Lord’s comments and those of noble Lords on the Government’s side.

Clause 20 could be described as a hologram or a chimaera because it does not provide very much in the way of detail about the practical ramifications and impacts of this clause on businesses, particularly smaller businesses. The amendment is very sensible. In section 10 of the cost-benefit analysis in the Employment Rights Bill: Economic Analysis that the Government published last October, one is hard pressed to see any detailed empirical evidence from reputable economists or other academics which would sustain the likely costings that the Government have prayed in aid in favour of this part of the Bill. We are told that the universal cost of the Bill to business will be a very speculative £5 billion, but the source of that figure is not very clear; in fact, it is quite opaque. I do not believe that figure. For a number of reasons, the data is suspect, which is why we need the proper impact assessment so persuasively argued for by my noble friend on the Front Bench. We have not had a proper analysis of the detail in a risk assessment of section 10 of the cost-benefit analysis.

We also have not had a proper consultation process on the Bill. We have not had the opportunity to look at the likely impacts that flow from this clause. I say at the outset that, like my noble friend Lord Young of Acton, I am a proud member of the Free Speech Union, which has made a similar case about consultation.

We also do not know anything about the opportunity cost. Not everyone is an economist, but opportunity cost is what may have happened if this Bill had not come along. I suspect that employers, including smaller employers, would have taken on more staff, had there not been the encumbrances in this clause. In other words, they will be risk averse: they will not wish to run the risk of taking people on, given the litigation and vexatious claims which may well arise from this clause.

The figure the Government have put forward for the number of employment tribunals does not stand up to scrutiny, given the pressure that this will put on the tribunals themselves, as well as the other courts that will be responsible for adjudicating on this litigation. Indeed, as my noble friend said, this will exacerbate the already very significant problem of backlogs in the employment tribunals.

I turn to the kernel of this amendment. If I take the Minister and, indeed, the noble Baroness, Lady Carberry, who supported her from the government Benches, at their word, I do not know why they would not wish to support the free speech caveat in this amendment. Although they have not properly identified what harassment is—they have not defined it—they are going after people who are committing acts of harassment. They are not seeking to stifle or curtail free speech.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Lord for giving way. I would suggest that the so-called “free speech caveat” is Section 6 of the Human Rights Act, which requires all public authorities, including courts and tribunals, to interpret all other legislation in a way that is compatible with convention rights, including—for the purposes of the present debate, as I understand the noble Lord’s concerns—Article 10 of the convention on human rights.

[Lord Jackson of Peterborough (Con)]

I defer to the noble Baroness’s expertise on human rights legislation, but we are considering this specific, bespoke legislation. There will not necessarily be a read-across between that and—

[Baroness Chakrabarti (Lab)]

There will.

[Lord Jackson of Peterborough (Con)]

Well, the noble Baroness will not be present at every employment tribunal and hear and adjudicate every case. As my noble friend Lord Young of Acton has said, there is a significant threat of inadvertent issues arising from this legislation, which, as my noble friend Lady Cash has said, is very poorly drafted. As subsection 2(a) of the proposed new clause sets out, it is important to look through the prism of free speech at Clauses 19 to 22.

It is also important to look at the likely costs to employers. This is the central point of my remarks: we do not know what those costs will be. It is certainly appropriate that Ministers be required to tell Parliament what the ramifications are in terms of cost. This is a Government who are committed to growth and to supporting businesses in all their endeavours. Therefore, it would be sensible to consider a review of how these issues impact on businesses.

On proposals for mitigations, there have been no ideas, no protocols, no concordats, and no policies put in place to give any guidance to smaller businesses—I am not necessarily referring to the smallest micro-businesses—to cope with the problems deliberately arising because this Labour Government have chosen to put these encumbrances and burdens on businesses. They are not giving any support to businesses to help cope with this. The costs will fall on the shareholders, on the businesses, and ultimately on the workforce—and it will cost jobs. For that reason, I support the amendment. It does not detract from the important commitment to protect ordinary working people, who deserve to be able to go to work without being bullied, harassed or treated unfairly or egregiously. We all agree with that, on which there is a consensus. It would not detract from that to make an amendment that would provide extra protections against people who are vexatious or malicious, or who cause difficulties in the long run, for no apparent reason. It is a sensible amendment that would protect business and would also protect the workforce.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I, too, have my name on Amendment 97, which would introduce yet another impact assessment. I know that so many impact assessments have been proposed in relation to the Bill that it has become a bit of a cliché, but I am especially concerned that this one is taken seriously because the third-party harassment sections of the Bill are ill thought out in a way that could lead to unintended consequences.

