Employment Rights Bill

Lord Carter of Haslemere Excerpts

Committee stage
Wednesday 18th June 2025 Lords Chamber

[Lord Katz (Lab)]

My Lords, I thank the noble Lord, Lord Sharpe of Epsom, for tabling amendments relating to the fair work agency’s powers. Clause 94 introduces a single power to enter business premises and inspect workplaces. The noble Lord’s Amendment 271ZB would limit this power to such an extent that effective enforcement of the legislation, including the national minimum wage, would be extremely difficult. We are not amalgamating labour market enforcement into one single agency to diminish its effectiveness. This amendment would, in effect, prohibit the site visits that most minimum wage investigations rely on and bring an end to a system of state enforcement that has worked well for 25 years. The result would likely be an increase in claims to the employment tribunal. Given the noble Lord’s concern about employment tribunal capacity, I urge him to withdraw his amendment.

I turn to Amendment 271ZBA. While powers of entry are generally exercised on a consensual basis, in some situations it is critical that officers are able to carry out their duties quickly, particularly if they suspect that giving advance notice could give rogue employers time to destroy or tamper with evidence. None the less, in response to the concerns raised by both the noble Lord, Lord Sharpe, and the noble Baroness, Lady Lawlor, an officer will not enter a premises if a person is not present but will instead notify the person to rearrange a time to enter the premises. As the noble Lord, Lord Sharpe, mentioned, a warrant could be issued by a justice only if they are satisfied that there are reasonable grounds for entry, and judicial oversight ensures that warrants are granted only when appropriate, protecting businesses from unwarranted inspections while enabling legitimate investigations.

Clause 128 and Schedule 8 were added to the Bill to put in place appropriate safeguards relating to the execution of warrants. As I said, this approach will continue under Part 5 of the Bill, but with additional safeguards, such as needing a warrant before exercising powers to enter a dwelling. Extending this warrant requirement further to include all business premises would be a disproportionate and retrograde step in enforcement terms. It would introduce additional powers and bureaucracy, and create an unnecessary burden on the warrant system.

Amendment 271ZD is unnecessary. There are already extensive safeguards in the Bill around the use of investigatory and enforcement powers. These safeguards are designed to ensure that the use of enforcement powers is lawful and proportionate. In addition, enforcement officers are highly trained and carry out investigations under a strict code of conduct.

Clause 107 largely carries over the existing appeal grounds from the notice of underpayment regime contained in the National Minimum Wage Act 1998, which, as I said, has been functioning successfully for over 25 years. In fact, I recall debates in previous days of Committee around the effectiveness of minimum wage enforcement and the fact that not enough rogue employers have been named and shamed. The process as it stands is well known and understood by businesses and individuals. Changes risk adding confusion and uncertainty, leading to additional complexity and litigation.

Amendment 273LA would constitute a drastic downgrade in labour exploitation enforcement. The Gangmasters and Labour Abuse Authority can and must occasionally use force under PACE powers to rescue victims of modern slavery and tackle serious labour exploitation. Indeed, it is through the use of those powers that we saw two modern slavery convictions and 13 slavery and trafficking risk and prevention orders in the last reporting year of 2023-24. To reassure the noble Lord, Lord Sharpe, as is currently the case, the use of PACE powers will be strictly limited to a small number of officers, as set out in their letters of appointment, and subject to stringent IOPC oversight functions and complaints and misconduct procedures.

I am sure the whole Committee will agree that we must tackle the scourge of modern slavery. The Bill is designed to strengthen employment rights in a clear, coherent and enforceable way. Unnecessary additions or alterations, however well-meaning, could compromise that aim. On that basis, I ask the noble Lord, Lord Sharpe of Epsom, to withdraw his amendment.

[Lord Carter of Haslemere (CB)]

My Lords, I think the Minister explained that the reasons against requiring a warrant to be issued by a magistrate included the fact that an employer might destroy documents that were the purpose of the need to enter the premises. In those circumstances, why could the clause not say that, if the enforcement officer can show the magistrate reasonable cause to have concerns about the destruction of a document, they could apply on an ex parte basis for the search warrant? That would mean there would not be that risk of the destruction of documents in advance.

