Data (Use and Access) Bill [HL]

Baroness Jones of Whitchurch Excerpts

Consideration of Commons amendments and / or reasons
Wednesday 11th June 2025 Lords Chamber

Moved by

[Baroness Jones of Whitchurch]

That this House do not insist on its Amendment 49F and do agree with the Commons in their Amendments 49P, 49Q, 49R, 49S and 49T in lieu.

49P: Line 3, leave out “12” and insert “9”

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49T: After Clause 134, insert the following new Clause—
“Progress statement
(1) The Secretary of State must, before the end of the period of 6 months beginning with the day on which this Act is passed, lay before Parliament a statement setting out what progress has been made towards the publication of—
(a) the economic impact assessment required by section (Economic impact assessment), and
(b) the report required by section (Report on the use of copyright works in the development of AI systems).
(2) The duty in subsection (1) does not apply where the economic impact assessment and the report have been published before the end of the period described in that subsection.”

[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, in moving Motion A, I will also speak to Motion A1. I will keep my opening remarks brief. The Government have been clear throughout the Bill’s passage that we need to properly analyse the 11,500 consultation responses before we consider bringing forward legislative change relating to AI and copyright. For that reason, the amendments in lieu, passed by the other place, are the same as the government amendments previously tabled in this House. I understand that this is a source of disappointment to some noble Lords, but it is not fair to say—as some have outside of your Lordships’ House—that the Government have in any way been unclear about their intentions, or misled or disrespected noble Lords.

I turn to the new Motion from the noble Lord, Lord Berkeley of Knighton. I understand and share his desire for a quick and effective solution. I thank him for the productive and helpful meeting we had ahead of this debate. I recognise that people have not been reassured entirely so far, which is unfortunate. I want to give the House the same undertaking I gave the noble Lord: we will work as hard as possible on this issue. I can reassure him, and your Lordships, that our plan will give copyright holders as much protection and support as possible, including via transparency, enforcement and renumeration, while not pre-empting the outcomes of the important and necessary processes that we have set out and without pre-judging any future legislation. We want to ensure that we uphold our gold standard copyright regime while also adapting to the new challenges. I look forward to working with the noble Lord as part of the parliamentary working group on this issue.

In the meantime, I urge noble Lords to accept the Government’s Motion and the amendments in lieu. That is the best way to finally pass the data Bill, with the compromises the Government have made to address this issue as quickly as possible. This will speed up our work, make it more comprehensive and provide Parliament with a meaningful update within six months—a clock that only starts ticking once this Bill has passed. These steps increase engagement and accountability, but without pre-judging or pre-empting the consultation to which so many took the time to respond.

In my most recent all-Peers letter, I was pleased to share details of the cross-party parliamentary working group that DSIT is establishing to support our next steps. I take this opportunity to reassure those already on the relevant Select Committees that this group will not in any way replace or dilute their core work. Minister Bryant confirmed yesterday that we will meet with relevant Select Committee chairs in both Houses to discuss how this new group can complement existing mechanisms. I will provide an update to your Lordships’ House on the formation and progress of the working group as soon as I am able to.

Lastly, I thank Members of your Lordships’ House for their contributions to the debates on the Bill during its passage. I look forward to hearing their contributions on other matters once the Bill has passed. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

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[Viscount Camrose (Con)]

My Lords, as everybody has said, it is deeply disappointing that we once again find ourselves in this position. The noble Baroness, Lady Kidron, has brought the concerns of copyright owners to the attention of the Government time and again. Throughout the progress of the Bill, the Government have declined to respond to the substance of those concerns and to engage with them properly. As I said in the previous round of ping-pong—I am starting to lose count—the uncertainty of the continued delay to this Bill is hurting all sides. Even businesses that are in industries far removed from concerns about AI and copyright are waiting for the data Bill. It has been delayed because of the Government’s frankly stubborn mismanagement of the Bill.

I understand completely why the noble Lord, Lord Berkeley of Knighton, feels sufficiently strongly about how the Government have acted to move his very inventive amendment. It strikes at the heart of how this Government should be treating your Lordships’ House. If Ministers hope to get their business through your Lordships’ House in good order, they will rely on this House trusting them and collaborating with them. I know that these decisions are often made by the Secretary of State. I have the highest respect for the Minister, but this is a situation of the Government’s making. I note in passing that it was very disappointing to read that the Government’s planned AI Bill will now be delayed by at least a year.

All that said, as the Official Opposition we have maintained our position, as ping-pong has progressed, that protracted rounds of disagreement between the other place and your Lordships’ House should be avoided. This situation could have been avoided if the Government had acted in good faith and sought compromise.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank noble Lords for their contributions. I repeat again our absolute commitment to the creative sector and our intention to work with it to help it flourish and grow. This is London Tech Week. All Ministers, including me and my colleagues, have been involved in that, showcasing the UK’s rising tech talent to the world. I do not feel I should apologise for our involvement with the tech sector in that regard.

[Baroness Kidron (CB)]

Perhaps the Minister could note that I said that of course they should be meeting. It was the fact that the creative industries did not get a response that was at issue here.

[Baroness Jones of Whitchurch (Lab)]

I apologise to the creative sector if it did not get a response. I can follow that up, but I was responding to a different point made by other people casting aspersions about our ministerial involvement with this sector, which is an important sector for our economy.

It is clear that several noble Lords still have concerns about the Government’s plan. I understand their concerns, even if I do not share them—just as I am sure that they understand our concerns with the proposed alternatives, even if they do not share them. I say to the noble Baroness, Lady Benjamin, that it is a matter of fact that the Bill does not change, weaken or block anything in copyright law. We believe in transparency, protection and enforcement, and we agree with remuneration. This is our task ahead. But the Government’s firm view remains that we cannot prejudge the consultation, the technical or parliamentary working groups or the proposals resulting from these that will be brought forward in our report.

[Lord Forsyth of Drumlean (Con)]

I understand the Minister’s point about not wanting to prejudge the consultation—although on other issues, such as VAT on school fees, that did not seem to apply. What I have difficulty with is why the Government were not prepared to take a power that would enable them to act at a subsequent date and does not require them to do so.

[Baroness Jones of Whitchurch (Lab)]

My Lords, this is because we believe the powers we already have are sufficient to enable us to enact the regulations once we have finished the piece of work we are working on.

I thank the noble Lord, Lord Berkeley, for his speech, and repeat my assurances in response to his ask. Our plans will give copyright holders as much protection as possible via transparency, enforcement and remuneration. Our report, nine months from Royal Assent, will contain our proposals to put this in place. The Government are also looking at the case for more comprehensive AI legislation that delivers on our manifesto commitment. I expect any comprehensive legislation to address the opportunities and challenges presented by AI to the creative sector.

I turn now to concerns that the Government have not compromised on this issue. Noble Lords are right that we have deep concerns about pre-empting all the work that is necessary to determine what future laws should contain. It is an important principle that good government consults, respects the responses and then sets out its proposals. I expect any comprehensive legislation that follows—to address the opportunities and challenges presented by the AI sector—to encompass those principles.

However, I want to remind noble Lords of everything I am referring to when I say that the Government have compromised. The Government have compromised on the consultation with the Secretary of State, recognising concerns about the preferred option and the lack of an impact assessment, and by introducing a report that will set out proposals and which will be accompanied by a full impact assessment.

The Government have also compromised on the process. The reports will be brought forward even more quickly, with more topics included in them, and there will be a progress statement, and technical and parliamentary working groups will now be set up to complement this process.

I press my point to noble Lords: the Government have compromised many times on many issues, but where we cannot compromise is on one of the principles of good government: namely, that we cannot prejudge the outcome of these processes.

Online Abuse: Protection for Children

Baroness Jones of Whitchurch Excerpts

Wednesday 11th June 2025 Lords Chamber

[Baroness Benjamin]

To ask His Majesty’s Government what steps they are taking to protect children against abusive online communication.

[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, keeping children safe is a priority for this Government. Under the Online Safety Act, services must prevent all users encountering illegal abuse and harassment online. These duties are already in force. Services likely to be accessed by children must also protect them from content that is harmful to them, including bullying, abusive or hateful content. Ofcom recommends measures including ensuring that algorithms filter out such content, to make sure that children are protected from abusive online communications.

[Baroness Benjamin (LD)]

My Lords, I thank the Minister for that Answer. A recent NSPCC report highlights how the design of social media platforms is enabling the abuse, exploitation and harassment of girls. Girls are disproportionately at risk, with only 9% of them feeling safe in online spaces. The report shows how the detailed nature of public social media accounts makes it too easy for adult strangers to pick out girls and send unsolicited messages to their accounts. Online platforms need to prevent abusive content being sent and develop a safety-by-design approach. How will the Government ensure that Ofcom is doing everything in its power to require tech companies to keep girls safe from unacceptable abuse and reaffirm the Government’s commitment to protecting girls online?

[Baroness Jones of Whitchurch (Lab)]

I am grateful to the noble Baroness for raising this profound issue. Ofcom’s codes go beyond current industry standards and practices. Under the Online Safety Act, companies cannot decline to take steps to protect children, including young girls, because it is too expensive or inconvenient. Protecting children is a priority. The Secretary of State has said that safety by design is one of the priorities in the statement of strategic priorities of this Government. Ofcom is required to consider those priorities in its approach to online safety regulation and will need to provide regular updates on how they are being delivered.

[Viscount Colville of Culross (CB)]

My Lords, why have civic groups and campaigners been told that their responses to the consultation on the children’s code will not be considered for incorporation into the code until the next round of regulations in 18 months’ time? When dealing with the rapidly evolving tech sector, does the Minister not agree that this regulatory cycle is too slow?

[Baroness Jones of Whitchurch (Lab)]

My Lords, as part of its statutory duties, Ofcom consulted widely on the proposals in the codes and considered responses from a wide range of stakeholders, including children and civil society organisations. Ofcom has been clear that it has reflected these views in its decision. It has made a number of changes reflecting feedback from civil society stakeholders. For example, it has substantially strengthened the expectation on services that set a minimum age—often 13.

[Lord Kirkhope of Harrogate (Con)]

My Lords, is the Minister not concerned that in present and projected legislation for online content the responsibility of those who provide the source of this material is out of proportion to that of the platforms? Is she satisfied that the platform operators are sufficiently responsible for what happens?

[Baroness Jones of Whitchurch (Lab)]

My Lords, Ofcom has to take steps, and will do, under the illegal content codes and the children’s code against those platforms and the originators of harmful or illegal content. Indeed, I am pleased to say that as Ofcom has started to roll out its responsibilities, a number of what we would regard as inappropriate app sites have been blocked or ceased to function in the UK, because they know they cannot comply with the current legislation.

[Baroness Uddin (Non-Afl)]

My Lords, given the grave, ever-present threat to children’s mental well-being from all online activities, what updated guidance, if any, has been issued to schools on child protection?

[Baroness Jones of Whitchurch (Lab)]

My Lords, schools must have a policy on this issue. They are all expected to have a policy about the use of phones in schools, for example, and we have been very clear about our expectations on that. The noble Baroness is right: the issue of mental health is fundamental, and tackling excessive screen time among children is a real priority for the Government. Nevertheless, we recognise that online activities can have benefits for children, such as helping them make connections, learn new skills and gain independence. We want to get that right and make sure that children have a balanced childhood overall, with a mixture of online and offline activities, and that will be our strategy going forward.

[Baroness Garden of Frognal (LD)]

My Lords, following on from that last question, can the Minister say what is being done to ensure that teachers have the right skills to train children in school on the dangers of online communication?

[Baroness Jones of Whitchurch (Lab)]

My Lords, this is already a priority. The Department for Education is making sure that teachers have the training support to tackle these issues. Teachers have been asking for this, and we have responded, because sometimes they feel that they do not have the tools to raise these issues appropriately. It is something that the department is anxious to deal with, and it is building it into future training programmes to give teachers more confidence to tackle these issues.

[Lord Markham (Con)]

Given that children are among the most vulnerable users online and are often disproportionately affected by online harms, it is notable that none of the eligibility criteria of the super-complaints mechanism recognise or require expertise on online safety relating to children. Are the Government prepared to address this oversight?

[Baroness Jones of Whitchurch (Lab)]

My Lords, this is an issue that we of course take seriously. We want to make sure that we have the right spread of expertise reflected in the super-complaints process. We are still working that through with Ofcom, and we will be able to spell it out in more detail very soon. However, I take the noble Lord’s point, which is a good one. I will go back and check that that is indeed being addressed.

[Lord Watts (Lab)]

My Lords, is it not the case that too many of our regulators use consultation as a method of doing nothing? Should we not ask our regulators to be more precise, get on with the job that they have been charged with doing and protect the public?

[Baroness Jones of Whitchurch (Lab)]

In this case, Ofcom can do only what legislators ask it to do or provide for it to do. It is limited in that. As noble Lords will know, Ofcom has a clear remit to implement the Online Safety Act. I know that we have discussed this several times before, but I think that as we roll out the illegal codes and the children’s safety code, they will make a profound difference to what children can see. I am confident that Ofcom has the resources and wherewithal to make that step change, which we all know is necessary.

[Baroness Manzoor (Con)]

My Lords, I declare an interest in that I am an ex-trustee of the NSPCC. One of the answers that the Minister gave regarded algorithms. What experience and expertise does Ofcom have to ensure that those algorithms capture the vast majority of harm that is put on the internet and on social media, because who develops the algorithms holds the key to this?

[Baroness Jones of Whitchurch (Lab)]

My Lords, the noble Baroness is absolutely right. Algorithms are a real challenge, and we know some of the damage that can be done by them if they do not operate effectively. When Ofcom published its child safety codes on 24 April, it set out 40 measures that companies are expected to take to comply with the child safety duties. Measures include age-assurance technology, changing algorithms to filter out harmful content and adopting mechanisms so that parents and children can easily report harmful content. It is part of the children’s code to address algorithms. Over time, Ofcom will be able to report on how successful it has been in expecting that of platforms.

[Lord Russell of Liverpool (CB)]

My Lords, building on the comment of my noble friend Lord Colville about the amount of time between consultation and action being taken, could the Minister draw to the attention of Ofcom the report by the NSPCC that the noble Baroness, Lady Benjamin, referred to? It contains no fewer than 27 specific suggestions and solutions for Ofcom to include in the illegal harms code of practice, in addition to the 40 she just named. If she could bring that to the attention of Ofcom and perhaps encourage it to get its skates on, that would be greatly appreciated.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am sure that Ofcom has regular dialogue with the NSPCC and other stakeholders, but I will double-check to make sure that, as the noble Lord says, the issues and recommendations are being addressed.

Employment Rights Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 215ZA is in my name and seeks to insert a new clause following Clause 56. This amendment would require the Secretary of State to consult relevant stakeholders, including representatives of both employers and trade unions, on the use of digital communication methods as part of trade union access agreements under Clause 56. Furthermore, it would require that the outcome of that consultation be published and that the provisions of Clause 56 may not come into force until that has happened.

Let me say at the outset that this is a moderate, practical and entirely necessary amendment. It does not challenge the principle of union access. It does not frustrate the core intent of the legislation. What it does is inject a degree of transparency, rigour and, crucially, consent into a provision that, as it stands, risks doing significant unintended harm to employers and employees alike.

I refer to the remarks made last week by the noble Lord, Lord Katz, during Committee. I thought they were illuminating and, frankly, somewhat concerning. The noble Lord assured us that the Government intend to consult further on the digital provisions. But here is the critical point: the legislation as currently drafted allows Clause 56 to come into force before that consultation has occurred and before any regulations are laid. In effect, this Committee is being asked to pass a framework of legal obligations that have real-word consequences for access to workplaces and digital systems without knowing the rules that will underpin them. This is legislation in reverse, because it enables powers first and critical definitions and safeguards later.

Let us take the words of the noble Lord, Lord Katz, directly. He said that

“the precise details of how this will work in practice will be set out in secondary legislation following further consultation”.

But secondary legislation, as we have discussed many times over the course of this Bill and others that this Government are putting through, is not subject to the same scrutiny as primary legislation. It is not amendable. It can be laid quietly and approved via negative procedures. That is why we must build the consultation obligation directly into the primary legislation. Without it, we risk leaving employers, particularly small and medium-sized employers, exposed to obligations they neither understand nor have had the opportunity to influence.

The noble Lord acknowledged that digital access was not included in the original drafting of the Bill and so was not debated during the Commons Committee stage. It was inserted at a late stage in the legislative process. When pressed on this by my noble friend Lady Coffey last week, the noble Lord could offer no justification for the timing or the rationale behind that late change. Instead, we were told that

“in 2025, the idea that access to a workforce would not include digital channels is, frankly, fanciful”.—[Official Report, 5/6/25; cols. 984 and 985.]

Again, those were the noble Lord’s words.

That may well be the case, but policy made on assumptions and generalities is not good policy. What exactly will “digital access” mean in practice? Will unions be allowed to email employees directly? Will they be granted access to internal mailing lists? What about secure internal platforms or workplace intranets? Will employers be compelled to share employee contact details or act as intermediaries in the distribution of union materials? What safeguards will exist to protect commercially sensitive information, particularly in small firms that operate on a single device or a shared system?

My noble friend Lord Leigh of Hurley also raised a very pertinent point last week. He said:

“The Government are asking the House of Lords tonight to pass legislation that will allow a third person the right to access an employee’s computer … without any controls, references or parameters”.—[Official Report, 5/6/25; cols. 984-85.]


That is not mere rhetoric but a credible reading of the Bill in its current form. If that is not the Government’s intent, we need clarity in law, not just reassurance from the Dispatch Box.

The noble Lord, Lord Katz, tried to deflect concerns by pointing to data protection legislation, but as many in this Committee know only too well, data protection laws regulate the use of personal data; they do not in themselves govern the parameters of access rights under trade union law. Nor do they address the central concern here: that employees and unions need agreed, defined rules of engagement for digital contact in the context of access rights. Indeed, the Government’s apparent position is that all this can be worked out later. That is simply not acceptable. When legislation interferes with the operation of businesses, the integrity of secure systems and the balance of power between employers and unions, it is not enough to say, “Trust us to sort it out in regulations”.

Let me also address the claim that consultation will happen eventually. Of course we welcome that promise, but good process means consulting before rules take effect, not after. It means asking those affected what is reasonable before forcing them to comply, and that is all this amendment does. It would require the Secretary of State to consult relevant stakeholders, including trade unions and employers; that the outcome of that consultation be published in the interests of transparency and trust; and that the relevant part of the legislation, Clause 56, cannot come into force until that is done. That would give everyone fair notice. It would ensure meaningful engagement and prevent the scenario we are currently hurtling towards: a system through which access rights could be imposed by the Central Arbitration Committee, including digital access, without any shared understanding of what that entails.

Access must be delivered in a way that is workable, proportionate and appropriate in each workplace context. In many modern workplaces, digital contact is indeed the most effective route, but in some environments, especially among some SMEs, it also represents a point of vulnerability both for the operations and for data security. I beg to move.

[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, I thank the noble Lord, Lord Sharpe, for Amendment 215ZA, which seeks to commit the Government to consult with trade unions and representatives of employers on the detail of Clause 56, which covers trade union right of access. In particular, it would require the Government to consult on the use of digital communication as part of access agreements.

I can confirm that the Government have already committed to consulting with both trade unions and employers’ representatives on the framework and conditions of access, including on the details of that digital access. I can confirm that we will not bring forward secondary legislation on this before we have consulted. While I am grateful to the noble Lord for tabling this amendment, and I look forward to the upcoming debates on Schedule 6 and Clause 57, I must ask him to withdraw his amendment.

[Baroness Verma (Con)]

When the consultations are going on, how much consultation is being done with businesses from the black and ethnic minority communities? As I keep repeating in this House, I have been speaking to lots of businesses and I have yet to come across one that feels that it is being consulted.

[Baroness Jones of Whitchurch (Lab)]

I can assure the noble Baroness that all the main business organisations are consulted as a matter of course, and many of our consultations are available more widely. I take on board her question about the black community and I will ensure that, where it has representative organisations, they are included.

[Lord Sharpe of Epsom (Con)]

My Lords, I am very grateful to the Minister for her answer. Just to be clear, as I understand it, that means that this aspect of the Bill will not be commenced until consultation has taken place. As my noble friend has just suggested, this begs the question of exactly who will be consulted and how. I look forward to hearing more from the Minister on that. I do not expect her to be able to answer that now, but it would be very welcome if she could outline the details of this consultation in a letter in due course. However, I am grateful that she has committed to having the consultation before the commencement of this provision. I beg leave to withdraw the amendment.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lord, Lord Hunt, for his keen interest in and amendments to Clause 57 and Schedule 6. The noble Lord, Lord Jackson, has set out his opposition to both the clause and schedule.

Clause 57 and Schedule 6 speak to our commitment to strengthening collective bargaining and trade union recognition. We believe that strong trade unions are essential for tackling insecurity, inequality, discrimination, enforcement and low pay. Our view is that the existing legal framework needs to be simplified, so that workers have security in the workplace by having a more meaningful right to organise through their trade unions. As we have heard, to achieve this, the clause and schedule remove the current requirement for a union to have at least 40% of the workforce in the proposed bargaining unit supporting union recognition. In future, unions will need only a simple majority in a recognition ballot to win.

