Enterprise Bill [HL]
Debate between Lord Low of Dalston and Baroness Neville-Rolfe
Baroness Neville-Rolfe
Perhaps I may pick that up at the end and deal now with the point on whistleblowing, which we take very seriously.
People who take the bold step of disclosing malpractice in the public interest play an important role in bringing wrongdoing to light. It is essential that they are protected from suffering detriment at the hands of their employers. As the noble Lord, Lord Wills, said, they often take considerable personal risk. The legal framework to protect whistleblowers has been substantially strengthened over the past year, partly due to the great work of the noble Lord and of the charity Public Concern at Work. I am sure I speak on behalf of many in the House when I say how grateful I am for those efforts.
Amendment 73B also concerns whistleblowing and has three components. The key point is that a settlement agreement cannot prevent an employee making a public interest disclosure. The Employment Rights Act 1996 provides that any agreement that seeks to do so will be void, so a whistleblower signing a settlement agreement remains completely free to report the wrongdoing to the relevant body. The issue can be properly investigated without the need for a regulatory referral system as proposed in the amendment.
The time is late. I am entirely happy to meet noble Lords, along with officials from the Treasury and BIS, to talk about some of the points raised, including, for example, an update on the progress of the Francis report changes, although I think they need to settle in, as I indicated earlier. On the point about “appropriate cases”, this is an important issue for the guidance and we will consult on it in parallel with the draft secondary legislation next year. Noble Lords will have the opportunity to see it in advance of the regulations being considered.
That is the long way round of saying that the meeting that I have just accepted should take place should do so. However, I cannot accept the amendment. If the noble Lord wants to press it, he will have to test the opinion of the House but, as I say, I am happy to have a meeting to see whether we can take things forward, particularly on the guidance and the implementing regulations.
Lord Low of Dalston
I apologise to noble Lords for that hiatus. In my naivety about procedure, I rather thought the noble Baroness, Lady Hayter, was going to reply. I am grateful to the Minister for her response, and to the noble Lords, Lord Wills and Lord Stoneham, who have both spoken. The Minister has graciously agreed to the meeting that we have asked for, so in those circumstances it would be churlish to press any of these amendments to a vote. We look forward to taking up the offer made by the Minister, who also suggested that she might bring the Treasury along, which would certainly be helpful. One does not always say that bringing the Treasury along would be helpful, but on this occasion one hopes it might be. Since a good deal of my briefing on this issue has come from the Equality and Human Rights Commission, I hope the Minister will agree that it might be helpful to bring a representative along to provide that particular expertise. With that, I am happy to withdraw the amendment.
Enterprise Bill [HL]
Debate between Lord Low of Dalston and Baroness Neville-Rolfe
Lord Low of Dalston (CB)
My Lords, I put my name to these amendments and I am very happy to support them, but I confess that the forces in their support are in some disarray today. We have already heard about the unavoidable absence of the noble Lord, Lord Wills—prevented from attending by a rival speaking engagement to which he was committed. I myself am less fully briefed and more underpowered than I would wish, having literally stepped off a plane this morning from the United States to find that the amendments were coming up today. I had been expecting them on Monday; indeed, for some time this afternoon it seemed as though they would not be reached until Monday, such was the Grand Committee’s rate of progress, but here we are. I am most grateful to the noble Baroness, Lady Hayter, for riding to the rescue and moving the amendment.
The concern is basically that those settling claims where they might have got unlimited damages had they gone to tribunal will be disproportionately prejudiced if the amount at which a claim may be settled is capped. This is certainly the case with claims under PIDA, the Public Interest Disclosure Act, but it may just as much be the case with discrimination cases. The Minister might care to comment on that, as we may wish to take it up on Report. A second concern is that capping settlements where there is no limit on the level of damages that may be obtained at tribunal can operate only as an incentive to go to tribunal—to go to litigation rather than settle.
The noble Baroness spoke to the amendments very ably and, given the hour, I do not think I need say anything more about them, save that I fully support them.
Baroness Neville-Rolfe
I thank noble Lords, including in his absence the noble Lord, Lord Wills, for tabling this amendment. I was able to have a good discussion with him last night, and I hope that there will be some positive news for noble Lords.
