Employment Rights Bill

Lord Carter of Haslemere Excerpts

Committee stage
Tuesday 24th June 2025 Lords Chamber

[Lord Palmer of Childs Hill (LD)]

My Lords, in speaking to this group of amendments I note the sorry absence of my noble friend Lord Fox, whose contributions on these matters have always been thoughtful and constructive. Unfortunately, the Committee has me instead. I will focus in particular on Amendments 317 and 329, both tabled by my noble friend Lord Fox, which aim to provide much-needed clarity and certainty to small businesses as they seek to understand and comply with the provisions of the Bill.

Amendment 317 would require the Secretary of State to publish statutory guidance to support small businesses in meeting the employment and legal obligations introduced by this legislation. This is a modest and reasonable ask that would have a significant practical benefit. For many small businesses, compliance is a question not of good will but capacity. Unlike larger firms, they do not have in-house legal departments or external consultants on retainer. They need clear, accessible, authoritative guidance that they can rely on from day one. This amendment is not about watering down the law, nor is it about shielding firms from responsibility. It is about enabling small businesses to do the right thing without having to second-guess the detail or bear disproportionate cost in trying to interpret it.

Amendment 329 would build on that principle by making the commencement of the Act contingent on the publication and parliamentary approval of such guidance. It is important to say that we on these Benches understand the mandate that the Government won at the last election, and we have no intention of delaying the Bill beyond our duty to scrutinise it. However, this amendment reflects a deep concern about the real-world impact that the legislation may have on small businesses if clarity is not in place from the outset.

It is not necessarily about the measures in the Bill itself but about how they are communicated and implemented. Without clear guidance, there is a risk that well-intentioned businesses will fall foul of the law through no fault of their own. These amendments offer the Government a constructive route to avoid that outcome. I hope that Ministers will engage with them in that spirit. We are just trying to make it so that businesses, like the Minister, would know what they have to do. They need it to be set out. I hope that the Government will feel this is a possibility that they will consider before Report. I beg to move.

[Lord Carter of Haslemere (CB)]

My Lords, I will speak to Amendment 326 in this group. I begin by saying again how gracious it was of the Minister to meet me to discuss my amendments in advance a couple of weeks or so ago. My Amendment 326 is on the same theme of the need for impact assessments before provisions are brought into force. It provides that:

“Regulations which would amend primary legislation may not be laid … unless an assessment of the impact … has been laid before Parliament and three months has elapsed”


from that date.

Delegated powers that can amend primary legislation are, of course, known as Henry VIII powers. This derives from the Statute of Proclamations in 1539 when Henry VIII persuaded the Commons to include a provision in a Bill that would permit him to issue decrees having the same effect as an Act of Parliament and thereby bypass the normal parliamentary process.

Henry VIII powers can be draconian and raise real questions as regards compliance with the rule of law. This is not just my view. In his much-lauded Bingham lecture on 14 October 2024, entitled “The Rule of Law in an Age of Populism”, the noble and learned Lord, Lord Hermer, the Attorney-General, was obviously right when he said that excessive reliance on delegated powers, including Henry VIII clauses

“upsets the proper balance between Parliament and the Executive. This not only strikes at the rule of law ... but also at the cardinal principles of accessibility and legal certainty”—

issues that

“raise real questions about how we are governed”.

These are wise words indeed and very welcome, but I find it difficult to reconcile them with our Bill. As the noble Lord, Lord Hunt, pointed out at Second Reading, there are around 163 delegated powers in our Bill and 12 Henry VIII powers. As he powerfully put it:

“Ministers are, in effect, asking Parliament today to empower them to do whatever they decide to do, whenever they decide to do it”.—[Official Report, 27/3/25; col. 1845.]


The Delegated Powers and Regulatory Reform Committee, in its report of 24 April, described various Henry VIII powers in the Bill as, “overly broad”, “inadequately justified”, and an

“inappropriate use of the … affirmative process”.

As it said, Henry VIII powers are subject to far less scrutiny than primary legislation.

And this is the heart of the problem. Much of the legislation needed is yet to come, but it will not be capable of being scrutinised as it should be because of the reliance on Henry VIII clauses. It is a symptom of a rushed agenda but also, more worryingly, of a growing acceptance that Henry VIII powers are okay. They are becoming the default option.

The Select Committee on the Constitution, in its report, points out that Clause 24, “Dismissal during pregnancy”, and Clause 25, “Dismissal following period of statutory family leave”, both

“contain and extend Henry VIII powers that … act as placeholders while the Government consults further on the specifics of the measures to be implemented”.

This can mean only that

“substantive policy decisions have not yet been taken”

on those issues. But it also means a lack of certainty about how the provisions will operate in practice, which the Select Committee-considered to be “particularly concerning”, given that the provisions enable primary legislation to be modified.

In addition, Schedule 7 contains a list of extensive legislative powers in connection with labour market enforcement, under Part 5, which are passing to the Secretary of State. Paragraph 35 confers on the Secretary of State a Henry VIII power to add by regulations any enactment which affects the rights of employees, trade unions and the duties of employers.