[Lord Katz (Lab)]

The noble Lord raises an interesting point, though I fear straying into legal territory, which I am not adequately briefed to comment on. I will write to him with further detail on the specific example he set out.

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[Baroness Lawlor (Con)]

My Lords, I follow my noble friends by supporting the amendments tabled by my noble friend Lord Sharpe and voicing very strong opposition to Clause 113. I could not believe it when I read this clause. I could not believe that a third party—the Secretary of State—could bring proceedings on my behalf to a tribunal if I did not want proceedings brought. Nor did I think that subsection (6) was worthy of any government Bill. One could go through the whole of this clause and find something very wrong with it on many grounds.

There are many reasons why a worker may not want to proceed with a claim. He or she may not wish to bring proceedings because of the hassle involved, the delay, the stress to themselves and their family in waiting for the tribunal—which can never hear a claim quickly—the potential impact on his or her reputation, or a perfectly natural desire by an employee to settle things amicably with their employer. There are many individual reasons: family reasons, personal reasons and professional reasons. What right have we to give the Secretary of State powers to override that basic individual liberty in order to bring a case which someone may not want to be brought?

One can only wonder why such a clause is there—that the Secretary of State can bring proceedings, presumably, against a worker’s will or inclination. We can only assume that this may be due to workplace political pressures exercised by others in the workplace, perhaps by union members who want these cases brought as test cases and for the taxpayers to pay, or by others who have the ear of government.

This is a very sectional Bill in the interest of one vested interest group. I have said it before during proceedings, but it is not for the Government of this country in a parliamentary democracy to sectionalise the law in favour of one interest group or another. Clause 113 is particularly dangerous, and I support my noble friends’ amendments to it. I hope the Government will not proceed with it.

[Lord Carter of Haslemere (CB)]

My Lords, I support the comments made, particularly those of the noble Lord, Lord Murray. This is an extraordinary clause; I am not aware of anything else on the statute book like it.

My practical question to the Minister is: if the Secretary of State takes it upon himself or herself to go to court on a worker’s behalf, and the worker is strongly against that, what will that do to the relationship between the worker and the employer? It could absolutely devastate that relationship, because the employer will greatly resent the fact that the Secretary of State is taking proceedings on behalf of the worker, even if the worker has said that they do not want those proceedings brought. This is not good for industrial relations at all.

I really urge the Government to rethink this. What are its practical implications? How will it work in practice if the worker is against it? Will they be called as a witness by the Secretary of State, if necessary? Will they then be a hostile witness? It is all a complete and utter mess, I am afraid. I was not planning to speak on this, but this is an extraordinary clause and I urge Ministers to drop it completely.

[Lord Jackson of Peterborough (Con)]

My Lords, I was happy to sign the clause stand part notice with my noble friend Lady Coffey. I am thinking of the words of Zhou Enlai, I think, who, considering the French Revolution, said, “What did they mean by that?” I look at this clause and think, “What do they mean by this?” Maybe the Minister will open the trinket box at the end of this process and let us into the secret of this bizarre, perverse clause, but I really cannot see the point of it.

I am mindful of the fact that we are surrounded by very accomplished lawyers, so I will not get too much into law, but lawyers and others will be aware that Magna Carta—1215; I know the noble Lord, Lord Katz, likes a history lesson occasionally in Committee—resiled from the arbitrary power of the state. It is an arbitrary power of the state for it to insert itself into civil litigation without any real methodological basis, any timeline or, as my noble friend Lord Murray of Blidworth so rightly said, any tests being met. That is very odd.

Perhaps the Minister will enlighten us as to the rationale. The clause is novel. It is completely perverse and unheard of, to be quite honest, because it will engender a disputatious regime, more litigation and more disputes in the workplace. It will have a deleterious effect on business, commerce and profitability, and on how businesses are run. What tests will the Minister use? How likely is it that these powers will be used and at what likely cost? Is there any impact assessment or opportunity cost as to the use of these powers?

