Crime and Policing Bill

Lord Moynihan of Chelsea Excerpts

Committee stage
Thursday 15th January 2026 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have signed this amendment because I think it is very sensible and covers some ground that really needs tackling. It would ensure that the police could not use live facial recognition technology when imposing conditions on public assemblies or processions under Sections 12 or 14 unless a new specific code of practice governing its use in public spaces has first been formally approved by both Houses of Parliament—that sounds quite democratic, does it not? It is intended to safeguard public privacy and civil liberties by requiring democratic oversight before this surveillance technology is deployed in such contexts.

It is always interesting to hear the noble Lord, Lord Hogan-Howe, former Met Commissioner, on the tiny little areas where we do overlap in agreement; I think it is very healthy. However, I disagree deeply when he says this is not the legislation and it should be something else. We keep hearing that. I cannot tell noble Lords how many times I, and indeed the noble Baroness, Lady Doocey, and the noble Lord, Lord Strasburger, have raised this issue here in Parliament and in other places. The noble Lord, Lord Strasburger, asked a quite interesting question: why should we care? Quite honestly, I care because I believe in justice and in fairness, and I want those in society. As I pointed out yesterday, I am a highly privileged white female; I have been arrested, but I was de-arrested almost immediately by the Met Police when all the surrounding people started saying, “Do you know who she is?” and they immediately took the handcuffs off.

At some point we have to accept that this needs regulation. We cannot accept that the police constantly mark their own homework. We were reassured that all the flaws in the algorithm and so on had been fixed, but clearly we cannot be sure of that because we do not have any way of knowing exactly what the flaws were and who has fixed them. Live facial recognition represents a huge departure from long-established principles of British policing. In this country, people are not required to identify themselves to the police unless they are suspected of wrongdoing. Live facial recognition turns that principle on its head by subjecting everyone in range of a camera to an automated identity check. It treats innocent members of the public as potential suspects and undermines the presumption of innocence.

I disagree deeply with the noble Lord, Lord Blencathra, when he says that it is not a blanket surveillance tool—of course it is. It is a blanket surveillance tool and is highly dangerous from that point of view. It is a mass biometric surveillance tool. It scans faces in real time, retains images of those flagged by the system and does so without individuals’ knowledge or consent.

If the police randomly stopped people in the street to check their fingerprints against a database, for example, we would rightly be alarmed. Live facial recognition performs the same function, only invisibly and at scale. Its use in the context of protest is a dangerous crossing of a constitutional line. We already have evidence that facial recognition has been deployed at demos and major public events, with a chilling effect on lawful protest. People will not go to these protests because they feel vulnerable. They are deterred from exercising their rights to freedom of expression and assembly because they fear being identified, tracked or wrongly stopped. While this amendment proposes a safeguard through parliamentary approval of a statutory code, we should not allow that to imply acceptance of live facial recognition at protests in principle. In my view, this technology has absolutely no place in the policing of democratic dissent.

We should reflect on the broader direction of travel. Live facial recognition is most enthusiastically embraced by authoritarian regimes, while a number of democratic countries have moved to restrict or even prohibit its use. That alone should surely give this Government pause to reflect on whether this is the right legislation to bring in. Independent observers have witnessed cases in which live facial recognition has misidentified children in school uniform, leading to lengthy and very distressing police stops. In some instances, those wrongly flagged were young black children, subjected to aggressive questioning and fingerprinting despite having done nothing wrong. What safeguards are in place to prevent misidentification, particularly of children and people from UK minority-ethnic communities? That is a basic question that we should be asking before we pass this legislation. I support the amendment as an essential check, but I hope that this debate sends a wider message that Parliament will not allow the routine use of intrusive biometric surveillance to become the price of exercising fundamental democratic rights.

I want to pick up something that the Minister said on Tuesday. He directed the Committee to the front page of the Bill and said that, in his view, the Bill was compliant with the ECHR. As the noble Baroness, Lady Chakrabarti, pointed out, that is his belief and his view. It is absolutely not a certificate of accuracy. I am not suggesting for one moment that there is any intent to deceive; I am merely saying that it is not a certificate of truth. With claims about seemingly authoritarian laws being compliant with human rights, that assessment can be challenged and should be challenged as much as possible. It remains subjective and is challenged by the organisation Justice, for example. We are clearly going to disagree about a lot in this Bill, but we are trying our best over here to make the law fair and representative of a justice that we think should exist here in Britain.

[Lord Moynihan of Chelsea (Con)]

My Lords, I was hesitant as to whether to speak here, but some years ago I had very close acquaintance with facial recognition software, so I thought it might be useful to say a couple of things.

First, I very much agree with the noble Lord, Lord Hogan-Howe, that this is an extremely good technology. I will get to the concerns expressed about it in a minute. This software has been used to apprehend murderers. For example, I think the Australian outback murderer was apprehended because of it and a far-right group of extremists in Sweden was identified by some very clever use of this facial recognition technology. It can be used successfully in preventing crime. Now, that is not all live use of the technology, and these amendments are about live use of the technology.

I very much respect the work of the noble Lord, Lord Strasburger. I am a great supporter of Big Brother Watch, and he and the noble Baroness, Lady Jones, make good points. Much is made of the disparity in accuracy between white and black faces. The software I was involved with had that problem. The reason for that is that it was trained on white faces—they were afraid of being thought of as racist if they focused on black faces. Therefore, the accuracy for black faces was much worse, they discovered, and so they quickly started training the software on black faces and the disparity closed right up. As far as I know, the disparity, if it still exists, is quite small, but others may know better than me. This was several years ago, but that definitely happened with this set of facial recognition software.

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[Baroness Jones of Moulsecoomb (GP)]

Shifty.

[Lord Moynihan of Chelsea (Con)]

Shifty is a great description—the noble Baroness could have said far worse than that.

I was given a hard time and then let go. We have to accept that there will be errors, but we have to understand where this is going. We can less and less afford to have police on the streets—we have seen that problem—and technology has to take over. Look at the super-spotters, a very successful crime-fighting group in New York. They would go to an area where there was a lot of crime—noble Lords will know that there was a process in New York where they directed people to crime hotspots—where they looked at the gait of individuals to see whether they were carrying guns or knives. Soon, people in those areas discovered that they had better not carry guns because they would be stopped by these super-spotters and arrested. If you are not carrying a gun, which they had all stopped doing, you cannot kill somebody because you do not have a gun to kill them with. It was a tremendously successful operation in lowering crime.

State-of-the-art facial recognition, at least before I stopped looking at it a couple of years ago, was more in gait than in face. We have to understand that you can start training technology to be much more effective than even these super-spotters at spotting people who are carrying, using their gait to recognise an individual rather than their face. There are all sorts of ways in which this software will be used to recognise people. It will get better and better, and fewer mistakes will be made; mistakes will always be made none the less, but that is the way of policing. They were mistaken when they stopped me—I was this tremendously law-abiding good chap, but they stopped me, and so will the facial recognition.

I loved the description from the noble Lord, Lord Strasburger, of the 20 police hanging around, which I am sure resonated with noble Lords around the entire Chamber as the sort of thing that happens, but over time we will have to depend on technology such as this. We will have to be extremely careful about civil liberties, but we cannot blanket get rid of this technology, because it will be very important to policing.

[Lord Blencathra (Con)]

My Lords, I had sought to intervene on the noble Lord, Lord Strasburger, before he sat down, but the noble Lord, Lord Hogan-Howe, beat me to it. I want to ask him a simple question but, first, I am sorry that we are on different sides of this—when we served together on the snoopers’ charter Bill, we were totally united that it was a bad Bill and we worked hand in glove to amend it. Can he tell me the substantive difference between a camera and a computer watching everyone in the crowd and picking out the wanted troublemakers and those 20 policemen he talked about looking at everybody in the crowd and picking out the wanted troublemakers from their briefing or their memory? What is the real difference between them?

