Employment Rights Bill

Debate between Baroness Fox of Buckley and Baroness Lawlor

Committee stage
Monday 19th May 2025 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I support my noble friends Lord Sharpe of Epsom and Lord Hunt of Wirral in proposing this impact assessment and thank my noble friend Lord Hunt for making the case so persuasively from the Front Bench. I shall simply pick up on a few points that were made in the amendment and his speech. The amendment asks for an impact assessment on free speech. Proposed new subsection (1) asks for an assessment of Sections 19 to 22 of this Act on employers. Proposed new subsection (2) says:

“The assessment must report on … the impact of sections 19 to 22 on free speech”


and include

“an assessment of the likely costs to employers”

of these sections, which must include types of occupations at risk and proposals for mitigations.

I want to comment on this amendment in the context of universities. I spoke earlier in Committee about the mitigations a university might take in its rules and in the checklist that it hands out to potential candidates for a place who want to come to that university to study and who are asked to abide by certain arrangements or rules. These rules will, if the employer and the university follow what they are required as trustees of a charity to follow, protect the costs: whatever endowment of funds the university has, it will have to follow caution. I have no doubt that undergraduates or graduate students coming in for postgraduate work will be asked to promise not to complain, or be overheard doing so, or speak ill of lecturer A, whose lectures they may not approve of, may think are no good or whatever, as happens in normal intercourse in a university.

One of the standard things you will hear as undergraduates leave the room is, “What a rotten lecture that was” or “Isn’t it interesting that such a subject didn’t touch on the kernel of the matter?” or whatever they think is important. This is the sort of education we want to impart. We want students to question and challenge. We want them to make the case against what they have heard and to think about it. To make an employer liable for a student doing what a university education should encourage—we encourage it at school too—seems to me silly. We should have an impact assessment of what will happen and what sort of steps a university will take to curtail that freedom to argue or to criticise an employee of the university. We should ask for an impact assessment. It would not be very difficult to consult universities and find out exactly how they would get around this potential liability as employers.

The same goes for mitigation and the costs which will be incurred. For example, take the costs to an institution such as a university of fighting a claim in an employment tribunal. The member of staff concerned, against whom the criticism has been made, will be on tenterhooks all the time. They may be distracted, may have to continue to give evidence to the employer, and so on, with a lot of back and forth. As for the employers, think of the staff costs, counsel charges, legal charges, administrative costs and committee costs they will incur, and the time that will be spent on that rather than on running their universities to do what they ought to do—to educate undergraduates and do research. This is the most moderate request for an impact assessment that I have heard. Noble Lords would be well advised to agree that we need an impact assessment, both on free speech and the likely costs—particularly the costs of going to a tribunal and waiting for all that period.

[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—

Windsor Framework (Democratic Scrutiny) Regulations 2023

Debate between Baroness Fox of Buckley and Baroness Lawlor

Wednesday 29th March 2023 Lords Chamber

[Baroness Lawlor (Con)]

My Lords, I pay tribute to my noble friend the Minister for the efforts he continues to make to promote the peace process—as he did through a number of Administrations—of which these regulations are a step. But it would be curmudgeonly not to acknowledge the efforts of other Governments in promoting the peace process, of which the Belfast agreement, which your Lordships have mentioned across the House today, was a major step.

The fact that the Belfast agreement was accepted reflected two truths. First, it was accepted across the majority of parties who were party to the sad legacy of Northern Ireland—a legacy that was a historical inevitability, perhaps. But it was also a success because it built on recognition of the constitutional status of Northern Ireland within the UK, and that that status would not be overturned except with a majority vote of the people.

We have heard today how the Northern Ireland protocol has undermined the Belfast agreement in a number of ways. It has also undermined the economic integrity of the United Kingdom and the UK’s economic area. That it was signed or reached was the result of a determined plan by the EU from 2017 to play the orange card against the green, and to use that card to undermine Brexit and its success economically and politically.