The current requirement for a union to demonstrate at the application stage that it is likely there will be a majority for union recognition poses a significant hurdle in modern workplaces, which are increasingly fragmented. That is why the clause deletes the requirement for a union to demonstrate, on application to the CAC, that it is likely to win a recognition ballot. In future, unions will need to show only that they have 10% membership of the proposed bargaining unit for their application for recognition to be accepted by the CAC.

We also wish to consider whether the current 10% membership requirement on application should be lowered in future. The clause therefore provides a power to enable the Secretary of State to make affirmative regulations, which we will consult on, to amend the 10% membership requirement in future, within the parameters of 2% to 10%, as we have set out in Schedule 6.

Clause 57 and Schedule 6 also address unfair practices and access arrangements in the process of recognition and derecognition of trade unions. I hope this satisfies noble Lords who oppose this clause and schedule that these measures strengthen collective bargaining rights.

Before I turn to the amendments to Schedule 6 tabled by the noble Lord, Lord Sharpe, it is worth noting that the Government have also tabled amendments to it. We will debate them shortly, and noble Lords may wish to consider them for the context of today’s debates.

Amendments 215AZA, 216AA and 216BB would carve out recruitment in the usual course of the employer’s business from the freeze on the bargaining unit provided for in the Bill. This is well intentioned. Indeed, we consulted on options for a more targeted approach to preventing mass recruitment into the bargaining unit with the aim to thwart a recognition application. However, after considering responses to the consultation, we concluded that a more targeted approach is not workable, as it would be difficult to establish a sufficient level of proof to determine the purpose for which workers had been recruited. In addition, a new obligation on employers to demonstrate their recruitment intent would be a disproportionate and unfair burden, and it could result in employers having to divulge commercially sensitive information.

Amendment 215AA, at least in some cases, seeks to reinstate the 10% membership test on application. It also—again, at least in some cases—would remove the references in Schedule 6 that exclude workers recruited following receipt by the CAC of a trade union recognition application from counting for the purposes of the recognition process.

I will set out my reasoning in relation to the 10% membership threshold on application and why we are including a power in the Bill to allow Ministers to vary the membership threshold from 10% to 2% in the next debate. New Schedule A1 should be consistent on this principle. I refer noble Lords to what I have said previously on this issue. I will also set out why we believe employers should no longer be able to recruit workers into the bargaining unit for the purpose of thwarting a trade union recognition application. I am steadfast that this reform is necessary to ensure that the process is fair and must not be undermined by what could be underhand tactics.

I turn to Amendments 215DA to 215DC, 215EA, 215FA to 215FF, 215FI, 215GA, 215HA and 216BA. Did I get that wrong?

[Lord Katz (Lab)]

No, the noble Baroness got it right.

[Baroness Jones of Whitchurch (Lab)]

These amendments seek to delay when unions would be able to request access during the recognition process until after the bargaining unit had been agreed or determined. While I understand what the noble Lord is attempting to achieve with these amendments, employers have access to the workforce throughout the recognition process. The Government’s view is that unions should have access to the workplace as well from the point where the CAC accepts the application for recognition. This enables the unions to also have access to the workplace for a time closer to the start of the recognition process.

Amendments 215FG, 215FH, 216GA and 216MA seek to remove specific unfair practices from Schedule 6. They seem to seek to allow employers or unions to make an outcome-specific offer or use undue influence with a view to influencing the recognition application. These unfair practices are of long standing and are already set out in the legislation currently in force. The use of undue influence could, for example, include the threat or the use of violence. We therefore see no argument for removing these prohibitions on these unfair practices.

Amendment 216 seeks to reverse changes in the Bill by reinstating the requirement that unions meet the 40% support threshold in addition to a majority in a statutory union recognition ballot. I remind noble Lords that this was a manifesto commitment set out clearly in our plan to make work pay. We are committed to strengthening collective bargaining rights and trade union recognition. We believe that strong trade unions are essential for tackling insecurity, inequality, discrimination, enforcement and low pay. Our view is that the existing legal framework needs to be simplified so that workers have a more meaningful right to organise through their trade unions.

To achieve this, we are removing the current requirement for a union to have at least 40% of the workforce in the proposed bargaining unit supporting union recognition. In future, unions will need only a simple majority in a recognition ballot to win. We believe that the 40% support threshold represents too high a hurdle in modern workplaces, which are increasingly fragmented.

Amendment 216KA seeks to ensure that an employer is not prohibited from taking action against the worker for meeting or indicating that they would like to meet unions during the statutory recognition process if the worker has breached any term of their contract of employment. The prohibition that this amendment seeks to amend is carried forward from the existing legislation, where the proposed proviso about the worker not having breached their contract does not appear. While well intentioned, this amendment is not necessary. The prohibition applies only where the employer takes action against the worker solely or mainly on the grounds that they met with the union. It does not apply where the sole or main purpose is another reason, which may, in some circumstances, be a breach of their contract of employment. I hope this provides the necessary reassurance to the noble Lord.

I therefore thank the noble Lords, Lord Sharpe and Lord Hunt, for the debate and for tabling these amendments, but I must ask the noble Lord not to move the amendments.

[Lord Hunt of Wirral (Con)]

My Lords, we are very grateful to the Minister for revealing to the Committee that we are discussing a fundamental reshaping of workplace democracy, with potentially profound consequences. She is right to explain that that is what the Government are about. The Employment Rights Bill does not just tinker with existing procedures; it carefully dismantles the framework established by previous Labour Governments. Under these reforms, as the Minister just revealed, unions would need to demonstrate just 10% membership support to trigger recognition processes, and that is a threshold that regulations could reduce, after consultation, to an extraordinary 2%.

Let me explain to the Committee what that means in practice. In a bargaining unit of 250 employees, recognition could be initiated by as few as 25 members under the 10% threshold, or potentially just five members if it is reduced to 2%. More troubling still, with the removal of the 40% support requirement, union recognition, granting negotiating rights over all 250 employees, could theoretically be achieved with a single yes vote, provided no one votes against. This is not hyperbole but mathematical reality under the proposed framework.

Perhaps most concerning of all is that, as the Minister, Justin Madders, acknowledged in the other place, there has been no consultation on these fundamental changes. We are being asked to revolutionise industrial relations based on ideology rather than evidence, without hearing from employers, workers or even the Central Arbitration Committee, which must implement these provisions. This lack of consultation betrays a troubling disregard for the complexity of workplace relations and the legitimate interests of all parties: employers, workers who support unionisation, and those who do not.

The amendments I spoke to are not anti-union but pro-democracy. They recognise that legitimate collective bargaining must rest on genuine demonstrable support from the workforce it claims to represent. The current proposals risk creating what I can only describe as recognition by stealth, where small, motivated groups can impose collective bargaining arrangements on entire workforces without meaningful mandate. That is not industrial democracy; it is the antithesis of it.

Consider the worker who joins a company the day after a union application is filed. Under these proposals, they may be excluded from the very process that will determine their workplace representation. Consider the 245 employees in my hypothetical bargaining unit who never joined the union and never voted, yet find themselves bound by collective agreements negotiated on their behalf by representatives they did not choose.

Beyond democratic concerns lie practical ones: the amendments I have tried to persuade the House to accept recognise that businesses must continue to operate during recognition processes that could stretch over nine months. Routine recruitment, staff transfers and ordinary business activities cannot be frozen pending union ballots without severe economic consequences. Yet the Bill as drafted forces exactly this choice: suspend normal operations or face the uncertainty of having legitimate business decisions treated as manipulation.

These reforms occur within a pattern of changes that consistently favour union interests over balanced workplace relations. The lowering of thresholds, the removal of safeguards and the expansion of access rights: each individual change may seem modest, but collectively they represent a fundamental shift in the balance of industrial relations. This is particularly concerning given the Government’s stated commitment to economic growth. How can we simultaneously demand that businesses expand, hire and invest while making their operations subject to collective bargaining arrangements that will lack genuine workforce support? The Government must bear in mind that these Benches will not sit back and allow this to happen. We will return to it at Report, but in the meantime, I will not oppose the clause standing part.

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Moved by

[Baroness Jones of Whitchurch]

215A: Schedule 6, page 218, line 17, at end insert—
“3A After paragraph 13 insert—13A “(1) This paragraph applies if—(a) the CAC has received an application under paragraph 11 or 12, and(b) it has given notice to the employer under paragraph 13 of receipt of the application.(2) The employer must comply with the following duties (so far as it is reasonable to expect the employer to do so).(3) The duties are—(a) to give to the CAC, within the relevant period, the specified information in relation to each of the relevant workers; (b) if the relevant workers change as a result of an appropriate bargaining unit being agreed by the parties or decided by the CAC, to give to the CAC, within the relevant period, the specified information in relation to each of those who are now the relevant workers;(c) to take reasonable steps to ensure that the information given to the CAC under paragraph (a) or (b) does not include any information relating to an individual who is not a relevant worker;(d) to inform the CAC, as soon as reasonably practicable, of any worker in relation to whom information has been given to the CAC under paragraph (a) or (b) and who ceases to be a relevant worker (otherwise than by reason of a change mentioned in paragraph (b)).(4) The relevant period is—(a) in the case of the duty in sub-paragraph (3)(a)—(i) the period of 5 working days starting with the day after that on which notice was given to the employer of receipt of the application, or(ii) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension;(b) in the case of the duty in sub-paragraph (3)(b)—(i) the period of 5 working days starting with the day after that on which the bargaining unit is agreed or the CAC’s decision is notified to the employer, or(ii) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.(5) The specified information, in relation to a relevant worker, is—(a) the worker’s name;(b) the worker’s date of birth;(c) the category of worker to which the relevant worker belongs.(6) In the case of an application under paragraph 11(2) or 12(2), the relevant workers are—(a) in relation to any time before an appropriate bargaining unit is agreed by the parties or decided by the CAC, those falling within the proposed bargaining unit, and(b) in relation to any time after an appropriate bargaining unit is so agreed or decided, those falling within the bargaining unit agreed or decided upon,but excluding any worker who joined the bargaining unit after the application day.(7) In the case of an application under paragraph 12(4), the relevant workers are those falling within the bargaining unit agreed by the parties, excluding any worker who joined the bargaining unit after the application day.13B (1) Sub-paragraph (2) applies if—(a) the CAC is satisfied that the employer has failed to fulfil a duty mentioned in paragraph 13A(3), and(b) the application under paragraph 11 or 12 is in progress.(2) The CAC may order the employer—(a) to take such steps to remedy the failure as the CAC considers reasonable and specifies in the order, and(b) to do so within such period as the CAC considers reasonable and specifies in the order;and in this paragraph a “remedial order” means an order under this sub-paragraph.(3) If— (a) the CAC is satisfied that the employer has failed to comply with a remedial order, and(b) the application under paragraph 11 or 12 is in progress,the CAC must, as soon as reasonably practicable, notify the employer and the union (or unions) that it is satisfied that the employer has failed to comply.(4) A remedial order and a notice under sub-paragraph (3) must draw the recipient’s attention to the effect of sub-paragraphs (5) and (6).(5) Sub-paragraph (6) applies if—(a) the CAC is satisfied that the employer has failed to comply with a remedial order,(b) the application under paragraph 11 or 12 is in progress,(c) the parties have agreed an appropriate bargaining unit or the CAC has decided an appropriate bargaining unit, and(d) in the case of an application under paragraph 11(2) or 12(2), the CAC, if required to do so, has decided under paragraph 20 that the application is not invalid.(6) The CAC may issue a declaration that the union is (or unions are) recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit.(7) For the purposes of this paragraph, an application under paragraph 11 or 12 is in progress if none of the following has occurred—(a) the withdrawal of the application;(b) the CAC giving notice of a decision under paragraph 14(7) which precludes it from accepting the application;(c) the CAC giving notice under paragraph 15(4)(a) in relation to the application;(d) the CAC giving notice to the union (or unions) of a decision under paragraph 20 that the application is invalid;(e) the CAC giving notice to the union (or unions) of a declaration issued under paragraph 13B(6), 19F(5), 19K(4) or (5), 19P(4) or (5), 22(2) or 27(2) in relation to the application;(f) the holding of any ballot arising from the application.””Member’s explanatory statement
This amendment requires an employer to provide certain information about the workers in a bargaining unit within 5 working days after the employer is notified of an application for recognition of a trade union. The duty does not include workers who joined the unit after the application was received by the CAC, as they cannot vote in any potential ballot arising from the application.

[Baroness Jones of Whitchurch (Lab)]

My Lords, as I explained at the all-Peers briefing on 8 May, my amendments to Schedule 6 have been made following welcome scrutiny of the Bill. They do not bring forward new policy but instead aim to ensure that the legislation operates more effectively to implement policies already reflected in the Bill. I will speak to all the amendments in this group, which amend Schedule 6 or the government amendments that I tabled.

On government Amendments 216L, 216M, 216U, 216W, 216J, 216N, 216P, 216Q and 216V, there is currently no provision for a sanction on an employer where the employer fails to comply with access arrangements in relation to a worker application for trade union derecognition. Where legislation imposes a duty, there must be a corresponding enforcement mechanism to give effect to that duty. This is why these amendments have been tabled and why they are necessary.

Amendments 216LA, 216LB, 216MZA, 216MZB and 216MZC in the name of the noble Lord, Lord Sharpe, all relate to sanctions on the employer or the union where one of the parties fails to comply with access arrangements generally in relation to a worker application for trade union derecognition. Amendment 216LA, again tabled by the noble Lord Sharpe, would introduce a proportionality test, where the CAC considers applying a sanction on the employer to prevent it campaigning should it be in breach of an access agreement. This amendment is unnecessary. It would make it harder for the CAC to issue an order, as determining how a breach by the employer affected the recognition process would be difficult to establish. It should be sufficient for the CAC to establish that a breach has occurred.

Amendment 216LB would add an additional sanction where a union has breached an access agreement by allowing the CAC to impose a sanction to prevent the union campaigning. This amendment is unnecessary because, in relation to applications by workers seeking derecognition of the union, the CAC has the ultimate sanction of declaring that the union is derecognised, should the union fail to comply with the CAC order.

Amendment 216MZA seeks to clarify that either the union or the worker can enforce a CAC order but not both, the aim being to avoid overlapping enforcement actions. I thank the noble Lord for this amendment, but it is not necessary. The legislation is framed so that the union, the workers or both can enforce a CAC order because we cannot assume, where there is an application by workers for derecognition of a union, that workers and the union would be of the same view. To insist that only one party or the other can enforce the order would deprive the other party of its rights. This shows that the Bill is about striking the right balance between unions, employers and workers. Should both the union and the workers be of the same view, the court could simply join their applications together when considering whether an employer had breached the CAC order. In that event, there would therefore not be overlapping enforcement actions against the employer.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I am conscious that we have had a slightly disjointed debate; as I said, some of these issues were debated in the previous group and were covered in my opening remarks. I will pick up a few points. I am grateful to the noble Lord, Lord Goddard, for saying that we are attempting to create a more orderly recognition process, because that is exactly what our amendments are trying to do: to provide the clarity that we felt was missing. I should say that, in addition to the comments I made earlier, we notified all Peers of the Government’s amendments, twice and in writing, and we invited all Peers to a briefing on these on 8 May. All the details have been spelled out in an all-peers letter and supporting annexes. We have therefore been at pains to explain the thinking behind our amendments.

Obviously, most recognition processes go through extremely smoothly, but we believe that this reform is necessary to prevent recruitment for the purposes of thwarting trade union recognition. The process must be fair and not undermined by underhand tactics. Although not all recruitment is underhand, of course, we decided after consultation that the freezing proposed in the Bill is the best way to achieve that fairness. We are attempting to come up with a fair system. Attempting to distinguish between the various intentions of different employers and their recruitment practices is impractical and would be likely to lead to disputes. We felt that this would not be in the interests of employers, the unions or the workers. Of course, there will be changes to the people in the bargaining unit, and where a union is recognised, new workers will be able to take part in subsequent ballots—for example, should a derecognition ballot be held—and other forms of consultation. These restrictions will apply only to that particular element of trade union recognition.

The noble Lord, Lord Sharpe, said that he wants to introduce a proportionality test. That would make it harder for the CAC to issue an order determining how a breach by the employer affected the recognition process; that would be difficult for it to establish. It should be sufficient for the CAC to establish that a breach has occurred, rather than having to make the more difficult judgment about proportionality. Also, the CAC is very experienced in such things and is well equipped to do so.

I say to the noble Lord, Lord Lucas, that we do not object to his amendment only because this has not been done before, but because we wanted to consult before we made a final decision about changing the acceptance threshold from the 10% proposed limit.

I think I have covered most of the other points, either in the letters that we have sent out or in my earlier speeches. I therefore ask the noble Lord to withdraw his amendment.

[Lord Lucas (Con)]

I would be very grateful if the Minister could address the substance of my amendment; 10% or 2% is all very fine, but if it results in the answer of one employee being sufficient, that seems to be not an ideal situation. I would have thought that in seeking to look after small businesses it would be sensible to require a minimum number. I cannot see anything in the structure of the Bill at the moment that allows a minimum number to be applied to this percentage. A percentage can generate one if the company is small, whether it is 10% or 2%. Would it not be a good idea to have something in the Bill, subject to consultation, which allowed in small companies with a small workforce for it not to be just one employee who is triggering this procedure?

[Baroness Jones of Whitchurch (Lab)]

That that would come out in the consultation. I think the noble Lord’s proposal of three is a somewhat arbitrary number. If we are going to do that, there are all sorts of minimum numbers that could be applied. I urge noble Lords to recognise that these are the issues that we will consider in the consultation, but I do not think that the rather arbitrary figure that the noble Lord proposed is appropriate at this time.

[Lord Lucas (Con)]

I understand that, but it still requires something in the Bill to allow a minimum number. We can return to that matter on Report.

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Moved by

[Baroness Jones of Whitchurch]

215B: Schedule 6, page 219, line 8, leave out “after “19F(5)” insert “,” and insert “for “19F(5)” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

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Moved by

[Baroness Jones of Whitchurch]

215E: Schedule 6, page 220, line 21, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

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Moved by

[Baroness Jones of Whitchurch]

215F: Schedule 6, page 220, line 35, leave out from “(6)” to end of line 37 and insert “—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 15(5) that the application is accepted, or(b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.”Member’s explanatory statement
This amendment would provide that, where an application under Part 1 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (recognition of trade union as entitled to conduct collective bargaining) has been made, the period for agreeing terms on which the trade union seeking recognition is to have access to the relevant workers in connection with the application is 20 working days following notification that the union’s application is accepted. The amendment would also enable the Central Arbitration Committee to specify a longer period.

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Moved by

[Baroness Jones of Whitchurch]

215G: Schedule 6, page 225, line 29, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

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Moved by

[Baroness Jones of Whitchurch]

215H: Schedule 6, page 226, line 35, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

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Moved by

[Baroness Jones of Whitchurch]

215I: Schedule 6, page 227, line 15, after “paragraph” insert “13B(6),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

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Moved by

[Baroness Jones of Whitchurch]

216A: Schedule 6, page 232, line 36, leave out “after “19F(5),” insert” and insert “for “19F(5),” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

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Moved by

[Baroness Jones of Whitchurch]

216B: Schedule 6, page 232, line 41, at end insert—
“21A In paragraph 39 (admissibility of applications: same bargaining unit), in sub-paragraph (5), after “40” insert “, 40A”.”Member’s explanatory statement
This amendment makes a consequential amendment of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 as a result of the amendment made by paragraph 23 of Schedule 6 to the Bill.

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Moved by

[Baroness Jones of Whitchurch]

216C: Schedule 6, page 234, line 30, leave out “after “19F(5),” insert” and insert “for “19F(5),” substitute “13B(6), 19F(5),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 218, line 17.

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Moved by

[Baroness Jones of Whitchurch]

216F: Schedule 6, page 235, line 27, at end insert—
“Changes relevant to appropriateness of bargaining unit
32A (1) Paragraph 67 (admissibility of applications: employer or union believes bargaining unit no longer appropriate) is amended as follows.(2) In sub-paragraph (2)(c), at the end insert “(but see sub-paragraph (3)).”(3) After sub-paragraph (2) insert—“(3) In a case where the application was received by the CAC before the end of the period of three years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, the CAC must disregard the matter specified in sub-paragraph (2)(c).”32B (1) Paragraph 70 (determination of bargaining unit by CAC) is amended as follows.(2) In sub-paragraph (3)(c), at the end insert “(but see sub-paragraph (3A)).”(3) After sub-paragraph (3) insert—“(3A) In a case where the application was received by the CAC before the end of the period of three years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, the CAC may not take into account the matter specified in sub-paragraph (3)(c).”32C In paragraph 75 (questions for CAC to decide where employer believes bargaining unit has ceased to exist), in sub-paragraph (3)(c), at the end insert “(but see paragraph 77(4A)).”32D In paragraph 77 (CAC’s decision as to appropriateness of bargaining unit, etc), after sub-paragraph (4) insert—“(4A) In a case where the copy of the notice given to the CAC by the employer under paragraph 74(1) was received by the CAC before the end of the period of three years starting with the day on which the declaration referred to in paragraph 64(1)(a) was issued, in deciding whether the original unit is no longer appropriate the CAC must disregard the matter specified in paragraph 75(3)(c).””Member's explanatory statement
This amendment provides that, where the Central Arbitration Committee has issued a declaration that a trade union is recognised as entitled to conduct collective bargaining on behalf of a bargaining unit, and a decision of the CAC as to the continued appropriateness of the bargaining unit is sought under Part 3 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 before the end of the period of three years beginning with the date of the declaration, the CAC is not to take into account substantial changes in the number of workers employed in the original unit.