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Moved by

[Lord Moynihan of Chelsea]

382F: After Clause 126, insert the following new Clause—
“Amendment to speech offences(1) The Malicious Communications Act 1988 is repealed.(2) Omit section 127 of the Communications Act 2003.(3) In the table in section 1(1) of the Criminal Justice and Police Act 2001 (offences leading to penalties on the spot) omit the entry relating to section 127(2) of the Communications Act 2003.(4) The Public Order Act 1986 is amended as follows.(5) In section 4—(a) in subsection (1)(a) after “threatening” omit “, abusive or insulting”, and(b) in subsection (1)(b) after “threatening” omit “, abusive or insulting”.(6) Omit sections 4A and 5.(7) In section 6—(a) in subsection (3)—(i) after the first “threatening,” omit “abusive or insulting”,(ii) after the second “threatening” omit “, abusive or insulting”, and(b) omit subsection (4).(8) In section 18(1)—(a) after the first “threatening” omit “, abusive or insulting”, and(b) after the second “threatening” omit “, abusive or insulting”.(9) In section 19(1) after “threatening,” omit “abusive or insulting”.(10) In section 20(1) after “threatening,” omit “abusive or insulting”.(11) In section 21(1) after “threatening,” omit “abusive or insulting”.(12) In section 22(1) after “threatening,” omit “abusive or insulting”.”Member’s explanatory statement
This amendment would amend a number of different Acts to ensure that freedom of speech is protected, so that a person cannot be prosecuted for causing “anxiety” or for “insulting” another person.

[Lord Moynihan of Chelsea (Con)]

My Lords, the amendments in this and the next group set out to remove criminalisation of elements of so-called hate crime on grounds that include incoherence, ineffectiveness and divisiveness. Anyone proposing an amendment of this sort risks being seen as favouring hate crime and hate speech, or of being careless or reckless about the real hurt that individuals at the receiving end of hate speech or hate crime might feel. The opposite is the case here. I vigorously oppose racism and any other form of discrimination, but I believe that the concept and the implementation of hate crime law are not just ineffective but counterproductive.

There are three types of hate crime law that I seek to amend in this and the following amendment: first, direct criminalisation of certain offensive words; secondly, an enhanced sentence when a crime is aggravated by directing certain offensive words towards individuals with certain protected characteristics; and thirdly, stirring up offences based on use of offensive words, behaviour or material so as to arouse hatred against an individual with certain protected characteristics. My first amendment would abolish the criminalisation of particular offensive words that are merely grossly offensive, while still leaving in place the sanctioning of any words that would cause or provoke actual violence or fear of violence.

In our national history, hate crime law is new. We got along perfectly well without it for many centuries until the Race Relations Act 1965 was passed to prevent race violence and discrimination. We have now gone a long way further than that first law, with hate crime legislation embedded in a number of different Acts, covering both deeds and thoughts, and going beyond race into a number of different protected characteristics, the most recent of these being transgender. Sometimes all that is needed for a conviction is if the victim or, indeed, any person takes offence, sometimes with no test of reasonableness. Many see this as having divided society into warring grievance groups.

These laws are not working. Unintended consequences roll in. Hard cases make bad law. Criminalise one obviously appalling thing and, by doing that, it is hard not to criminalise other not so appalling things—so Graham Linehan is arrested by five armed police at the airport. You get police incentivised to pursue soft targets for soft crimes. You get police encouraged into a Stasi mindset, telling ordinary citizens, “I need to check your thinking”. Have these laws created social cohesion? No. Antisemitism, for example, has suddenly become widespread in our country.

These laws are confusing. Late last year, the College of Policing issued guidance on female genital mutilation stating that trans women—which is to say men—whether holding a gender recognition certificate or not, are just as threatened by female genital mutilation as are women and girls. This was utterly absurd—but if you say it is wrong, you have to be prepared for possible investigation by well-meaning but improperly informed police.

These laws are cluttering up the justice system. I think noble Lords understand this, but I will talk about it in greater detail when I get to my second amendment later.

These laws are onerous on the innocent. It is difficult to exaggerate the devastating effect that an arrest and a subsequent multi-month legal process can have on a law-abiding citizen, even when, at the end of it, they are exonerated.

An overall hate narrative has spread across politics and society, with so many random accusations of hate speech or hate crime leading to controversy, or worse. Charlie Kirk was shot dead in America by someone who had been persuaded that Kirk had been hateful against the trans community. Last month, a teacher was referred to the national counterterror programme and forced out of his job after showing videos of Donald Trump to his sixth-form politics students.

These laws are crushing our country’s free speech tradition—the heartland of our national character and the driver of our national success over the centuries. In America, the First Amendment is:

“Congress shall make no law … abridging the freedom of speech”.


In our history, George Orwell is venerated for saying that free speech is worthless unless it extends to things that people do not want to hear. Lord Justice Sedley is venerated for saying:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to promote violence. Freedom only to speak only inoffensively is not worth having”.


We revere Queen Elizabeth I for saying that she had no desire to look into a man’s soul, but now we have judges looking into men’s souls on a regular basis.

Along with the suppression of free speech, cancel culture has flourished. A woman in a Stoke-on-Trent focus group that I observed shocked me when she said to general agreement in the group, “Of course, none of us can say what we’re really thinking”. Freedom in the Arts ran a large UK survey in 2024-25 that found that 84% of artists said that they never, rarely, or only sometimes feel free to speak about their social or political opinions for fear of ostracism, bullying or loss of work. Until people can say what they are thinking—so long as, of course, they do not incite imminent violence—we do not have our traditionally free country.

Turning to the key provisions in my amendment, proposed new subsections (1), (2), (5), (6) and (8) to (12) would remove the criminalisation of specific offensive words. Proposed new subsection (1) would repeal the Malicious Communications Act 1988. A person can currently be sentenced under that Act to up to two years if they send a letter or electronic message that is either intended to “cause distress or anxiety” or employs “indecent or grossly offensive” words. A well-known report from Big Brother Watch found that, over a three-year period, there were more than 1,000 charges and more than 600 cautions under that Act.

Proposed new subsection (2) would omit Section 127 of the Communications Act 2003, which provides for jail for up to six months for sending a “grossly offensive” message, or a message that is

“of an indecent, obscene or menacing character”,

or knowingly sending a false message to cause

“annoyance, inconvenience or needless anxiety”.

The Big Brother Watch report showed nearly 3,000 charges and more than 1,000 cautions under Section 127. These various numbers have probably increased, not declined, since that report. A lad stupidly joked on Twitter that if Robin Hood Airport was not going to be open next week, he would blow it up. He was convicted under Section 127, and it took three appeals before that was overturned. The process was his punishment, for someone who was innocent. The Big Brother Watch report found at least 355 cases under these two Acts involving social media, with the rate increasing, not declining.

Proposed new subsection (5) would amend Section 4 of the Public Order Act 1986, which provides for up to six months for intending to make likely or cause someone to believe that “immediate unlawful violence” will take place when using

“threatening, abusive or insulting words or behaviour”

or distributing or displaying “threatening, abusive or insulting” signs. My amendment would leave “threatening” in place, but remove “abusive” and “insulting”. Threatening behaviour involving imminent unlawful violence should clearly be illegal, but surely that is enough.

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[Lord Hanson of Flint (Lab)]

I thank the noble Lord, Lord Moynihan of Chelsea, for the way in which he put his arguments. I fully accept his contention that they are not designed to include his belief in racism or discrimination and the fair and open way in which he made his points. The same comments apply to the noble Baroness, Lady Fox of Buckley, and the noble Lords, Lord Blencathra and Lord Young of Acton. I understand their motivation and where they are coming from, but I have to say straightaway to the Committee that I do not agree with the direction of travel. We will resist it and I will explain why in my comments.

Before I do so, let me say that—and I hope this is helpful for the noble Lord, Lord Young of Acton—on the issues he raised around non-crime hate incidents, we are going to come to those in a later debate on Amendment 416E. The College of Policing is producing a report and review, chaired by the noble Lord, Lord Herbert, as the chair of the College of Policing. I commit to the Committee that that review will come forward before Report on this Bill, and we intend to look at it as a Government and respond to it. The points that the noble Lord, Lord Young of Acton, mentioned are probably more relevant when we have the debate on Amendment 416E, if he accepts my comments. We will revisit that in due course.