These extensive enforcement powers in Part 5 also need to be considered alongside Clauses 151 and 153. These clauses contain a power to make any consequential provision, which may amend, repeal, revoke or otherwise modify

“any provision made by or under primary legislation passed before, or in the same session as … this Act ... and may make different provision for different purposes or … areas”

or

“contain supplementary, incidental, consequential, transitional or saving provision”.

The Government may respond that the power to make consequential provision is confined to what is purely consequential. That is true, but what is purely consequential turns on the scope of the provisions they are said to be in consequence of. Combining these consequential powers with the wide powers in Part 5, for example, would seem to give the Secretary of State the power to confer on his enforcement officers even wider powers when entering offices to search and seize documents, if they are in some way connected with the operation. I think even Henry VIII would have been impressed. His 1539 Statute of Proclamations allowed him to amend legislation by decree, but even he was not permitted to prejudice

“any person’s offices, liberties, goods”

or “chattels”.

Then there is the power to make provision for different purposes or different areas. What is the need for that power? When I was in government as a lawyer, parliamentary counsel would probe closely as to why we needed this power, and we would have to justify it. My amendment is therefore designed to bring some transparency and due diligence to the use of these Henry VIII powers before they are laid and debated. It would simply provide that, before such regulations could be laid, there would need to be an impact assessment laid before Parliament for three months to enable a bit more parliamentary scrutiny. This would give time for reflection and, if the Government decided to proceed with laying the regulations, it would serve to enhance the level of parliamentary debates on the regulations that subsequently take place under the affirmative procedure.

I give the last word to the great Lord Judge, who spoke strongly against such clauses when he was Lord Chief Justice of England and Wales. He said:

“You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. William Pitt warned us how to treat such a plea with disdain. ‘Necessity is the justification for every infringement of human liberty’”.

[Lord Hunt of Wirral (Con)]

My Lords, I thank the noble Lords, Lord Palmer of Childs Hill and Lord Carter of Haslemere, for their amendments in this group. As the noble Lord, Lord Palmer, commented, it gives us the chance to send further good wishes to the noble Lord, Lord Fox, for a speedy recovery. We look forward to seeing him back in this Chamber to discuss this vital Bill.

Dealing with Amendment 317 first, the Government have already acknowledged that the vast majority of the costs associated with this legislation will fall on smaller businesses, but it is not just the obvious headline of which we must be mindful. As the noble Lord, Lord Palmer, pointed out, there are significant hidden costs too. These include the need to hire legal professionals, expand human resource capacity, and navigate increasingly complex compliance requirements, which many smaller firms simply cannot afford. That is why statutory guidance specifically tailored for small businesses—those with fewer than 50 employees—is not just helpful; I agree with the noble Lord, Lord Palmer, that it is essential. These businesses are the backbone of our economy. They do not have in-house counsel, nor the luxury of large HR departments, yet they are bound by the same obligations under this Bill as any large corporation.

Police Accountability

Lord Carter of Haslemere Excerpts

Monday 28th October 2024 Lords Chamber

[Lord Hanson of Flint (Lab)]

The noble Lord, Lord Hogan-Howe, obviously brings great experience to this question and this discussion, and I appreciate the discussions I have had with him—not just in the Chamber of this House but also outside the Chamber.

The noble Lord will know, and understand, why I cannot comment in too much detail on what happened in relation to this case. He will also know, however, that the decision to charge was made within the Code for Crown Prosecutors and the DPP guidance to prosecutors, particularly in relation to death in custody guidance, which covers any deaths following contact with the police. That was the procedure; I am not the CPS and nor should I be. It made the determination to prosecute in this case and the result was a very speedy acquittal by the jury. There was a two-year hangover, which caused great distress to the family of both the victim and the police officer. I understand that, and we are trying to speed up as part of the response to that case.

The important thing, which I hope I can guide the noble Lord to focus on, is the issue of the future, because we are trying to rebalance the prosecution threshold, which is key for the future. I fully accept the noble Lord’s point that we ask a lot of officers to, on our behalf, arrive at a scene, make split-second judgments and put their lives at risk. One of the things we are trying to do in the review’s response is to more effectively balance that balance between the response of an officer and the individual they may face. That is part of the working through of the code of practice that will be developed by the DPP, the review by the Attorney-General of guidance on charging police officers and the review by his former colleague Tim Godwin and Sir Adrian Fulford.

We can revisit this again in a few months’ time, but I hope, when we finalise the reviews, that will refocus how we best support officers dealing with extremely difficult situations.

[Lord Carter of Haslemere (CB)]

My Lords, 30 years ago, the House of Lords sitting judicially in the criminal appeal of Lee Clegg expressed concern that only a charge of murder was available in these cases, instead of an offence of, for example, using excessive force. The Law Lords pointed out—as the noble Lord, Lord Hogan-Howe, has—that law enforcement officers do not go out intending to kill or cause grievous bodily harm: they go to protect the public. The two cases are very different.