Why does subsection (2) leave agricultural workers out of the process? There may be a specific sectoral reason for that, but that is a reasonable question to ask. Why are they not swept up in these powers? Why are their rights not circumscribed to not get involved in civil litigation in respect of employment?

Finally, the most bonkers part of a truly epically bonkers clause is subsection (7). It is so crazy that it could have been written by the Liberal Democrats, but it would be unkind to make such an observation. My noble friend Lady Coffey has already made the point that you do not even have to be a worker to have the Secretary of State impose themselves into your potential litigation on a matter; you can be someone seeking employment as a worker. Presumably, anyone who is of working age can be affected by this clause. Subsection (7) also states that a worker is defined more widely as an individual who is a worker for the purposes of Part 4A of the Employment Rights Act 1996.

I really do not understand the rationale for or the logic behind this clause. The Minister is clearly aware of the great disquiet that it gives rise to, and I hope she answers the specific points made, not least by the noble Lord, Lord Carter of Haslemere. It takes something for a noble Lord of his experience in the law to say that this is the most perverse and strangest clause he has seen in a piece of primary legislation. On that basis, I hope the Minister will respond to that and answer those specific points that noble Lords, in particular the noble Lord, Lord Carter of Haslemere, have raised.

Employment Rights Bill

Lord Carter of Haslemere Excerpts

Committee stage
Monday 16th June 2025 Lords Chamber

Amendment 271 seeks to enhance transparency and effectiveness in enforcement. It would require enforcement officers to report annually on how existing schemes and accepted standards are being used to support their work. Again, I ask the Minister whether the Government are considering a mechanism like this to ensure that enforcement standards and efforts are aligned with existing frameworks and standards. I look forward to the Minister’s response. I beg to move.

[Lord Carter of Haslemere (CB)]

My Lords, I will speak to Amendments 263A and 279ZZA, which in content are quite closely connected with the amendments that the noble Lord, Lord Sharpe, has been discussing. It was gracious of the Minister to meet me to discuss my amendments. This is how the legislative process should ideally work, with give and take on both sides, and I am looking forward to the “give” bit of that from the Government.

My Amendment 263A seeks to ensure that the Secretary of State cannot direct enforcement officers in how and when they exercise their powers. As the Bill stands, enforcement officers will have no separate legal identity from that of the Secretary of State. They will simply be part of a so-called fair work agency that will have no independent legal status. This is why the fair work agency is not mentioned in the Bill, which refers only to the Secretary of State and his or her enforcement officers. Legally, the so-called fair work agency is the Secretary of State.

Because enforcement officers will, for legal purposes, be the Secretary of State, Ministers and their advisers would, but for my amendment, be able to direct the way they exercise their enforcement powers. As belt and braces, Clause 87(6) confirms this where it provides that an enforcement officer can exercise his or her powers only “to the extent specified” in their appointment by the Secretary of State.

So what are those enforcement powers? Under Clause 93, enforcement officers will be able, at the bidding of Ministers, to require a person

“to attend at a specified time and place and to provide information by answering questions”

or providing documents. Under Clause 94, they will also be able, at the bidding of Ministers, to

“enter any premises, and … inspect or examine … or … seize”

documents and retain them for as long as necessary, as well as examine computers. No warrant of a court generally seems to be necessary to enter business premises; a warrant will be required only to enter a dwelling, a place where people live.

Let us be clear, Ministers will acquire all the powers of the Gangmasters and Labour Abuse Authority, which is being abolished. These powers include investigating possible labour market abuse and breaches of modern slavery legislation, HMRC’s powers to investigate compliance with the national minimum wage and the powers of the director of labour market enforcement. The full list of legislative powers transferring to the Secretary of State is set out in Schedule 7, paragraph 35 of which confers an extraordinarily wide Henry VIII power on the Secretary of State to add, by regulations, any enactment that affects the rights of employees and trade unions and the duties of employers.