Amendment 382F proposes to repeal to the Malicious Communications Act 1988 and make significant changes to the Communications Act 2003 and the Public Order Act 1986. I understand the motivation for the noble Lord, Lord Moynihan, to bring them forward, but they include removing key provisions that have been in place for many years, were passed under different Governments of political complexity and have been consistently applied in case law.

The terms the noble Lord seeks to omit from the Public Order Act 1986 are understood by the police and the CPS, and there is case law interpreted by the courts. These provisions provide police with proportionate tools to manage low-level public disorder and protect the public from threatening or abusive behaviour, as well from those who seek to stir up racial hatred. The existing legal framework already ensures that enforcement decisions are made proportionately and in line with human rights obligations, including the right to freedom of expression.

I emphasise to the Committee that the personal example cited by the noble Baroness, Lady Brinton, shows that these laws are here for a purpose. Her comments have highlighted the question: how would each of us like to be on the receiving end of an abusive or insulting comment or phrase about a personal characteristic of our lives that we cannot change? Attack me for my politics by all means, because that is the view I have taken, but attacking individuals, or showing insulting or offensive behaviour towards individuals for characteristics they cannot change, is a step that we need to consider very carefully.

Let us look at what Amendment 382F from the noble Lord, Lord Moynihan, seeks to remove. The amendment would repeal the Malicious Communications Act 1988, including the offence of sending a

“letter, electronic communication or article”

to someone

“which is indecent or grossly offensive”,

if the purpose of sending it is to

“cause distress or anxiety to the recipient”.

That is quite a heavy protection for people that the noble Lord is seeking to remove.

The amendment also seeks to remove Section 127 of the Communications Act 2003, including the offence of sending, or causing to be sent,

“by means of a public electronic communications network a message or other matter that is grossly offensive … indecent, obscene or menacing”.

Again, those protections are included in the 2003 Act to protect individuals from grossly offensive, obscene, indecent or menacing communication, yet the noble Lord seeks to remove that today, for the reasons he outlined to the Committee.

The amendment also seeks to repeal Sections 4A and 5 of the Public Order Act 1986, including the offences of causing:

“Intentional harassment, alarm, or distress”,


or harassment, alarm or distress without intent. The amendment would remove, from the same Act, “abusive or insulting” from the following offences:

“Fear or provocation of violence … Use of words or behaviour … written … to stir up racial hatred … Publishing or distributing written material … to stir up racial hatred”,


and public performances of a play intended to stir up racial hatred. I want to protect free speech—protecting free speech is absolutely right—but we also have to protect the rights of individuals to enjoy a life free from “grossly offensive” insults, “intentional harassment”, and “abusive or insulting” material.

The noble Lord seeks to repeal “abusive or insulting” from Section 21 of the Public Order Act:

“Distributing … or playing a recording … to stir up racial hatred”.


The amendment, it appears, intends to strengthen protections for free speech. I understand where the noble Lord wishes to come from on that—that is a fair and open debate between us—but it does so by decriminalising behaviour that is, in the law and under all those Acts, “abusive and insulting”. I am sorry, in this Committee I am not going to accept that approach on behalf of the Government.

As we know, we will have the review from the noble Lord, Lord Macdonald of River Glaven, who will look at the wider issues of hate crime legislation and the independent review of public order. I take the strictures of the noble Lord, Lord Davies of Gower, that we cannot stick everything into the review, but we also have the review from the College of Policing—which I will refer to again; I have already done so in response to the noble Lord, Lord Young of Acton—which is looking at those issues.

I still think, given what the noble Baroness, Lady Brinton, said, that there is a basic floor from which society needs to protect individuals from abuse and insulting behaviour. The existing offences are not just used to put that floor in place; they are also used—this is a really important point which I hope the noble Lord will accept—to ensure that the police have the ability to intervene early in public order situations where they could support the protection of vulnerable people, who may be alarmed by abusive or insulting conduct, which has a disproportionate impact. The existing offences are used to manage public order and racial hatred and provide the police with proportionate tools to respond to a range of behaviours.

The offence thresholds should not and do not interfere with free speech. The review is going to conclude very shortly and the Government will consider and respond to those recommendations afterwards.

I simply say to the noble Lord that I hope that he thinks very carefully—as I know he has already; I do not want to be patronising—about the content of the debate we have had today, the comments that I have put to him about why those legislation aspects have been passed by a Thatcher Government and a Blair Government, and why there is a need to protect individuals, along the lines of the experience of the noble Baroness, Lady Brinton, which she mentioned. They are there for a purpose and I believe that the Committee should ask the noble Lord, having heard the debate, to withdraw his amendment and, I hope, not visit it on Report.

[Lord Moynihan of Chelsea (Con)]

I thank noble Lords for what I hope everybody felt was a stimulating and useful debate, with a great number of differing views expressed by different noble Lords. I thank the noble Baroness, Lady Fox, for her eloquent support of the amendment. It was so depressing to hear her point out that we, the original home of free speech, are now seen around the world as one of the worst countries in suppressing it.

My noble friend Lord Blencathra presented the case for the amendment rather more eloquently than I was able to and, equally, with eloquent personal experience, which I felt was interesting, as indeed—I will talk about this in a minute—did the noble Baroness, Lady Brinton. My noble friend Lord Young, again in far more eloquent terms than I, gave stark evidence of the dysfunctionality of the law, with the huge numbers of interventions by the police. Some 12,183 arrests was one statistic he quoted, in one year alone for just one act.

I add to the various mentions of where the police were forced to pay £10,000 or £20,000 in compensation that we should remember that that is not police money; it is our money. I would rather like to see that money spent in better ways and police time to be spent in better ways.

I thank the noble Lord, Lord Strasburger, for his brief intervention and move on to the very affecting speech from the noble Baroness, Lady Brinton. She was talking about how hate material should be legislated against. I will address that in the next amendment, which comes immediately after this. By the way, I can assure her that I played no part in the degrouping of my amendments from those of my noble friend Lord Young. I was deeply sorry to hear of that awful and appalling incident that the noble Baroness had to suffer at the railway station. I entirely agree that the people there should have intervened and supported her. It must have been just dreadful to have been sitting there with no support—until, of course, after the event, when there was plenty of it.

The noble Baroness may want to look at Hansard tomorrow, but my amendment would leave in place the ability of the police to go after that dreadful person who abused her because she was threatening imminent violence with that kick. Whether it was accurately placed or not, that was violence. I agree with that law, which should have gone after her. Facial recognition might have helped.

[Baroness Brinton (LD)]

The issue we are trying to get to is where the boundary is between free speech and abusive behaviour. The police would have had problems saying that it was threatening if she said, “Oh, I was just dancing around the chair”. This is what they explained to me at the time. The issue that protected me was that she was abusive and insulting, and they could record it. Had they been able to find her, they could have checked to see whether it had happened elsewhere, which they thought would have been likely. That moves into the area of the next group, so I will not talk any further, but I am very grateful to the noble Lord for raising that.

[Lord Moynihan of Chelsea (Con)]

I thank the noble Baroness for that explanation. She clearly demarcated our difference in view as to where the line should be drawn. I suggest to noble Lords that it is important to draw the line at the threat of imminent violence. That has been a principle in the past, but it has been breached by recent laws and actions by the police.

The noble Lord, Lord Davies, kindly supported this amendment—

[Lord Katz (Lab)]

I hate to interrupt the noble Lord’s flow, but I thought this an apposite time to point out that Members should normally be brief when pressing or withdrawing an amendment. The Companion is clear that you do not have to respond to all points raised in the debate. We are now over five minutes. I urge the noble Lord to conclude his remarks.

[Lord Moynihan of Chelsea (Con)]

I remember the noble Lord, Lord Katz, taking almost 30 minutes the night before last when he had a time limit of 20 minutes. His remarks were so interesting that I did not feel like repining. I certainly would have finished by now had there not been interventions.

I thank the noble Lord, Lord Davies, for kindly and eloquently supporting my views and turn finally to the Minister who, although speaking as always in the kindliest way, gave a most disappointing reply. I hope that, after the debate on the next amendment, he might reconsider. I was surprised that he still supported criminalisation of offending feelings after such a comprehensive listing by many speakers of the problems created by that in the various laws. I will talk more on this on the next amendment. In the meantime, and for now, I beg leave to withdraw this amendment.

