Employment Rights Bill

Baroness Kennedy of Shaws Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

If we are to end that chain of scandals, we have to become serious about the way we deal with harassment and whistleblowing. The modest steps that have been recommended in these amendments are ones the Government can take up; then, the much more significant issue has to be followed up in a later context. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I will speak to Amendment 101 in my name, in which I am joined, as we have heard, by the noble Baroness, Lady Kramer, but also by the noble Baroness, Lady O’Grady, who, of course, was the leader of the TUC, and by the noble Baroness, Lady Morrissey, from the world of finance and business. Many people in this Committee are going to support some way of dealing with the misuse of non-disclosure agreements.

I make it clear that there is no suggestion here of banning NDAs generally. There is a role for NDAs—people leaving employment should not be able to take with them the secrets of the company or its client list, for example. What we are talking about is the misuse of non-disclosure agreements to silence complainants, particularly women complaining of sexual harassment and abusive conduct by employers, supervisors, the boss, fellow workers or the client of an employer. I remind the Committee that since NDAs came into existence, complainants have been coerced into signing such an agreement on bringing a complaint in the workplace. Often, it is a way of waving people out and into non-employment in that workplace.

I emphasise that the amendment would not ban all NDAs. It is not preventing the use of NDAs in such proper cases as I have mentioned. But if the complainant requests a non-disclosure agreement because that is what, let us say, she would like to have, the amendment requires that she be offered independent legal advice. I am very supportive of the suggestion made by the noble Baroness, Lady Morrissey, that there be some way in which that might be funded, certainly in the corporate world, by the employer. We may be able to talk through in this Committee how provision might be made for the employee to be given that kind of independent advice, separate from the lawyers for the firm.

The independent advice has to involve advising on more than just a non-disclosure agreement but also on all the other alternatives that might be available to a worker who has experienced harassment, sexual harassment, abusive conduct or bullying. There has to be full consent if the exemption is going to work. In general, what we are calling for is that a non-disclosure agreement should not be used to silence complainants. I make that simple and clear. I cannot understand why that would be resisted by a progressive Government seeking to create good workplaces.

This amendment lists persons whom a worker may be allowed to speak to. I advised Zelda Perkins, who was just mentioned by the noble Baroness, Lady Kramer. She had signed a non-disclosure agreement all those many years ago relating to Harvey Weinstein, because of something that had been done not to her but to her coworker. She was encouraged to sign it and she and the coworker, who had been seriously abused, were ushered out of Miramax with a payment. They were in their early 20s at the time and accepted the settlement, knowing no better. In the years that followed, they often felt deeply regretful about the way in which that happened and that they were put in the hands of lawyers chosen by the employer. They signed non-disclosure agreements which said they could not speak to their doctor or to any lawyer or therapist, and that they could not take support from any other source.

That is why my Amendment 101 mentions the kind of people one ought to be allowed to turn to and confide in. People need to be able to do that. Non-disclosures should not prevent people taking support from a family member, spiritual counsellor, community elder or the many other people I have listed.

This amendment deals with one of the problems that takes place. The reason why Zelda Perkins eventually breached her non-disclosure agreement and spoke out—with great fear, because she thought she would then be sued by Miramax—was the public interest that arose at the time. She wanted to support the many other women who had stepped forward and were being disbelieved, because she could explain that she had been subjected to that kind of pressure when she was speaking to the abuse that had been experienced by her colleague at work. She ended up fearful and took legal advice because she was worried that she would be sued for speaking out.

That is why we are asking that non-disclosure agreements should not be misused in this way to silence women. I have had the experience over the last few years of chairing inquiries in a number of different circumstances. One of the shocking things that comes to light is the frequency with which non-disclosure agreements are used for this purpose and the number of times that these agreements are used basically to usher somebody out of the business. The person with power, who is more senior in the organisation, gets away with it and there is no way of remedying it.

Non-disclosure agreements and their misuse should be addressed in the Bill. I urge the Government to do so. I hope that, at the end of all this, we will be able to come together with the Government to find an amalgamation of the number of somewhat similar amendments here to really deliver justice for women in the workplace.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will speak to several amendments in this group that I have signed, which are all very good.

Non-disclosure agreements can be exceptionally toxic and corrosive, because they can be used to cover up wrongdoing by an employer. It is a very dangerous game. They are not simply a contractual arrangement between two willing parties; the employer’s wrongdoing could affect other employees as well, so their effect is much wider than on the employee who is party to the agreement. I very much support Amendments 98 and 101, and I hope that—as the noble Baroness, Lady Kennedy, says—we can find common agreement on them. The noble Baroness, Lady Kramer, did a very thorough skate-through of all of this, so I will mention only three of the amendments that I have signed.