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Moved by

[Baroness Jones of Whitchurch]

216G: Schedule 6, page 237, line 2, leave out from “(6)” to end of line 4 and insert “—
(a) the period of 20 working days starting with the day after the day on which the CAC gives the union (or unions) notice under paragraph 68(5) or 76(5) that the application is accepted, or (b) such longer period (so starting) as the CAC may specify to the parties by notice containing reasons for the extension.”Member’s explanatory statement
This amendment would provide that, where an application under Part 3 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 (changes affecting bargaining unit) has been made, the period for agreeing terms on which the trade union concerned is to have access to the relevant workers in connection with the application is 20 working days following notification that the application is accepted. The amendment would also enable the Central Arbitration Committee to specify a longer period.

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Moved by

[Baroness Jones of Whitchurch]

216H: Schedule 6, page 243, leave out lines 19 and 20 and insert—
“(iii) if the CAC informs the union (or unions) under paragraph 25(9) (where it applies by virtue of paragraph 89(4)) of any ballot arising from the application, the CAC acting under paragraph 29 (where it applies by virtue of paragraph 89(5)) in relation to the ballot.”Member’s explanatory statement
This amendment ensures that, where the Central Arbitration Committee decides that a complaint about unfair practices in connection with an application under Part 3 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 is well-founded, the CAC may make an order under paragraph 81I(3) of that Schedule, or give notice of a ballot under paragraph 81I(5), whether or not a ballot arising from the application has been held.

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Moved by

[Baroness Jones of Whitchurch]

216L: Schedule 6, page 249, line 32, leave out from “employer,” to end of line 34 and insert “the CAC may—
(a) refuse the employer’s application under paragraph 106 or 107;(b) order the employer to refrain from any campaigning in relation to an application under paragraph 112.”Member’s explanatory statement
This amendment provides for a sanction where an employer fails to comply with an access agreement under Part 4 of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992 and the application for derecognition of a trade union as entitled to conduct collective bargaining on behalf of a bargaining unit has been made by one or more workers in the unit under paragraph 112 of that Schedule. The Central Arbitration Committee may order the employer not to campaign in relation to the application.

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Moved by

[Baroness Jones of Whitchurch]

216M: Schedule 6, page 249, line 38, at end insert—
116EA “(1) This paragraph applies if the CAC has made an order under paragraph 116E(4)(b) in relation to an application under paragraph 112.(2) The worker making the application (or each of the workers making the application) and the union (or each of the unions) are entitled to enforce obedience to the order.(3) The order may be enforced—(a) in England and Wales, in the same way as an order of the county court;(b) in Scotland, in the same way as an order of the sheriff.”Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32. It enables the worker making the application in question, or the trade union concerned, to enforce an order made against an employer requiring the employer not to campaign in relation to the application.

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Moved by

[Baroness Jones of Whitchurch]

216N: Schedule 6, page 251, line 29, leave out “116E(4),” and insert “116E(4)(a),”
Member’s explanatory statement
This amendment is consequential on my amendment of Schedule 6 at page 249, line 32.

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In conclusion, we come back to the very key Amendment 217. The noble Lord, Lord Burns, made a compelling argument that all of us should think very carefully before we seek to negative and opt out of a consensus view that was reached—as we understand it from the noble Lord, Lord Burns—unanimously so far as any future members of trade unions were concerned. What could be more compelling than that? We wait with great interest to hear what the Minister is going to say. I personally found the arguments of the noble Lord, Lord Burns, to be as compelling now as they were in 2016.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Lords, Lord Sharpe of Epsom, Lord Jackson of Peterborough and Lord Burns, and the noble Baroness, Lady Coffey, for tabling their amendments.

I start by speaking to Amendment 217. I thank the noble Lord, Lord Burns, for the constructive engagement that we have had on the topic of political funds in recent weeks and for his thoughtful contributions to this debate. I echo the points a number of noble Lords have made on that. I am grateful for his considerable work in chairing the Trade Union Political Funds and Political Party Funding Committee in 2016, and to the noble Baroness, Lady Finn, for her work on that committee.

However, the Government’s view is that the political fund changes brought in by the Trade Union Act 2016 had the impact of limiting unions’ ability to raise funds to enable them to campaign on political issues that were important to them. Therefore, as we have been debating, the Bill repeals the requirement for trade unions to opt out their members from contributions to political funds, unless they have expressly requested to opt in. This will mean that new trade union members will be automatically opted in to contributions to a political fund unless they expressly opt out.

The noble Baroness, Lady Finn, talked about Churchill’s quote on avoiding tit for tat in parliamentary democracies. However, what we are proposing broadly restores the position before the passage of the Trade Union Act 2016, which had been the position for the previous 70 years. So our proposal is a very long- standing set of propositions. I should also say to noble Lords that the change we are proposing will apply only to new members of a trade union, with the current opt- out status of existing members remaining unchanged.

Several noble Lords have described workers as being “compelled” to make political donations to the Labour Party. This is simply not the case. It remains a decision for each individual trade union member that they are free to make as to whether they wish to contribute to any political fund of a trade union.

The Government have been mindful of the conclusions of the Trade Union Political Funds and Political Party Funding Committee, and indeed we have learned lessons from that report. I can reassure the noble Lord, Lord Burns, and indeed the noble Lord, Lord Leigh, and others, that we have been careful to draft the Bill to ensure that new members will continue to be notified of their right to opt out on the membership form that they will have to fill in when they join the union. In line with the recommendation in the report of the noble Lord’s committee, the membership form will also have to make it clear that opting out will not affect other aspects of their membership.

This is a substantial change to the legal requirements that existed pre 2016. These changes to the system that existed before 2016 should help to address concerns that trade union members were not always aware of their right to opt out of the political fund. Unions will also be required to send an opt-out reminder notice to members on a 10-year basis.

We have been clear on our intention to substantially repeal the Trade Union Act 2016, as set out in our Make Work Pay plan. Retaining the automatic opt-out, as proposed by this amendment, would frustrate the goal and maintain unnecessary and burdensome requirements on the way that trade unions manage their political funds.

I should have responded earlier to one of the other questions from the noble Lord, Lord Burns, about the Government’s impact assessment. The Government’s impact assessment on the repeal of the Trade Union Act set out:

“The return to an ‘opt-out’ option for political fund contributions for new union members with political funds may increase the proportions of new members contributing to the political fund in these unions”.


So we have made an assessment of that.

I also say to the noble Lord, Lord Jackson, and the noble Baroness, Lady Cash, and others, that what we are proposing is clearly not the same as consumers spending billions of pounds each week on unwanted subscriptions due to unclear terms and conditions and complicated cancellation routes. What we are proposing here is that a union, which is a collective of workers, and its political fund should be considered in that light. If a union has a political fund, its members have control over how their political fund is spent, through the democratic structures of the union. Unions put considerable effort into raising engagement in their democratic processes, which any member is free to participate in, meaning that they are able to decide on how their political fund is used.

I am grateful for my noble friend Lord Prentis for reminding us of that and indeed giving us some very good examples of how his political fund has been used in campaigning. He and others also made the point that less than half of the unions that have political funds affiliate to the Labour Party. Indeed, only a minority of Labour Party funds at the last election came from unions’ political funds.

I turn to Amendments 221, 222, 223, 223A and 223B, tabled by the noble Lord, Lord Sharpe. Section 84A specifies that a union must send information notices reminding its members of the right to opt out of contributing to the union’s political fund, should one exist. Amendments 221, 222 and 223 would introduce the requirement on trade unions to send those notices to members every two years, as opposed to every 10 years, as specified in the Bill. We acknowledge that the removal of the 10-year political fund review ballots could reduce awareness among trade union members of their right to opt out of the political fund contributions. This is why we amended the Bill to require that unions send opt-out reminders on a 10-year basis.

The Government believe that 10 years strikes the appropriate balance between maintaining awareness among members of their right to opt out of contributing to a political fund while minimising the administrative and cost burdens on unions of providing such a notification. It also reflects the current arrangements for the 10-yearly review of ballots and recognises that the Bill will ensure that new members will already have been made aware of their right to opt out when they apply for union membership.

Amendment 223A would require unions to issue opt-out information notices that comply with specific requirements. The Bill will require unions to issue opt-out notices that comply with the rules of the union. Unions must provide the certification officer with a copy of their opt-out notice. Members of a trade union will be able to complain to the certification officer if they do not believe that an opt-out notice complies with Section 84A of the Trade Union Labour Relations (Consolidation) Act 1992. In those circumstances, the certification officer can issue an order to remedy this failure if the complaint is upheld. So this amendment is unnecessary as there are already requirements for opt-out notices that unions must comply with.

Amendment 223B would grant the certification officer the capacity to conduct audits of opt-out notices to monitor compliance with Section 84A of the Trade Union and Labour Relations (Consolidation) Act 1992, as amended by the Bill. The legislative framework as amended by the Bill will allow the certification officer to investigate complaints from members about failure to comply with Section 84A, but the power to conduct audits is unnecessary and disproportionate to the rest of the powers of the certification officer, who will continue to hold their powers after the repeal of the Trade Union Act.

Amendment 218, tabled by the noble Lord, Lord Sharpe, would require trade union members to confirm their ongoing willingness to contribute to a political fund on an annual basis, and they would need to be given an annual notice about their right to opt out of the political fund. As I have mentioned, we believe that requiring unions to issue opt-out reminders to members every 10 years is proportionate and aligns with the current frequency of 10-year review ballots. The Government also believe that, if members have joined a union and are notified of their right to opt out, their decision not to opt out clearly reflects their consent to make political fund contributions. Asking members to reconfirm their willingness to contribute to the union’s political fund on an annual basis would impose an onerous and unnecessary burden on unions and their members. Indeed, members are not currently required to restate on a regular basis their preference to either opt in or opt out of political fund contributions.

Amendment 218B, in the name of the noble Lord, Lord Sharpe, would alter Section 84 to require unions to provide members with a defined means of opting out of political fund contributions, including a digital option and allowing the certification officer to issue guidance or prescribe minimum technical standards on the opt-out notice. We are already clear in the Bill that members of a trade union are able to be served an opt-out notice via post, email, completion of an electronic form or such other electronic means as may be prescribed. Therefore, we are already making it easy and straight- forward for members to express their decision to opt out should they so desire. The certification officer already issues a set of model rules for political funds, and the rules of every union’s political fund must be approved by the certification officer.

Amendment 218C would create a statutory right for members not to suffer any detriment when deciding to opt out of political fund contributions, and it would allow members to complain to the certification officer where they feel that that right has been breached. Such an amendment is unnecessary, given that Section 82 of the Trade Union and Labour Relations (Consolidation) Act 1992 already compels unions to inform members in their union rules that they shall not be placed at a disadvantage or disability compared with other union members, nor will they be excluded from benefits, if they decide not to contribute to the political fund. Members can also complain to the certification officer if that rule is breached.

Amendment 218D would require unions to issue an opt-out reminder notice on the day that a member joins the union. Through Clause 59, which amends Section 82 of the Trade Union and Labour Relations (Consolidation) Act, we will require unions to inform members of their right to opt out of political fund contributions on any forms, including electronic forms, that members must complete in order to join a union. This requirement will make the need to provide new members with an opt-out notice on joining a union superfluous.

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[Lord Leigh of Hurley (Con)]

Can the Minister clarify—to be absolutely crystal clear—that, by removing Section 32ZB, union members will have absolutely no idea where campaign money is being spent?

[Baroness Jones of Whitchurch (Lab)]

I thought I answered that: the information on the expenditure of the political fund will still have to be given to the certification officer.

[Lord Leigh of Hurley (Con)]

With great respect, I asked whether union members would have clarity as to where their money was being spent.

[Baroness Jones of Whitchurch (Lab)]

I am absolutely confident that unions’ accounts, which will include the political funds, will be available to all members in the usual way. I am sure that is a requirement.

[Baroness Bousted (Lab)]

I can inform the noble Lord that unions have to produce an executive report for the membership every year. That is available to all the membership; it is on the union’s website. In most unions, by the rulebook, the executive report is the first thing debated at conference. All the union’s activities and expenditure are described and explained to the membership in that report, including the amount of the political fund and the expenditure of the political fund. It is the same with the international fund and the campaigning fund. This is a requirement, as part of unions’ democratic processes, to make the executive accountable to the membership, and the information will be contained in the executive report.

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[Baroness Bousted (Lab)]

The noble Lord asked where the members would get the information. That is the question to which I have replied. He is now saying that they are not disclosed in another place, but that was not the question I was answering.

[Baroness Jones of Whitchurch (Lab)]

I think we have answered that question in quite a lot of detail now. I hope that noble Lords feel that I have answered these points in sufficient detail.

[Lord Hunt of Wirral (Con)]

We appreciate the detail that the Minister is going into, but a number of questions have not been answered. Can she undertake to write to noble Lords with the answers? Also, can she clarify whether, if a union member fails to opt out of contributing to the political fund on day 1, they could then be bound not to have the opportunity to opt out again for 10 years?

[Baroness Jones of Whitchurch (Lab)]

I am absolutely confident that union members can opt out at any time, not just every 10 years. It is the reminder that goes every 10 years, rather than the requirement for them to remain.

We have had a very detailed, long debate, and I have attempted to answer all the questions noble Lords have raised. If there are any outstanding issues, I will write. In the meantime, I ask the noble Baroness, Lady Coffey, to withdraw her Amendment 216YC.

[Baroness Coffey (Con)]

My Lords, I thank all noble Lords who have contributed to this extensive debate. There are still a number of issues on which there is not agreement, either on the nature of the legislation or the desired effect.

I particularly thank the noble Lord, Lord Burns. I am conscious that this is going over old ground, but he is right to resurrect it and to put his concerns forward. On the exchanges between my noble friend Lady Cash and the noble Lord, Lord Hendy, in any legal debate, normally we come up with one winner. However, in this case, it is fair to refer the noble Lord to paragraph 251 of the Bill’s human rights memorandum, where the Government specifically state that:

“Implicit in Article 11 is a right not to contribute to a trade union’s political fund”.


I would be grateful if the Minister would, unusually perhaps, be open to sharing the legal or policy advice on the bracketed portion of that paragraph: that

“the opt-out will take effect on 1 January of the following year”.

That is why my noble friend Lady Cash was pressing the point that continuing to have to pay would not, according to various judgments, be compatible with Article 11.

That said, I am sure that we will return to a lot of this on Report. I beg leave to withdraw the amendment.

Employment Rights Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Thursday 5th June 2025 Lords Chamber

Where guidance, voluntary standards and sector-specific codes can offer a more proportionate route, we should favour them over legislative prescription. Our shared goal should be to create and foster trust, responsibility and innovation, not to create barriers that could slow progress and reduce opportunity for both business and workers. Having said that, to reiterate the point, I understand the intention behind all these amendments, but I hope we have made our position clear.

[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, I thank the noble Lord, Lord Clement-Jones, for his Amendments 148, 149 and 150; the noble Lord, Lord Holmes of Richmond, for his Amendments 289, 290, 291, 292, 293, 294, 295, 296, 298, 315 and 316; and the noble Baroness, Lady Bennett, for her Amendment 323B. I thank them for generating an important debate on these issues. I thank my noble friend Lady O’Grady for her wise words on this issue.

I will take the amendments in turn. Amendments 148, 149 and 150 seek to introduce mandatory AI risk assessments in the workplace where there are significant impacts on workers, and would place a requirement on employers to consult employees and trade union representatives before implementing AI systems that might significantly impact employment rights and conditions. I thank the noble Lord, Lord Clement-Jones, for his Amendments 315 and 316, which would establish an independent commission on AI in the workplace and a project to investigate the potential challenges posed by the algorithmic allocation of work by employers. Amendment 323B, tabled by the noble Baroness, Lady Bennett, proposes a government review of the electronic monitoring of workers in the workplace. I agree with her that the cases that she cited were completely unacceptable.

As noble Lords will be aware, under data protection law employers are required to fulfil obligations as controllers if they collect and use their employees’ personal data. This includes the provision of meaningful information to the workers when collecting their personal data if any decisions about them having a legal or similarly significant effect will be based solely on automatic processing. Furthermore, as noble Lords know, the Data (Use and Access) Bill includes a range of safeguards relating to solely automated decision-making with legal and significant effects on individuals. I reassure noble Lords that the Government’s plan to make work pay makes it clear that workers’ interests will need to inform the digital transformation happening in the workplace. Our approach is to protect good jobs, ensure good future jobs, and ensure that rights and protections keep pace with technological change.

The Government are committed to working with trade unions, employers, workers and experts to examine what AI and new technologies mean for work, jobs and skills. We will promote best practice in safeguarding against the invasion of privacy through surveillance technology, spyware and discriminatory algorithmic decision-making. The plan’s proposals regarding the use of AI and monitoring technology in the workplace were not included in the Employment Rights Bill to allow time for the full suite of options to be considered with proper consultation, given the novel nature of AI-enabled technology. However, I assure the noble Lord, Lord Clement-Jones, that the Institute for the Future of Work will be welcome to make an input into that piece of work and the consultation that is going forward. I reassure the noble Baroness, Lady Bennett, and all noble Lords that this is an area that the Government are actively looking into, and we will consult on proposals in the make work play plan in due course.

I turn to the amendments in the name of the noble Lord, Lord Holmes of Richmond, beginning with Amendments 289 and 290. The Government agree with him that AI should be used ethically, with proper mechanisms for redress. That is why existing data protection legislation provides safeguards for solely automated decision-making with legal and significant effects on individuals and the use of AI where personal data is processed, including in workplaces.

I thank the noble Lord, Lord Holmes, for his Amendment 291, which would require workers and employers to maintain records of data and IP used in AI training and allow independent audits of AI processes. As he knows, this issue is under active consideration in the Data (Use and Access) Bill. A public consultation sponsored by DSIT, the IPO and DCMS on issues relating to copyright and AI, including questions on transparency, closed in February 2025. Transparency in the use of intellectual property material in AI training has been acknowledged in debates and government amendments as a critical issue. I committed only yesterday that the Government will publish a report on the subject within nine months of Royal Assent. I respectfully suggest that it is not helpful to have the same debate running across these two Bills at the same time.

In addressing Amendments 292 and 293 in the name of the noble Lord, Lord Holmes, I am happy to reassure him that the UK’s data protection framework already provides robust and effective protection for processing personal data, including for workers. Consent is a lawful ground for processing personal data, but it may not be freely given in employment contexts due to the power imbalance between the employer and the employee. That is why we would not deem it appropriate to restrict the lawful grounds on which data can be processed in this way. In addition, when processing personal data, organisations are required to notify data subjects, such as employees, of matters such as the purposes for data processing, any automated decision-making, any recipients of the data and the data subject’s rights. This includes the right to object to it being processed or to restrict what can be done with it.

Amendments 294, 295 and 296 in the name of the noble Lord, Lord Holmes, concern the use of automated decision-making. I reaffirm that, under data protection law, employers must fulfil their obligations as controllers if they collect and use employees’ personal data. They must provide meaningful information to workers when collecting their personal data if any decisions about them, having a legal or similarly significant effect, will be based solely on automated processing. This ensures that workers are informed about the logic involved in the automated processing, as well as the significance and envisaged consequences for them.

The reforms in the Data (Use and Access) Bill include a range of safeguards after a decision about an individual has been taken based solely on automated decision-making. I hope that noble Lords, including my noble friend Lady O’Grady, will be reassured that these safeguards include that the individuals receive information about significant decisions, as well as the opportunity to make representations and obtain human intervention.

Further, the Government agree that human intervention in automated decision-making should be carried out competently. The UK’s data protection regulator, the ICO, has existing guidance explaining how requests for human review should be managed. When it comes to high-risk automated decision-making, the Government do not feel it necessary to introduce an outright prohibition of processing of the nature described in Amendment 294. Specific requirements already apply for processing that could result in a high risk to the rights and freedoms of individuals. Organisations must carry out an impact assessment and consult the ICO where such an assessment indicates a high risk to individuals in the absence of effective measures.

I turn to Amendment 298, in the name of the noble Lord, Lord Holmes, on the creation of a new regulator for the use of AI in recruitment and employment. As the noble Lord may be aware, last year the previous Government published guidance on responsible AI in recruitment, which was developed with stakeholders and relevant regulators such as the Information Commissioner’s Office and the Equality and Human Rights Commission. The Government, via the AI Security Institute and the central AI risk function, are already progressing our understanding of AI risks, including AI and its impact on the labour market. This work is being carried out across government, with the involvement of each department where specific sector knowledge is valuable.

I remind the noble Lord that AI is not currently unregulated. Given the cross-cutting nature of AI, the Government believe that it is best regulated at the point of use by the UK’s existing sectoral regulators. As experts in their sectors, they are best placed to understand the uses and risks of AI in their relevant areas. That is why, in response to the AI action plan, the Government have committed to supporting regulators in evaluating their AI capabilities and understanding how they can be strengthened.