Amendment 382F withdrawn.

Moved by

[Lord Moynihan of Chelsea]

382G: After Clause 126, insert the following new Clause—
“Abolition of hate crime and offences related to hate(1) The Public Order Act 1986 is amended in accordance with subsections (2) and (3).(2) In the long title, omit “to control the stirring up of racial hatred;”.(3) Part III and Part 3A are repealed.(4) The Crime and Disorder Act 1998 is amended in accordance with subsections (5) and (6).(5) In the long title, omit “to create certain racially aggravated offences;”.(6) Omit sections 28 to 33.(7) In the Anti-Terrorism, Crime and Security Act 2001, omit section 39.(8) The Racial and Religious Hatred Act 2006 is repealed.(9) In the Criminal Justice and Immigration Act 2008, omit section 74 and Schedule 16.(10) The Sentencing Code is amended as follows.(11) Omit section 66.(12) In section 160(1), in the table, omit the entry relating to “section 25 or 29I of the Public Order Act 1986”.(13) In Schedule 18, omit paragraph 22.(14) In Schedule 21, in paragraph 3 omit—(a) sub-paragraph (2)(g) and (2)(h), and(b) sub-paragraph (3).”Member’s explanatory statement
This amendment would abolish all classes of “hate crime”, aggravating factors based upon “hate” and stand-alone offences relating to “hate”.

[Lord Moynihan of Chelsea (Con)]

My Lords, my prior amendment would have removed criminalisation of offensive speech. This second amendment would remove criminalisation of hate as a motive. Mostly this relates to where, if a particular kind of hate directed at particular protected characteristics is proved to be involved, then the crime is considered to be aggravated and so the sentence is then increased. It also includes crimes associated with the stirring up of hatred.

Enhancing a convicted person’s sentence to an aggravated offence is a peculiar idea. In his latest Netflix special, which I am quite sure that most noble Lords have watched at least once, the comedian Ricky Gervais directly mocks this law—to loud audience applause. Recognition of the foolishness of the idea has now spread into popular culture. If I kick someone to the ground—I am not very good at fighting so I probably would not, but if I did—either for no reason or, let us say, because I hated their ginger hair, and I caused them grievous damage, I would go to jail for five years. But if I did exactly the same because I hated their sexual orientation or some other protected characteristic, that could be 10 years. Ricky Gervais pointed out that this implies that motiveless crime or a crime motivated by hate against a non-protected characteristic is not as bad as the same crime where there is hatred against a particular protected characteristic. I find that nonsensical and so did he. As he said to applause, “It’s a crime. Punish the crime”.

Prosecution would certainly be far simpler and investigations far more straightforward if we just addressed the crime and not the thoughts behind it. The whole idea of punishing thought is what used to be described as happening in a totalitarian state: thought crime. Stirring up violence directly should, of course, be criminalised, but criminalising the stirring up of hatred towards people with protected characteristics falls foul of free speech concerns in two different ways. First, it criminalises someone’s words by proving an intent to stir up based on the individual’s protected characteristics, which is very hard to discern. Secondly, it criminalises the stirring up of certain, specified thoughts about people with those protected characteristics in other people’s minds, which is equally hard to discern.

Note that the current popularity of the TV series “The Traitors” is precisely because of how impossible it is to detect another’s hidden thoughts. If those clever people on TV cannot do it, what chance has a court? It would be far better to criminalise just the stirring up of violence: after all, if violence is stirred up, a conviction occurs, so no further prosecution is necessary; if no violence is stirred up, given the concerns that will be raised about free speech and the like, why criminalise the words?

The key provisions in this amendment are, first, to repeal or omit Parts III and 3A of the Public Order Act 1986, which increase the imprisonment term to up to seven years when, in addition to the original crime, there is also the intentional stirring up of hate or likelihood that hate will be stirred up based on race, religion or sexual orientation—not disability, interestingly enough, as the noble Baroness, Lady Brinton, will note. Secondly, it would omit Sections 28 to 33 of the Crime and Disorder Act 1998, which increase the imprisonment term to up to 14 years when an assault, criminal damage, public order offences or harassment are “racially or religiously aggravated”. Thirdly, it would omit Section 66 of the Sentencing Code, which increases sentences for certain crimes where there is, in addition, hostility to actual or presumed racial, religious, disability, sexual orientation or transgender characteristics. Stirring up, intentional or otherwise, is considered an aggravator that leads to higher sentences, although there is a somewhat ambiguous partial get-out for religious hostility.

I will not repeat the points that I made in my speech on the previous amendment about the multiple ways in which these laws fail to work, but I promised then to talk in particular in the speech on this amendment about the way in which hate crime law is clogging up the judicial system—so here goes. First, police forces are wasting thousands of hours on investigating hate crime allegations. As my noble friend Lord Young of Acton pointed out, dozens are arrested every day for online posts. Around 140,000 hate crimes are recorded annually across race, sexual orientation, religion, disability and transgender issues.

The police are now being sued for wrongful arrest by, among many, Graham Linehan. The noble Baroness, Lady Nicholson, has alleged that, in that case, the police were manipulated into the arrest by a transgender former police constable who had been dismissed for gross misconduct some time before.

A general public perception now arises that phone theft is downplayed, shoplifting ignored, and carjacking, burglaries and sexual offences all have less time spent on them than if the police could focus on them rather than being distracted by their pursuit of hate crime.

Secondly, the Crown Prosecution Service is flummoxed by what the law actually says. Isabel Vaughan-Spruce has been left in legal limbo for almost a year after being arrested for standing in silence in an abortion buffer zone, with the CPS still unable to decide whether she should be prosecuted. She has already received five-figure payouts from the police—as I mentioned, that is our money—for previous unlawful arrests, but, again, the year-long process is her punishment. The Koran burner’s violent knife attacker was given only a suspended sentence, yet the CPS is still seeking to convict the Koran burner himself of a criminal offence using the violence of his attacker as proof that the Koran burning stirred up disorder. This is a blasphemy law in all but name.

The Law Lord Jonathan Sumption has pointed out that the CPS has issued official advice that hatred can include “ill-will”, or ill feeling,

“spite, contempt, prejudice, unfriendliness”—

so now we have compelled friendliness—and

“antagonism, resentment and dislike”.

The CPS showed its advanced level of confusion by advising that:

“Evidence of … hostility is not required for an incident or crime to be recorded as a hate crime or hate incident”.


It has now withdrawn that last piece of advice, but not before sowing much confusion. We cannot blame the CPS too much; the legislation is, overall, a dog’s dinner.

The list of hate words in the actual legislation is long, including anxiety, insulting, distress, harassment, alarm, threatening, annoyance, inconvenience and abusive. In some of the hate crime laws, only one or two of these words appear; in others, up to five appear, but never the full nine words in any of the legislation. The word “distress” happens to be the most favoured in the legislation, appearing in seven out of the 11 laws. Poor old “annoyance” appears in only one of these laws. As for the five protected characteristics that are mentioned in the various laws, again, it is an incoherent mishmash. Some hate laws mention only one protected characteristic, while only the Sentencing Code mentions all of them. “Transgender” appears the least frequently.

We could, with difficulty, make an attempt to help the CPS by clearing all of this up, but we could also sort out the problem much more easily by abandoning the whole hate crime approach, focusing on the deed rather than the thought in what we prosecute.

Thirdly, the courts are burdened. The Government are proposing to abolish many jury trials because the courts are overworked. If we got rid of hate crime laws, is that not a better way to free up court time? Because of the ambiguity in the law, it is a postcode lottery at the courts, with acquittals on the silent prayer issue in Birmingham but convictions in Bournemouth.

Fourthly, the prisons are overburdened. I estimate that there are just a few hundred, very likely fewer, hate crime offenders currently imprisoned. But given the recent reports of a crime wave due to violent prisoners having been released early, surely every single freed-up prison place that could come from the abolition of these laws should count as a blessing.