One noble Lord a few moments ago asked why there was a desire for an impact assessment rather than thinking of the potential positives of the Bill. The response of the Government in relation to concerns about Clause 20, for example, which is to say that there is nothing to see here—no problem at all—is an insufficient way of responding to some quite detailed scrutiny that has been put forward. If there is any exaggeration of the potential problems, an impact assessment should be able to resolve that for us.

I will focus largely on Clause 20, looking first at its potential cost to employers. That is especially important given that the Minister’s counter to my remarks earlier was that Clause 20 will be good for business. The Government’s own assessment advises that the total economic impact of complying with Clause 20 will be under £10 million and will have negligible economic impact on businesses. That is irresponsible; some might go so far as to call it misinformation. For example, that assessment says that the cost of familiarisation with the Bill and its ramifications will be £30 per medium business and only £19 per small microbusiness. I am not sure where these woeful underestimates come from or what they are based on, but if noble Lords have never met an employment lawyer, I can assure them that that is an unlikely figure.

We need a serious cost-benefit analysis. Let us consider what this section of the Bill requires businesses to do. Employers must show that they have taken all reasonable steps; that sets a high threshold for preventive action, as we heard earlier. Let us think what that means. There are direct costs for the initial implementation of anti-harassment policies, including familiarisation with the new regulations and checking exactly what their legal liabilities will mean. As we have seen during this debate, it is not necessarily as clear as day what the Bill requires.

As we have been arguing, if you are a small microbusiness trying to concentrate on being a business and trying to grow bigger, having to study the Bill and work out what your liability will be could be quite time consuming, nerve-wracking and so on. They will have to seek out third-party and legal advice—no doubt, there will be lots of consultants queuing up—because, as responsible businesses, they will want to safeguard themselves from the financial risks of not complying. One of the main risks they will be trying to ensure they do not have to deal with is the possibility of employment tribunals.

In what seems like an entirely arbitrary figure, the Government predict that only 30 employment tribunals a year will come from these clauses. There is no explanation as to how the Government reached that figure, and it is certainly completely at odds with industry experts who expect that Clause 20 alone will see an increase in employment tribunals of 15%—in other words, an additional 14,750 cases a year. As we heard earlier in a different context, already in 2023-24, employment tribunal courts received 97,000 cases, up from 86,000 the year before. That is an increase of nearly 13%. More and more people are forced into employment tribunals for a variety of reasons.

This Bill threatens to create even more cases—an unknown figure because it is a new provision. The Government are saying that it will be only 30 a year, but that is just making it up. There is, at least, an attempt in this amendment to try to work it out. According to the chambers of commerce, the cost of one employment tribunal is, on average, about £8,500, and if a claimant is successful, there is no financial limit to the compensation in a harassment case. Imagine you are a business worried about what is going to happen: this clause will lead to risk-averse and overcautious behaviour, not detailed in the Bill, to try to avoid being held liable. Some of us fear that this is what this kind of over-regulatory, precautionary approach will lead to.

Businesses will not be able to be slipshod about their potential liability. Smaller SMEs and microbusinesses —often with no dedicated HR or EDI offices—will need to think about employing new staff dedicated to protecting them from claims and giving them advice. The idea of a whole new generation of HR and EDI staff roles in every business in the country is frightening enough, but, anyway, it has nothing to do with their core businesses. Let us also note that the average salary of an EDI officer in the UK is £42,084.

I want also to stress why an impact assessment must include which occupations might be at particular risk of third-party harassment claims through no fault of the employer and the impact, specifically, on free speech. These parts of the amendment are very important because we were asked earlier in a different group why there had been a focus on hospitality, sport and universities. There may be other sectors but, in a way, this is an assessment to see which sectors would be affected. It also asks for an impact assessment on free speech. As we have heard, the Government simply deny that there will be any impact in relation to free speech. I disagree, but let us scrutinise it.