Therefore, would the Government consider looking at the substantive law that applies in these cases and possibly introducing a change to strengthen the position of law enforcement officers? It would be not dissimilar to the way in which the position of householders was strengthened in 2013 by giving them additional defences when they used force to defend themselves and their property.

[Lord Hanson of Flint (Lab)]

I am grateful to the noble Lord for that suggestion. We are in the process of reviewing the legislation and I do not want to pre-empt the reviews that are being undertaken by the Attorney-General and the individuals commissioned by the Home Secretary. It is clear, however, that we need to give clarity and support to officers. The key element that has come out of this case is that an officer found themselves prosecuted through the decision of the CPS, which rightly was its independent decision. However, in light of that decision, we have to review whether the threshold for the prosecution was right and whether we need to examine the issues the noble Lord has mentioned. Those are things we will do, but I cannot give a commitment today to finalise it.

King’s Speech

Lord Carter of Haslemere Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Carter of Haslemere (CB)]

My Lords, I declare my interest as a trustee of the Prison Reform Trust, since I will focus yet further, I am afraid, on our failing prison system. My emphasis will be on the need for a new sentencing policy.

I congratulate the Minister on his outstanding maiden speech. He has had the ordeal of having to combine his maiden speech with a maiden Statement and a speech outlining the Government’s ambitious agenda for justice and home affairs—no mean feat, given that he was introduced only a couple of days ago. The Big Issue magazine of 29 April this year carried an article about the noble Lord, and it starts with the intriguing line:

“James Timpson wears Doc Martens”.


What many people may not know is that when customers go to his shops for theirs to be mended, they are apparently sent to a prison in Warrington—that is the shoes, not the customers—whose prisoners handle the expert yellow stitching required. This tells your Lordships everything about his commitment to give offenders the expertise they need to find a job after release. He comes to his new role with a deep understanding of why our prisons are failing and a burning desire to make things better. He is warmly welcome.

The gracious Speech referred to planning reform, and the Lord Chancellor has subsequently indicated that the Government will ensure that the planning system does not prevent more prisons being built. Prisons are apparently to be classified as being of national importance. My question is whether building more prisons is purely to deal with the capacity crisis or to continue a policy of sending more and more people to prison for longer and longer sentences.

Everyone knows that our prison population is the highest in western Europe; the noble Lord, Lord Macdonald, made that point earlier. Ministers often justify longer and longer sentences by saying they maintain confidence in the criminal justice system, but are the public really more confident in a criminal justice system that costs £50,000 per prisoner per year and results in such huge levels of reoffending? As we have heard, nearly 80% of crime is reoffending—a staggering figure—so the truth is that long sentences do not help to prevent crime in society.

The Lord Chancellor’s Statement contained encouraging words about improving rehabilitation of offenders who are in prison, but many of these people should never have been sent to prison in the first place. Of course dangerous people should be locked up for as long as necessary, but 58% of those sent to prison in the year to June 2023 had committed a non-violent offence. They are there because they made bad choices, but the reality is that these were often the result of poor mental health, drug addiction and dysfunctional backgrounds.

If we are to address this prisons crisis, not just today but for years to come, we need to take a long, hard look at sentencing policy. The Government have encouragingly said that they will have a review; I hope it will look at bold and innovative alternatives to prison, with a wider range of disposals, which in appropriate cases can avoid the criminal justice system altogether. Radical reform of sentencing like this, with more non-custodial options, will work only if it is combined with a highly trained, properly resourced and effective Probation Service, not a Probation Service that is failing in 97% of areas.

In conclusion, the Labour manifesto correctly said that

“prisons are a breeding ground for more crime”.

Building more prisons may be necessary as a short-term measure to cope with a capacity crisis, but let us have a long-term strategy of gradually closing quite a lot of prisons. Sorting out sentencing policy would be an excellent start.

Police Recruitment: Reform

Lord Carter of Haslemere Excerpts

Tuesday 5th March 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

I cannot comment on the inquiry itself. Unfortunately, I cannot be as confident as I would like to be that there are no police officers out there who remain to be caught. Unfortunately, these incidents keep coming to light. Sir Mark Rowley warned us that there were more still to come to light, so I expect to hear more.

[Lord Carter of Haslemere (CB)]

My Lords, the excellent recommendation 7 of the Angiolini report was that every police recruitment process should have a holistic in-person interview looking at the motivations of the person concerned for joining the police and the extent of their dedication to serving the public. I have a close family member of the fairer sex who has just successfully been through the appraisal system but did not have such an in-person interview matching that description. Will the Minister look closely at recommendation 7 to see how quickly it can be implemented?

[Lord Sharpe of Epsom (Con)]

I have to say that she should have been interviewed face to face. The information I have is that all 43 forces in England and Wales are conducting those face-to-face interviews. Perhaps the noble Lord would like to share the details, and I will investigate further.