I had almost forgotten to include the Probation Service, but was handily reminded that it is burdened as well by a newspaper article today revealing that Lucy Connolly—I do not think I need to say who she is—has been told by her probation officer that she was risking being sent back to jail, after spending around a year there for a tweet, after some random, unknown member of the public complained that they were offended and that she was inciting violence because she had retweeted a meme suggesting that Donald Trump should send troops to kidnap Keir Starmer. As far as I know, there are quite possibly some Labour Peers and MPs who share her sentiment, but, even if they express that sentiment in public, I would argue that they should definitely not go to jail for doing that. It is yet another example of the metastasis of these hate laws and a waste of probation officers’ time.

All these problems could be resolved were we to cut out or severely cut back on this large and recently introduced body of hate crime law. I urge noble Lords to embrace the benefits of cleaning up and slimming down our criminal law, focusing better on the real physical and cybercrime that besets our country at this time, which in many cases goes unpursued and unpunished because there are not enough judicial resources to pursue those crimes vigorously enough. To that end, I beg to move this amendment.

--- Later in debate ---

[Baroness Brinton (LD)]

Fortunately, the judge took a different view. I think that we have to accept—and I was not the judge and do not know what his thoughts were—that the tweet was clearly seen enough times by the public at the moment when a small number of people were causing real concern outside hotels that had asylum seekers in them who had absolutely nothing to do with the Southport stabbing. That was the issue. Therefore, I believe that this is exactly where the balance lies between rights and responsibility, to go back to John Stuart Mill, where we started in the previous group.

[Lord Moynihan of Chelsea (Con)]

I thank the noble Baroness for letting me intervene. Will she agree that it is unfortunate that there is a general perception that this lady—on whose case I do not rest any of my argument, or place any reliance, as I discussed in my 40-page submission to the Macdonald review—was inveigled into pleading guilty by being kept on remand in a case where it would not have been usual to keep such a person with such an alleged crime on remand? She pled guilty because she thought that she would be released early—more fool her, it turns out—and as a result of her pleading guilty, the matter referred to by my noble friend Lord Young, that she said “for all I care”, which may have turned out to be an excuse that led to her exoneration in front of a jury, much like that 17-minute jury decision that he mentioned, was never litigated, so that we could have discovered what the law said as to whether her tweet reached the standards for criminal conviction. Does the noble Baroness not think that unfortunate?

[Baroness Brinton (LD)]

I do not think that it is unfortunate given that the judge said that 310,000 views of that tweet happened at a time when there was discord on the streets. My argument is not about Connolly’s case; it goes back to Article 10 in the Human Rights Act, which says that along with freedom of expression or freedom of speech there are rights and responsibilities, and it is the role of the state to have laws to protect people. It cannot have been right to think that even one person seeing that tweet could have started one of the arsons in the bins outside one of the asylum seeker hotels. I do not know whether that happened; the point is that 310,000 people saw it, and that is the difference with her last phrase, which probably most people did not see or did not take in the way that the noble Lord has indicated—he has raised his eyebrows at me, but there are different ways of taking it. I do not want to get into the detail of that; I am trying to make the argument that, for every instance of freedom of speech by an individual, there are quite often consequences that may or may not end up as a crime as well. That brings me back to the point that the noble Baroness, Lady Hunt, raised earlier—that the level of hate crimes is increasing. We also know that hate crimes are seriously underreported.

--- Later in debate ---

[Lord Moynihan of Chelsea (Con)]

I apologise for intervening again, but does the noble Baroness not accept that had that matter been litigated it would not have been before the judge? It would not have been for the judge to rule; it would have been before a jury, which is something that we in this country enjoy and that unfortunately there are moves to suppress. It would have been in front of a jury, and a jury would have been able to decide whether that final point justified her exoneration.

[Baroness Brinton (LD)]

The noble Lord said that he did not rely on Lucy Connolly in his earlier argument; he is now trying to rely on that case here. I am trying to make the point that it is more complex than he made out in his earlier contribution. I would like to make some progress, if I may.

The previous Government’s LGBT survey in 2018 showed that fewer than one in 10 LGBT people reported hate crimes or incidents. The noble Baroness, Lady Hunt, has explained one of the reasons for that. The other reason, I know from friends who have also experienced this sort of hate crime, is they do not believe that the police will do anything. I say to the noble Lord, Lord Young, that that is one of the reasons why there is concern about the police: too often, people who are targeted in this way feel that they do not get the help that they need.

As has been described, there is no single piece of hate crime legislation. It includes aggravated assault, which the noble Lord, Lord Young, was particularly concerned about. The point about hate crime is that it is not just the individual; the protected characteristic means that they and their community are also affected by it. We have spent many hours on previous groups on this Bill discussing the absolute abhorrence of antisemitism. If actions in Israel can cause people in the UK to start attacking members of our Jewish community, either verbally or against a person or their property, then that is absolutely unacceptable. That is one of the reasons why I would never want hate crimes to be removed.

Research by Professor Mark Walters of Sussex University shows that hate crimes do not affect just those individuals targeted; he describes them as having a “ripple effect” through their wider communities. Some people will avoid certain routes and places, and others will not leave home at all, particularly in our Jewish communities at the moment, but the same is true in certain areas for our Muslim communities. If laws about hate crime are weakened or repealed, it would send an appalling message to these communities of faith, as well as to LGBT and disabled people. Do the supporters of the amendment really no longer regard it as important that the state recognises the communities that have protected characteristics—their vulnerability—as warranting distinct legal recognition and criminalisation?

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

The noble Lord, Lord Macdonald of River Glaven, is expected to produce a report at some point during the next couple of months. I cannot give a definitive time for that, but I can tell the Committee that we will obviously make sure that it is published. There are likely to be Statements or an Urgent Question in this House on the report. We will first look at how we as a Government consider the recommendations and, secondly, if we need legislation, what mechanism that would be and when it would be brought forward. I can tell my noble friend that there will be a full discussion on the report when it comes. I cannot, as yet, constrain the discussion from the perspective of the noble Lord, Lord Macdonald, by answering the question my noble friend posed.

[Lord Moynihan of Chelsea (Con)]

My Lords, I thought that too was a great debate and that the Minister managed to articulate very clearly that there is clear water between two opposing groups of thought on these matters. I am gagging to launch into a half-hour speech to attempt to respond to what he and others said, but I am mindful of the earlier admonitions from the noble Lord, Lord Katz. I merely thank the noble Baronesses, Lady Fox, Lady Hunt and Lady Brinton, my noble friends Lord Young and Lord Davies, and the Minister for their contributions.

I believe that it is time to call an end to this hate crime law experiment. The criminalisation of hate speech and hate crime was overambitious. It punishes ideas and motives, as opposed to actions. As I have shown, I believe it is choking up the justice system and shutting down free speech. I will close by slightly misquoting Samuel Johnson:

“How small, of all that human hearts endure,

That part which laws ”—

or Lords—“can cause or cure”. Having said that, for now, I beg leave to withdraw my amendment.

Amendment 382G withdrawn.

Crime and Policing Bill

Lord Moynihan of Chelsea Excerpts

2nd reading
Thursday 16th October 2025 Lords Chamber

[Lord Moynihan of Chelsea (Con)]

My Lords, it is a pleasure to follow the noble Baroness, and I welcome the noble Baroness the Minister to her first Second Reading. I welcome elements of this new portmanteau Bill and the Minister’s assurances at the beginning of this debate of the focus being on fighting basic crime.

The Bill addresses legislation seen as obsolete, incomplete or needing amendments or improvement; I see a further golden opportunity in the Bill to remove hate crime law, which was first put on the books in 1965, addressing race hatred. Since then, hate crime law has proliferated—indeed, metastasised. It has proliferated in which protected characteristics it covers—now up to five in the UK, seven in Scotland; in the triviality that can now incur the police’s attention; in political agendas being pursued, with some hateful beliefs allowed to flourish but less politically modish views cracked down on; by uncoupling hate crime from actual crime, with police intimidating and harassing individuals for the absurd and near-oxymoronic concept of non-crime hate incidents; and in the many new organisations claiming to unearth hate crime and hate speech, funding false narratives of hate crime, dividing the nation further but with no reduction in hate crime. Hate crime has crystallised as the useful tool of left identitarians, dividing and conquering by inciting grievance within the identity groups whose votes they seek to capture.