The noble Baroness, Lady Chakrabarti, made the point that we should not worry about free speech because it is protected by the convention on human rights. She cited a number of clauses. It is true that, on paper, none of us should be worried about free speech; our free speech in this country is fully protected. And yet, daily—I stress, daily—there are more and more instances, as the noble Baroness, Lady Deech, who is not in her place, indicated earlier, in which free speech is under stress in this country. More and more people are walking on eggshells and are, in many instances, getting sacked or disciplined for speaking their minds in workplaces, so I am not convinced by “Nothing to see here, don’t worry about it, all is well”.

Earlier, the noble Baroness—

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness; I will be brief. I want just to respond to her point, because she referred to what I said earlier. I am not trying to suggest that there are not challenges and there is not, on occasion, over-policing of people’s freedom of expression. Believe it or not, I probably read the same newspapers as the noble Baroness. I was trying, perhaps inadequately, to make the point to the noble Lord earlier that we have overarching legislation in the Human Rights Act which guarantees free speech and does so in a way that is legally and constitutionally stronger than any amendment noble Lords could pass to the current Employment Rights Bill. If that is not working, then we need to enforce it better. I am just suggesting that, as a matter of law, we have the protection for free speech; we just need to enforce it.

--- Later in debate ---

[Lord Hacking (Lab)]

Hear, hear! It was a very good speech.

[Baroness Chakrabarti (Lab)]

There we go. We have had the adjudication. It was a very good speech. I am very grateful to my noble friend Lady Jones of Whitchurch. She demonstrated the patience of a saint in earlier, more contentious groups, if I can put it like that. If there needs to be further evidence of her patience, I was very grateful for the significant time that she and her Bill team and other experts gave me to discuss this issue and a later issue in the Bill.

Numerical accidents aside, I have to commend the noble Baroness, Lady Kramer, on her impeccable opening to the debate. I think we can all agree that it was a fabulous tour de force around the issues.

In contrast to the Bill as a whole or previous groups, there is some serious room for non-partisan and cross-partisan consensus in this area. I really do believe that, for reasons that ought to be self-evident from what we have heard from Members of the Committee already.

We have heard from noble Lords—actually, it may be a total accident but I think it has been noble Baronesses so far—and we know that there is a place for a certain type of non-disclosure agreement to protect commercial confidences and client lists, et cetera. We are trying to be more balanced and more forensic than that in this group, and we know why. We want to protect those things, to have a decent employment relationship and to have commerce and so on, but not to have the abuses. I suggest that the abuses have to go broader than harassment; that is why Amendment 281 in my name is drafted in terms of illegal activity more broadly. I will say more on that in a moment.

I support the thrust, the intention and the aspiration of all the amendments in the group. At this stage I consider them all probing amendments. Realistically, I suspect that what the Committee, or everyone who has spoken so far, wants is a government amendment, informed by these discussions, that we can all get behind. That is the way to do it, obviously.

I will speak in favour of Amendment 281, or of the drafting approach that I have taken, having listened to other Members of the Committee and tried to take on board their Second Reading speeches and their considerable work, over many years in some cases. I commend Amendment 281 because it aspires to some simplicity, some versatility, some breadth and the avoidance of unintended consequences.

For example, it is broader than harassment. The approach I have taken is based on my understanding of what the common-law position was anyway. Like everyone else in the Committee and beyond, I watched the scandals around Harvey Weinstein and #MeToo, et cetera. When they began to erupt—and, goodness me, do they not keep on coming?—my analysis, my view, was that these contractual agreements were all voidable in the public interest in any event. As a matter of common-law principle, they should all have been voidable in a court and therefore unenforceable in any event. The problem with relying on just my understanding of the common law is that it does not send a signal to the wicked employers—not all of them, but the ones who are wicked—nor give confidence to victims, whistleblowers and so on.

This is one of the areas where there is some value in putting some common-law principle clearly, succinctly and non-exhaustively on the face of a statute, to give confidence and clarity so that people know that abusive non-disclosure agreements—not the ones that we think are valuable, but abusive ones—which are being used to silence and cover up revelations of illegal activity, broadly, will not be enforceable in court, whether or not you have shelled out some money in the first place. That was what I attempted to do in the drafting approach that I chose with Amendment 281.