As set out in our manifesto, the Government are also developing legislative proposals that will allow us to safely realise the enormous benefits of the most powerful AI systems. These proposals will be highly targeted and designed to be future-proofed and effective against this fast-evolving technology. We look forward to engaging further with a wide range of stakeholders on our legislative proposals, including providing clarity on where responsibility for compliance with any new rules will lie.

Noble Lords have provided some interesting areas for consideration, but we are keen that these far-reaching amendments are properly assessed. I reassure noble Lords that this is an area that the Government are actively looking into. In this respect, I am pleased to note the active engagement between my officials and stakeholders, most recently with the IPPR, whose recent report on surveillance technologies makes a helpful contribution to the awareness and understanding of this context. As already mentioned, we intend to consult on these make work pay proposals in due course. Furthermore, I remind noble Lords that in response to the AI action plan the Government have committed to supporting regulators in evaluating their AI capabilities and understanding how they can be strengthened.

Finally, I thank noble Lords for their interest in how AI is being adopted in the workplace and the helpful way in which they have focused on these issues. I reassure my noble friend Lady O’Grady that we are working with the relevant stakeholders to build a strong evidence base to tackle the 21st-century challenges relating to these technologies. Our public consultation will be a crucial part of future-proofing the proposals. I assure noble Lords that the Government are committed to making sure that workers’ interests inform the digital transformation taking place in the workplace. I therefore ask the noble Lord, Lord Clement-Jones, to withdraw his Amendment 148.

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Moved by

[Baroness Jones of Whitchurch]

200B: Clause 54, page 72, line 16, at end insert—
“(10A) But regulations under section 84A may not provide for provision made for the purpose of giving effect to an agreement, or an amendment of an agreement, to come into force—(a) before the United Kingdom has ratified the agreement, or(b) in a case where—(i) the provision is for the purpose of giving effect to an amendment of an agreement, and(ii) the United Kingdom would not be required to give effect to the amendment until it had been ratified by the United Kingdom,before the United Kingdom has ratified the amendment.”Member’s explanatory statement
This amendment would make clear that regulations under new section 84A of the Merchant Shipping Act 1995 may not provide for provision made for the purpose of giving effect to an international agreement, or to an amendment of an agreement that requires separate ratification, to come into force before the United Kingdom has ratified the agreement or amendment.

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[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords for their contributions to this debate, which has been very interesting. The noble Lord, Lord Hendy, talked at some length about delivering a new deal for working people. He ranged fairly freely, so I might, too.

Did noble Lords opposite notice that a report published yesterday showed that there are now 150,000 fewer jobs since the Government took power? It is all very well delivering a new deal for working people, but there will be fewer of them, and this Bill will contribute to that. Noble Lords may not have seen it because it has only just come out, but a British Retail Consortium survey has just been published which shows—I am sure we will return to this theme next week—that half of retail directors now think they will reduce hiring, and 70% say the ERB will have a negative impact on their business.

Frankly, I am slightly staggered at the noble Lord’s Amendment 260, which seeks to return us to various EU standards, given that EU unemployment is, of course, generally significantly higher than it is in this country. Is that what the noble Lord aspires to? I am sure he does not, but that is how it looks.

The proposal to create statutory joint industrial councils raises significant concerns, not least the proliferation of new public bodies at a time when government and regulators are already stretched. Each of these councils would require administrative infrastructure, governance mechanisms, sector-specific expertise and ongoing support from both ACAS and the Secretary of State. This approach risks duplicating existing frameworks. We already have voluntary collective bargaining structures, recognised trade unions and sectoral engagement mechanisms in many industries. Superimposing a statutory model could complicate rather than enhance industrial relations, particularly in sectors where informal or local agreements are working effectively.

There is also the issue of flexibility. The statutory model risks creating rigid sectoral definitions that may not reflect the realities of modern hybrid or cross-sector employment. The labour market today does not always fit neatly into traditional categories, and it is unclear how the Secretary of State, even with ACAS guidance, would determine sectors without inadvertently excluding or misclassifying employers and workers. We must not overlook the potential for conflict or delay. Setting up these councils, negotiating procedures and achieving consensus across large and diverse sectors could slow down progress on pay and conditions, rather than speeding it up.

That is not an argument against collective bargaining. It is an argument for targeted, effective solutions that reflect the complexity of today’s economy, not a revival of structures drawn from legislation that is nearly half a century old. The world has changed. Where stronger bargaining is needed, let us work through existing mechanisms and invest in enforcement, rather than defaulting to the creation of statutory councils that may struggle to function as intended. I look forward to hearing from the Minister.

[Baroness Jones of Whitchurch (Lab)]

I thank my noble friends Lord Hendy and Lord Barber of Ainsdale for Amendments 203, 257, 260 and 322. I hope, despite my noble friend Lord Hendy’s concerns, that he recognises that this Bill is a major step forward in delivering a new deal for working people, exactly in the way our manifesto and the King’s Speech set out. I would also say that this is only the first step in our proposals, as we have made clear all along that the “make work pay” programme will, over time, roll out to a whole set of other issues we have flagged up as we have gone through this debate.

Turning to Amendment 203 in the name of my noble friend Lord Hendy, I am pleased to be having the debate on sectoral collective bargaining and to set out the Government’s commitment to supporting it through the introduction of fair pay agreements in social care and the school support staff negotiating body, which we have just debated in detail. We want to ensure that the labour market works for everyone. A key aspect of this is allowing workers to participate in collective bargaining to improve pay and conditions. However, where labour markets are operating effectively or where existing collective agreements are working well, the Government recognise that sectoral collective bargaining may not be the best solution—I think this was the point the noble Lord, Lord Sharpe, was making.

The amendment would enable the Secretary of State to establish statutory joint industrial councils in unspecified areas without parliamentary scrutiny or appropriate safeguards. We are committed to starting with fair pay agreements in the social care sector to address the stark and specific issues in the vital sector, which we have already debated. As part of our ongoing policy work, we are exploring how future sectors could benefit from sectoral collective bargaining. However, we first want to learn from this process to improve our policy approach and ensure that future sectoral collective bargaining arrangements most effectively respond to the complexities of the modern workforce. In the meantime, I assure my noble friend that we are committed to supporting sectoral collective bargaining and recognise the positive contribution it can make to the British economy.

Amendment 257 in the name of my noble friend Lord Hendy would add duties of promoting collective bargaining to ACAS’s remit. An existing ACAS code of practice provides guidance on the disclosure of information to trade unions for collective bargaining purposes. I have listened carefully to what my noble friend said, and I am afraid we will have to disagree on this. We do not support the amendment; we think it is important that ACAS maintains its independence and impartiality between employers and unions. We are concerned that the current status could be compromised by this amendment.

On Amendment 260 in the name of my noble friend Lord Hendy, we have debated the school support staff negotiating body and the social care negotiating bodies. A benefit of these sectoral bodies will be broad sectoral agreements. We expect that many workers in these sectors will be able to benefit from collective agreements for the first time. We intend to learn from the first fair pay agreement process in social care and the SSSNB, before considering rolling out agreements in other areas, as I have said.

Additionally, this amendment requires the Secretary of State to consult on and bring forward this action plan within six months. It is important that such policy matters have enough time for consideration, and we are keen that employer organisations and trade unions prioritise the consultations committed to in Make Work Pay, which will follow Royal Assent to the Bill.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank the noble Baroness, Lady Noakes, and the noble Lord, Lord Jackson, for tabling Amendments 205, 206, 207 and 208. I acknowledge that the noble Lord introduced the amendments on behalf of the noble Baroness. I will also address the noble Lords, Lord Sharpe of Epsom and Lord Hunt of Wirral, on their opposition to Clause 55 standing part of the Bill.

I am sorry that the tone of the debate has somewhat deteriorated this afternoon. I thought that we were having a reasonable, grown-up conversation until now. I am grateful to the noble Lord, Lord Jackson, because he admitted that what he was saying were his prejudices—and that is certainly what it sounded like. He was talking about a period 50 years ago, and, as the noble Lord, Lord Goddard, said, the world of work has changed significantly since then. As we absolutely acknowledge, we now have outdated employment processes and huge levels of exploitation, including a climate where it is not easy or encouraged to be a member of a union. That is one of the issues that we are seeking to address here.

I have to say to the noble Baroness, Lady Lawlor, who tried to give us a talk about democracy, that this Government were elected with a huge win on a manifesto to introduce the legislation that we have before us today.

[Baroness Lawlor (Con)]

I thank the Minister for giving way, but I do not know that a mandate of 33% of the electorate is indeed a very strong mandate for overturning the reforms that have brought stability to the workplace.

[Baroness Jones of Whitchurch (Lab)]

We can have a long discussion about that, but if we are talking about mandates, it may well be argued that probably Baroness Thatcher did not have that kind of mandate either. The fact is that we won that election with a huge majority, and I am very sorry that the party opposite lost so badly. They might want to reflect a little bit more on why that was, because some of the issues that noble Lords have been talking about in relation to the state of our economy are exactly what we inherited from the previous Government. Those issues are absolutely the result of that Government’s economic policies and not ours. We have been taking great steps to improve the situation. While I am on that issue, I should say that, as a result of this Government’s actions, we had the fastest-growing economy in the G7 at the start of this year; we have done three trade deals in three weeks, with India, the US and the EU; interest rates have been cut four times—

[Lord Sharpe of Epsom (Con)]

The Minister is aware, of course, that interest rates are independently managed by the Bank of England.

[Baroness Jones of Whitchurch (Lab)]

I make my case. The only reason those interest rates were cut was that our economy has been improving. Some £63 billion of private investment was announced at the investment summit last year. Introducing this Bill within 100 days will boost protections and quality of work for the lowest-paid, raising living standards across the country and creating opportunities for all.

I turn to the actual amendments. Amendments 205 and 207, in the name of the noble Baroness, Lady Noakes, would introduce exemptions to this measure based on the size of the business. The new duty on employers to inform all employees of the right to join a union is a key part of the Government’s wider commitment to strengthen workers’ voices in the workplace, enhancing their representation and ultimately improving working conditions through increased trade union membership and participation. Making exemptions of this kind risks creating a two-tier system in which some workers benefit from this important information while others do not, based purely on the size of their employer. We are committed to striking a fair and proportionate balance, ensuring that workers are aware of their rights without placing undue burdens on employers.

The statement will be provided at the start of employment, alongside the written statement of particulars, which employers are already required to give under Section 1 of the Employment Rights Act 1996 and on a prescribed basis. Therefore, I say to the noble Lord, Lord Jackson, that we do not believe that this is a particularly significant extra burden to justify exempting certain employers because of their size, because they already have to give that information anyway.

The noble Baroness, Lady Coffey, and others asked about the frequency. We will consult on the specific details, such as the frequency, manner, form and content of the statement before it is outlined in secondary legislation, and I can let noble Lords know that that will be via the negative procedure. We will particularly encourage input from both businesses and unions of all sizes to share their views.

[Lord Hunt of Wirral (Con)]

The Minister just referred to the negative procedure. Is that a final decision? Given that the Bill takes so much power to make a series of important decisions by statutory instrument, I think the general expectation would be that such an important decision would be made by affirmative resolution. Would she perhaps contemplate whether that might be the better solution?

[Baroness Jones of Whitchurch (Lab)]

I thank the noble Lord for that introduction, because I was going to go on to say that the Government think that the powers taken in Clause 55 are necessary and proportionate. Indeed, the Delegated Powers Committee said that

“it is heartening that in a Bill with so many delegated powers”

it had

“only found four on which to raise concerns”.

Clause 55 was not one of those four, and we will of course respond to the committee’s recommendations in due course.

[Lord Hunt of Wirral (Con)]

While we are considering what the Delegated Powers and Regulatory Reform Committee concluded, I recall that the last time I raised the use of the Henry VIII powers, the Minister said that this Committee would see her draft implementation plan, to which my noble friend referred just a short time ago. We have not yet seen that plan, and a lot of businesses are very concerned about the uncertainty that is being created by not knowing, certainly by now, when these various powers are going to be brought into effect. Will she give some timescale by which we will see the implementation plan, if only in draft?

[Baroness Jones of Whitchurch (Lab)]

I know we have discussed the implementation plan several times now, and I can assure noble Lords that we are working at pace to finalise that. I do not think it would be helpful to see it in draft or imperfect form. We want people to have a categorical road map which shows the way forward. We absolutely understand that businesses need to see that; we are working on it. I am very confident that when businesses see it, they will be reassured that none of the things that we are proposing in this legislation will be rushed through. They will have time to prepare for it—I think we had a debate about this earlier. We know that businesses need time to prepare, we are absolutely aware of that, and we are going to make sure that they have it.

[Baroness Coffey (Con)]

I just wanted to clarify something the Minister said. I think I heard her say that it would be done by negative resolution. Does that apply to all of Part 4 or specifically for every element of Clause 55?

[Baroness Jones of Whitchurch (Lab)]

My answer was specifically about Clause 55.

Amendment 206, in the name of the noble Lord, Lord Jackson, would remove the compulsory element of the proposals, making it optional for employers to inform workers of their rights to join a union. To be clear, this is not about necessitating union membership but about ensuring that workers are aware of their rights and can make an informed decision about whether to engage. We want to empower workers to take a more active role in protecting their rights, and, where they choose, to participate in collective bargaining to improve their working conditions. Access to clear and accurate information is fundamental to that. This amendment would seriously weaken this measure by allowing employers to simply ignore the duty, defeating its policy intent entirely. It is vital that the right to union membership is made accessible to all workers as intended, that it is communicated regularly, and that employers are under a firm obligation to do so.

Amendment 208, in the name of the noble Baroness, Lady Noakes, would remove the requirement for employers to issue a statement of trade union rights on a prescribed basis. We are legislating for ongoing reminders of the right to join a trade union to reflect the reality of the workplace. New employers may miss information at the start of employment or change roles over time within the same organisation. Limiting the duty to the start of employment would also exclude existing staff, who equally deserve access to that information.

This statement of the right to trade union membership is important in fostering worker engagement and meaningful dialogue between unions and employers. Ongoing reminders are a key part of this measure. The Secretary of State will be able to set the frequency of this notification. This will be, as I have said, outlined in secondary legislation, subject to public consultation, and we invite interested parties to provide us with their views on this matter when we launch the consultation.

On the wider issue, the noble Lord, Lord Jackson, urged us to consult more. I can assure him that these proposals have been subject to extensive consultation, and we are continuing to consult on them. I can also tell the noble Lord that we had a very constructive meeting with the Federation of Small Businesses.

Finally, I turn to the clause itself. Clause 55 introduces a new legal duty on employers to inform workers of their right to join a union. Employers will be required to issue this statement at the start of employment, alongside the written statement of particulars, which I commented on earlier. There is currently no requirement in law for employers to notify their workers of the right to trade union membership. This lack of awareness may be contributing to the falling union membership and reduced worker participation in collective bargaining that we have been discussing. This duty intends to address this gap, ensuring that workers are better informed of this right and helping to strengthen the collective voice in the workplace and enhance their representation. This delivers on the Government’s commitment to improve working conditions through increased trade union membership and participation. Specific details of this measure, including the frequency, form, content and manner of the notification, will be set out in secondary legislation, as I have said. Therefore, I ask the noble Lord to withdraw his amendment and I urge that Clause 55 stand part of the Bill.

[Lord Sharpe of Epsom (Con)]

Just to press the point on the implementation plan, I am sure the Minister saw yesterday that the OECD downgraded growth forecasts for this country. Obviously, it blamed the global trade picture for a lot of that downgrade, but it also talked about business certainty in this country—or the lack of it. She herself has just acknowledged that businesses need certainty. The OECD is saying this, this is not just us alleging it. Will she please commit to picking up the pace when it comes to delivering this implementation plan and delivering it as soon as possible?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am fully aware that it would help to see the implementation plan and, as I said, we are working at pace to get it to your Lordships as soon as we can.

[Lord Jackson of Peterborough (Con)]

My Lords, I thank all noble Lords who participated in this very interesting debate. I think you always know when your arguments are hitting home when you are admonished by the Front Bench about tone. It usually means that you are hitting the target. I particularly thank my noble friends for the typically erudite and forensic analysis of Clause 55 by my noble friend Lady Coffey, the excellent real-world experience articulated by my noble friends Lord Ashcombe and Lord Leigh, and, of course the passion, from real-world experience, of my noble friends Lady Lawlor and Lord Moynihan of Chelsea.

I do not want to get into a historical discussion, because the hour is late, but Margaret Thatcher was mentioned. Margaret Thatcher never won an election with the puny mandate that this Government had, because what we are seeing is a counterrevolution in favour of the trade unions based on 20% of the electorate, a turnout of 66% and a 34% poll. That is no kind of mandate. In fact, it is a post-dated cheque to the trade unions paid for by the British taxpayer and working people of this country.

There is news from Birmingham, incidentally, as Birmingham was mentioned earlier. Four hundred Unite members have just voted today to carry on striking all the way to Christmas. This is an interesting quote from Sharon Graham, the Unite general secretary, known to our collective trade union alumni. I do not know what the collective term is: union barons, perhaps. She said:

“It beggars belief that a Labour government and Labour council is treating these workers so disgracefully … Unite calls on the decision makers to let common sense prevail in upcoming negotiations”.


The reason I quote that is that I have to say very gently to the Government Benches: be careful what you wish for. The 1974 Labour Government was destroyed by the trade unions’ actions in the winter of discontent of 1978-79. If the Government proceed with this Bill unamended, they run the risk that that unintended consequence might also be the end of their Government. I would not wish that to be the case, of course, because I think that they sincerely believe they are doing the right thing. Nevertheless, it is a risk.

Let us step back from the historical discussions that we have had in what has been an interesting debate. We are being asked to vote for a clause in primary legislation with huge delegated powers in the hands of Ministers. That brings me to a very interesting quote, that

“excessive reliance on delegated powers, Henry VIII clauses, or skeleton legislation, upsets the proper balance between Parliament and the Executive. This not only strikes at the rule of law values I have already outlined but also at the cardinal principles of accessibility and legal certainty”.

That was beautifully put, by the noble and learned Lord the Attorney-General in his Bingham lecture, proving that he is not always wrong about everything.

We have tabled these amendments because this clause does not give us the detail, it will have unintended consequences, and it will have a real-world impact on small businesses in particular. It is not about bashing the trade unions. I would concede, as someone who was a trade union member, that the trade unions have done a brilliant job in terms of member welfare, insurance schemes, et cetera, over the years. They are a force for good generally, but the measures in the Bill far too easily tip the balance against businesses trying to earn a living, in favour of unions, by repealing all the legislation from 1979 and 1992.

The Minister and the noble Lord, Lord Leong, are doing a difficult job and defending a sticky wicket, but I do not think that the Minister really engaged with the arguments. I hope that on Report there is an opportunity to alter this clause, to make it a little less onerous and burdensome to businesses while keeping the spirit of the legislation for workers. On that basis, I am happy to withdraw my amendment.

Data (Use and Access) Bill [HL]

Baroness Jones of Whitchurch Excerpts

Consideration of Commons amendments and / or reasons
Wednesday 4th June 2025 Lords Chamber

Moved by

[Baroness Jones of Whitchurch]

That this House do not insist on its Amendment 49F, to which the Commons have disagreed for their Reason 49G, and do propose Amendments 49H, 49J, 49K, 49L and 49M in lieu of Amendment 49F—

49G: Because the proposed statement to the House of Commons is unnecessary, given the economic impact assessment and report which are required to be published and laid before Parliament by Commons Amendments 45 and 46, and because it is not appropriate to require the Secretary of State to publish draft legislation within three months of publishing those documents.

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Amendment to the Bill
49M: After Clause 134, insert the following new Clause—
“Progress statement
(1) The Secretary of State must, before the end of the period of 6 months beginning with the day on which this Act is passed, lay before Parliament a statement setting out what progress has been made towards the publication of—
(a) the economic impact assessment required by section (Economic impact assessment), and
(b) the report required by section (Report on the use of copyright works in the development of AI systems).
(2) The duty in subsection (1) does not apply where the economic impact assessment and the report have been published before the end of the period described in that subsection.”

[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, in moving Motion A, I will also speak to Motion A1. Following on from colleagues discussing this in the other place yesterday, we are back here again today to debate this issue of AI and copyright. Your Lordships will see on today’s Order Paper amendments from the Government providing legislative underpinning to the commitments I made on Monday. My letter to noble Lords yesterday set out in detail what these amendments do alongside everything else the Government have done to respond to noble Lords’ concerns. I hope this helped to dispel the feeling that the Government are not listening and have not compromised. It also puts beyond any doubt the Government’s views on the issues at hand, especially the issue of transparency.

The solution to these issues is what we have said all along. There is no disagreement with our plan to finish analysing the consultation processes, convene technical working groups, make a Statement to the House on progress, and then bring forward reports setting out our proposals and our economic impact assessment of them. I am glad to make amendments to the Bill to give this plan legislative effect. This is consistent with our approach of hearing concerns, responding to them and moving the Bill forward. I urge noble Lords from across the House to support them.

The only issue on today’s Order Paper with which there is any disagreement is the question of whether the Bill should mandate the future production of a draft Bill, its contents and it going through the pre-legislative scrutiny process. I hope that noble Lords agree with what I put in my letter to them: we cannot, should not and must not prejudge the outcome of these processes. Despite assertions to the contrary, good government does not assume what 11,500 detailed responses to its consultation will say.