I feel very strongly about this. Whistleblowers save public money and expose bad practice. They should be celebrated, yet they are treated as traitors by professions, public services and corporations. Amendment 147 would turn that around by placing a duty to investigate on those organisations. My own experience of a whistleblower was when a police officer came forward and told me about the domestic extremist database that I was on. Thousands of other people were on that database as well, including journalists, MPs—such as Caroline Lucas—and local councillors. There were all sorts of people on it, but the two things we all had in common were that none of us had committed a criminal act of any kind and that we had all said things that challenged the status quo. That was enough to get us on to that domestic extremist database.

I cannot imagine how much it cost. The police were tracking all of us and keeping details of what we were doing, such as when I spoke in Trafalgar Square or went on a cycle ride. All these things about me were kept on that database—what an absolute waste of police time and taxpayer money for pointless spying. I put everything out on social media, so they could have just followed me there. Ex-spy cop Peter Francis blew the whistle on how the special demonstration squad was spying on the noble Baroness, Lady Lawrence, when she and her husband were campaigning to get justice for their dead son.

Whistleblowers need reassurance that they will be taken seriously, and giving the company or organisation they work for a duty to investigate would provide that. It would also combine with the Government’s new duty of candour to help change the culture of many organisations. I know the Minister is keen to speed up the Bill’s progress, and I do not think that this side of the Chamber is helping in any way, but the current laws are outdated and inadequate, so rather than spending ages examining the whole subject, it would be good just to adopt the very modest Amendment 147.

Amendment 126 would ensure that those whistle-blowers left out by the existing framework finally receive legal protection. The last 25 years have seen a massive rise in self-employment and subcontracting. There are now many more people in workplaces who may spot wrongdoing or risks who have no legal remedy if they blow the whistle. The Post Office Horizon scandal saw hundreds of sub-postmasters wrongly accused and sometimes imprisoned for fraud and false accounting. Lots of people knew that the Horizon system was going wrong from very early on, but the sub-postmasters did not have the legal protection to blow the whistle.

This amendment also grants whistleblowers strong protection from blacklisting when applying for work. At present, only job applicants in the NHS are protected from discrimination as whistleblowers. We encourage those NHS workers to speak up because it saves lives, but we allow workers in the building industry to be blacklisted for raising health and safety concerns that would stop deaths on dangerous sites. Some of those in the building trade had to emigrate to find a job; this amendment would have helped protect them. I understand the Government saying that they need to consult first, but a lot of that legwork was carried out by the previous Government. It seems ridiculous not to publish that whistleblower framework immediately so that we can make change happen faster.

Amendment 281 seeks to make express provision for court discretion to void non-disclosure clauses in employment contracts. The growth of the use of non-disclosure agreements is a big concern. Recent allegations that gagging clauses contributed to the cover-up of decades of sexual abuse by former Harrods owner Mohamed Al Fayed have once again led to calls to ban them here in the UK. Last September, the BBC revealed that five women claimed that the billionaire Mohamed Al Fayed raped them while they were working at Harrods department store. We have already heard that, as others were, they were forced into signing an NDA to prevent their speaking out. These agreements, as I described them earlier, can be corrosive, toxic and immensely damaging to the individuals who sign them and then regret doing so.

This is a really important group. I hope the Minister can meet some of us to discuss a way forward to incorporate some of the sense of these amendments into the Bill.

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[Lord Lucas (Con)]

My Lords, did I catch the sense that the Government are looking to see what changes they can make now—for instance, picking up on the point that the noble Baroness, Lady Chakrabarti, made about the virtue of making it clear that you cannot enforce hiding criminal acts through a non-disclosure agreement? I absolutely agree that this would be something that would work well. The importance of people taking truly independent advice seemed to me to be another example. If indeed that is the case, could she apply the same logic to the amendment from the noble Baroness, Lady Kidron?