Members of the Committee who have come armed with the actual Marshalled List, which I know is a novel thing to do, will find Amendment 281 on page 114. The approach I have taken is to say that non-disclosure agreements are voidable. They are not automatically so, but they are voidable—that is, in those circumstances, unenforceable—if they prevent disclosure of conduct that may be contrary to law.

When a court is considering whether to void such an agreement—to make it unenforceable—there are certain factors that ought to be taken into account. The severity of the allegation of proven or admitted conduct, including the veracity of those allegations, would come up in an attempt by the former employer or current employer to enforce this agreement. The second factor is whether all parties to the contract were in receipt of independent legal advice. This means that an employer trying to construct one of these agreements and to get an employee to agree to it will have to realise that if that independent legal advice is not evidenced and not provided, later, the whole thing will be an expensive waste of time, because it is likely to be voided in the public interest by a court or tribunal. Therefore, they had better do what employers often do in standard consent agreements, which is pay for independent advice and have that witnessed.

Data (Use and Access) Bill [HL]

Baroness Chakrabarti Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

I conclude by asking the Minister to give his assurance that, were reasonable excuse to remain in these offences, no court in England and Wales would interpret reasonable excuse as a perpetrator claiming that they were creating the content for artistic purposes. The baseline should always be a woman’s consent; there is nothing more important.

[Baroness Chakrabarti (Lab)]

My Lords, I will speak primarily to pay tribute to the noble Baroness, Lady Owen of Alderley Edge. We need to be crystal clear that we would not be here and we would not have come as far as we have—notwithstanding residual concerns—but for her work. Her entry into your Lordships’ House was greeted by the most shocking barrage of misogynistic innuendo and abuse, including from a septuagenarian, privileged veteran of progressive journalism who really ought to have known better. It was pretty ghastly to watch.

However, it has been a joy of equal measure to witness the noble Baroness’s response to her critics, and this has been the best kind of response. With her campaign—backed by supporters across the House, including the noble Lord, Lord Clement-Jones, and supporters in civil society and the academy—she has made, in less than two years, a greater contribution to the most vital part of the legislative work of this House than many make in decades. Perhaps the young have something to teach their elders, after all, particularly about the new and all-too-lawless continent of the internet, which we have been discussing for some time today.

After nearly 30 years at the interface between criminal policy and the ECHR, I share the analysis of the harm caused by this 21st-century cybersex offence that has been offered by the noble Baroness, Lady Owen, and the noble Lord, Lord Pannick. By contrast, I fear that Whitehall has displayed a breathtaking lack of empathy for the mostly women and girl victims of this conduct—a lack of empathy that, at times, verges on the obtuse. That has gone on for some years, as the noble Baroness indicated. It accounts for the time taken by the Government to agree to the offence being imprisonable, but I am glad that we finally got there.

Now, at the 11th hour, I too fear the sheer breadth of the Government’s reasonable excuse defence, which might drive a coach and horses through the protection. This kind of degrading conduct is no light-hearted matter. The creation of deepfake intimate image without a person’s consent is capable of destroying their dignity, mental health and life. More broadly, it is capable of changing the whole flavour of our society: in the classroom, in the workplace and wherever men and women rub along together. That is what is at stake.

“Reasonable excuse” defences are appropriate and necessary in the context of broad, strict liability offences capable of catching otherwise innocent behaviour. The classic example is the strict liability offence of being in possession of a blade in a public place. Without that “reasonable excuse” defence, any of us could be criminalised on the way back from the kitchen department at John Lewis, so there is an obvious reason for a reasonable excuse defence to that strict liability offence.

I put it to the House that we would not dream of a “reasonable excuse” defence for sexual assault. The offence requires intention, action and the sexualised aspect. Once these are established, there simply is no reasonable excuse. I believe that the creation of a deepfake intimate image is equivalent to sexual assault if it is without consent. I learn that the Government are concerned about freedom of expression in the context of creating deepfake intimate images without someone’s consent. Let us please remember that freedom of expression is not an absolute; it must be balanced with proportionate interference to protect the rights of others, hence laws against breach of copyright, child pornography and so on all over the world, including in the United States—famously, the land of the First Amendment.