This is not all. Clause 98 allows enforcement officers—let us remember that that is the Secretary of State—to be granted certain police powers under the Police and Criminal Evidence Act, including to search, arrest and interview suspects in relation to labour market offences. The Bill before us would transfer all this to the Secretary of State. It is a startling acquisition of intrusive new powers by the Executive. Effectively, the Secretary of State will, through his or her enforcement officers, have his or her own employment rights police force to direct operationally in whatever way he or she chooses. This is in contrast, for example, to our regular police forces and the National Crime Agency, which are both operationally independent of the Home Secretary. It is unlike HMRC, which is a non-ministerial department, precisely to ensure that it operates at arm’s length, with complete operational independence from Ministers to ensure that the administration of the tax system is fair and impartial. It is also unlike the soon to be abolished Gangmasters and Labour Abuse Authority, the day-to-day operational activities of which are, as a non-departmental public body and not part of the Crown, currently independent from government.

In its report on the Bill of 4 April 2025, the Constitution Committee said:

“Powers to enter and search premises and to seize property represent a significant interference with individual liberty. They are ordinarily vested only in recognised legal officials who typically operate independently of, or at least at arm’s length from, the government. Given the range of enforcement powers potentially exercisable under the Bill on behalf of the Secretary of State, we are concerned that the Government has not provided sufficient reassurances about the safeguards for this regime”.


This is the point of my Amendment 263A. It is imperative that the Bill makes crystal clear that enforcement officers appointed by the Secretary of State enjoy complete operational independence from Ministers and their advisers in the way they carry out their wide-ranging and draconian powers. If it does not, it is not impossible to imagine an unscrupulous Secretary of State requiring them to operate in a way that is not in the public interest and might even constitute an abuse of power, to target an unfriendly media organisation for political purposes or for some other wholly inappropriate purpose—who knows?

To quote the great Master of the Rolls, Lord Denning, in the iconic constitutional case of R v Commissioner of Police of the Metropolis, ex parte Blackburn, establishing the operational independence of the police, the commissioner of police

“is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one … The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone”. 

This analogy is not perfect, but the principle is the same: it is the importance of operational independence from Ministers by those exercising investigatory and enforcement powers.

My second amendment in this group, Amendment 279ZZA, seeks to ensure that exactly the same inspection, complaints, misconduct, governance and accountability arrangements as currently apply to the Gangmasters and Labour Abuse Authority apply to enforcement officers when they are exercising their extensive powers of oversight, inspection, training and accountability, and complaints procedures. Some of the amendments to which the noble Lord, Lord Sharpe, has spoken are getting at the same thing by a different route.

This is all the more necessary given that the powers of the independent Gangmasters and Labour Abuse Authority, which is a non-departmental public body and therefore a non-Crown body, are passing to the Secretary of State. The Minister may say that the Secretary of State is sufficiently accountable for enforcement officers because of the requirement for an annual report to be laid before Parliament, detailing the extent to which enforcement functions are being exercised in accordance with the labour market enforcement strategy. However, that is akin to marking your own homework.

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[Baroness Jones of Whitchurch (Lab)]

I did cover that, but now I have forgotten what my answer was. I will write to the noble Baroness, but I think it was in my earlier contribution.

I reiterate on the small business question that businesses that comply with their obligations should not see any increased burden from enforcement activity. The fair work agency will target only the minority of employers engaged in illegal practices, so including specific carve-outs could create loopholes that bad actors might exploit. In fact, businesses of all sizes stand to benefit from a fairer labour market where exploitative practices are actively addressed as this will create a level playing field for all.

Let us not forget that we are creating the fair work agency to deliver an upgrade to the enforcement of workers’ rights. If we created a carve-out for businesses based purely on size, we would be creating a two-tier system for enforcement. This is unfair for workers and businesses.

Amendment 268 risks compromising the balanced representation of the advisory board. The current drafting has been carefully chosen to reflect the social partnership model that has served the Low Pay Commission and ACAS well for many years. The noble Lord, Lord Sharpe, asked on behalf of his noble friend Lord Holmes whether representatives of labour market standards would be on the advisory board. The Secretary of State will appoint individuals if they are considered to be independent experts. That recruitment and selection process will include a thorough assessment of the applicant’s qualifications, experience and potential conflicts of interest.