Our plan—to consult properly and finish the job, carrying out the processes as now mandated in the Bill and then bringing forward legislation that both Houses of Parliament can have confidence in—is surely the right one. A draft Bill is not a plan to solve the problem. Indeed, it could have the consequence of delaying the very reforms that your Lordships have called for. For these reasons, I hope that noble Lords will support the amendments in my name, but not continue to insist on Amendment 49F today.

Before I finish, I will address the question of double insistence. Today, noble Lords have been presented with a question of whether to go even further than we have come so far during ping-pong and choose whether they want the entire Bill to fall if the Government do not accept the amendment from the noble Baroness, Lady Kidron. I sincerely hope that it does not come to this, for it would mean that noble Lords are willing to countenance the unprecedented: trying to collapse a Bill that does nothing to weaken copyright law, but which does deliver many of the elected Government’s manifesto commitments—for example, a data preservation process supporting bereaved parents; new offences for intimate image deepfake abuse; smart data schemes such as open banking that businesses have been crying out for; and a framework for research into online safety.

This would mean that noble Lords are willing to try to collapse a Bill that the elected Government are using to grow the economy by £10 billion, the number one mission from their manifesto and election campaign; that makes vital, uncontroversial and necessary amendments to our national security and policing laws to keep us safe; that will save 140,000 hours of NHS time per year, with the potential to reduce medication errors by 6.8 million and prevent 20 deaths per year; and that the elected House has voted overwhelmingly in favour of four times. I urge noble Lords to choose instead the Government’s plan to solve this issue and vote with the Government today. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

--- Later in debate ---

Obviously, I do not know how matters today are going to conclude, but should the outcome go against them I urge the Government to strain every sinew, listen to the House, work closely with the noble Baroness, Lady Kidron, and find a way to make it happen to end this chaotic period of uncertainty that helps nobody. That said, as I said on Monday, as a responsible Opposition we do not wish to engage in protracted ping-pong and will ultimately simply respect the will of the elected Chamber.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords for their contributions today and throughout this process. Colleagues have spoken consistently with passion and eloquence, as befitting the many, varied and celebrated interests that noble Lords have in the creative industries. As I have said on numerous occasions and feel I do not need to repeat, this Government are absolutely committed to the creative industries. We want them to flourish, and we have a plan to achieve this.

I am grateful to noble Lords who took the time to read the letter I sent to Members of your Lordships’ House last night, which, I hope, sets out more clearly our approach to these important issues. Given our debates to date and the letter, I will spare the House a full repetition of our position. However, our concern remains that any legislation mandated now, whether a draft Bill or regulations, will prejudge all the work required and result in laws that are not fit for purpose.

Contrary to some of the suggestions we have heard today, the Government have been listening carefully throughout the Bill’s passage. The Government have set out a plan to deal with this issue which includes additional compromises that respond to specific concerns raised by noble Lords in this House which have been put on the face of the Bill and would be strengthened if the House supports Motion A. I agree with my noble friend Lord Brennan that once the working groups get going it is vital that the creative sector has a voice in them. Of course it is our intention to deliver that.

The next step, which I know that noble Lords are keen to take, is simply to get on with it. The quicker the Bill is passed, the sooner we can put more resources into resolving the issues that noble Lords have raised. I agree with the noble Lord, Lord Russell, that we need to work together to find a solution that is appropriate for the UK, not for other countries, which will obviously have their own agendas. I also make it absolutely clear that there are no side deals in any agreement in the trade deal with the US.

Unless and until we reach Royal Assent we are basically stuck in limbo. We need to move on. I know noble Lords have spoken in support of the amendment from the noble Baroness, Lady Kidron, and she herself has called for action now, but we believe that the noble Baroness’s current amendment as drafted would take a long time to implement. It is intended to take effect after the proposals that we have set out in the Bill.

We have heard concerns about expediency and have tested how quickly we can pave a clear way forward, ensuring that all elements are considered in the round. I say to my noble friend Lord Brennan that of course we are aware of the urgency of this. This is why we will publish the economic impact assessment and the report the Bill requires within nine months. This will ensure that we are ready to act as soon as possible while also having sufficient time to consider all views and options. If the report and economic impact assessment are not published within six months of Royal Assent, the Secretary of State has made it clear that he will lay before Parliament a Statement setting out progress towards their publication.

The noble Lord, Lord Berkeley, asked for clarification on the copyright situation. The Government are clear that copyright must be complied with when copies are made to train AI models. This means that licences are required from copyright owners but in some circumstances a copyright exception may apply. If copying takes place in other jurisdictions, that country’s laws will apply. The law in this area is complex and disputed and it is not appropriate for us to comment on the litigation which noble Lords will know is currently before the courts. We recognise calls for greater legal clarity and this is why we have consulted and are now developing options for the way forward.

Noble Lords have raised the constitutional issue that we are dealing with today. The noble Baroness, Lady Kidron, said in her letter that the Bill is unusual as it started in the Lords and that, if the Lords insisted, the Government would have to accept the amendment or let the Bill fall. I will make our position absolutely clear: the primacy of the House of Lords applies equally to Bills that start in the Lords and in the Commons. This primacy is necessary for a democratic society. The views of MPs elected by the public should be respected, and the House of Commons has expressed its view on the issue of AI and copyright three times already.

[Lord Wallace of Tankerness (LD)]

I would be grateful if the Minister could clarify that, if the amendment of the noble Baroness, Lady Kidron, is carried, it will not scupper the Bill, but rather the Bill will go back to the Commons, where the Commons can provide an amendment in lieu. Therefore, the ball would be in the Commons’ court and the Government’s court; it will not scupper the Bill if we vote for the amendment of the noble Baroness, Lady Kidron.

[Captain of the Honourable Corps of Gentlemen-at-Arms and Chief Whip (Lord Kennedy of Southwark) (Lab Co-op)]

Could the Minister also just clarify her point about the primacy of the House of Commons? She just seemed to imply the opposite.

[Baroness Jones of Whitchurch (Lab)]

We regard the primacy of the House of Commons as absolutely paramount. As I have stated, at the end of the day if we are not careful, we will get into a situation—which I think the noble Baroness was beginning to raise—where we will not be able to accept the primacy of the House of Commons. To us, that is absolutely paramount.

Passing the Bill will also let us get on with delivering the other measures it contains, many of which have been championed by noble Lords for some time— and I welcome the support of the noble Viscount, Lord Camrose, for all of these. The Bill has had broad support, which was enjoyed in the last Session too, and that is testament to the work done by this Government and the previous one on these issues, and why both our party and the Opposition advocated for the Bill and its policies during the general election.

Many noble Lords, including the noble Baroness, Lady Kidron, have spoken in this and other debates about the good that these measures will do. I am glad to recall her warm support during our Second Reading debate for the data preservation measures for coroners to preserve data when a child dies, and her wishes for the Bill’s swift passage to see that become law, and I agree with her. I also recall the noble Lord, Lord Clement- Jones, saying that this version of the Bill was much improved from the last, and that as we have done so much scrutiny of its predecessor, we should be able to make good progress.

These policies and the significant economic benefits they will bring are why the elected House has voted in favour of the Bill’s continued passage four times in a row. It has exercised its choice. We now have to get on with the job—for the bereaved parents, the victims of deepfake intimate image abuse, the charities that want to use the soft opt-in and the businesses keen to benefit from the use of smart data and all the many and various benefits of the measures and manifesto commitments in the Bill. I urge your Lordships to accept the Government’s new amendments and let the Bill pass into law, rather than moving us to the precipice where we could face collapsing it entirely.

[Lord Watson of Wyre Forest (Lab)]

I am very disturbed that the Minister says there is a potential for the Bill to collapse, with all the important measures within it. If the other place chooses to collapse the Bill, can she tell me which Cabinet Minister or adviser will take responsibility for what is clearly an unprecedented legislative and political failure?

[Baroness Jones of Whitchurch (Lab)]

As I keep saying, the primacy of the House of Lords—sorry, the House of Commons—is absolutely vital.

[Noble Lords]

Oh!

[Baroness Jones of Whitchurch (Lab)]

Noble Lords can laugh about this, but it is a really serious issue that is absolutely fundamental to our democracy. The House of Commons has made its position clear on a number of occasions now, and it is not right that the House of Lords continues to try and overturn that.

[Baroness O'Loan (CB)]

My Lords, I have listened with great respect to the Minister, but she has stated repeatedly that we are going to deprive the country of all the other measures in the Bill that are accepted. That is not the case. It is not necessary for the Bill to collapse at all; what is necessary is for the Government to take some positive action. It would be appropriate for her to accept that in her closing remarks and confirm that, if this House votes in favour of the amendment from the noble Baroness, Lady Kidron, the Bill will not collapse.

[Baroness Jones of Whitchurch (Lab)]

As I have said, there is a danger that the Bill will collapse if the Lords continues in its current form, and that is not what any of us want. I hope that everybody here accepts the primacy of the House of Commons, which is absolutely fundamental to our democracy.

Lastly, I give my thanks to the public servant whose character and motives were questioned in the House on Monday. Public servants are not able to defend themselves when attacked, and instead of criticism they deserve our thanks. I want to take the opportunity to recognise their long record of distinguished and dedicated public service, not just under this Government but also the previous ones.

At times, it has felt like this debate has indeed brought us to the edge of reason. I hope that today your Lordships’ House will unite around our approach and the fundamental constitutional principles by supporting Motion A in my name.

Ofcom: Protection of Children Codes

Baroness Jones of Whitchurch Excerpts

Monday 2nd June 2025 Lords Chamber

[Baroness Ritchie of Downpatrick]

To ask His Majesty’s Government what assessment they have made of the draft Protection of Children Codes published by Ofcom on 24 April under the Online Safety Act 2023.

[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, we welcome Ofcom’s protection of children codes, which will make a substantial difference to the online experience of children. From July, platforms will be required to use measures to protect children—such as highly effective age assurance and filtering out harmful algorithms—or face enforcement action. We will monitor implementation carefully, and Ofcom has said that it is clear that the codes are iterative. However, the codes are the foundation, not the limit, and we will not hesitate to strengthen the law further to ensure the safety of our children, if needed.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, the Secondary Legislation Scrutiny Committee, of which I am a member, has drawn these codes to the attention of your Lordships’ House. The committee has particular concerns, especially around the potential regulatory gaps in the codes produced by Ofcom because they do not require regulated services to address all the risks identified in the risk assessments. Does my noble friend the Minister agree with Ofcom’s interpretation of the Online Safety Act? Will her department bring forward an urgent amendment to the Act to close this loophole and require regulated services to mitigate all the risks to children online—which Ofcom itself has comprehensively evidenced in its research—that those services might identify in their own risk assessments?

[Baroness Jones of Whitchurch (Lab)]

I thank my noble friend for that question. I should make it clear that Ofcom’s codes will improve child safety online and go beyond similar regimes elsewhere to achieve this. By regularly conducting thorough risk assessments, services can proactively identify emerging threats and adapt safety measures accordingly. The Government’s measures in the code allow Ofcom to hold companies accountable for their overall management of risks to children. Ofcom will monitor implementation of risk assessment processes and code measures, building on its approach where needed. The Government will separately monitor whether legislation needs to be strengthened.

[Viscount Colville of Culross (CB)]

My Lords, Ofcom has identified live-streaming as a functionality which causes harm. There is nothing in the codes requiring the tech companies to mitigate this risk. Does the Minister agree that such an urgent issue, which cannot wait until Ofcom’s additional safety measures consultation, should be included in the present children’s codes?

[Baroness Jones of Whitchurch (Lab)]

The noble Viscount has raised an important issue. Ofcom has recognised that live-streaming can pose specific risks to children and will consult on proposals to reduce these risks, alongside a number of other measures. It will publish this consultation before the Summer Recess. The Act and Ofcom’s codes are clear: services are required to use highly effective age assurance to prevent children encountering primary priority content, including pornography. That will extend to live-streaming services that allow pornography.

[Lord Clement-Jones (LD)]

My Lords, I declare my ombudsman interest as set out in the register. The SLSC questioned, quite rightly, how practical it is for children to complain about harmful content and noted that it was unclear what further action children could take if a complaint was rejected by a service provider. How will Ofcom and the Government ensure that complaint mechanisms are truly practical, accessible and designed with a children-first approach? What independent recourse will children have if their complaints about harmful content are rejected by service providers?

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, I pay tribute to the work that the noble Lord has done in promoting ombudsman services. He will know that the codes and the Act require that all service providers provide a named person to receive any complaints and for them to be able to demonstrate that they are acting upon them. We are aware that we need to monitor how effectively that is working, and, if needs be, we will supplement that with other measures. For the time being, we want to see that the named person and a proper complaints process is working as it should be.

[Baroness Berger (Lab)]

My Lords, the Online Safety Act sets out in Section 1 that regulated services must be

“safe by design, and … designed and operated in such a way that … a higher standard of protection is provided for children than for adults”.

This requirement is the result of an amendment that was brought forward in this place. However, currently, Ofcom’s codes do not go far enough to actually bring this into practice. Will my noble friend confirm that the Government will urgently amend the Online Safety Act to introduce a statutory code of practice for safety by design, to ensure that Ofcom delivers on the expectations of Parliament in this important area?

[Baroness Jones of Whitchurch (Lab)]

My Lords, safety by design is an absolutely fundamental principle of the Online Safety Act, and the Government have reiterated that in our strategic priorities which we have set out to Ofcom. We expect all platforms to implement safety by design and we will monitor the effectiveness of that.

[Lord Vaizey of Didcot (Con)]

My Lords, this Chamber provides important scrutiny to the work that Ofcom does, but it is worth noting that the Online Safety Act was a mammoth Bill and that Ofcom has undertaken an absolutely mammoth task in being ready to carry forward this regulation. Does the Minister agree with me that Ofcom is fast becoming the most important and effective regulator in this field, and that all the people who have worked to make this happen deserve our sincere congratulations for the work they have achieved so far?

[Baroness Jones of Whitchurch (Lab)]

I welcome the noble Lord’s comments. He is absolutely right: this has been a mammoth exercise, and I am so pleased that we are now beginning to see the fruits of it. There are huge numbers of people working in Ofcom on this important issue. We very much hope that, with the implementation of the illegal content codes and now the children’s codes, there will be a step change in the way that everybody—particularly children—engages with platforms online. To give noble Lords a flavour of how this will affect children, the law means that platforms must protect children from seeing suicide, self-harm, pornography and violent content. This will make a real difference to children. I am very excited to see that platforms operate this, and it is important that Ofcom plays its part.

[Lord Markham (Con)]

The New Zealand Education Minister says that its school smartphone ban has led to more engagement and less cyberbullying. With Ofcom warning that harmful content often reaches children through algorithmic feeds on smartphones, can the Minister give one positive reason why we should allow smartphones to continue to be used in the classroom?

[Baroness Jones of Whitchurch (Lab)]

My Lords, as I think I have said here before, we are carrying out research to look at the implications of the use of smartphones for children. The Department for Education’s mobile phones in schools guidance is clear that schools should prohibit the use of devices with smart technology throughout the school day, including during lessons, transitions and breaks. The Government expect all schools to take steps in line with this guidance to ensure that mobile phones do not disrupt pupil learning, but we still need to learn the absolute lessons. The noble Lord raises important points about algorithms, and we hope to come back to noble Lords and Parliament with further details of how we are going to take this work forward.

[Lord Laming (CB)]

My Lords, the Minister has set out the progress that has been made since the Bill became an Act. That is to be welcomed, but, my goodness me, some of the stuff that is available to young people should shock and disturb us and keep us all the time on the front foot to do all that we can. Our children—children across the world—deserve protection from this awful stuff.

[Baroness Jones of Whitchurch (Lab)]

The noble Lord is absolutely right about that. As part of my role, I have seen horrendous material that I do not think anybody—not adults and certainly not children—should see. We are determined to get this right and to be forward-looking, because anything that we do in legislation needs to be fit for the next generation as well. There is no point legislating just for the now; we need to legislate for the future. We are very aware of that. We are continuing to talk to Ofcom and other stakeholders about how we can take this work forward. We are determined to make this a safe place for children to grow up and thrive.

[Baroness Penn (Con)]

My Lords, the Minister talked about the research that the Government are doing on the impact of phones on children. The research is overwhelming on the impact of screen use on early years development for children, but there appears to be no specific guidance to help parents navigate that. What are the Government doing to ensure that parents of preschool children get proper, age-appropriate guidance on the use of screens?

[Baroness Jones of Whitchurch (Lab)]

The noble Baroness makes an important point. We are looking at what further advice we can give to parents. This is a sensitive issue and, as the noble Baroness will understand, we must be careful in how we raise these issues. We all understand that children often have a very different experience and a detailed knowledge of how smartphones work from their parents, so we have a role in education. Obviously, media literacy is an important part of that, but we are looking again at what further guidance we can give to parents.

Data (Use and Access) Bill [HL]

Baroness Jones of Whitchurch Excerpts

Consideration of Commons amendments and / or reasons
Monday 2nd June 2025 Lords Chamber

Moved by

[Baroness Jones of Whitchurch]

That this House do not insist on its Amendment 49D, to which the Commons have disagreed for their Reason 49E.

49E: Because the Amendment would involve charges on public funds, and the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient.

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[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, I want to start today’s debate by repeating some of the sentiments set out by the Secretary of State before the Whitsun Recess, when the elected House once again overturned the amendment from the noble Baroness, Lady Kidron, to the Bill. I am sure many noble Lords will have read these in Hansard, but for those who have not, I urge them to do so, as they were well received. The single remaining issue—AI and copyright—is one I know that many noble Lords care deeply about, and with good reason. It is imperative that we become a country where our people can enjoy the benefits and the opportunities of both AI and our world-leading creative industries, a country whose economy thrives and which remains innovative, creative and, very importantly, fair.

As I have said before, we must get this right to ensure that we promote innovation and creativity, transparency and access, recognition and reward. The Secretary of State noted his regret about how the consultation and the Bill collided and how, by indicating a preferred option, the Government appeared to have prematurely taken a side in this important debate.

I also want to ensure that noble Lords have complete clarity on our approach and how it has always been separate from the data Bill, which includes no provision to change anything in copyright law. To reiterate, the Government have an open mind about the outcome of the consultation. We will listen intently to the views of the many people who have responded to it, many of whom have interesting ideas which deserve full consideration.

It is completely understandable that noble Lords have sought to use this Bill to set a direction of travel for future regulation in this area. They are right to have asked the questions that they have. I hope that the additional assurances that I will give today provide confidence that despite continuing to resist the amendment from the noble Baroness, Lady Kidron, we truly want to solve these issues and have a plan to do so.

Outside the legislative process, the Government will continue to do our utmost to analyse and resolve the issues. We are studiously considering the thousands of responses to the consultation. The Secretary of State is setting up expert working groups to bring people together from technology and the creative sectors to chart the way forward in a full range of areas, with a particular emphasis on transparency and technical standards. We are committed to listening—genuinely listening—to a broad range of views. The noble Baroness’s assertion that government only ever listens to big tech is as unfair as it is unfounded. The Secretary of State and Minister Bryant have met representatives of the creative industries as well as Members of both Houses to hear from them. We will of course make sure that noble Lords are informed about the progress and outcomes of the working groups at every stage possible, not least as I am sure that there will be many questions tabled on this by noble Lords. I look forward to answering them.

As noble Lords know, we have committed in the Bill to report on economic impacts and the use of copyright in the development of AI systems within 12 months of Royal Assent. This will be an important staging post as we move forward with the consultation process and subsequent regulatory change. Today, I want to give some further reassurances on the Government’s trajectory and commitments to speed and parliamentary accountability.

First, I can confirm that the Government’s report on the use of copyright work in the development of AI systems will address two additional areas, specifically highlighted by the noble Baroness’s original amendment: how to deal with models trained overseas; and how rules should be enforced and by whom. The first issue has been raised in this House, including by my noble friend Lord Brennan and the noble Viscount, Lord Camrose. The latter is an issue that has invoked financial privilege in the other place, but where it is right for the Government to put forward their view.

Secondly, to reflect our shared view that these issues need to be resolved quickly, we will publish an economic impact assessment—and the report required by the Bill—within nine months of Royal Assent, rather than 12. This will ensure that we are ready to act as soon as possible while also having sufficient time to consider all views and options. Thirdly, if we are not in a position to publish final documents within six months of the Bill’s Royal Assent, the Secretary of State will lay before Parliament a report setting out the progress being made towards their publication. I hope that this gives noble Lords the assurances that they need that our work will not be done behind closed doors. We want to make progress in a manner that involves Parliament and relevant stakeholders.

As a final word, I know that this debate has been heated at times. The wider world looks to us in this place to debate with courtesy—“to disagree agreeably”, as my noble friend the Leader of the House said in response to last summer’s King’s Speech. I therefore ask noble Lords to consider their words today, to avoid the language of betrayal and conflict and to try to find a measured and civil tone through which we can trace our path forward. Finding the right way forward means dealing with the issues together and coming up with workable, considered solutions. It is in nobody’s interest if we rush towards the wrong conclusion or ineffective regulation.