I reiterate that the amendment has three components: a regulatory referral system for whistleblowing, access to legal advice for whistleblowers receiving exit payments, and the publication of guidance. If an exit payment relates to a potential whistleblowing disclosure, that would need to be agreed by both parties under a settlement agreement or following conciliation through ACAS. I assure noble Lords that no such agreement can prevent an employee from making a public interest disclosure as stipulated in the Employment Rights Act 1996. Any provision that sought to do so would be void, so a regulatory referral system is unnecessary to enable proper investigation of any malpractice. Any employee entering into an agreement that involves waiving the right to take such an issue to employment tribunal should be fully advised of the impact that would have.
There have been a number of recent developments on whistleblowing, including new guidance. The guidance for employers recommends that they confirm in their whistleblowing policies that settlement agreements cannot prevent workers from making disclosures in the public interest. The guidance for workers clarifies this point. So, too, does guidance published by the Cabinet Office in February this year for Civil Service organisations and their arm’s-length bodies on severance payments and settlement agreements.
Finally, I hope that what I say in relation to Amendment 54 will be good news. The amendment seeks to exempt payments to whistleblowers from the cap on public sector exit payments. I assure the Committee that, where a whistleblower successfully brings a case to an employment tribunal, the cap will not apply to the award made. Under the indicative regulations, which set out how it is proposed to implement the cap and which the Treasury has made available, any payment made under an order of any court, including employment tribunals, would be outside the scope of the cap.
I hope that noble Lords have found that explanation reassuring. The noble Lord, Lord Wills, certainly did, and I hope that on that basis the noble Baroness will agree to withdraw the amendment.
Lord Low of Dalston
It is not in dispute that the awards which may be made at tribunals will not be capped. The concern is that the settlements will be capped, and I am not sure that, from that point of view, the Minister has met the point of the amendment.
Baroness Neville-Rolfe
I am grateful to the noble Lord, Lord Low, for raising that point. It is important that I check the situation and, if I may, I will write to him. I think that our objectives in this area are the same, but it is important that I understand precisely the interplay of this provision and other legislation. I will come back to him.
Enterprise Bill [HL]
Debate between Lord Low of Dalston and Baroness Neville-Rolfe(9 years, 1 month ago)
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Lord Low of Dalston (CB)
My Lords, I will speak very briefly to support the exclusion of the Equality and Human Rights Commission. The noble Lord, Lord Stevenson, has gone through the argument and laid out the case for this exclusion very fully so I will not go over that again, but I want to add one point. Far from imposing extra burdens on business, the Equality and Human Rights Commission does quite a lot to relieve business of burdens by producing things such as guidance and codes of practice that explain the position and help to guide business through the legal maze of discrimination law, making it a good deal easier for business to deal with these issues when they come up. It does not seem appropriate, when that is the function of the Equality and Human Rights Commission and the way that it works, to tie the commission up in the sort of red tape that its work—its codes of practice and guidance and so on—goes quite a long way to ridding business of.
Baroness Neville-Rolfe
My Lords, I thank noble Lords for their amendments and their constructive contribution to the Bill. I am delighted that the noble Baroness, Lady Hayter, and the noble Lord, Lord Low, have joined the debate.
As has been said, the amendments would ensure that the EHRC could not be subject to, or required to report on, three key regulatory policies: the business impact target, the growth duty and the Regulators’ Code. Extending the business impact target to statutory regulators is a key part of Government’s aim to ensure that regulators across the board continue to achieve high standards of regulation in order to drive growth and ensure a strong economy. I think we have agreement on that broad principle.
However, although we are asking regulators to be transparent in reporting the impact of their decisions on business, the Bill will give us no powers to interfere in the decisions they take. There is a clear distinction to be drawn. The fact that a regulator may not be aimed at business does not mean that the regulator does not affect business or the voluntary sector. To my mind, there is nothing wrong with having an incentive to look at the impact of the way you design measures to ensure that, for example, they are constructed in a sensible way for small businesses. Regulatory independence of course underpins business confidence, and is vital to all regulators—it is not only true, as has been said, for the EHRC.
We have seen the EHRC’s briefing note on these issues, which says that it produces approximately 30 pieces of guidance a year and operates across the whole economy. So the range of business making use of the guidance is very substantial. For all those businesses to keep track of that guidance is a cost to business. Sometimes it can outweigh the cost to the commission of assessing the impact as and when it issues new guidance.