I really must press my noble friend the Minister to explain in some detail—more than we have heard so far—why the tighter “reasonable excuse” defences from the noble Baroness, Lady Owen, of red teaming and political satire do not do the trick? In other words, what are these other reasonable excuses for pernicious conduct of this kind? Why should there be any reasonable excuse for the solicitation offence? Where is the freedom of expression in soliciting that someone else creates the deepfake image?

I noticed the introduction of the concern about covert policing—I think my noble friend the Minister raised it—but surely he recalls the covert human intelligence Act, a very controversial Act of 2020 that I am still very concerned about, which allows the authorities to grant advanced immunity to people committing criminal conduct in the course of their covert surveillance. I am a bit concerned about that suddenly popping up as a reasonable excuse of government at the 11th hour on this offence.

Without further specifics, I am really concerned about the impression that the Government just do not get it, that they do not totally understand what is being perpetrated online and that they are not properly taking the protection of women and girls sufficiently seriously. I would really regret that. This is the coalface of human rights at this moment in the 21st century. I really hope there is still time for the Government to listen further to the compelling arguments of the noble Baroness, Lady Owen, and think again.

[Baroness Kidron (CB)]

My Lords, the noble Baroness, Lady Chakrabarti, has said everything I was going to say and more and better, so I want just to pay tribute to the noble Baroness, Lady Owen of Alderley Edge, and to say that I too have witnessed her forensic fight over the last few months. I hugely admire her for it, and I congratulate her on getting this far. I absolutely share all the concerns that both noble Baronesses have expressed. Just in case I do not have the opportunity again, I congratulate the noble Baroness on her extraordinary work and campaigning.

Employment Rights Bill

Baroness Chakrabarti Excerpts

2nd reading
Thursday 27th March 2025 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, it is a pleasure, as always, to follow the noble Baroness, Lady Smith of Llanfaes. I also add my congratulations to my noble friend the Minister and today’s four maidens. May they thrive in their new place of work—if not technically employment.

As my noble friend Lady Prosser so ably reminded us, this December will mark 50 years since the implementation of the Equal Pay Act 1970. However, the gender pay gap for all employees was still 13% last year and highest in our much-celebrated and lucrative financial sector. I suggest—at grave risk of being hit by a thunderbolt—that that Act contained a fatal design flaw that has been replicated in its successor statute, the Equality Act. It is left to an individual woman worker, with or without the aid of her union—though in recent years some unions have done valiant work on this—to, first, find out what her male colleagues are being paid for the same work or work of equivalent value and, secondly, in the event of disparity, to sue her employer.

With respect, for most women that scenario is cloud-cuckoo-land. I hope that noble Lords who have heard me raise this during previous Women’s History Months will forgive the repetition but, as legislators, would we dream of providing such a paltry enforcement mechanism in any other vital area of regulation? Would we leave children to investigate and litigate school standards, consumers to individually police food standards, and citizens to do the same for environmental protection, or building or nuclear safety, with no relevant state enforcement agency, even as a backstop? Surely the time has come to right this historic and continuing wrong. Even the most zealous free marketeers cannot seriously advocate impunity for employers who routinely and exploitatively discriminate against women or other groups in the context of remuneration for work.

HMRC already has access to payroll information for tax purposes, so it cannot be beyond the wit of policymakers to extend that remit and purpose to random spot-checking for equal pay as well. Indeed, this is one area where AI tools could come to the aid of employees rather than being a threat to them. Discrepancies could then trigger closer investigation, warning notices and eventual penalties in the event of persistent non-compliance and illegality.

I know that many have focused their equal pay efforts on pay transparency duties for larger employers, but this seems to simultaneously lack both realism and ambition. Again, would we allow food or drugs manufacturers, whatever their size, to market products unfit for consumption as long as they were labelled?

I ask my noble friend the Minister what plans His Majesty’s Government have in this area. For example, might Schedule 7 to the Bill be amended, or regulations under the new Section 78A of the Equality Act be made, to add equal pay provisions for state enforcement, or are there plans for a separate statute in this Parliament? Will she meet me and some of the unions and lawyers who have been working on the problem? Is it finally time for a dream made in Dagenham in 1968 to be fulfilled in Westminster?

Copyright and Artificial Intelligence

Baroness Chakrabarti Excerpts

Thursday 27th February 2025 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask His Majesty’s Government what is their initial assessment of the scale and balance of responses to their consultation on copyright and artificial intelligence.