Set against this is free speech. In this country, we traditionally do not believe in thought crime. Our first Queen Elizabeth famously said she had no desire to look into men’s souls, but now we have policemen saying, “I need to check your thinking”. Free speech advocates see the need to tolerate it when people say disgusting things we do not like. Only ordinary criminal law, not hate crime law, should be deployed in such circumstances, and only then if there is intent to incite imminent violence.

Criminalising hate speech did not prevent the hateful marches that occurred immediately after 7 October, before Israel could even react. Nor did it stop the continuation of those marches after the ceasefire had been achieved. In my view, those marches quickly, over the months, rose to the standard of criminal incitement after 7 October, yet nothing was done about that month after month. Is there any evidence that the invention of hate crime has reduced the number of attacks on minorities? Try asking Jews in Manchester that question, or Muslims in Bethnal Green.

Meanwhile, hate crime law has led to the police being confused, overstretched, badly led and distracted from fighting actual crime. Not one burglary was solved in 48% of English and Welsh neighbourhoods in the past three years. The police’s soft target now is to pursue the unthreatening middle-class tweeter rather than shoplifters, phone muggers, burglars or drug dealers. To redirect the police, we need to get hate crime off the statute book while ensuring that we have adequate provision within the criminal code for the punishment of any crime driven by the intent to intimidate, persecute or marginalise any group of citizens of whatever identity. Police could then focus on the numerous actual crimes that are committed daily so that our police forces can return, as they say, to policing our streets and not our tweets.

Employment Rights Bill

Lord Moynihan of Chelsea Excerpts

Report stage
Monday 21st July 2025 Lords Chamber

[Lord Londesborough (CB)]

My Lords, I support all the amendments in this group but will speak specifically to Amendments 129, 131 and 145 tabled by the noble Lords, Lord Sharpe of Epsom and Lord Hunt of Wirral, to which I have put my name.

Increasing the right of trade union access, as well as lowering the membership thresholds and the required percentages for action, is, as we know, applying right across the board, whatever the size of the business or organisation. It is Part 4 of the Bill, as the noble Lord, Lord Hunt, just highlighted, that is causing considerable alarm and nervousness among SMEs, particularly small, micro and family business owners. I know this through multiple meetings with business owners and the steady flow of emails into my inbox.

At this point I remind the House of my interests as a chair of, adviser to and investor in a range of small start-ups and scale-ups. One of the key issues that keeps being raised by entrepreneurs and business owners is workforce culture, performance and collaboration within teams, which are so vital to achieving productive, profitable and ultimately sustainable businesses.

These employers are not simply against any sort of unionisation of their workforce. In many cases they can see the merits, but they are very concerned about the enhanced provisions of access in the Bill and the potential impact on owner/employee relations, teamwork and, indeed, the increased time that will need to be devoted to changing induction paperwork, negotiating with staff and their unions, facilitating meetings and possibly having to work with the Central Arbitration Committee and the fair work agency, which will have the right of entry to their businesses and, indeed, to their records.

In an era when we as a nation desperately need to see real economic growth, especially per capita growth and productivity advances, this part of the Bill threatens to dampen those prospects and distract owners and management from this core mission. Among small businesses, there is also the danger of creating divisions unnecessarily between owner and workforce and, indeed, between members of the workforce itself. I know this is not the Government’s intention, but we run the risk of damaging these unique cultures that we see in start-ups and family businesses.

In short, whatever the Government’s rather confusing claims on consultation, the SME community—which, as we have heard, accounts for nearly 17 million jobs and £2.8 trillion turnover per annum—clearly does not feel that it is being heard, let alone consulted. Amendments 129 and 131, in particular, seek to address this, in what I believe is a considered and structured way.

First, we need to see structured and representative consultations across micro, small and medium-sized businesses, across the key sectors, and involving start-ups, scale-ups and family businesses, from those employing two to three staff to those employing 20, 50 or 150 staff. These are very different enterprises, not just in size but in stages of development.

Secondly, we need to see coherent impact assessments for each of these groups, not the one-size-fits-all approach that dominates so much of this Bill, and not just by size but by sector. From agriculture to technology and telecoms, they will be impacted in very different ways. As we have heard, SMEs will need time and fair notice—certainly not before April 2028—to be ready to deal with the potential consequences of these clauses.

None of this is unreasonable in my view. These amendments would help the Government to avoid damaging the SME ecosphere at a time when we need to proceed with care and caution, and especially if we want SMEs to be the engine of real economic growth.

[Lord Moynihan of Chelsea (Con)]

My Lords, I will speak to Amendment 130 in my name. It is purely an amendment to rectify a small perceived mistake in the legislation, whereby a trade union can, in theory, put in a demand to meet its members in a company immediately, without any delay or warning. This means that a company’s management must always be in fear of a sudden disruption to the company’s ongoing work.

I am sure that the Government did not intend to torment companies with this possibility. I have put forward this amendment with a view to giving the Government an opportunity to agree that some kind of advance notice—I am suggesting a delay between request and meeting of at least two days—is a good idea, and that the length of that advance notice should be put in the Bill.

We all agree that business is the engine of economic growth and the ultimate creator of jobs. Therefore, we all in this House must be agreed that helping business accomplish its ends is important. The Government want the economy and jobs to grow—they have told us so repeatedly. They do not want companies worrying unnecessarily about sudden disruptive swoops from the union. We can see at once that there are many circumstances where a request to meet immediately just would not work. Imagine, for example, the air traffic controllers having to suddenly down tools. Imagine a complex, just-in-time process of many interlocking parts suddenly being interrupted, with an appalling domino cascade of interruptions and failures as a result. Imagine a complicated safety audit being disrupted.

I am sure that the Government have no intention of this and I imagine that the Minister will tell us that it is not at all the intention. However, while it might not be the intention, the opportunity is there in the Bill for the trade unions to act in this way. Therefore, why not, in the Bill, prevent that opportunity?

We all agree that untrammelled regulation is a “boot on the neck” of business—we were assured that that was the case just last week by the Chancellor of the Exchequer herself—yet here in Clause 50 we have yet another regulator, not the first one that we have discussed that has been created for the Bill, with fining powers. Last week, in the same Bill, it was the FWA; now, we have the Orwellian-sounding central arbitration committee, again with fining powers.

[Noble Lords]

Oh!

[Lord Moynihan of Chelsea (Con)]

Noble Lords should read the Bill. Payments will be made if the Central Arbitration Committee decides that a request to meet was unfairly refused. I checked it all this afternoon. I did not really expect noble Lords to challenge me on it.

[Lord Davies of Brixton (Lab)]

I think the reaction from noble Lords was to the use of the word “Orwellian”. No one is questioning the facts; it is the suggestion that a central arbitration commission is Orwellian.

[Lord Moynihan of Chelsea (Con)]

My Lords, a central arbitration commission might not be Orwellian but I feel that a Central Arbitration “Committee” is. We can agree to disagree on that, but the word “committee” is in the actual name.

Imagine how all this will be taken by the neck on which this regulatory boot is going to be placed by the Bill. All my amendment does is suggest some small limit to when a trade union might announce the date on which it wishes to meet its members. That would provide a proper, proportionate and fair way of giving both sides, company and union, what they need. Indeed, the delay would actually help the union, by allowing it to find a time when more staff were present for the mooted meeting.

The Bill gives the union three months in which to complain if management refuse the proposed time to meet. Surely if three months can be given to the union, two days is not too much to ask for the employer to consider any such request.

[Baroness Lawlor (Con)]

My Lords, I support my noble friend’s amendments. There are good reasons to exempt small businesses, which make up the backbone of our productive economy, from the measures in Clauses 55 and 56, both for the statement of trade union rights and for trade union access.