While the negotiations leading to the Windsor arrangement and the Stormont brake are to be welcomed as a step in the right direction, I do not think we should forget that the real problem remains. It is the problem of the constitutional status of Northern Ireland and its part as an integral part of the UK’s economic area. Therefore, until the protocol itself is addressed, as noble Lords have acknowledged today and have urged my noble friend to take account of, these problems will remain. I therefore urge my noble friend to do all he can to address the constitutional problems that remain within the Northern Ireland protocol so that we can move to a position where the UK and the EU are not the sole parties—indeed, not the major parties—in this arrangement and the Dublin Government and the UK Government continue the process they reached in the Good Friday agreement in 1998 without the help, for better or worse, of the EU.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, noble Lords will remember that, in the course of debates on the retained EU law Bill, we have heard complaints from noble Lords across the House, largely from opposition parties but also from government Back Benchers, that it is outrageous to be asked to sign off legislation without a chance to scrutinise it in detail. We have been told that decisions on whether to retain or discard laws needs close parliamentary oversight and debate. I have to say that I was somewhat taken aback that, even before the publication of the Windsor Framework, the Opposition committed to supporting the Government. Since then, skeleton documentation has been enough to have politicians across all parties vote en masse for the framework, despite the fact that actually that equates to voting blind on yet-to-be-written laws that will apply to the UK that will not be scrutinised, let alone with an opportunity to be opposed, by the UK Parliament.

Today, what we have been asked to do is to nod through an agreement that allows the EU, which we have left, to draft brand-new EU laws to govern trade taking place solely within UK borders. There has been no outrage, though. We are just quite calmly accepting that the future rules on the movements of goods, plants, foodstuffs, medicines, parcels, pets and so on from Great Britain to Northern Ireland will be decided by direct regulation made in Brussels and voted on not here but in the European Parliament, all of which we will never get to scrutinise in the UK Parliament. You sort of could not make it up. It seems an ironic twist as well that the people who will have close oversight of UK laws are—wait for it—the EU. Under the framework, the EU is granted new rights through EU law to be consulted in advance on huge swathes of legislation on UK trade and tax legislation governing the UK economy, all to monitor the so-called competitive risks within the UK single market.

I think that we might suggest that something has gone a bit awry here. Certainly, the process should be scrutinised and our own process should be scrutinised. In this place, concerns are rightly often raised about the overuse of statutory instruments and the delegation of powers to the Executive, yet here we are faced with a statutory instrument and we are able to look at only one part of the framework in the Stormont brake. There is no feasible way of changing anything. That is why I welcome the amendment from the noble Lord, Lord Morrow, because it gives us a chance to have a debate. I thought the noble Lord, Lord Hain, asked some important questions about delegated powers, but in the end, this House, the other House and Stormont —none of us—have no way of challenging an important document about the conflict about which legal authority will govern the UK. In the other place, the discussion was reduced to a derisory 90 minutes. We should remind ourselves that the whole framework was announced as a done deal at a press conference that put Ursula von der Leyen centre stage and the UK Parliament, never mind the public, was reduced to being a bystander.

Financial Services and Markets Bill

Debate between Baroness Fox of Buckley and Baroness Lawlor

Committee stage
Tuesday 7th March 2023 Grand Committee

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I enthusiastically support Amendment 186. I thought that the noble Baroness, Lady Tyler of Enfield, spelled out extremely articulately the importance of banking hubs and how that name could often be prosecuted for mis-selling. Even banks themselves, in terms of the service that they offer when you go into the few that are still open, can be accused of having only the minimum service required.

The noble Lord, Lord Hunt of Kings Heath, told a heartbreaking story about a 91 year-old but you do not have to be 91 and have a heartbreaking story. Things can just go wrong; your card can stop working or whatever. When you try to solve it on your phone and it does not work, you then go into the bank and, to be honest, you are treated as though you are wasting the bank’s time and as though you have done something wrong. The staff often cannot solve the problem and ask, “Why don’t you solve it online or on your phone?” The answer is that I would have done so if I could have done. In other words, I do not think that it is necessarily a special needs problem, as the noble Lord just said. I think it can happen to anyone. Sometimes, you need human intervention to sort out your banking.

I am also interested in supporting those amendments that would allow access to cash, including Amendments 180 and 181 in the name of the noble Lord, Lord Tunnicliffe. I especially like Amendment 189 from the noble Lord, Lord Holmes of Richmond, and its attempt to make cash critical national infrastructure in the UK; I also support Amendment 189A, which is headed “Access to physical banking services”.