[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 Government consulted on several issues regarding copyright and AI. That consultation closed on 25 February and over 11,500 responses were received. We welcome this significant engagement from across the creative and AI sectors. Our priority must be now to analyse the evidence that has been submitted. Proposals will be set out in due course, including a fuller breakdown of the types of respondent to the consultation.

[Baroness Chakrabarti (Lab)]

I am very grateful to my noble friend the Minister for that Answer. I declare my interests as an author, like many Members of your Lordships’ House. Does she agree that the intellectual property of creatives in this country is no less precious or important than the intellectual property of tech companies that have, frankly, already been scraping the internet for creative work and ripping these people off? Wherever the policy lands in the future as a result of the consultation, will the Government consider offering assistance to creatives, many of whom are really not very well off, to ensure that they have restitution for the grand theft that has already been perpetrated?

[Baroness Jones of Whitchurch (Lab)]

My Lords, of course the Government recognise the concerns that many in the creative industries have about the potential impact of AI on that sector. This is why we want to act now to give UK creators greater control over their works and more transparency about how their work is being used, as well as creating the ability for them to be paid for it. That is exactly what the proposals in our consultation aim to achieve. But I should say that this is a complicated area, because AI adoption also has the potential to drive growth across the economy, including in the creative industries. For example, 38% of creative industry businesses are already using AI technologies. So this is a complicated area, but we know we have to find a solution and protect the interests of creatives in the future in the way that the noble Baroness has alerted us to.

Electronic Media: False Information

Baroness Chakrabarti Excerpts

Thursday 12th September 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

The noble Baroness raises an interesting point. This will depend very much on the terms of service of those individual platforms, the whole basis of which, as she knows, is to provide that anonymity. We would need a much more detailed discussion about them and about whether individuals should be identified. However, she is right that the proliferation of bots is a dangerous issue, and we need to be aware of it, not only in the UK but in state-sponsored attacks on our democracy.

[Baroness Chakrabarti (Lab)]

My Lords, does my noble friend the Minister agree that tech billionaires are richer, more powerful and sometimes more arrogant than whole countries? With hindsight, fawning before them at Bletchley Park was not a good idea for any British Government. Will the Foreign Office explore treaty-making to examine the kind of future co-operation that my noble friend Lady Kennedy suggested?

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have engagement with the large platforms at every level, including of course on the aspects of business and trade to which they contribute. I reassure my noble friend that, however big those companies are, they must comply with UK laws. We will ensure, throughout the rollout of the Online Safety Act, that everybody, however big and rich the individual, must comply with the Act.

Post Office Horizon Scandal: Compensation Payments

Baroness Chakrabarti Excerpts

Monday 19th February 2024 Lords Chamber

[Lord Offord of Garvel (Con)]

The reality is that the Government are not dragging their feet—quite the opposite. We will process the cases as quickly as they are put in. When cases are put in, and if the offer made is rejected, there is a full appeals process for postmasters, which goes all the way up to a High Court judge. At the moment, Mr Bates has not appealed that decision. All these individuals have to have time to assess the offer that was given. We need these offers to be fair and reasonable. There is a reason for all the offers to be made. We are not here to comment on individual cases, but the money is there for compensation, and all these postmasters and postmistresses will be compensated for the damage that has been done to them.

[Baroness Chakrabarti (Lab)]

My Lords, in answer to previous questions about racism or misogyny, for example, the Minister clearly and repeatedly said that that is a matter for the Wyn Williams inquiry. My question is about process. How do the Government decide that matters should be dealt with by the public inquiry, and how do they decide that it would be useful, expedient and desirable for them to investigate and respond themselves?

[Lord Offord of Garvel (Con)]

The Government are a shareholder, and there is only one shareholder in this company, if you can call it a company—I have never come across a company that has only one. Therefore, the Secretary of State is exercising her shareholder right to reorganise the board of this company to make it fit for purpose to make sure that this does not happen again. In the meantime, the Government, through the Treasury, provided the thick end of £1 billion to pay compensation. The Government also committed to taking full recourse against Fujitsu in due course. In the meantime, a statutory inquiry, with statements being taken under oath, is ongoing. When the truth has emerged, there will be a price to pay.