We know, as we discussed in Committee, how rapidly trade union membership is falling, and that it has fallen particularly in the private sector. We know that, although it has gone up in the public sector, it still represents a much smaller proportion of trade union members than in 1995, when statistics began. Small and medium-sized businesses account for 99.8% of our productive economy. If we impose additional compliance costs on 1.16 million micro businesses of up to 10 employees and on 4 million sole traders, we are saddling them with the kind of compliance costs to which noble Lords have already referred.

I wholeheartedly support my noble friend’s amendments to exempt the majority of small, tiny and medium-sized enterprises from the compliance costs of furnishing a letter and the costs—indirect, perhaps—of access arrangements for trade unions, when there may be no trade unionists in the workforce of these small, entrepreneurial businesses.

Employment Rights Bill

Lord Moynihan of Chelsea Excerpts

Report stage
Wednesday 16th July 2025 Lords Chamber

Moved by

[Lord Moynihan of Chelsea]

108: Clause 27, page 48, line 13, at end insert—
“(A2) Subsection (A1)(a) shall not apply where the employer is undergoing relevant insolvency proceedings.(A3) Where the employer is undergoing relevant insolvency proceedings, the duty to consult under this section shall not arise.(A4) For the purposes of this section, “relevant insolvency proceedings” means any formal insolvency process under the supervision of an insolvency practitioner, including but not limited to—(a) administration;(b) administrative receivership;(c) Company Voluntary Arrangement (CVA); (d) Creditors’ Voluntary Liquidation (CVL);(e) compulsory liquidation.”Member’s explanatory statement
This amendment ensures that employers undergoing formal insolvency proceedings under the supervision of an insolvency practitioner are not subject to the collective consultation duties ordinarily required under subsection (A1)(a).

[Lord Moynihan of Chelsea (Con)]

My Lords, in moving Amendment 108, I will speak to Amendment 109, also in my name. My declaration of interest is that I have worked in my career with hundreds of companies, many of which had to create redundancies at one time or another and a few of which had to go into liquidation. I am not an insolvency practitioner.

The first of these amendments, Amendment 108, is a small but very important proposal. First, a disclaimer: I am not seeking to alter the vast majority of what is proposed under Clause 27, only that small minority of redundancy cases that occur when a company goes into insolvency. Also, I am not proposing any override of TUPE legislation, in particular in so-called pre-packs. I am proposing that on a non-partisan basis, we take advantage of the passing of this Bill to rectify a long-standing conflict between two separate laws—a conflict that often places insolvency practitioners in an impossible position.

What is this conflict? It is between the provisions of the Insolvency Act 1986 versus the Trade Union and Labour Relations (Consolidation) Act 1992, the latter of which, as your Lordships know, today’s Bill seeks. The conflict has long existed; it is not a function primarily of the Bill we are discussing today. Let me explain briefly what it is. Insolvency practitioners are required to act quickly, so that value is not eroded. The 1992 Act, however, requires consultation of between 30 to 45 days, which would utterly frustrate the imperative to move swiftly. The liquidator is basically required to break one or the other laws, and always chooses to break the 1992 law—and will choose to break it as amended by this Bill, because the liquidator has to act speedily. A long consultation, whether 30 or 45 days, is always found to be impossible.

As a result, ambulance chasers write offering “free money” to all employees because the law has been broken and therefore the provision comes in that penalty money should be paid to these workers. This does not happen in all cases—only when trade unions are involved or the insolvency is large enough for the no-win no-fee crowd to move in. Much of the money in bankruptcies then ends up in the hands of lawyers rather than any of the creditors. We should note that in most non-liquidation situations these stringent provisions make such penalty awards rare. An employer would be foolish to flout the requirements. It happens only in liquidation, where the liquidator is essentially forced to choose to flout one law or another.

--- Later in debate ---

This afternoon I looked at the R3 website, and one concern that it had with this amendment was that it would devalue a business’s value on an ongoing basis to a potential purchaser. Why should employees suffer because of that devaluation?

[Lord Moynihan of Chelsea (Con)]

I apologise for intervening, but is the Minister saying that R3 stated that it was against this amendment?

[Lord Leong (Lab)]

The R3 website said that it was concerned about the amendment because it may devalue a company’s valuation on an ongoing basis because of the day-one rights accorded to employees. That is what it said on the website.

[Lord Moynihan of Chelsea (Con)]

I do not want to detain the House, but I am in ongoing discussions with R3, and it has never said this. Is the Minister quite sure that it is not saying that it is concerned about the clause, rather than the amendment?

[Lord Leong (Lab)]

I may be wrong. Sorry: it is not the noble Lord’s amendment; it is the clause. I apologise for that. But it is the same thing: if it is against the clause, it is because it is concerned about the valuation of the business. My point is, why should the employees suffer because of the taking into account of day-one rights?

On Amendment 109, I inform the noble Lord that the notification period in the current law aligns with the consultation period. This means in practice that whenever an employer begins a collective consultation, they must also notify the Secretary of State at that point. Setting these periods at different times could cause confusion for employers and increase the risk of non-compliance. The objective of the notification provision is that such notifications may be distributed to appropriate government departments and agencies that are best placed to support affected employees. This amendment would mean that those agencies would be less prepared to support large volumes of individuals who have been made redundant. We have had extensive engagement with employers throughout the passage of the Bill, and the notification timeline has not been raised as a concern. Therefore, this amendment is unnecessary.

I take this opportunity to say to the noble Lord that we will engage with the Insolvency Practitioners Association, raise and discuss the issues that noble Lords have raised, and listen to what it has to say. With that in mind, I ask the noble Lord to withdraw Amendment 108.

[Lord Moynihan of Chelsea (Con)]

I thank noble Lords for their patience in enduring at this late hour this somewhat arcane discussion. The noble Lord, Lord Goddard, emphasised the importance of consultation and, indeed, the essential nature of it, and said how vulnerable employees are. But they are not vulnerable in this particular circumstance; they have priority as creditors above all other creditors. If there is money, they will get it. If there is no money, they will get it from the Redundancy Payments Service. But why, having got their full amount of redundancy money, should they then scoop the pot and get three times as much because of a flaw in the law that will leave, for example, small trade creditors not receiving anything and possibly facing bankruptcy? That is not to mention the fact that a lot of this money will usually come from the taxpayer—ultimately, the source of funds for these penalty payments—via HMRC, where the Redundancy Payments Service is, thus increasing the deficit. It would create a mini black hole, if I could be so foolish as to mention that.

My noble friend Lord Hunt of Wirral ably reinforced the need for this amendment. The Minister emphasised the importance of consultation. I understand that, but I believe Hansard will show that I have already dealt with most of the items in his response. I will not delay noble Lords any longer by going over that ground again, except to say once again that when he asks why employees should suffer, the answer is that they will not suffer. I hoped I had explained that. I am chagrined to understand that I have not. They have total priority above all other creditors in receiving their full redundancy payments.

All I ask is, why should they, as a result of a glitch in the law, receive in total three times that much as a so-called penalty payment? They will not be paid by the employer because the employer will be long gone. They will not be paid by the insolvency practitioner, in facing the impossible task of obeying both laws at the same time. They will be paid mostly by us, first through HMRC and through it the taxpayer.

The hour is late and so, if only on compassionate grounds, I beg leave to withdraw my amendment.

Amendment 108 withdrawn.

Employment Rights Bill

Lord Moynihan of Chelsea Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

[Lord Hutton of Furness (Lab)]

My Lords, Amendment 251A stands in my name. I draw the Committee’s attention to the interests I have disclosed in the register. I chair the operating company that runs London Luton Airport.

Much in the Bill is to be welcomed. It will deal with some of the manifest gaps in our framework of employment law and will strike a better balance of rights in the workplace. I strongly congratulate my noble friends on bringing this Bill forward. My amendment addresses the question of balance. Ministers have repeatedly emphasised the importance of balancing the need for better protections for workers and a simplified, less complex framework for industrial relations law with the legitimate and reasonable concerns of employers about flexibility and the regulatory costs of additional legislation. Being both pro business and pro worker is a laudable aim, but it will depend on this balance being properly struck.