[Baroness Kennedy of The Shaws (Lab)]

May I just add to that? My concern is that my noble friend Lady Chakrabarti is right that, in law, one should not use contractual agreements to avoid criminal processes. However, you do not have criminal processes unless you have a complainant, and often women do not want to go through that process. They would rather have a settlement, but they want to be in control—it is about giving power to the person who is at the receiving end of abusive conduct. That is why we are asking that these amendments be considered, so that, in the light of the Government’s great commitment to the protection of women and girls, women and girls in the workplace have the opportunity of saying, “I would like an agreement, but I want it on my terms” and may choose anonymity so that it does not remain the case, as happens now, that women then carry it forward—they are the ones who bear the burden of having to go public with a complaint. Often, it affects their employment possibilities in the future.

This is about women being in the driving seat when there is a complaint of bad behaviour in the workplace. That is why just having a bland thing saying, “This is criminal conduct, if somebody squeezes a woman’s breast in the workplace or keeps patting their behind and so forth” is not good enough. Women should be allowed to say, “I do not want this to continue. I want to remain in my job. I want protection for my employment, and I want it to be dealt with by way of an agreement where I am in the driving seat”.

[Baroness Jones of Whitchurch (Lab)]

My Lords, the answer to both noble Lords—and I think I said this during my response—is that the amendments are all raising really important issues. There is an issue about the breadth of the issues and the extent to which we need to legislate or perhaps amplify things that are already the law but are not understood to be the law. We have more work to do on this, but we are working at pace on it. We still have time before the Bill passes through your Lordship’s House, so I hope we can make some progress during that time.

NHS: Single-sex Spaces for Staff

Baroness Kennedy of Shaws Excerpts

Thursday 1st May 2025 Grand Committee

[Baroness Kennedy of The Shaws (Lab)]

Colleagues, I apologise that I was a minute or two late. Unfortunately, I am disabled at the moment, and everything takes so much longer for me. As soon as I saw that it was a few minutes to 1 pm, I tried to make my way here in time.

I start by saying that I want to endorse what the noble Baroness, Lady Levitt, said. Like her, I have been a feminist all my life—but I am a lawyer, and I am here talking as a lawyer. I actually did the first international case representing a trans woman in relation to discrimination that she had received. As a result, I have had a number of cases since of some significance, relating to the violence that is experienced by trans women, also at the hands of men. Let us be very clear that this is not something that is experienced simply by biological women. The perception of womanhood itself can be enough to enrage certain men.

The judgment makes it clear that the decision was limited to the question of statutory interpretation and that it was not involved in making policy—so the difficult business of policy follows. But the judgment also made it clear, and it was emphasised—although unfortunately this has been lost in some of the utterances by people who should have known better—that its conclusion

“does not remove or diminish the important protections”

that there have to be for trans people and which are available to them under our own legislative commitments. The Supreme Court would probably be rather alarmed at the triumphalism that there seems to be about its judgment.

The Equality and Human Rights Commission is required to publish proposals before issuing a new code of practice and to consult such persons as it considers appropriate. I hope that is going to be really broad, because we have not seen clarity brought by this. We have seen a great deal of dissension and a great deal of fear. I have been contacted by many trans women to say that they felt comforted by some of the legislation that there has been and that they are now full of uncertainty: “What happens if I am caught short at Waterloo station on my way home from work, wearing my female business suit?” That applies especially when we are talking about older women—and we all know that access to facilities can be so important. I am concerned about the consultation process, and I really want to see this being done in the health service as well. There should be opportunities for individuals and organisations to have input into that process—not just the loud voices that we hear and not just those who seem to be very partisan.

One of the things that came with feminism was a belief in our humanity and in the treatment and compassion that we should expect of each other. All that seems to be lost in the toxic debate that is currently taking place. I urge this on the House. I see that the chair of the Equality and Human Rights Commission is here, and I would like to hear her being much more compassionate in how she discusses the rights of the trans community.

Employment Rights Bill

Baroness Kennedy of Shaws Excerpts

2nd reading
Thursday 27th March 2025 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I, too, welcome the new colleagues into this House and wish them well in their work as Members. I also congratulate the Minister on her introduction of this important piece of legislation. The world of work has changed and the expectations of workers, especially women, have also changed.

I very strongly endorse the speech made by the noble Baroness who bears the same first name as me, Helena—the noble Baroness, Lady Morrissey. She discussed non-disclosure agreements, and I will endorse all she said about their misuse to silence complainants who have been sexually harassed or bullied, or who faced discrimination, in the workplace. It is a problem that has been expressed and exposed time after time in our press. As the chair of a number of inquiries, I have directly seen how it affects lives in the workplace.