Vulnerable workers have been waiting for the fair work agency for years. It will deliver the worker protection enforcement authority that was proposed in the Liberal Democrat 2024 manifesto and the single enforcement body that was the policy of successive Conservative-led Administrations. It now forms a key plank of the plan to make work pay, a key manifesto pledge upon which this Government was elected. Bringing together the fragmented labour market enforcement landscape has been a policy aim for successive Governments. We cannot let this critical policy be delayed any more. I therefore ask the noble Lord to withdraw Amendment 263ZA.

[Lord Carter of Haslemere (CB)]

I am very grateful for what the Minister said in response to my amendments. I think she said that the framework document will state that enforcement officers will have complete operational independence from Ministers, which is reassuring to know. Presumably, therefore, it would be possible for the terms of appointment of enforcement officers under Clause 87(6) to state the same thing. Clause 87(6) states that:

“A person appointed under this section may exercise any powers of an enforcement officer to the extent specified in the appointment”.


There is another perfect place in which to reassert that they are operationally independent of the Secretary of State.

[Baroness Jones of Whitchurch (Lab)]

I said earlier in my contribution that the letters of appointment made to these people will spell out their duties. Obviously, their relationship to the Secretary of State will be spelled out in the letter of appointment. I have said several times now that they will be operationally independent, so that could be a key message in those letters of appointment.

Steel Industry (Special Measures) Bill

Lord Carter of Haslemere Excerpts

Committee stage
Saturday 12th April 2025 Lords Chamber

[Lord Fox (LD)]

My Lords, I will speak to Amendment 5, which is in my name and that of my noble friend Lady Brinton.

The whole House heard my contribution during the take-note debate, and I am grateful for the subsequent supportive comments that noble Lords made to me afterwards. Amendment 5 reflects that contribution. As noble Lords can see, it calls for a debate in Parliament after six months. That would be a substantive debate on which the House could vote if it so decided.

The whole House also heard me pledge to work constructively with the Government to get a solution to the question of giving Parliament an opportunity to debate a possible continuation or cessation of these emergency powers. I hope that the constructive discussions we have had over the past hour or so will bear fruit and that the Minister will be able to accept the spirit, if not the letter, of Amendment 5 from her Dispatch Box. Like the noble Baroness, Lady Coffey, we too have, in a sense, lifted experience from Covid, but—with all due respect to her—we believe that Amendment 5 offers more flexibility to the Government while also giving the oversight that Parliament needs at a level that is not overbearing.

These are emergency powers and periodic debate is essential. Equally, the Minister called for sufficient flexibility for the power to be either kept or discarded. We should recognise that there will be times when this may need to be turned on and turned off, and the process I propose would allow that happen. Our amendment provides for that flexibility while also somewhat enhancing parliamentary scrutiny. I hope that the Minister can reassure your Lordships that she agrees with us.

[Lord Carter of Haslemere (CB)]

My Lords, I will make a brief supplementary point to the points made by the noble Lord, Lord Fox. I cannot support a sunset clause of the sort proposed by the noble Lord, Lord Hunt. That would cause these provisions to cease altogether after 12 months, and I think these provisions are necessary—albeit very draconian, as has been accepted.

I would have gone for a different option that combines a sunset provision with a debate, of the sort that we used to have with the Prevention of Terrorism (Temporary Provisions) Acts, year after year, from 1989. We would have a clause providing for the expiry of the provisions after a certain period—be it six or 12 months—subject to renewal by an order subject to affirmative resolution. That would mean there would then be a debate in each House and approval would be required for the provisions to continue. We would have a debate but would also have the provision for expiry if the Houses voted for that. That is not here, but I am reassured that the noble Lord, Lord Fox, thinks that his amendment could procure a vote, because that is the key to this, with these powers being so draconian.