I know from experience that the EHRC issues very valuable guidance—for example, the religion or belief guidance for employers issued in 2013. I remember when I worked in the retail sector talking to the EHRC about what it might do to address concerns it had among big employers. So there is an interaction. It is important work, but obviously there is a need to ensure that the guidance is appropriately prepared for business and minimises the burden of any such directions. I hope that the EHRC will look carefully at its relationship with business and ensure that it reflects on the cost which it is imposing. This is what inclusion in the business impact target would achieve and why we have proposed it.
The EHRC—I am not sure people are aware of this—is already within the scope of the Regulator’s Code and is also covered by its predecessor, which was introduced in 2008, by the then Labour Administration. I understand that the EHRC already complies with the code and is transparent about its activities reporting annually. That transparency is just what Clause 14 is aiming to achieve. In practical terms, it will make little difference to what the EHRC currently does, which is why I am not convinced of Amendment 48F.
Amendment 49C prevents the reporting requirements for those in scope of the growth duty from applying to the EHRC. We had the debate less than a year ago when considering the growth duty. The Government’s initial view was that the duty should apply. However, in the light of debate and representations from your Lordships, we undertook that the EHRC would be excluded. I am happy to repeat that the Government will not seek to apply the growth duty to the EHRC. I want to be completely clear about that. The assurances were sufficient for your Lordships in the last Parliament and I hope they will be sufficient again.
The key reason given for excluding EHRC from these three policies, as far as I can see, is that it might prejudice their international A status as a human rights body, which is obviously incredibly important. However, there is not a risk with the growth duty, as it does not apply to the EHRC nor does the EHRC have a small business champion for the reasons that we discussed last time and on which the noble Lord quoted me. We know it is not the case with the code, because it has applied successfully to the EHRC for years, and it has been accredited internationally while it has been in place.
The business impact target is a transparency measure. It does not fetter the independence of the regulator to make its own decisions in relation to the changes it introduces. Inclusion in the target would require EHRC to measure and report its impact on business, and have the figures validated by the RPC. The RPC is not government, as we discussed, it is a body of independent experts and looks only at the evidence and analysis.
The noble Baroness, Lady Hayter, talked about the Charities Commission. The point has been made that it does not affect business. However, the business impact target covers the impact on both the private sector and the Third Sector. The Charity Commission certainly affects the third sector. We will consult in the new year on the list of regulators and welcome the views of Peers and regulators. We are trying to reduce red tape in life; reduce red tape for small business. I believe that a lot of charities—the noble Baroness may play this back at me on another occasion—have quite a lot in common with small businesses.
How does the inclusion of the Charity Commission help those who donate? In her inimitable way, the noble Baroness, Lady Hayter, talked about the consumer. Including the Charity Commission would encourage it to minimise burdens on charities ensuring, I would say, that more of donors’ money benefits good causes rather than being tied up in meeting the commission’s requirements.
There was also a point in Amendments 56 and 57 on retrospectivity. The focus of concern is the potential to change the legal effect of actions already taken.
BBC: Charter 2017
Debate between Lord Low of Dalston and Baroness Neville-Rolfe(9 years, 2 months ago)
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Baroness Neville-Rolfe
My Lords, as I have said before, the group is not a decision-making body; it is just one part of the process. It has no legal status. As the noble Lord said, it is not set up under Cabinet Office guidelines for public appointments. It operates on a voluntary basis. We feel that it would be impossible to find a group of this kind without a significant overlap with the industry. I think that noble Lords can see that the way things are going we have several bits of work coming together. This advisory group is an important part of that work.
Lord Low of Dalston (CB)
My Lords, the Secretary of State was reported yesterday as saying that it was important to investigate the impact of the BBC on the commercial sector. Does the Minister agree that it is equally important to investigate the impact of the commercial sector on the BBC?
Baroness Neville-Rolfe
I thank the noble Lord for his comment. I hope that he has now got the reader that he was missing, for which I apologise. We are also looking at the impact of the BBC on its rivals. An analysis of that sector will inevitably look at the flows both ways. It is very important as part of the charter review that we understand the market and where the competitors are going because we have a shared interest in having a strong creative, independent sector in this country, and the key thing is to make sure that BBC arrangements help and encourage that.