Non-disclosure agreements undoubtedly have an important place in employment. It is a way of protecting the intellectual property of an employer; nobody should be making off with a client list or stripping a business of its suppliers or the magic ingredient in a product. There are good purposes for which an NDA can be used, but, too often, they are frequently used to preserve the reputations of the powerful inside an organisation against the interests of those at the receiving end of abusive behaviours.

This was opened up back in 2018, when a woman called Zelda Perkins publicly breached her non-disclosure agreement with Miramax over the behaviour of Harvey Weinstein many years before. She had been paid off because she had raised a complaint on behalf of another woman with whom she worked. She ran the London office of Miramax and a woman had gone, as part of her work, to the Venice film festival with Harvey Weinstein and he sexually violated her. Zelda Perkins reported this to the headquarters of Miramax in the United States and had hardly put the phone down before there was a great posse of lawyers on her doorstep wanting to see her. Immediately, she and the young woman who had been sexually abused were presented with non-disclosure agreements. Lawyers were brought in to advise them that this was a sensible thing for them to do. They signed away their rights and were given compensation and they rushed off into the world of work and were told to get on with life. The non-disclosure agreement stipulated that the two women could not discuss the allegations—not only with the general public or tabloid newspapers but with lawyers, doctors, therapists, counsellors or anybody else. This was particularly devastating for the woman who had been violated.

Zelda Perkins bravely breached that non-disclosure agreement. It was in the public interest. It was very important that she was able to tell the story of how she and her colleague were silenced. She wanted to provide corroboration and indeed did in the litigation that followed.

In the public interest, it is important that we visit this, and I would like to see it included in this legislation. Yes, there can be an exemption, as the noble Baroness, Lady Morrissey, said, because some victims do not want the exposure, and that has to be respected—but only where they have had the opportunity of good legal advice. I hope that this House, persuaded by the many feisty women and their male colleagues, will agree that the Government should include this in the Bill in the way that the noble Baroness, Lady Morrissey, described.

Trade (Comprehensive and Progressive Agreement for Trans-Pacific Partnership) Bill [HL]

Baroness Kennedy of Shaws Excerpts

Report stage
Tuesday 16th January 2024 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, we cannot really hear the Minister; could he raise his voice?

[Lord Johnson of Lainston (Con)]

Yes, my apologies. Before I begin, I would like to declare my interests, which are very clearly listed on the Lords’ register. I have interests in limited companies and other companies active in CPTPP countries, but I do not believe there is any conflict of interest in this process today.

I will also say how excited I am about being back here today to cover Report stage of the CPTPP Bill. This incredible collective of millions of people, representing trillions of pounds-worth of trade, coming together will give huge benefit to us, and I am very excited about the opportunity for this great nation to add our trading muscle to what I think will be a phenomenal collective.

Importantly, I give a great deal of thanks to noble Members of this House who have contributed so much to the painstaking work which goes into crafting a Bill of this type and ensuring we come to the right conclusions in the right way. I know there have been a large number of you, many of whom are present today, but I particularly note the noble Lords, Lord McNicol and Lord Purvis, from the Opposition Benches, for their extremely collaborative and constructive input into the debates. My noble friend Lord Lansley, who we have just heard from, brings a wealth of experience, particularly on procurement. I am very grateful for his input. My noble friends Lady McIntosh, Lord Holmes, Lady Lawlor and a number of others, including the noble Baroness, Lady Hayter, and the noble Lord, Lord Kerr, have engaged with me. We still have one more stage after Report and I will be delighted to continue engaging with any Members of this House, or indeed any groups that noble Lords think it would be useful for me to engage with.

I will also set the scene briefly for the debates we are going to have on many of these respective issues. My noble friend Lady McIntosh is in her usual place, and I apologise, because I have been trying to reach her over the last few hours, but we have not had a chance to have a discussion. I reference this point because what happens today in terms of how we trade, or how we manage our own standards in this country, does not change tomorrow. I think it is important to summarise at the beginning of this debate that acceding to CPTPP in no way derogates our standards or our ability to control our standards and, indeed, our destiny. We have been very careful to ensure that the processes are indeed very separate.

I know that we will have these debates later, but it is worth re-emphasising this important point, which I think is sometimes lost in the excitement of CPTPP—the argument that somehow our standards, import requirements and so on change, when they do not. All food and drink products imported into the UK will still have to meet the respective food safety and biosecurity standards for the UK. We are not having to change any of our food standards as a result of joining CPTPP, and it is important to emphasise on these well-discussed points that hormone-treated beef and chlorine-washed chicken are banned in the UK and will not be allowed to enter the UK market.