Time and again in previous Sessions, promises were made and legislation rushed through only for us to go through the entire process again when it was found to be inadequate. We said that we would legislate better and we are determined to do so. That means consulting properly, following the additional deliberative processes that I have set out, and then bringing forward legislation that both Houses of Parliament and both sides of the argument can have confidence in. I urge noble Lords on all sides of this House: let us get on with sorting out this issue, rather than creating yet another standoff with the House of Commons and delaying the processes that we have put in the Bill. The creative and technology industries want certainty, not constitutional crises.

I hope that my remarks today give noble Lords confidence in the Government’s approach, which has accountability at its heart and will allow us to put this important Bill to bed. I beg to move.

Motion A1 (as an amendment to Motion A)

Moved by

--- Later in debate ---

[Viscount Camrose (Con)]

My Lords, as this is the third round of ping-pong, as many noble Lords have observed, I will speak very briefly. If the noble Baroness the Minister has not by now understood how strongly noble Lords on all sides of the House feel about this issue, it may be too late anyway.

The noble Baroness, Lady Kidron, has made an increasingly powerful case for the Government to act in defence of the rights of copyright owners, and we continue to call on the Government to listen. We have of course discussed this at great length. The noble Baroness has tabled a new Motion which would require Ministers to make a Statement and bring forward a draft Bill. Given that the Minister has expressed her sympathy for the concerns of your Lordships’ House previously, surely this new Motion would be acceptable to the Government as a pathway toward resolving the problem, and we again urge the Government to accept it.

However, whatever choice the Government make—I do not think anyone could claim that any part of this is an easy problem, as my noble friend Lord Vaizey pointed out—many of us are frustrated by the absence of agility, boldness and imagination in their approach. That said, speaking at least from the Front Bench of a responsible Opposition, we take the view that we cannot engage further in protracted ping-pong. We are a revising Chamber, and, although it is right to ask the Government to think again when we believe they have got it wrong, we feel we must ultimately respect the will of the elected Chamber.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I must once again thank all noble Lords who have spoken during this debate, and of course I continue to recognise the passion and the depth of feeling on this issue.

I did not think I needed to reiterate this, but we absolutely believe in the importance of the creative sector, and of course we want it to have a flourishing future. In previous debates, I have spelled out all the work that we are doing with the creative sector and how fundamental it is to our economic planning going forward. I do not intend to go over that, but I have said it time and again from this Dispatch Box. Our intention is to find a substantial and workable solution to this challenge that we are all facing.

I also reassure the noble Lord, Lord Forsyth, and others that we have had numerous discussions with the noble Baroness, Lady Kidron, and others and have of course taken those discussions seriously. As a result, we have come today with an honest and committed plan to work together to resolve the contentious issue of AI and copyright both quickly and effectively.

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[Lord Forsyth of Drumlean (Con)]

I am most grateful to the noble Baroness. Could she just deal with the point that was made by the noble Lord, Lord Rooker, and others? Why, if the Government are working and looking for a compromise, have they sent this back to the House without any proposal from the Government?

[Baroness Jones of Whitchurch (Lab)]

My Lords, when I set out my comments, I said that I have made compromises, and I will reiterate them. We are trying to find a way through on the detail of how we are going to find something that is workable and deliverable in the longer term. That is the real challenge here. We all agree that we need to find something that will support the creative sector. It is about finding a model that will work internationally as well. That is our real challenge, and that is what we are attempting to do.

I think noble Lords feel that it is simpler than it is, because this is a huge challenge for us on a global basis. Let us not just think that there is a simple solution; I do not think for one second that there is.

[Baroness Stowell of Beeston (Con)]

I thank the noble Baroness for giving way, but does she accept that in order for these discussions to be fruitful in the round table and workshops that the Government have proposed, all parties need to know that they are entering those discussions on an equal footing? Although the noble Baroness and the Secretary of State have made quite a lot of play about not wanting to favour one side or another, through the consultation process and the way in which the Government have demonstrated a favouritism to one side of that discussion, there is a lack of confidence within the creative sector about their entering into these negotiations. That is what is lacking and what is needed to get those discussions to the point where they can be constructive and deliver the solution—which, I agree with her, will be very difficult to achieve.

[Baroness Jones of Whitchurch (Lab)]

The Secretary of State and all the Ministers in the department have made it absolutely clear how vital it is that the creative sector’s interests are protected in the discussions. The sector will be part of the working groups, have a seat at the table and have its voice heard. We have a job to do in reassuring those people that this is a workable solution, but they will see that the long-term workable solution which we are attempting to achieve would be for everyone.

Those working groups will address the issue of transparency and technical standards in a way that supports the creative industries as well as the tech sector. Those working groups, alongside the consultation responses, will inform the reports, the proposal and the economic assessment that the Government have already committed to in this Bill. It may be that the working groups bring other benefits, such as interim voluntary arrangements, until longer-term solutions can be agreed upon and implemented. However, we must see what comes out of the process, rather than imposing preconditions at this stage.

As I said earlier, His Majesty’s Government have made three additional commitments on this matter. First, these reports will be expanded with two additional topics—extraterritoriality and enforcement. Secondly, the report’s proposals and economic impact assessment will be published more quickly—within nine months. Thirdly, if we have not completed these reports within six months, the Secretary of State will provide a progress report to Parliament.

Turning to the first proposed new subsection of the amendment tabled by the noble Baroness, Lady Kidron, I agree that the scale of unauthorised use of works as inputs to AI models, and the impact of such use on copyright owners, AI developers and the wider economy should all be considered as we develop our policy approach and put forward our proposals, as should the adequacy of the legislative framework to support copyright owners. I am pleased to confirm that these aspects will already be considered as part of the impact assessment. The Government will report as we go along and are committed to publishing that. We intend for that impact assessment and report to be published within nine months and to make a progress statement after six months if needed. I hope that gives clarity to noble Lords, such as the noble Earl, Lord Dundee, that the Government agree that these issues are important and are actively working on them. We disagree with this part of the noble Baroness’s amendment only on the basis that an additional statement is not needed.

However, turning to the second proposed new subsection of the noble Baroness’s amendment, I can see the appeal of requiring the Government to make progress with legislation in this space. The Government have heard noble Lords’ concerns about the pace of progress. The Secretary of State said in the other place that he proposes legislation to be tabled as soon as possible. He has set out a plan for determining what such legislation should contain, assessing the consultation responses, convening technical working groups and then producing reports and economic impact assessments on our proposals.

Many of the things in the noble Baroness’s amendment may coincide with the outcomes of this plan. She has great foresight, but none of us have a crystal ball. It is fundamentally wrong to prejudge and pre-empt the process now being prescribed in the content of the legislation. What would noble Lords say to the 11,500 people who took the time to submit detailed responses to the consultation—that their considered thoughts are irrelevant because the outcome has already been put in statute? What to the working groups of technical experts that, rather than work with us to come up with a comprehensive solution that works for all sides, must abide by regulations that ignore their input and cover only one or two issues? What to the elected House, which has already voted these amendments down three times? Rather than respect one of our core constitutional principles, cited indeed by the noble Viscount, Lord Camrose, before the recess, do we believe in consulting and properly legislating, but just not today?

This cannot be what anybody thinks is right, either on this issue or indeed as a matter of principle. I repeat: the Government have heard the concerns of your Lordships’ House and set out their plan to address them. This must be allowed to run its course. I urge noble Lords not to insist on their amendment, nor to support the noble Baroness’s new amendment. Doing so will further delay our plan for dealing with the issues at hand and delay all the other good that this Bill will do; for example, allowing the EU to make its decision on data adequacy for the UK; providing for data preservation notices for coroners to support bereaved parents; introducing new offences tackling intimate image deepfake abuse; and enabling digital verification services, the national underground asset register and smart data schemes to grow the economy. All these things are waiting in the wings once the data Bill is passed.

I hope that noble Lords will reflect on this. We are making compromises—indeed, we have made a compromise—and we are trying to work quickly. Our only concern is with the wording of the noble Baroness’s amendment, which we do not feel will give us the comprehensive and detailed solution that we know is necessary to reassure the creative and technology sectors in the UK that we can make this work.

[Baroness Kidron (CB)]

My Lords, I first thank everyone who has spoken. I am particularly grateful to the noble Lord, Lord Liddle, who thinks that I have won. I therefore hope that he expects and anticipates that one of my amendments will make it into the Bill, because that is what winning looks like to me.

I want to make a broader point about winning and losing. I did not want to be here again. I know that the Minister has told the House to be very careful about how we speak, but I think that she would acknowledge that, in private, I have reached out to all sides of the Government to discuss this and to try to get a compromise. I think she will also know that the small changes that she mentioned—which are all very welcome, but do not add up to a real change—are not something that the Government came to me with before the debate; this was the first that I heard of them. That is probably because she knows that they are not profound or significant.

I wish that the Minister had not gone back on this issue of stealing. I just want to make it utterly clear—I hope my words were clear; I will re-read Hansard—that stealing is happening, and standing in the way of transparency allows stealing to continue. That is the argument that I have made; I have been very careful in making it. As many people around the House have said on the previous amendment, the Government cannot have it both ways. They do not like the drafting, but they do not draft anything else; they do not like the comprehensive one, but this one is not comprehensive enough. This is ping-pong in the round—the Government are forcing ping-pong on us. My real wish is that the Government find some strength, some humility and some way of coming forward with what we passed last time, which was a power to make regulation in their own image once their report had been done. That was a good amendment. That is the amendment that the Government should be backing. Today’s amendment is a “just in case”.

The Government should not worry about the bulk of the 11,500. They would be very happy if the Government acted now. That is not a problem, and I am willing to take that, but the Government have offered no timeline. They have proposed voluntary systems, while the longer issue will continue; they have said “as soon as we can”. I do not doubt that every Minister has in their heart the right motivation—let me say that on the record—but the actions of the Government are blocking an entire industry from protecting their property. Unfortunately, like the noble Lord, Lord Forsyth, I appear to have this socialist inclination that people should have a fair day’s pay for their labour. I seek the agreement of the House.

Online Harms: Young People

Baroness Jones of Whitchurch Excerpts

Wednesday 21st May 2025 Lords Chamber

[Baroness Berger]

To ask His Majesty’s Government what assessment they have made of the challenges facing young people from online harms, as raised in the Netflix drama series Adolescence.

[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, we are committed to protecting children from online harms. Under the Online Safety Act, social media companies have a duty to remove illegal, misogynist and violent content from their platforms. From July, platforms will also need to protect children from harmful content, including hateful or abusive content, violent content and pornography. Ofcom is clear that it will use its strong enforcement powers for platforms failing to fulfil these duties. This reflects the priority the Government place on these actions.

[Baroness Berger (Lab)]

My Lords, the Netflix programme “Adolescence” is a brutal exposition of the growing incel culture and manosphere that is infecting too many hearts and minds. A staggering 45% of young men have a positive view of the misogynistic influencer and conspiracist Andrew Tate. Every 29 minutes there is a post about rape on a popular incel forum. This content is leading to hatred of women and girls, and to serious violence. I listened closely to what my noble friend just said. Is she able to set out what the Government are doing to prevent this explosion of harmful misogynistic content and, in particular, the radicalisation that it can inspire?

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Government recognise the destructive role that misogynistic attitudes, including online misogynistic content, can play in society, including the impact it can have on the views and behaviours of men and boys. Tackling misogyny both online and offline is central to our mission to halve violence against women and girls in a decade, supporting victims and preventing harm in our communities. We will publish a new violence against women strategy this year. The Government will ensure that schools address the root causes of violence against women and girls, and teach pupils about healthy relationships and consent, and will continue to ensure children and young people are at the heart of prevention and intervention programmes and policies.

[Baroness Owen of Alderley Edge (Con)]

My Lords, one of the key themes in “Adolescence” was intimate image abuse. Just this week, the Government have rejected the Women and Equalities Committee recommendation to increase from six months the time limit for victims to seek justice when their intimate images have been non-consensually shared. Will the Minister explain the Government’s reasoning for rejecting a change that would help so many victims?

[Baroness Jones of Whitchurch (Lab)]

My Lords, the Government welcome the Women and Equalities Committee report on tackling non-consensual intimate image abuse, and the issues it raises are an absolute priority for us. That is why we have taken action by strengthening the Online Safety Act and introducing further offences as part of the Crime and Policing Bill and the Data (Use and Access) Bill—and I pay tribute to the noble Baroness for all the work she has done in helping to us to strengthen that legislation. We will not hesitate to go further to protect women and girls online. Technology-facilitated abuse will be a key component of the upcoming cross-government violence against women and girls strategy.

[Baroness Brinton (LD)]

My Lords, there has been much discussion about online access for children and young people at schools, and the advice on keeping phones out of schools is much welcomed. However, surely we need to ensure that parents and carers have all the information and skills that they need to navigate and guide their children. Are this Government planning a comprehensive campaign to alert parents to online harms and to ensure that they have the right digital skills to be able to access information and support for their children?

[Baroness Jones of Whitchurch (Lab)]

I thank the noble Baroness for that important point. Media literacy in all its forms is important for parents, teachers and young people, to make sure that we create a respectful online environment. Ofcom has specific media literacy duties that it will carry out. Its media literacy strategy prioritises research and initiatives to address online misogyny, including research to understand how such harmful behaviour occurs. As set out in the strategy, Ofcom expects its work on online misogyny to directly target teenage boys and young men. However, the noble Baroness is right that it goes further than that: we have to educate parents as well, to look at what their children are accessing. There is a huge job of work to be done on education in the wider sphere. Obviously, schools are playing their part in that now, as the noble Baroness acknowledged, but we have far more to do on this, and all aspects of government are addressing these issues.

[Viscount Colville of Culross (CB)]

My Lords, the Online Safety Act allows Ofcom to look at how much children are using social media, yet the new children’s code from Ofcom does not mention addiction. What are the Government doing to deal with the problem of screen addiction among our children?

[Baroness Jones of Whitchurch (Lab)]

The noble Viscount will know that schools already have a policy, or are expected by the Department for Education to have one, to ensure that children do not have access to phones in schools. That is a clear policy that the Government are keen to reiterate. What we are talking about here is what children do outside the school environment. From July, the children’s code of practice will provide much greater reassurance and protection for children. Services will be expected to provide age-appropriate experiences online by protecting children from bullying, violent content, abuse and misogynistic content. In other words, there will be much more forceful regulation to specifically protect children. Obviously, we will continue to monitor the codes of practice, but there are specific new powers under the code that come into effect in July and we want to see their impact.

[Viscount Camrose (Con)]

My Lords, I very much hope the Government are actively tracking and measuring the effects of schools’ own policies on mobile phone use during the school day. If so, what conclusions can be drawn about the wisdom of an outright ban? If they are not tracking that information, why not?

[Baroness Jones of Whitchurch (Lab)]

My Lords, as I said, the Department for Education’s mobile phones in schools guidance is clear that schools should prohibit the use of devices with smart technology throughout the school day, including during lessons, transitions and breaks. The Government expect all schools to take steps in line with that. Beyond that, my own department, DSIT, has commissioned a piece of research to look at young people’s use of social media and their access to it throughout the day. The outcome of the research is due very soon and we will learn the lessons from that. Up until now, the evidence has not been as clear-cut as we would like. We hope to learn on an international basis how to protect young people throughout the day, and will apply those lessons once the evidence has been assessed.

[Baroness Bull (CB)]

My Lords, “Adolescence” is probably the latest in a long line of TV dramas that have the effect of changing societal attitudes—you can think of “Cathy Come Home”, “Queer as Folk”, “Mr Bates vs The Post Office” and indeed “Breathtaking”. One of the ways in which young people can be encouraged to get off their mobile phones is through engaging more in drama, but we are seeing drama and arts taken out of the curriculum. Does the Minister agree that there is value in these dramas, not just in raising awareness and changing attitudes but in helping young people to explore themselves and their identity, and to communicate in ways that do not involve devices?

[Baroness Jones of Whitchurch (Lab)]

The noble Baroness makes a very important point that we need to provide alternatives to online activities for young people. She is absolutely right about drama, and sport can also help with that. The Department for Education is conducting a curriculum review at the moment and one of its priorities is to make sure that children genuinely have a balanced, wholesome curriculum that deals with all those issues—one that is not just academic but deals with children’s development in the round, which is exactly what the noble Baroness is saying.

[Baroness Bennett of Manor Castle (GP)]

My Lords, Finland is known as a global leader in education and has schools that focus on critical thinking and the ability to absorb online information and regard it sceptically, when needed. Does the Minister agree that that is something we need to see much more of in British schools? We are presenting teachers with a real challenge, with so many subjects focused on teaching to the test and rote learning things to regurgitate. We have to think about the whole way in which our schooling operates, so it is focused on critical thinking.

[Baroness Jones of Whitchurch (Lab)]

The noble Baroness makes a very good point, and it goes back to the need for a balanced curriculum. In the past, our curriculum has become too focused on a very specific set of goals and not the broader issues. Having healthy relationships is part of teaching and learning at school; that is absolutely something that we need to do and we are strengthening the provisions for that within the curriculum. The Department for Education will provide guidance to help young people develop the skills that all young people need to be able to navigate this complex modern world.

Employment Rights Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Wednesday 21st May 2025 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friend Lord Young of Acton for his expert introduction to the amendments in this group. I agree with the noble Lord, Lord Monks, about common sense, but I fear that went out of the window of an employment tribunal some years ago. As my noble friend Lord Young laid out in an earlier group, this Bill threatens to restrict free expression in some cases with its provisions. It is for this reason that I support the amendments, which seek to safeguard political opinion and affiliation within our employment laws.

At the heart of any thriving democracy lies the freedom to hold and express political beliefs without fear of retribution. In a democratic society, freedom of speech and freedom of belief are not luxuries; they are fundamental rights that underpin our entire system of governance and civil life. The workplace, where so many of us spend a significant portion of our lives, must be a space where individuals can hold and express their political views without fear of unfair treatment or dismissal. As it stands, our existing laws provide only patchy protections for political beliefs, and they leave many workers vulnerable. My noble friend Lord Young’s examples are truly shocking, and I would like to take this opportunity to wish, in particular, Mr Poursaeedi well in his ongoing battles.

We should draw upon the timeless wisdom of John Stuart Mill, who was one of the great architects of liberalism. He argued in his seminal work On Liberty that the truth emerges only through free and open debate, and he warned against the suppression of any opinion, because no one person or group holds a monopoly on truth. Even opinions that we may find mistaken—perhaps such as democratic socialism—or indeed offensive, must be heard and challenged openly, for only through such dialogue can society discern truth from error. Voltaire was right on this. I must admit I find it a bit disappointing that the Liberal Democrat Benches are not more enthusiastic about these amendments.

By protecting employees from dismissal or discrimination based on their political opinions or affiliations, these amendments would ensure that the workplace remains a forum where diverse ideas can be expressed, scrutinised and debated. Suppressing political expression risks silencing valuable perspectives and preventing the emergence of truth through robust discussion.

We in this House pride ourselves on opening our minds to a broad range of political views. Obviously, that involves robust engagement, challenging each other and refining our positions through vigorous debate. If such diversity of opinion is essential to the functioning of this Chamber, why would it not apply beyond these walls, and particularly in other workplaces? Workers, like us, should be free to express their political beliefs without fear of losing their jobs or being discriminated against.

In conclusion, I urge the Government to accept my noble friend’s amendments. To go back to the great liberal John Stuart Mill, he also said:

“A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury”.


This is not the time for inaction. These amendments not only would protect workers from unfair dismissal and discrimination but would uphold our fundamental democratic values. By embedding these protections into our laws, we would reaffirm our commitment to free expression. I am afraid saying just that they are not necessary is not good enough. They clearly are necessary, as we heard in the examples from my noble friend.

[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, I thank all noble Lords who have spoken. I think it would be helpful if I first clarify where the law stands on this.

On Amendment 101B, tabled by the noble Lord, Lord Young of Acton, let me make it clear that religious and philosophical beliefs are already protected by the Equality Act 2010, including in the workplace. However, political belief—in the sense of a party-political affiliation or opinion—was not included as a protected characteristic in the Equality Act 2010. The noble Lord referred to the Grainger case. That case and the definition that the noble Lord read out referred to the issue of philosophical belief, which is already protected by the Act.

In 2015-16, the Equality and Human Rights Commission reviewed whether Great Britain’s equality and human rights legal framework sufficiently protects individuals with a religion or belief and the distinction of a religion or belief organisation while balancing the rights of others protected under the Equality Act 2010. The review found that the definition of religion or belief in the Equality Act is sufficiently broad to ensure wide protection for many religions or beliefs. It recommended no change to the definition of religion or belief or to the approach that the court should take in deciding whether any particular belief is protected under the Act.

We are not convinced that a political opinion or affiliation should be specifically protected by amendment to the Equality Act 2010 in contrast to other religions or beliefs. The extent of protected beliefs has been developed in case law, and we have not been presented with strong evidence that any legislative amendment is necessary. The amendment the noble Lord is proposing would potentially cause legal uncertainty over its relationship to the protected characteristic of religion or belief in Section 10 of the Equality Act, which has a much wider application than just the workplace.

The Government frequently receive calls for new protected characteristics—there have been over 21 suggested to date. While some of these carry merit, it simply would not be practical to include these all in the legislation, which would quickly become unmanageable for employers and service providers to follow, and for courts and tribunals to process and judge.