Post Office (Horizon System) Compensation Bill

Baroness Chakrabarti Excerpts

2nd reading & Committee negatived & 3rd reading
Tuesday 16th January 2024 Lords Chamber

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister; it is a pleasure to follow him. I am particularly grateful for the way that he dealt with matters last week, and the way that he has continued to deal with them today. I will attempt to emulate not just his tone but his succinctness; just because there is no advisory time does not mean that one has to go one way as opposed to the other way.

The noble Lord, Lord Arbuthnot, is a modest man, but I am afraid that I ask him and other noble Lords to forgive me for not sparing his blushes—not just because of his work over so many years, when these people must have felt so forgotten and ignored, but because of his very succinct but powerful contribution last week. He reminded noble Lords of the very important words of the legendary jurist and Conservative politician William Blackstone, who famously said:

“It is better that ten guilty persons escape than that one innocent suffer”.


We all know that that is from his Commentaries on the Laws of England. In those commentaries, he also said that criminal law should always be

“conformable to the dictates of truth and justice, the feelings of humanity, and the indelible rights of mankind”.

For anyone who believes that human rights were some confection from 1945, or even later in the 1960s, I remind them that William Blackstone said that not in the 1960s but the 1760s. So human rights are not some foreign body floating in our soup; they ought to be in our DNA.

In his remarks last week, the Minister very helpfully articulated the reasonable demands of the wronged postmasters. I made a note of them. The three aspects were compensation, exoneration and accountability, and the Minister repeated that formulation, to some extent, today. This Arbuthnot Bill is narrow to aid compensation, because money must be authorised. As the Minister said, it is a short and to-the-point Bill, but I say to the Government, to all noble Lords and to anyone listening to this debate or reading it subsequently, that exoneration—in my view, for what it is worth—may be achieved by a Bill that is a little longer, but not much. However, while I appreciate and agree with the Minister’s remarks that on accountability it may take a little longer to avoid the situation that he described, there must be accountability in due course. There is an element of due process, but there must be accountability none the less. That includes corporate and, potentially, individual accountability in the form of investigations—criminal investigations, potentially—as well as restitution.

We heard just this week that the management and leadership of Fujitsu are very humble, but this will not be a voluntary matter; there will have to be some legislation, I believe, to ensure corporate restitution in due course. Humility is all very well but, however big this Bill, one needs to remember the even bigger bill that the Government have met in enriching Fujitsu in relation not only to the Post Office contract but to other government contracts.

Finally, I come back to exoneration, which can be done swiftly—almost as swiftly as compensation. It is incredibly important that we do not repeat the mistakes of the Windrush scheme. There needs to be a blanket element and an automatic element to this exoneration.

I will not bore noble Lords in the short time I want to speak for with my own formulation, but it is almost as simple as declaring in primary legislation that a class of people’s convictions are hereby quashed from the moment the Bill passes, and then any application could be for a certificate of that quashing, but not for the quashing itself. That is how automatic I believe this ought to be after this length of time.

I know that some eminent lawyers, many of whom are friends of mine and many of whom I usually agree with, are nervous about this proposition. There has been much discussion, especially in the media, to suggest that somehow a proposition of that kind would interfere with judicial independence. I feel it incumbent on me to explain why I disagree with those who have made that argument, especially because some people have compared the blanket, automatic nature of the legislation I propose to the Rwanda Bill. I mention that not because I want to bang on about Rwanda as a broken record and a one-trick pony, but because it is important to make the distinction if I am to have credibility in what I propose. It is obviously not the Government’s position, but it is my position, which is important for these purposes, that the Rwanda Bill is to change facts as have been found by the highest court in the land. That is essentially what the Rwanda proposition is, whereas here, I am proposing legislation that will reflect the facts that have now been found, including by our higher courts, and implement those facts on a swift and blanket basis, to the benefit of individuals and not their detriment. That distinction is incredibly important.

As I think noble Lords and perhaps the Minister agree, this was at the very least a very gross error, involving maladministration and blind trust in technology—we must take note of that in relation to artificial intelligence, which my noble friend Lord Browne of Ladyton has been raising concerns about in your Lordships’ House, and must learn, remember and reflect on even after this particular circus has left town—and, quite possibly, systematic corruption and cover-up motivated by greed. Some noble Lords who have stopped me in the Corridor in the days since our last discussion have asked me whether I am troubled by even the remote possibility that a few postmasters who perhaps could have been correctly convicted should get off as a result of what I am proposing. I am very clear with them, and the answer lies in what the noble Lord, Lord Arbuthnot, said, and what William Blackstone said before him.