BBC Charter Review
Debate between Lord Low of Dalston and Baroness Neville-Rolfe
Baroness Neville-Rolfe
I am grateful to the noble Lord, Lord Elystan-Morgan, for providing that history, which I was not aware of. We are committed to the provision of minority language broadcasting, including S4C, and that is a key part of the charter review. The Secretary of State spoke to S4C ahead of today’s Statement and is planning to talk to the Welsh Office. I think that our determination is demonstrated by the £7 million of direct funding that we currently provide for S4C. Our firm but fair agreement means that we have to make some choices about how the licence fee is spent. Of course, S4C has to be part of that process but Welsh language broadcasting is incredibly important for exactly the reasons stated by the noble Lord.
Lord Low of Dalston (CB)
My Lords, I am sure that the Minister will have seen the comment to the effect that the advisory panel, to which she referred just now, is just as stacked against the BBC as the other interests which the noble Lord mentioned earlier—people with ideological and commercial grudges against the BBC. Can the Minister give us more reassurance about the impartial nature of the advisory panel?
Baroness Neville-Rolfe
My Lords, I do not agree. The panel includes a former board member of the BBC and I think that one or two of the other members have links. It is drawn from the media industry, where there is quite a lot of circulation of talent. However, it is an advisory group—as I have already explained, it is advising the Secretary of State on the consultation process. We are also looking at other sources of advice, including your Lordships, as well as, fundamentally and very importantly, the British public, who pay for the BBC through the licence fee.
BBC Royal Charter
Debate between Lord Low of Dalston and Baroness Neville-Rolfe(9 years, 5 months ago)
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Baroness Neville-Rolfe
My Lords, the underlying point is about impartiality. The BBC is required by the royal charter and agreement to deliver impartial news. Under the terms of the agreement, the BBC must do all it can to ensure that controversial subjects are treated with due accuracy and due impartiality. This is, of course, one of the issues for the charter review. I think there has been some long-standing suspicion that the views are sometimes skewed, and not in a way favourable to our party.
Lord Low of Dalston (CB)
My Lords, I saw a report in the Spectator which suggested that music and entertainment services provided by the BBC could be put out to subscription and that the only thing the licence fee should continue to support was the BBC’s news and current affairs output. Does that reflect the Government’s thinking?
Baroness Neville-Rolfe
My Lords, funding, governance and all other aspects, especially ensuring that we continue to have some of the best public broadcasting in the world, are all matters for the charter review, which will be getting under way very soon.
Small Business, Enterprise and Employment Bill
Debate between Lord Low of Dalston and Baroness Neville-Rolfe(9 years, 8 months ago)
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Baroness Neville-Rolfe
My Lords, I thank the noble Baroness, Lady Thornton, for her amendment and all her supporters, including Grazia magazine. I pay tribute to her tireless campaigning on gender equality. This is a very timely debate, following International Women’s Day on Sunday. I am pleased to confirm that it is the Government’s intention to accept the noble Baroness’s amendment, subject to changes that I am proposing by way of government Amendments 58ZZA and 58ZZB.
Before turning to the amendments, I remind the House of some key facts about the pay gap and the work that the Government have already been doing to close the gap and improve transparency. First, it is important not to lose sight of the fact that, according to ONS figures, the gender pay gap has fallen to its lowest level ever. It has been virtually eliminated among full-time workers under the age of 40, which is a more positive way of looking at the statistics. We are broadening the career aspirations of girls and young women by encouraging them to get into STEM-related careers through the Your Life campaign. Opening up these highly skilled areas ensures that women are less concentrated in sectors that offer narrower scope for reward and career progression.
We have also championed the voluntary, business-led drive by the noble Lord, Lord Davies, to get more women on boards. Women now account for around 23% of FTSE 100 directors, up from 12.5% in February 2011, and there are now no all-male boards in the FTSE 100. It is a huge step forward. Last night I attended the fantastic dinner for women on boards, hosted by the Secretary of State for Business, Innovation and Skills and sponsored by Lloyds Banking Group, encouraging this key group of women to drive forward further progress, which I believe is very important.
We are modernising the workplace to give women a fair chance to get to the top. Last June, the right to request flexible working was extended to all employees, and from April we will introduce a new system of shared parental leave. Further, almost 2 million families could benefit from our new tax childcare scheme from autumn 2015, which is worth up to £2,000 per child.