I suppose I am concerned about noting that the importance of cash relates not just to those who struggle with their phones or other technology. This discussion sometimes implies that some of us are just Luddites who cannot cope or do not want to embrace the full excitement of new technology and digital futures. I want to emphasise that I can see the advantages of a cashless society. Mainstream cashless transactions carry certain information about payment participants, what was purchased and when, which can be a huge barrier to money laundering and tax avoidance. That is genuinely important but, for individuals as consumers, it can also mean—this may be slightly different to what others have emphasised—that it helps people with budgeting because they have electronic receipts and can see both what is going in and what is going out. I am rather enthusiastic about those technological steps forward; I do not in any way want to hold back the march of progress, in the way that some have implied.

However, precisely because cashless transactions mean that information about payment participants is available to financial institutions and banks in a different kind of way, they can also give those organisations huge surveillance capability and invasive powers in ways that we did not see so much in the past. It is then not about you taking cash out but about everything having to be recorded. This means that people are not able to do the things you could with discretion. It should be noted—this is not entirely being paranoid—that, in China, financial surveillance is used to censor and restrict people’s freedom to express opinions against the state.

Noble Lords might think that that would never happen in a democracy but, in a later amendment in my name—when I say later, I mean if it ever arrives; it is Amendment 241B, should anyone like to note that, because I do not suppose that anyone will be here to listen to my speech on it—I was inspired by payment processing in fintech companies, such as PayPal, and the move towards everything being cashless, with a cashless society and everything being digitised. This has meant that PayPal, for example, can close down accounts on the basis of politics; in fact, it has done so, so I am not just being paranoid.

There also tends to be a casual assumption that those who want to keep their financial transactions private—that is, by using cash from time to time—might be up to something dodgy, as though the only reason someone might want to be free to choose to use cash is if they are involved in embezzlement or tax fraud. Today, it has been much friendlier than that; people just assume that you are technologically incompetent and old-fashioned, so cannot keep up. We just have to be a bit careful about this. I have also noticed a trend where financial services are judging how individuals are making their purchasing decisions—judging their use of money in a way that they may not have done if were not quite so detailed.

Recently, I was interested that HSBC—my bank—was involved in a report that condemned people’s decisions about how much they spent on gambling and was backing affordability checks. I know that I disagree with some noble Lords in the Room on gambling—I can already see them—as I think that is a legal leisure activity and that you should be able to do what you want. The idea that the bank is saying that it has customers who spend too much on gambling, a perfectly legal leisure activity, and then gives a breakdown of them, indicates that rather than being a dispassionate financial service it is getting involved in things in a way that it perhaps should not. I have never gambled, but my bank could well send me a note about how much I am spending in TK Maxx, saying that has all gone a bit mad.

When we had cash, we took the money out, we spent it on what we wanted and nobody could see. A cashless society creates a slightly different situation. Amendment 186 on accessibility and Amendment 184 on levels of cash acceptance, along with the whole issue of digital exclusion and financial inclusion, are very important but do not quite capture some of the broader political trends associated with this issue.

I am also very sympathetic to the notion of the noble Baroness, Lady Noakes. On the one hand, cash is not a human right—I do not want to get stuck on that, as I am never keen on regulations lasting for ever; a time-limited sunset clause is a good idea—but I am anxious that we do not forget the political trends surrounding this by simply treating it as a technical issue.

[Baroness Lawlor (Con)]

My Lords, if I may come in briefly, I am very sympathetic to the aims of noble Lords who wish to see cash access and banking services available to those who need them and do not use or rely on digital. However, I agree with the aims of the Bill: international competitiveness and growth. I do not think that this Bill’s powers regarding the financial markets and services sector should be used in a blanket way to impose an obligation on service providers to provide a service whose use, by all accounts and evidence, is on the decline.

Not only do I support the two amendments from my noble friend Lady Noakes, but I think we should pay attention to the overall aims for the regulators in this Bill, which are international competitiveness and growth. I urge the Minister to focus on the real problem of access to cash and banking services for many people, and, where there is a problem or gap, to focus the efforts and use the powers of government on trying to deal with the declining number of users in our society—albeit a real group—rather than use the law to impose obligations in a blanket way on the sector, contrary to the aims of competitiveness and growth. As noble Lords have explained, such a move could undermine the competitiveness of the banking sector.