Horizon: Compensation and Convictions

Baroness Chakrabarti Excerpts

Wednesday 10th January 2024 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask His Majesty’s Government whether they plan to introduce legislation to quash the convictions of, and compensate, those sub-postmasters and post-mistresses prosecuted and convicted of fraud by the Post Office as a result of faulty Horizon software.

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)]

My Lords, the Prime Minister has announced today in the other place that the Government intend to bring forward legislation to overturn the convictions of all those convicted in England and Wales on the basis of Post Office evidence during the Horizon scandal who have not yet had their cases considered by the courts. Following measures to prevent fraud, the person will become eligible for compensation—this includes the upfront offer of £600,000—or to claim more through the individual claim assessment process.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful for that, but forgive me for being even more grateful to Mr Bates and his colleagues, the noble Lord, Lord Arbuthnot, who is now in his place, and the dramatists and broadcasters who captured the imagination and sense of righteous indignation of the decent people of this country. What might we learn from this? Why did it take a prime time TV drama to cause the Government to leap into action? What might we learn about the appropriate relationship between Ministers and arm’s-length agencies, about the unthinking reliance on new technologies, about using public inquiries to kick scandals into the long grass, and about government procurement and corporate greed?

[Lord Offord of Garvel (Con)]

I thank the noble Baroness for those sentiments, which are shared on all sides of the House. The Post Office scandal is one of the biggest miscarriages of justice in living memory and the victims must get the justice they deserve. It is important that everyone knows the truth about what happened and that steps have been taken to right the wrongs of the past. Truth and accountability are one part of providing justice; another part is the compensation, which we are dealing with in this House next week. It is crucial that lessons are learned. I also pay tribute to our noble friend Lord Arbuthnot, who has acted tirelessly on behalf of the victims. He has been in the other place as well, to hear my colleague the Postal Minister give the Statement this morning, and has now taken his place in this House. He is a member of the advisory committee which will be a key part of the process as we work through this terrible chapter in our legal history.

Horizon: Compensation and Convictions

Baroness Chakrabarti Excerpts

Wednesday 10th January 2024 Lords Chamber

[Lord Offord of Garvel (Con)]

I thank my noble friend for that. He speaks with great experience of the inner workings of Whitehall, obviously, and has seen the way that these anomalies arise. The public would be entitled to say, “Why has this company been so embedded for so long and made so much money out of the taxpayer?” So, with emotions running high at the moment, we understand the calls for compensation. It has been made very clear in the other House that the cost of this should not fall solely on the taxpayer. If there are other sources of compensation, there must be access. I must say that, if I were the chief executive of a company in this situation, I would be thinking about that matter very carefully.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful for the Minister’s approach so far to this very difficult subject. He has spoken very clearly of exoneration and compensation, which it would seem could be achieved by primary legislation fairly swiftly. He is right to say that accountability may take longer, because that is about due process, investigations and, we hope, prosecutions and quite possibly restitution, including in relation to Fujitsu. In a previous answer, I believe he said that government involvement had started around 2021. What about the fact that Governments were represented on the Post Office board? What about the question of what these arm’s-length entities, including privatised entities such as Post Office Ltd, do to the concept of ministerial responsibility? What will we do about that precious constitutional principle going forward?

[Lord Offord of Garvel (Con)]

I thank the noble Baroness for that. This is another area that will demand further consideration. Within the system of government now, we have a lot of quangos, third-party agencies and off-balance-sheet activities. The question that must always arise is what the relationship is between those and the shareholders, who are effectively the taxpayers. What is the role of Ministers to sit in between them, and what is the accountability of Ministers to make those decisions? A large number of noble Lords in this House have been Ministers and understand how that works and that we have conservations with officials. But we also need to have a sniff test, do we not, about what sniffs right and what sniffs wrong. There is a requirement to look at this again, so as to not be in a position where we just always take what officials tell us, and a need to actually be a bit more canny about the questions we ask.