In January we published new guidance for employees on the gender pay gap. Research has shown that organisations perform better when they have a good balance of women across teams and in senior roles. Our guidance helps women to check if they are being paid fairly and encourages good practice of the kind the noble Baroness mentioned. Furthermore, new EU software to help UK employers analyse their pay data can now be downloaded for free. We are already encouraging greater transparency about pay. We have banned pay secrecy clauses, changed company reporting on boardroom diversity and introduced mandatory equal pay audits for companies that lose equal pay claims. We have also been working in partnership with business to tackle the root causes of the gender pay gap and promote culture change and greater transparency through the Think, Act, Report initiative, which the noble Baroness mentioned.
Because of Think, Act, Report we now we have a powerful business community of best practice with more than 275 leading companies—the figure is right—employing more than 2.5 million people, leading the way on gender equality. Of course, Think, Act, Report was never intended as a substitute for Section 78; it is so much broader and has achieved a lot. We said that we would keep Section 78 under review and that is exactly what we have done. We now want to build on the progress we have made. We need to take into account that one size will not fit all and that is why the Government feel strongly that we must consult on how Section 78 is taken forward. I welcome the amendment from the noble Baroness, Lady Thornton. I am proposing two amendments to it—Amendment 58ZZA to ensure it fits properly with the Equality Act provision, and Amendment 58ZZB to require consultation before implementation—which the noble Baroness has graciously indicated that she will accept.
We know that business is particularly concerned about being required to report more information, so we also want to ensure that the Government actively engage business during a proper consultation. This will ensure that we find the best way of implementing Section 78 in a business-friendly way, making use of information employers already have available and without being bureaucratic. In order to bring forward tailored, workable regulations, it will be essential for the Government to consult business properly, as well as others with interests and expertise in the area. We want to ensure that the requirements on business can be fulfilled and that the data published are of real use. I am therefore grateful to the noble Baroness for agreeing to these important adjustments to her amendment.
Lord Low of Dalston (CB)
My Lords, I was glad to put my name to the amendment in the name of the noble Baroness, Lady Thornton, and I am equally delighted to support the government amendment that essentially accepts the noble Baroness’s amendment but makes some minor modifications to the text. In view of the welcome degree of consensus that is breaking out, I will endeavour to speak quite briefly.
The Equal Pay Act was passed in 1970—all those years ago—but 45 years on there is still a significant gender pay gap. In 2014, women in full-time employment earned 9.4% less than men in full-time employment. The gap was wider for part-time work. Female part-time employees earned 37.9% less than male full-time employees. For all employees, the gender pay gap was 19.1%.
Baroness Neville-Rolfe
We have very good evidence from the Francis review. We do not have evidence for all other sectors and, of course, the amendment would apply to the private sector and the coverage would be very wide-ranging. Several noble Lords asked why it is a two-tier system and the noble Lord, Lord Hunt, asked why we are not doing it universally. Sir Robert’s findings were health-specific. He reported that he had seen evidence of individuals suffering serious detriment in seeking re-employment in the NHS after making a protected disclosure. That is what we are talking about. The health sector has one of the highest instances of whistleblowing reporting, perhaps for the reasons that the noble Lord, Lord Hunt, suggested, and, consequently, has the greatest potential for discrimination against whistleblowers, who therefore cannot get another job. The NHS is one of the largest employers in the world, I am glad to say, and should operate to the very highest standards of integrity in its recruitment practice.
Lord Low of Dalston
I thank the Minister for giving way. She makes the case that we have particular evidence in relation to the health service and so she wants to act on the health service. With regard to all the other sectors that we have asked the Government to take into consideration as well, would it not be better to put a system in place to stop the scandal before it happens rather than wait and close the stable door after the horse has bolted?
Baroness Neville-Rolfe
I thank the noble Lord, Lord Low, for his intervention. We have to legislate in an informed and evidence-based way. We have brought forward the provisions on the NHS and it is very good that noble Lords opposite support that at this late stage. We are not in the same situation in relation to other sectors. There are various arrangements and we are making general improvements on whistleblowing.