I am very grateful to various agencies such as the Food Standards Agency, the Trade and Agriculture Commission, the International Agreements Committee and other groups that have been extremely focused on ensuring that these facts are properly reported. I am grateful to them for the backing that they have given me in ensuring that those statements are clear.

It is also worth pointing out that CPTPP preserves the right to regulate to protect human, animal and plant life and health. The TAC report says that the CPTPP does not require the UK to change its levels of statutory protection in relation to animal or plant life or health, animal welfare or environmental protection. I am well aware that noble Lords wish to cover these issues later in this debate, but it is important to set that scene.

There is one area I would like to draw on now, in advance of these discussions, regarding palm oil. I reassure the House that liberalising palm oil tariffs with Malaysia does not undermine the UK’s environmental credentials. We remain committed to supporting the sustainable production of palm oil. In 2021, 72% of UK palm oil imports were certified as sustainable, up from 16% in 2010.

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Maybe it is understandable that, 20 years ago when it joined the WTO, we were prepared to give the PRC the benefit of the doubt. But, like the Bourbons, we have learned nothing if we still think we can give it the benefit of the doubt. Today is an opportunity for Parliament to stand up for its rights to be able to speak on these issues, and to be able to vote to do so as well. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support this amendment. I should declare a number of matters. One is that I am the director of the International Bar Association’s Human Rights Institute, and we have taken quite strong positions with regard to China’s abuses of human rights, particularly in recent years with regard to the persecution of the Uighurs and in relation to its behaviour and conduct with regard to Hong Kong and its breach of the Sino- British agreement.

I declare also that I am the chancellor of Sheffield Hallam University, which is proud to have among its professors Laura Murphy, an American who lives here in Britain with her husband and who is one of the most well-recognised experts in the field of forced labour.

Professor Murphy’s work on China has been extraordinary. Others in this House who have read it will be aware of the depth of her work and the reliability of her research, which has informed the State Department in the United States and has been used by government departments here. Her work shows that forced labour is part of the problem of contemporary China. It is certainly part of the problem of the abuses of the Uighur people.

I support this amendment. Most of us in this House would agree that we have to avoid any dependence on authoritarian states. It is for that reason that some of us have deep concerns about not having the opportunity in future to scrutinise the ways in which China might be embraced in some of the multilateral—plurilateral—institutions, which it is very assiduously seeking in our contemporary world. The China of today is not the China that joined the World Trade Organization 20 years ago, as described by my friend, the noble Lord, Lord Alton.

China is displaying, under the presidency of President Xi, that it is seeking regional hegemony. The belt and road programme has shown the extent to which it has created an indebtedness among many nations which is then reflected in other things. We saw it happening recently in the motion that was placed before the United Nations General Assembly in relation to the crime of aggression committed by Russia with regard to Ukraine. We saw it in the vote that was taken on that issue, with all those countries that are indebted to China and that are in its purview because of the ways in which it has been involved in the building of infrastructure and so on across Africa and other places. I am afraid it is an example of that long arm affecting issues that should concern all of us, such as an illegal war. The extent to which China is seeking to enlarge its hegemony should be a source of concern to all of us.

I am not a hawk with regard to China. I believe that we must continue to have dialogue and that it is fruitful to have dialogue. However, we should be very cautious about being drawn into something which will give opportunities to a nation that is not respectful of that rules-based order which was being discussed earlier today. It is being very inventive and innovative in the breaking of the rules that we thought should apply to all nations.

The arguments have been very well made by the noble Lord, Lord Alton—the importance of us having the opportunity to debate, scrutinise and raise issues that are not known to everyone, particularly with regard to the abuses of human rights. We like to imagine that engagement can lead to a raising of standards. At the moment that does not seem to be happening with regard to China. We have been seeing it, as was just referred to, in what is happening with the introduction of national security laws and so on that are being used against trading people such as Jimmy Lai, a great entrepreneur himself. So I endorse and adopt the arguments that have been made by the noble Lord, Lord Alton.

I just mention that in applying to join the CPTPP there can be exceptions allowed and one of them is national security. When I see national security being referred to as a potential reason why there might be some opt-outs for some of the commitments one would expect in any agreement, it worries me because of what we have seen China doing with its national security law that it has been using in Hong Kong.

I adopt the arguments that have been made. I press the House to agree that this is a very sensible amendment. It is not asking very much; it is asking us to do what we normally do, which is to scrutinise and question some of the things that might be being done by our Government.