The noble Lord referred to the European Convention on Human Rights. The courts and tribunals will always be required to balance competing rights on the facts of a particular case, including the rights to freedom of thought, conscience and religion, and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights, as well as academic freedom.

Noble Lords have referred to a number of individual cases. They will appreciate that I cannot comment on individual cases. However, I can assure them that free speech is a cornerstone of British values. We are firmly committed to upholding the right of freedom of expression, which is protected by Article 10. I also absolutely agree with my noble friend Lord Monks that, in many cases—and preferably in all cases—it is ideal for these issues to be resolved by common sense at the workplace.

Turning to Amendment 141A, I seek to reassure the noble Lord that further legislative provision on this matter is not needed. Through the Bill, the Government are creating a day one right against unfair dismissal. As the noble Lord, Lord Young, acknowledged in his explanatory statement, additional protections for employees already exist under Section 108(4) of the Employment Rights Act 1996, which currently ensures that claims for unfair dismissal on the grounds of political opinion or affiliation are not subject to any qualification period. I can reassure the noble Baroness, Lady Kramer, that, while dismissal on the grounds of political beliefs and affiliations is not automatically unfair, if brought to a tribunal, the tribunal could find that it was unfair based on the circumstances at hand.

As we have said, these issues will very often have to be decided by a tribunal, based on the facts of the case. This will obviously also have to apply to the noble Lord’s amendment as well. I agree with the noble Baroness, Lady Kramer, that the delays in employment tribunals are a very real challenge that we are very conscious of, and we have already reported elsewhere in other debates on the Bill that we are taking steps to address this.

Relevant case law sets out the circumstances where political beliefs may constitute a philosophical belief for the purpose of the Equality Act 2010. In these cases, discrimination provisions could apply. Following a judgment from the European Court of Human Rights, the qualifying period for bringing a claim of unfair dismissal relating to political opinions or affiliation was removed, further strengthening employees’ access to justice in instances of unfair dismissal based on political views. The Bill ensures that claims for dismissal on this basis continue to be treated in the same way as claims for automatic unfair dismissal by carving them out in a new Section 108A from the requirement that any employee must have started work before a claim can be brought.

We regard this as the right approach. Making dismissal for political opinions automatically unfair, as this amendment seeks to do, would fundamentally change the way that free speech is considered in relation to dismissal for the holding of views or the expression of views that the employer regards as unacceptable. It could sweep up such a wide range of views as to be unworkable. As sufficient protection against dismissal for political beliefs already exists, I ask the noble Lord to withdraw Amendment 101B.

[Lord Young of Acton (Con)]

I thank all noble Lords who spoke in support of my amendments. I echo the tribute made by the noble Baroness, Lady Fox of Buckley, to the journalist Patrick O’Flynn, who has just been taken from us so ahead of his time. I appreciate the remarks from the noble Baroness, Lady Kramer, who I note did not oppose the amendments, although she was a little bit sceptical about the case I had made. I also thank my noble friend Lady Verma for her intervention.

In response to the Minister’s remarks, as she says, some political beliefs are protected by the Equality Act. The issue is that not all political beliefs are protected by the Equality Act. I gave some examples and I will give just one more: an employment tribunal decision that a belief in Scottish independence is protected, but a belief in unionism is not. There is often not much rhyme or reason to these employment tribunal decisions, because the Grainger test leaves so much room for bias, interpretation and subjective judgment. I am merely asking the Government to bring the Equality Act into line with the European Convention on Human Rights. Article 14 lists the characteristics that should be protected and includes the words “political … opinion”. That means all political opinions, not just those you disagree with.

Finally, I come to the intervention from the noble Lord, Lord Monks, and point out that Saba Poursaeedi did not lose his job at the housing association because he was tactless or undiplomatic; he lost it because he was intending to stand as a candidate for Reform UK. The association had no misgivings about his performance in his role; indeed, it promoted him. He was a model of tact and diplomacy when dealing with the residents managed by the housing association. That was not the reason he was fired. The noble Lord is, of course, welcome to join the Free Speech Union, and I hope that he does. I have reached out to Gary Lineker, not to defend him in any case he might want to bring against the BBC—which I do not think he intends—but because the police have said they may now be investigating his remarks. I reached out to him and said that, if that happens, we will provide him with a solicitor and, if necessary, a barrister.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lord, Lord Vaux of Harrowden, and my noble friends Lady Neville-Rolfe and Lord Lucas for their amendments and their thoughtful contributions in this group. It has been a most interesting debate. I will speak to my Amendments 103, 113 and 123.

I completely agree with the noble Lord, Lord Vaux, that it would be much better to get this right now rather than pursuing Amendment 103 in particular, which returns to the Government’s insufficient impact assessment. The assessment that has been produced states that this provision will have one of the highest impacts, yet, as we have mentioned before, the Regulatory Policy Committee has given the Government’s analysis in this section a red rating. The RPC’s critique is not a matter of minor technicalities because it identifies serious deficiencies in the Government’s case for intervention in the options that they have considered and in the justification for the policy that they propose. The Government’s impact assessment admits that it lacks robust data on dismissal rates for employees with under two years’ service. To answer the question from the noble Lord, Lord Vaux, there is no evidence for that. It proceeds regardless, however, with only superficial reference to “asymmetric information” and without any substantive analysis of any market failure.

The RPC highlights the impact assessment’s failure to consider how long-serving employees might view the equalisation of rights for new joiners—an issue of fairness and workplace cohesion that the Government have ignored. The impact assessment itself mentions that options such as reducing the qualifying period to 18 months or one year were considered and rejected without detailed assessment. No real exploration of probation periods was provided. That is not a balanced appraisal of possible alternatives; it is a justification for a predetermined decision.

On the justification of the preferred option, the impact assessment is again found lacking. The RPC calls for clarity on the costs to businesses—the costs of managing performance, handling disputes and the increased settlements to avoid tribunal risks. It also questions whether the Government have considered evidence from existing unfair dismissal claims and how risks might vary across sectors or job types, particularly in roles where reputational damage from a claim might deter employers from hiring at all.

More significantly, the Government have not addressed indirect and dynamic labour impacts, such as whether day-one rights might lead to more cautious hiring, greater use of temporary contracts or weaker overall job security. These are not abstract concerns as they go to the heart of how this policy might reshape employment relationships across the country. Noble Lords might be interested in a real example. I was talking this morning to a senior executive at a FTSE 100 company. It is an exemplary employer in every way; for example, offering many day-one rights. But this year—partly as a result of the jobs tax but also in anticipation of the Bill—it has reduced its hiring by 84%. I repeat that for the record: 84%. This is not abstract or theoretical. This is real, this is now.

It is important to note that these likely labour market impacts are not accounted for in the £5 billion cost to businesses, so the real cost is likely to be significantly higher. The result is a policy with high ambition but little practical clarity, as the noble Lord, Lord Goddard, has just noted. How will unfair dismissal rights interact with a statutory probationary period? Will employers still have access to the same set of fair reasons for dismissal? Will there be a different threshold for acting reasonably during probation? Can probation be extended if needed? None of those questions has been clearly answered.

The noble Lord, Lord Leong, reminded us of the light-touch, nine-month proposal, but what does that mean in practice? My noble friend Lady Meyer asked that. At the same time, the Government’s own analysis predicts that granting day-one rights for unfair dismissal alone will result in a 15% increase in employment tribunal claims. Using the statistics given by the noble Lord, Lord Barber, that is an additional 750 claims per year, on top of the 50,000 backlog already waiting 18 months to two years. The noble Lord argued that this is, in effect, a statistical irrelevance, but it is not to the 750 business owners who are being dragged through courts. That is a substantial impact. It represents direct costs to businesses in terms of time, legal risk and, of course, the chilling effect on recruitment.

The tribunal system itself needs to be looked at. Without significant new investment it is hard to see how the system will cope with this 15% increase. The result could be longer delays, greater costs and justice deferred for all parties. In an earlier group we heard about a case that is going to take more than two years to come before a tribunal. Yet the Government intend to bring these changes into force in 2026. On what basis? There is nothing in the impact assessment that explains why 2026 has been chosen or how the system will be ready by then. Businesses will need time to revise contracts, restructure probation processes and train managers on the new rules. What assessment has been made of whether 2026 is realistic, with all those things in mind? What engagement has been carried out with employers, particularly SMEs, about what implementation will require?

It is not unreasonable to ask the Government to explain how the timeline was determined and whether it is genuinely achievable, given the lack of clarity in both the policy detail and the supporting evidence. We all agree that employees deserve fair treatment, particularly in the vulnerable early stages of employment, but employers must also have a reasonable opportunity to assess performance, capability and suitability without the immediate threat of litigation.

We have established that there is no evidence for any of this clause. In fact, when the noble Lord, Lord Hendy, was arguing his point, he said that it is very difficult anyway for employees to take a case to an employment tribunal. The noble Lord, Lord Barber, as I just mentioned, said it is, in effect, a statistical irrelevance. If there is no evidence, it is too difficult and it is a statistical irrelevance, why are we bothering at all?

I want to raise a final point that others, particularly my noble friends Lady Neville-Rolfe and Lady Noakes, have referred to. It is not just about the policy itself; it is a more troubling concern. The policy will create unintended incentives, but for whom? It is not just about employers scaling back hiring overall but about who they stop hiring. If we remove the qualifying period for unfair dismissal and provide no workable probationary mechanism, we tilt the hiring incentives away from risk-taking, as we have heard. It will, in effect, stop employers taking a punt.

Right now, a small business owner might be willing to take that chance on someone with no formal qualifications, or from a non-traditional background, or re-entering the workforce after a time away. That chance exists because the employer has a short window to assess their suitability—and vice versa, of course—before facing the full weight of employment litigation risk. If that safety net is removed and exposure begins from day one and the probationary period lacks clarity or legal protection, that same employer will think twice. They will play it safe.

Noble Lords opposite should pay attention to those of us who have employed people. It is a simple fact. Who is going to suffer? It is not the already advantaged candidate with a polished CV. It is the young person with gaps in education, the career switcher with no references, the working parent returning after years out of the labour market, or the person coming back to work after a long period of illness. Noble Lords opposite should reread the speech given by my noble friend Lord Elliott, with his experience of the Jobs Foundation. He explained this much more eloquently than I just have. Those are the people who benefit from flexibility and second chances and who may now find those doors quietly closed.

This goes to the heart of social mobility and genuine workplace diversity. I would like to ask the Government a rhetorical question: have they considered the incentives this policy creates? If they have not—both common-sense experience of real working life in the private sector and, indeed, the RPC suggest that they have not—we risk designing a policy that sounds progressive but, in practice, reduces opportunity for the very groups that we should be helping the most. We need a decent impact assessment, and my amendment would allow for it.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. As there have been a number of questions about our intentions with these clauses, I think it would be helpful to clarify them and put them on the record.

Clause 23 introduces Schedule 3 and repeals Section 108 of the Employment Rights Act 1996, thereby removing the two-year qualifying period for protection against unfair dismissal. Schedule 3 further amends the 1996 Act, including the introduction of a statutory probationary period in legislation. Schedule 3 also removes the two-year qualifying period for the right to request written reasons for dismissal. Any employee who has been dismissed after the statutory probationary period will have the right to written reasons for dismissal within 14 days upon request.

The legislation will introduce a statutory probationary period that will maintain an employer’s ability to assess any new hires. Schedule 3 allows the duration of a statutory probationary period to be set in regulations by the Secretary of State following consultation. The Government’s preference, as we know, is for this probationary period to be nine months in length. Schedule 3 also creates the power to modify the test for whether dismissal during the probationary period is fair for reasons of performance or suitability for the role.

The Government’s intention is to use this power to set light-touch standards for fair dismissal during probation. The power will be limited to the following reasons for dismissal, which, under Section 98 of the Employment Rights Act 1996, qualify as potentially fair reasons: capability, conduct, illegality or some other substantial reason relating to the employee. The Government will consult on the light-touch standards and proceed to set out in regulations what specific reasons relate to the employee and when.

Schedule 3 amends the delegated power to set the maximum compensatory award for unfair dismissal so that a different maximum can be set for dismissals during the probationary period and when the light-touch standards apply. It is our intention to consult before the introduction of any new cap on awards.

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[Baroness Jones of Whitchurch (Lab)]

The noble Baroness is absolutely right. She will know that I share her ambitions for the tech sector. The UK remains the number one country for venture capital investment, raising $16.2 billion in 2024—more than either Germany or France—and since last July we have secured £44 billion in AI investment. Strengthening employment rights and giving day-one protections can help support talented people to take the leap into a start-up company.

I turn to Amendment 104, tabled by the noble Lord, Lord Vaux. Setting a statutory probationary period during which light-touch standards will apply is a crucial part of our plan to make work pay. I can reassure the noble Lord that setting out the detail in regulations is fundamental to fulfilling this commitment. It is not necessary to make this a requirement in legislation.

The noble Lord, Lord Vaux, asked a number of questions. He, the noble Baroness, Lady Coffey, and others asked why the Government are doing this. The UK is an outlier compared to other OECD countries when it comes to the balance of risks and entitlements between the employer and the employee. We believe that it is an important principle that employees should have greater security at work. Our reforms will mean that around 9 million employees—31% of all employees —who have been working for their employer for less than two years will have greater protection against being unfairly dismissed.

[Lord Vaux of Harrowden (CB)]

I hate to interrupt the noble Baroness at this late hour, but that is just a repeat of what has been said before; it is not a tangible quantified reason for doing this. Yes, for a short period of time, they will have greater security in theory, but the downsides of this—they are in the Government’s own impact assessment—are really clear. The Government say that this will reduce the life chances of people who are riskier hires. It will cost business hundreds of millions of pounds. There is no quantification of that benefit against those downsides, and I am still not hearing that.

[Baroness Jones of Whitchurch (Lab)]

I will talk about the impact assessments in more detail shortly, but the noble Lord will know that it is a lot easier to identify the costs in impact assessment than the benefits. We have worked with academics who are looking at this subject. I reassure the noble Lord that we have looked at this and are confident that the benefits in this particular case will outweigh the risks.

I will pick up the point made by other noble Lords about cultural fit and other reasons why an employer might want to dismiss somebody during their probationary period. Dismissal for “some other substantial reason” is a catch-all category designed to allow employers to terminate an employment contract where no other potentially fair reasons apply. There can be cases where dismissal is legitimate and reasonable; “some other substantial reason” dismissals depend on the facts and circumstances of the employment relationship. “Some other substantial reason” is broad, and case law supports personality clashes in workplace teams or a business client refusing to work with an employee being a potentially fair reason for dismissal. The Government do not believe that an employee not being a cultural fit within an organisation should be a fair dismissal per se. We would expect an employer to be able to dismiss someone fairly only if any cultural misfit was relevant in a reasonable manner to the employer’s business objectives and the needs of the workplace.

The noble Baroness, Lady Noakes, mentioned employees with spent convictions. I gently point out to her that dismissing an employee solely for having spent convictions is currently unfair and potentially grounds for an unfair dismissal claim—

[Baroness Noakes (Con)]

I never mentioned spent convictions; I referred merely to the risk of employers taking on ex-offenders. I cannot think of a point I could have made in relation to spent convictions. The issue is these categories of potential employees who a represent higher risk in terms of judgment to employers, and I was using former offenders as one example of that.

[Baroness Jones of Whitchurch (Lab)]

I apologise if I misunderstood the noble Baroness’s point. I can only reaffirm the point I was making: with all these issues, there can be reasons for fair dismissal during the probationary period, and we have set out quite clearly what the grounds for that would be.

Amendment 107A was tabled by the noble Lord, Lord Lucas. As always, he thinks outside the box and comes up with interesting ideas, including the idea of a probationary period here in your Lordships’ House, which I am sure we all have strong views about. Going back to the specifics of his proposal, the Government have expressed an initial preference for a nine-month statutory probationary period. We intend to consult with stakeholders and the wider public before committing to a duration, which will be set by the Secretary of State through secondary legislation after this consultation has taken place. Maintaining this flexibility allows the duration and calculation of the statutory probationary period to be adapted in light of future changes in employment practices.

Amendment 108, tabled by the noble Lord, Lord Vaux, would also amend Schedule 3 to the Bill. It is of great importance to this Government to get the length of the statutory probationary period correct. The Government have already stated in Next Steps to Make Work Pay their preference for the statutory probationary period to be nine months in duration. However, this is subject to consultation, and I hope that this reassures the noble Lord, Lord de Clifford, on that matter.

On Amendment 334, tabled by the noble Lord, Lord Vaux, while I recognise what the noble Lord is seeking to achieve with his amendment, I reassure him, and the noble Baroness, Lady Meyer, that the Government have no intention of removing the two-year qualifying period until the regulations setting out the statutory probationary period are in force. We will, of course, give businesses time to prepare, and we are engaging with them already. These provisions will not commence before autumn 2026, which will give time to prepare. I hope that this reassures the noble Lord, Lord Goddard.

I move on to address Amendments 103 and 123, from the noble Lords, Lord Sharpe and Lord Hunt, in respect of their mandates for further impact assessments. The Government have already produced a comprehensive set of impact assessments, published alongside Second Reading, and based on the best available evidence of the potential impact on businesses, employees and the wider economy. Our analysis includes an illustrative assessment of the impact on employment tribunal cases, which we intend to refine over time by working closely with the Ministry of Justice, His Majesty’s Courts & Tribunals Service, ACAS and wider stakeholders. I am grateful to my noble friend Lord Hendy for setting the record straight about the impact of tribunals, and the thorough ways in which they conduct their proceedings. Many cases settle in advance, and we want to encourage more cases to reach a settlement with proper advice and support. I am also grateful to my noble friend Lord Barber for putting the scale of the problem in perspective, with only 5,000 cases referred to ACAS in 2023-24.

We will publish an enactment impact assessment once the Bill receives Royal Assent, in line with the requirements of the Better Regulation Framework. This will account for ways in which the Bill has been amended in its passage through Parliament, to the extent that those changes significantly change the impact of the policy on the enforcement system. This impact assessment will then be published alongside the enacted legislation.

To follow up on the impact of this, we acknowledge that the policy is expected to benefit close to 9 million employees, driven by well-being benefits arising from increased job security for those with under two years of tenure. There will be costs to businesses, including familiarisation and compliance costs, from this change. However, businesses could benefit through improving their people management and hiring practices, which could deliver medium to long-term benefits, such as higher labour productivity. In addition, increasing employee well-being could increase worker productivity. These benefits will be tested further during consultation.

The Government have also pledged to conduct a consultation on unfair dismissal policy, to collect feedback from employers and employees. Specifically, the Government have outlined that we will consult on the length of the statutory probationary period, and the potential cap on compensatory awards for unfair dismissal occurring during the statutory probationary period. I can reassure the House that there is no need for the Bill to require the Government to undertake further assessment of the impact on tribunals before commencement. We will be updating our impact assessments in any case, alongside the consultation on implementing the various provisions in the Bill.

I turn to Amendment 113, tabled by the noble Lord, Lord Sharpe of Epsom. The Government are not proposing to expand the five potentially fair reasons for dismissal that have been a central part of employment law for decades. An employer’s decision to dismiss an employee in the early stages of their employment or otherwise will have to be underpinned by a fair dismissal reason, such as capability or conduct. It stands to reason that these would be the most likely dismissal reasons when employees fail their probation.

I am grateful to all noble Lords for tabling these amendments but, for the reasons set out, the Government cannot support them. I therefore ask that Amendment 103 be withdrawn.

[Lord Sharpe of Epsom (Con)]

Again, we are being promised a blizzard of consultations, but can the Minister give me any idea when those consultations will take place? Can we also have some assurance that all the employer organisations will be consulted on this occasion? From our conversations with many of them, they do not feel particularly consulted up to now.

[Baroness Jones of Whitchurch (Lab)]

First, on the issue of consultation, I assure the noble Lord that there have been a considerable number of consultations, not only with the main employer organisations but in terms of working parties working on particular aspects of the Bill, and those will continue. That consultation will continue—and I have now forgotten his other question.

[Lord Sharpe of Epsom (Con)]

Will the Government consult with employer organisations?

[Baroness Jones of Whitchurch (Lab)]

Yes, I can confirm that that is the case.

[Baroness Coffey (Con)]

The Minister has not addressed the fact that there are already powers in existing legislation to modify the qualifying period. The Minister talks about going into consultation, but that consultation on the probationary period could start right now with the SI, and that element. I struggle to understand why we have to wait such a long time when, actually, the Government could get on with their policy a lot more quickly.

[Baroness Jones of Whitchurch (Lab)]

That has reminded me that that was the other question asked by the noble Lord, Lord Sharpe—so I thank the noble Baroness for raising it.

As we have said before, we are working on an implementation plan, which we hope to share with noble Lords as soon as we can. It is in my interests as well as noble Lords’ interests that they see it sooner rather than later, but there is no point in sharing something that is not complete. Noble Lords will see that—and it will set out exactly what we are planning to do and where the consultations will fit in with all of it. I hope that when noble Lords see it, it will reassure them.

To go back to the particular question from the noble Baroness, Lady Coffey, we see this as a wholesale package. It is right that it is introduced to employers as a package; it will have appropriate timescales in it. We do not want to do things on a piecemeal basis, we want to do them in the round. That is why we are attempting to address this in the way that we are proposing today.