Small Business, Enterprise and Employment Bill
Debate between Lord Low of Dalston and Baroness Neville-Rolfe(9 years, 10 months ago)
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Baroness Neville-Rolfe
My Lords, I am glad that the noble Lord intervened to register his concerns, which to some extent I share. That is why the Government have committed to reviewing the introduction of fees. We are considering the scope and timing of the review, and will bring forward our plans in due course. We need to understand what is going on here, of course, but I was trying to make a general point about trying to improve things. The provisions in the Bill are another example of our efforts to do just that—to ensure that there are fair results and that people who are given awards receive them in due time.
I turn to each of the amendments, acknowledging the spirit of them, but obviously, as is usually my wont, looking to make sure that we do not have any perverse effects. I will start with Amendment 68ZG, which is designed to include costs in the calculation of the money that is considered to be owed for the purposes of the penalty. It is worth noting that “costs” or, sometimes, “preparation time” awards—where people are not paying for attorneys—are made in only a tiny proportion of cases. Costs awards are not related to the compensation for the breach of employment rights—for example, in a case of discrimination—but to the way in which one of the parties has behaved during the tribunal process. A good example would be the deliberate, repeated late disclosure of documents. Indeed, last year only 242 costs orders were made to claimants—in the context of more than 42,000 claims. The Government do not believe that adding costs to the calculation will add a significant additional incentive to pay. But I am sympathetic to the noble Lord’s intention and will consider further whether we need to make a change ahead of Report.
Turning to Amendment 68ZH, we are clear that a penalty regime must incentivise prompt payment in full and not inadvertently reduce the likelihood of individuals gaining their full award. Allowing the penalty to be used to offset the award, as proposed in the amendment, would not, we fear, incentivise prompt payment of the award in full, which is our objective. The point of the penalty is to act as a deterrent and a sanction for non-payment. Conflating money owed to the claimant with a civil penalty would cause confusion and might raise questions about which liability had been met when money was paid. We believe it would be better to keep the civil penalty separate from the money owed to the individual. The clause already encourages an employer to make full and prompt payment to avoid a penalty altogether. As I have explained, the only way in which an employer can avoid a penalty is to pay up in full once they receive a warning notice. This seems to be the most effective approach.
Amendment 68ZJ seeks to introduce a naming scheme. As the noble Lord will be aware, there is already a scheme for the national minimum wage. We are considering naming as part of the Government’s overall approach to increasing the full and prompt payment of tribunal awards. We need to carefully consider the options to ensure that we find the most effective response. I would be happy to update noble Lords on our thinking ahead of Report.
Turning to Amendments 68ZK to 68ZM, I reassure the noble Lord that unpaid awards are already recoverable through the county court, or the sheriff court in Scotland, as they are treated as judgment debts. There is also a fast-track scheme in England and Wales where a court enforcement officer can pursue the money on the claimant’s behalf. Furthermore, interest accrues on those unpaid tribunal awards at 8% per annum. So there is an incentive to pay promptly and in full.
Finally, in response to Amendment 68ZMA, I hope I can provide further reassurance. As I have outlined, there are already a range of mechanisms by which an individual is able to enforce their tribunal award. In addition, under Clause 145, a government-appointed agent will impose penalties for non-payment. The penalty scheme we are introducing through this clause offers an alternative, cost-free way to ensure that the claimant gets the money they are owed. Therefore, the Government do not consider that there is a need to set up a further mechanism at this stage, but we shall continue to monitor the situation following implementation of the new penalty provision.
I hope that my explanations, including about our wider plans, have provided reassurance to the noble Lord and that he will be content to withdraw the amendment.
Lord Low of Dalston
Before the noble Lord, Lord Young, replies, I wonder if I might be permitted to say a word or two about Amendment 62ZMA. I am afraid I was not quick enough on the draw before the Minister rose to reply. I thought that more noble Lords would intervene on some of the earlier amendments so I missed my cue.
Since I am speaking slightly out of turn, I will not make all the points that I might have made in support of the amendment. I am very grateful to have heard what the Minister had to say but there is a considerable amount of concern about the effectiveness of regimes for enforcing the payment of awards. A number of suggestions have been made for addressing this problem. I wonder if the Minister might be prepared to meet me before Report to talk through some of the options and to see if we cannot slightly firm up the provisions that are already there and find a formula or mechanism which might be slightly more likely to deliver results than what is in place at the moment and, indeed, what is proposed by the Minister.