[Baroness Neville-Rolfe (Con)]

Unfortunately, that is our concern—that we do not know what the detail is, and we are being asked to pass a Bill without all that detail, as I said in my speech.

There was a more technical point that I wanted to raise with the Minister, if she wants to come back to me. I set out how having to cover an extra 9 million employees is going to lead to huge amounts of extra compliance costs. She emphasised the benefits for the workers, but she did not at all address the monumental amount of paperwork. My noble friend Lord Sharpe raised a similar point. As he explained, all managers in all companies are going to have to prepare for this and work out how they treat their employees from day one and what paperwork is required. I am not convinced that there is any understanding of that.

When we had similar consultations on the minimum wage, when I was in business, which the noble Lord, Lord Monks, mentioned, there was a great deal of detailed consultation very early on on how it would work. I said in another debate how I was consulted about whether we could put it on the payslips—and I explained that it would cost us £2 million, so it would cost the whole economy an awful lot just to put the minimum wage on the payslip. That sort of detail is incredibly important, if you are bringing in regulation that affects all employers and potentially benefits all employees.

I urge the Minister to think about these things and not say that it is going into the long grass and that we will get an impact assessment ex post, but think about how employers will actually manage this.

[Baroness Jones of Whitchurch (Lab)]

I can assure the noble Baroness that not only have we thought about this but we are working very closely with the business sector to get this right. We understand that some of these things will take time. It takes time to change systems, and a lot of it is about changing computer systems for processing and so on. We are aware of this and, when the noble Baroness sees the implementation plan, it will reassure her that we have allowed space and time for it, as well as proper consultation with those who will be affected.

[Lord Vaux of Harrowden (CB)]

My Lords, it has been a long debate so I will try not to detain the Committee much longer. I thank the many noble Lords across the Committee who have contributed. It has been long because this is really important. I confess that I come out of the end of this debate feeling somewhat depressed. I still have not heard really why we are doing this, and what the real, tangible benefits are, to offset against the very real negative impacts, particularly on those who are looking for employment and are perhaps disadvantaged in one way or another: they have not worked before, they are young, they have a gap—we heard all the various examples. The Minister did not really address that point terribly clearly in her speech, and it is so important.

This may be, as the Government have regularly called it, a Bill for workers. However, as I said at Second Reading, it is not a Bill for people who want to work—the potential workers who were mentioned by the noble Lord, Lord Elliott. He stole my Charlie Mayfield quote, but I will not worry about that. It is true that Denmark has much easier hire and fire, and he was using that as a paragon of virtue because it allows people who are harder to hire to get into employment, which is so important.

In the interests of being constructive, I hope the Minister understands the real concerns about those people and the impact the Bill is going to have on them, and the negative impacts this section of the Bill will have. I hope that she will be prepared to spend a bit of time with us between now and Report to try to find solutions to those negative impacts, to minimise the problems and downsides that they will cause. I say to the noble Lord, Lord Monks: I am not making this up, or crying wolf, as with the national minimum wage, as the noble Lord suggested. This is what the Government say will be the impact. I cannot emphasise that enough. It is not me saying that; the Government say this will be impact. If we can try to work together before Report, to try to find ways of knocking the edges off this and reducing the negative impacts, that would be very helpful. With that, I will not oppose Clause 23 standing part of the Bill.

Employment Rights Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[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, this has been a good introduction to the further debates we will have today on provisions in the Bill on harassment. I am grateful to the noble Baronesses, Lady Kramer and Lady Morrissey, for tabling Amendment 82A. Both made important points about investigation and action being crucial.

The Government agree that while the preventive duty places broad requirements on employers, it is important to ensure that specific steps are taken by employers to combat sexual harassment in the workplace. This is why, in addition to strengthening the preventive duty, we are introducing a delegated power, enabling us to specify steps that are to be regarded as reasonable for the purpose of meeting the obligations set out in the Equality Act 2010 to take all reasonable steps to prevent sexual harassment.

The regulations may also require an employer to have regard to specific matters when taking those steps. The regulations that the power will introduce will help clarify what is expected of employers, as well as guiding the EHRC or employment tribunals when taking enforcement action. These steps may include requirements on employers to undertake investigations following complaints and action recommendations, in addition to the requirements set out in the ACAS code of practice on disciplinary and grievance procedures. To better understand what steps are effective and proportionate, we have launched a call for evidence, and we will give responses careful consideration.

I have to say to the noble Baroness that it would be premature to introduce specific requirements in relation to investigations at this stage. I ask her to withdraw Amendment 82A, but I hope she will take on board that I am happy to continue discussions with her on these issues after the call for evidence concludes. I am sure we can reach an agreement going forward on that basis.

[Baroness Morrissey (Con)]

My Lords, I thank the noble Lord, Lord Hunt of Wirral, and the noble Baroness, Lady Kramer, for their thoughtful remarks, and in particular for highlighting the need for investigation and action to protect the victims.

I was slightly surprised at the grouping of this amendment, as it probably sits better among the other provisions and amendments designed to combat sexual harassment that we will be discussing later.

I am glad to hear from the Minister that a consultation is planned, which may include provisions requiring employers to conduct proper investigations. I look forward to hearing further about that. But for now, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friends Lord Young of Acton and Lady Noakes very much for their expert, valuable and important introductions to and insights into this group. I also thank my noble friends Lady Meyer, Lady Lawlor, Lady Cash, Lord Strathcarron, Lord Ashcombe and Lord Murray for their practical, legal and philosophical objections to Clause 20, which, as noble Lords will perhaps not be surprised to know, I do not regard as straw-man arguments. It was also wise of my noble friends to note that these amendments have the support of UKHospitality. They also have the support of the British Beer and Pub Association.

These amendments are vital in ensuring that we do not inadvertently restrict fundamental rights of free expression in the workplace and beyond. We all recognise the importance of protecting employees from harassment. It is not about not caring about their plight, as the noble Lord, Lord Fox, implied; it is about also ensuring that we are not creating a framework that stifles open and honest conversation. That is especially true in matters of political, moral, religious or social debate.

Clause 20 as it stands is, as my noble friend Lady Cash pointed out, poorly drafted and therefore risks leading to unintended consequences. In fact, I agree with the comments of the noble Baroness, Lady Deech, about the speech from the noble Baroness, Lady Carberry, who made a very persuasive case that Clause 20 is superfluous in its current form.

The inclusion of speech or conversation that simply expresses an opinion on a political, moral, religious or social issue would lead to significant restrictions on individuals’ freedom to speak openly. This could lead to employees feeling that they cannot express their thoughts and ideas or, perhaps worse, would be penalised for expressing an opinion that someone else may find uncomfortable or offensive. As my noble friend pointed out, we must be mindful of the unintended consequences that could arise from an overbroad definition of harassment. Both he and the noble Lord, Lord Londesborough, gave strong examples from the footballing world. If I may speak as a fellow West Ham United fan, I am very aware that being a supporter of that august club can be a very testing experience that can drive one to the occasional profanity.

It is not just in sports that these concerns arise. Think about public spaces such as pubs, about which we have been hearing. If an individual overhears a conversation that they find offensive or upsetting, where does the line lie? What happens if somebody misunderstands something that is said and it is taken to an employment tribunal as a case of harassment? In such situations, the burden placed on employers would become unreasonable. Would they be required to intervene every time someone overhears an opinion that they find discomforting or just dislike?

If I may ask a genuine question, how are people supposed to judge, to quote the noble Baroness, Lady Carberry, whether a conversation is obviously fake or not? As my noble friend Lord Young and the noble Lord, Lord Londesborough, argued, are we expecting publicans to make finely calibrated judgments on ECHR Article 10 in particular? We should remember that even senior police officers, who are trained in these matters, often struggle to make such judgments. Employers will inevitably err on the side of caution and that is chilling.

I believe that we must ensure that harassment in this context remains focused on behaviours that are truly indecent or grossly offensive, not on speech that is merely uncomfortable or challenging. People must have the right to engage in conversations, to express differing opinions and to debate issues of public importance without the fear of being accused of harassment. To allow an employer to be forced or encouraged into silencing this kind of expression would be a serious violation of freedom of speech, which is a cornerstone of our democracy and society.

The amendments before us offer balance. They ensure that employers are not required to protect their employees from hearing or overhearing expressions of opinion, provided that those opinions are not indecent or grossly offensive. This is a reasonable and sensible approach. It respects individuals’ rights to express their views without creating an environment where every opinion has the potential to be deemed harassment.

Moreover, these amendments recognise the specific context in which such protections should apply. By excluding certain sectors, such as the hospitality industry, sports venues and higher education, we acknowledge the diverse nature of these environments where debate, disagreement and the expression of differing opinions are often the fabric of daily life. To apply the same strict rules in these settings as we would in an office environment or a more controlled space would be misguided. The noble Lord, Lord Fox, may well say that this is not the purpose of Clause 20. However, as my noble friends Lady Cash and Lord Murray pointed out, the drafting means that that is unlikely to be the effect.

The requirement for repeated instances of harassment before an employer must take action, as outlined in Amendment 86, aligns with the principle of proportionality. We should not expect employers to become the arbiters of every comment or opinion expressed, especially when such comments are made in good faith. The amendment rightly recognises that harassment should be defined as something that occurs repeatedly, not something that might result from a single isolated incident of disagreement or discomfort. I agree with my noble friend Lord Young of Acton that this is a solution in search of a problem or, based on his statistics, a sledgehammer in search of a nut.

When the Minister responds, can she please answer my noble friend Lady Noakes’s point on territorial extent? These issues are clearly not going away, so I urge the Government to take them very seriously. As it stands, Clause 20 is garbled and needs rewriting.

[Baroness Jones of Whitchurch (Lab)]

I thank all noble Lords who have spoken. I hope I can reassure the Committee of the Government’s approach, as well as set straight some considerable misunderstandings on how the provisions will operate. I stress at the outset that the provisions in the Bill will protect employees while preserving existing human rights, such as freedom of speech, which I hope we can all agree are core British values. Also core to our identity is the belief that with rights come responsibilities.

I will first address the noble Lords, Lord Young of Acton and Lord Strathcarron, and the noble Baroness, Lady Fox, who oppose Clause 20. I am grateful to the noble Lord, Lord Young of Acton, for meeting me to share his views. When we met, he pushed his position that our proposals are anti-banter, and he has reiterated that today. I make it clear that we are anti-harassment, not anti-banter, and this is what Clause 20 delivers.

I agree with the noble Lord, Lord Fox, that I feel that we have been subjected to a wave of synthetic rage by many on the other Benches this evening, who have given examples that simply would not be covered by the harassment provisions in Clause 20. Removing Clause 20 would not only go against the manifesto on which this Government were elected but deprive employees of protection from all types of harassment by third parties under the Equality Act 2010. This Government are committed to tackling all forms of harassment in the workplace. In order to make workplaces safe, we must require employers to create and maintain workplaces and working conditions free from harassment, including by third parties.

For example, if a woman is sexually harassed by a customer at work today, she has very few effective options by which to seek legal redress, even if her employer has made no effort whatever to address the issue. The only possible employment law action in this scenario at present is for the Equality and Human Rights Commission to exercise its unique enforcement powers against the employer. However, such powers can be used only very selectively and strategically by the commission, and would be unlikely to be used in anything other than an exceptional case.

Sexual harassment is, sadly, not the only type of harassment that is experienced in the workplace. Employees can experience racial harassment or harassment related to their disability or other protected characteristics. In the case of non-sexual harassment, not even the possibility of enforcement exists at present. As such, Clause 20 is required for employees to be able to seek legal redress where they have experienced third-party harassment, and to ensure that employers are clear about their responsibilities.

--- Later in debate ---

[Baroness Fox of Buckley (Non-Afl)]

I would like some clarity. There is some confusion over what the definition of harassment is in law. If you asked whether I was for the harassment of employees and workers, I would of course reply that I am not, but we have to look at the way the law defines harassment, particularly indirect harassment and some of the issues that were raised.

Despite the noble Lord, Lord Fox, imagining that we have all been whipped up into some synthetic rage by the noble Lord, Lord Young, because we are incapable of working out for ourselves what we think about a piece of legislation, there is concern about free speech. I am confused about what the Minister is saying free speech is. She keeps saying that we cannot allow unacceptable behaviour. Is that part of the legislation? What unacceptable behaviour is she referring to? Is it detailed in the law? Which things is she talking about? It is one thing to say that a football team has rules, but have the Government come up with a new behaviour code in this Bill that society must adopt? If they have, I have not seen the details.

[Baroness Jones of Whitchurch (Lab)]

There is harassment, and what we are debating now is third-party harassment. Obviously, tribunals would have to take into account the practicality of enforcing third-party harassment, and I have been trying to set out the grounds on which it would be considered either reasonable or unreasonable. That would have to be considered case by case, but nevertheless the issue is very different from an employee’s absolute right not to be harassed directly in the workplace.

[Baroness Lawlor (Con)]

I am a bit puzzled as to how the tribunal will measure this alleged harassment, given the different interpretations that could be put on it. There are some conflicts, as we have heard today.

[Baroness Jones of Whitchurch (Lab)]

I thought I had explained that in my description, and I do not really want to have to repeat it. I explained the grounds that would be considered when comparing harassment with acceptable behaviour.

Amendment 85 also seeks to significantly reduce the scope of Clause 20 by excluding the hospitality sector, sports venues and higher education. This would create a disparity and a hierarchy of protections across employers and sectors, leaving swathes of employees without equal protection. This cannot be justified, given that employers in these sectors will be required only to do what is reasonable, and this will depend on their specific circumstances.

Amendment 86 seeks to reinstate the three-strike rule that was repealed in 2013. However, as I have explained, an isolated or one-off incident is much less likely to amount to harassment than continuing acts. The recent Free Speech Union campaign against this clause stated that

“when the Equality Act was originally passed, it included a clause making employers liable for the harassment of employees by third parties, but it was repealed in 2013 because it proved to be so costly and difficult for employers to comply with. We mustn’t make the same mistake again”.

We agree that we should not make that mistake again. We cannot see why the noble Lord, Lord Young of Acton, would wish to impose on employers the unnecessary costs and burdens that this amendment would bring. By contrast, the Government’s approach will make it simpler for employers to understand their obligations and will ensure that victims can be confident that they are protected by law.

[Lord Murray of Blidworth (Con)]

In relation to the last passage of the Minister’s speech, it appears to be the Government’s position that it is not accepted that carve-outs for three strikes are necessary because that would impose a burden on business. The Explanatory Notes to the Bill, and to the Equality Act, specifically state that in determining the effect of the unwanted conduct, courts and tribunals must balance competing rights on the facts of a particular case—the point that the Minister has just made. Will she not accept that the effect of the provision, as presently drafted, will be for a sensible employer to take overly defensive approaches to prevent actions being brought against them under these provisions? It is that reaction which will cause a stifling of free speech, and this Committee should be very worried about that.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I cannot see why we should carve out some of the most customer-facing sectors, where the sorts of harassment we are talking about are probably more prevalent. I cannot see the point of that. Surely every employee in this country has the same right to be protected from harassment, and that is what we are attempting to achieve. Most of the pubs and sports grounds that I frequent already have these policies, so it is a minority of pubs—obviously the sorts of pubs that the noble Lord, Lord Young, likes to go to—that do not have them. I think most people would like to frequent places where they feel that the employees are treated with respect and are protected.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, can the Minister explain why Clause 21 gives power to the Secretary of State to make provisions in relation to reasonable steps only for sexual harassment and not non-sexual harassment? I think she said something about it being an area in which there is evidence that this would be useful—I cannot remember her exact words. I cannot understand why the Government have not extended the logic of giving assistance in this area to tribunals beyond sexual harassment, especially given the broadening of the extent of non-sexual harassment by including third parties.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I can say only that it is for the reasons I have outlined previously in my speech. We want to make sure that where we broaden the protections, it is done on a very careful basis and achieves the desired effect.

[Baroness Noakes (Con)]

We are not talking about broadening protections; we are talking about setting out what constitutes reasonable steps in the case of sexual harassment, which is included in Clause 21, and other kinds of harassment, which, incomprehensively, are not included. I am simply asking why the Government have gone down that particular route.

[Baroness Jones of Whitchurch (Lab)]

My Lords, the easiest thing is for me to write to the noble Baroness to explain this. It is obviously based on previous experiences of case law and so on. I will write to the noble Baroness.

Her previous question was about the Bill’s jurisdiction over overseas employees. While I cannot necessarily speak to the example that she raised, the Bill does not broaden the jurisdiction of employment tribunals beyond their current jurisdiction over any overseas employees. The situation will remain as it stands.

[Baroness Noakes (Con)]

Can the Minister explain what the current jurisdiction is? What is the current territorial extent for all tribunal cases?

[Baroness Jones of Whitchurch (Lab)]

My Lords, I presume that it is where employees are based here in the UK, but if I am wrong I will write to the noble Baroness and clarify that.

In conclusion, I am grateful to all noble Lords for tabling these amendments but, for the reasons set out, the Government cannot support them. The Government are on the side of workers, not abusers. We will ensure that workers have the fair protections at work that they deserve. I therefore ask that Amendment 83 is withdrawn and that Clause 20 stands part of the Bill.

[Lord Fox (LD)]

I asked the Minister to set out in detail how future regulations and these clauses will work in practice. I hope she is able to take that on board between Committee and Report.

[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.

[Lord Young of Acton (Con)]

My Lords, I thank noble Lords on all sides of the Committee who have contributed to an excellent debate. Just on the final point made by the Minister, the Government’s commitment to academic freedom and free speech and upholding them in universities was not particularly clear at the beginning of the Government’s term. Bridget Phillipson torpedoed the Higher Education (Freedom of Speech) Act within days of getting her feet under the desk and agreed only reluctantly to implement some of the clauses that were due to be implemented last year, on 1 August, thanks to a judicial review brought by the Free Speech Union.

I am not sure that the Minister responded to the very good question that my noble friend Lady Noakes asked about whether the liability of employers for third-party harassment would extend to their employees overseas.

I would like to respond in a bit of detail to the points made by the noble Baroness, Lady Carberry of Muswell Hill. One of the safeguards she mentioned against the overapplication of Clause 20 is that only an employee with the relevant protected characteristic could sue if they had been offended or upset—if they felt harassed—by virtue of that protected characteristic. But that is not quite accurate. You do not have to have the protected characteristic in question to sue your employer for failing to protect someone with that protected characteristic from being harassed, as established in the case of English v Thomas Sanderson Ltd, in which someone successfully sued their employer in the employment tribunal for not protecting a notional employee with the relevant protected characteristic, when she herself did not have that protected characteristic.

The noble Baroness also said she thought it very unlikely that an employee could sue their employer for failing to take all reasonable steps to protect them from overhearing remarks, jokes, expostulations et cetera made by customers or members of the public. But in the case of Sule v Shoosmiths in the employment tribunal, a woman did successfully sue her employer, Shoosmiths, for a conversation she overheard about immigration. She was a Nigerian lady and she overheard a conversation —not directed at her—which she found upsetting or offensive by virtue of her protected characteristic. If that woman had been employed in Downing Street and had overheard a conversation between the Prime Minister and his aides last week about the speech the Prime Minister was about to give about immigration, it may well be that she could have sued the Civil Service for not taking all reasonable steps to protect her from being harassed in that way—overhearing a conversation about immigration that she found offensive or upsetting.

If the noble Baroness, Lady Carberry, sincerely believes that Clause 20 is not intended to be invoked to ban banter, why not accept Amendment 88, which would exempt employers from being sued for indirect third-party harassment? We have heard the argument over and over again on the other side of the Committee that the amendments that my noble friends and I and other noble Lords have suggested as ways of improving the Bill and clarifying exactly what steps employers would need to take to protect their employees from third-party harassment are completely unnecessary because the clause is not intended for things such as overheard conversations—banter—to be in scope. But it seems a little naive to imagine that the clause will be applied only in ways that the Government currently intend. What about unintended consequences? The noble Baroness said that she was not anti-banter, just anti-harassment. I am anti-unintended consequences. If you want to avoid those unintended consequences materialising, these vexatious complaints being brought in the employment tribunal or eccentric decisions being made by the tribunal, why not clarify exactly what the limits of employers’ liability are by accepting some of these amendments?

The noble Lord, Lord Fox, accused me of erecting a straw man and said that I was trying to generate synthetic rage about the risks I claim arise from this clause. Well, it is not synthetic—it is real. I know this because the Free Speech Union has taken on at least five cases in which people have been silenced because of a misunderstanding about the scope of the Equality Act due to a belief that the Equality Act, as it stands, requires employers to protect their employees from third-party harassment.

The noble Baroness, Lady Fox of Buckley, mentioned that one of the likely consequences of this clause is that gender-critical feminist groups might find it difficult to book spaces in pubs and other venues for fear that trans and non-binary employees of those venues might object that merely inviting women with those views into the pub would constitute a form of harassment. That has happened three times. We have cases of gender-critical feminist groups being ejected from pubs because the managers have misunderstood what their responsibilities and legal duties are under the Equality Act. They believe that those duties extend to protecting their trans and non-binary employees from being harassed by allowing third parties to discuss views they find offensive, deeply upsetting or disagreeable.