I believe that Clause 71 as drafted does not strike the correct balance as it affects UK airlines because this clause directly, but probably inadvertently, brings into play in any future industrial action involving UK airlines the regulations concerning airline passenger compensation set out in what is known in the industry as UK261, which would impose potentially significant costs on airline operators in any future industrial dispute. This regulation gives passengers a right to compensation if a flight is cancelled fewer than 14 days before departure, unless there are, according to the regulations, extraordinary circumstances. Compensation can be anywhere between £110 and £520 per person, depending on the length of the flight, not the value of the ticket. Unions are required under the current law to give 14 days’ strike notice to any UK airline operator, allowing flights to be cancelled without incurring potentially enormous claims for compensation from passengers.

The regulations and the primary legislation are, in this context, extremely and entirely harmonious. Clause 71 would change the current careful balance and expose airlines to significant claims for compensation as in future if the Bill becomes law only 10 days’ notice of strike action would be required. An important ruling of the European Court of Justice in 2019 made it clear that strikes by an airline’s own staff are not to be considered extraordinary circumstances under UK261, so we have an obvious problem. I cannot believe that Ministers intended this outcome because, put simply, there is no balance here. Uniquely in this sector, the law would discriminate against airline operators.

My amendment proposes a solution to this. UK airline employees should continue to be required to provide 14 days’ notice of strike action. I do not believe that my amendment raises any fundamental issues of principle. Trade unions should, and must, have the freedom to take industrial action, but employers also have the reasonable expectation that the law will remain neutral and will not favour one side over the other. I am afraid that Clause 71 does precisely that as far as the airline sector is concerned. If my solution is not considered acceptable to my noble friend on the Front Bench, I hope that she will be able to tell me how she plans to deal with this situation.

[Lord Moynihan of Chelsea (Con)]

My Lords, I am embarrassed to keep your Lordships even a few minutes more, but I stand to support the amendment tabled by the noble Lord, Lord Goddard, and my noble friend Lord Jackson in his opposition to Clause 69 standing part, and to introduce my own opposition to Clause 66 standing part. Thus, I go further than the noble Lord Goddard, even though I very much support his words.

Why is Clause 65, in combination with Clause 66, so damaging? The noble Lord, Lord Goddard, was quite right to focus on the democratic legitimacy of the provisions of Clause 65, but there is a further, even more key, set of problems with these clauses. With noble Lords’ permission at this very late hour, for which I apologise, I will give a very brief review of the history.

Let us first look at days lost to strikes in the 1970s. In 1970, 10 million days were lost; in 1972, 24 million days were lost; and in 1979, 30 million days were lost during the winter of discontent. We consequently had the Thatcher reforms, which outlawed secondary action, banned strikes conducted for political reasons, regulated picketing, required secret ballots for strike action, and made trade unions legally accountable for actions taken in their name. This enabled unions to restore control and reduce the number of unofficial strikes, which had been a major source of the growth in strike activity in the 1960s and 1970s. The result, post-Thatcher through to the 2020s, was that, on average, less than half a million days a year were lost to strikes. Industrial peace was a direct consequence of those reforms. There were no more winters of discontent. This was enormously valuable, for example, for the Blair and Brown Governments of the noughties.

Let us note that the Government’s Bill seeks to eliminate very few of those specific Thatcher reforms. The amendments from the noble Lord, Lord Hendy, which we have just discussed, made an attempt at that; I am glad to hear the Government sensibly decline his invitation. However, even though the Government apparently see the sense of leaving most of the Thatcher reforms in place, they seem, in Clauses 65 and 66 in particular, to be looking to find other ways to unionise the private sector landscape.

If the Government succeed in that, there will be inevitable consequences for the UK’s economy. Last week, it was observed that unions are currently mostly confined to the public sector in the UK, but nobody asked why that was so. It is obviously because public sector workers have a monopoly of employment, so can enforce their will, and timid Governments seek to placate them so as to be able to appear, at least, to be in charge. What is the impact of this? They are multiple public sector strikes and excessive wage settlements in the public sector, the costs of which are now directly leading the Chancellor to her current dilemma of a runaway deficit, plus underserved public services such as social care and child welfare, and an impending debt crisis.

What will Clauses 65 and 66 collectively do to the union landscape in the UK? Clause 65 removes Section 226(2)(a)(iia) of the Trade Union and Labour Relations (Consolidation) Act 1992, meaning that for the ballot to be valid, you no longer have any floor for the percentage of employees voting. Clause 66 alters subsection (2)(a)(iii) so that only a majority of those voting would be required for a strike to go forward. One businessman whom I spoke to just today was utterly startled by this news. He runs an SME employing 36 workers. If, say, one-third of them—12 people—vote, and only six of those 36 employees vote to strike, then you have a strike. It is not hard to find six out of 36 employees to vote for a strike.

However, is that, as the noble Lord, Lord Goddard, pointed out, democratic? Will the electorate’s heart warm to this quantitative gerrymandering? As I described just now, we all see the impact of unionisation in the public sector. What will happen in the private sector if this Bill, in the undemocratic manner that the noble Lord, Lord Goddard, has so rightly decried, passes?

I described last week in this Chamber some of the past, when unionisation destroyed industries such as the London docks, and the present, when the public is tormented by public sector strikes ranging from dustbins to doctors and from teachers to train drivers. This present-day public sector malaise, if it spreads to the private sector, will, as my noble friend Lord Hunt made clear, take us straight back to the 1970s and the winter of discontent.

If the Government are, sensibly, really not proposing to change much of the Margaret Thatcher reforms, which have brought industrial peace to the private sector at least, why is there any need to bring in these new anti-democratic changes? Do the Government really think that allowing strikes to go forward, with feasibly only 10% or even less of employees voting for the strike, will be seen by the public and indeed by the other 90% of the employees of that company as anything but outrageous and leading to even more strikes, even more outrageous wage settlements, even more yawning deficits, even, dare I say, a very large and this time real economic black hole?

If the Government proceed with these changes, the inevitable consequent industrial strife will be laid at their door. The Labour Party saw what happened to it in the 1979 election as a result of the winter of discontent. Why is it now seeking a similar fate in 2029? I urge the Government to withdraw Clause 66 and indeed Clause 65.

[Baroness Coffey (Con)]

My Lords, I will speak briefly to the amendments that I have signed. I do not actually wish to add anything on Amendments 244 and 246 as what the noble Lord, Lord Goddard of Stockport, said was straight to the point. I agree with him absolutely on those matters.

I just want to briefly turn to the Clause 71 stand part notice and Amendment 251A from the noble Lord, Lord Hutton of Furness. I think that the noble Lord, Lord Hutton of Furness, explained it very eloquently. Why, when we are getting into this level of legislation, does it really matter about going from 14 days to 10 days? Actually, it does. There are wider consequences of some of these legal changes which need to be recognised in terms of the practicality of some of this legislation. It would be very helpful to hear from the Minister why that particular move is being made.

The other reason I oppose entirely Clause 71 standing part—to be more accurate, it is probably about subsection (1)(b)—is the categories and the NHS and trying to prepare for strikes. You never know exactly how many people will go on strike when you are running a hospital or other parts of the NHS. Having a clear sense of what capability you are still going to be able to run is critical for patient safety and for patients getting better.

I hope that the Government consider the amendment from the noble Lord, Lord Hutton, when it comes to the airline industry. I hope Ministers will also carefully consider the NHS in their deliberations, because that genuinely can mean the difference between life and death or, to be less dramatic, whether a whole series of operations will need to be cancelled for many patients across the country. I genuinely believe, recognising that health unions are currently issuing ballot papers, that Ministers should be carefully considering what impact this new clause would have.

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[Lord Katz (Lab)]

My Lords, I thank the noble Lords, Lord Sharpe of Epsom and Lord Goddard of Stockport, and my noble friends Lord Hutton of Furness and Lord Hendy for tabling amendments on the subject of industrial action ballot mandates, thresholds and notice. Despite the late hour, I recognise that there is significant interest here. I will try to do justice to all those amendments and to the opposition to certain clauses standing part of the Bill.

Before I go into the detail, I want to make it clear that a lot of what we are discussing relates to the repeal of the great majority of the Trade Union Act 2016, which was a clear manifesto commitment for this Government. I think it is worth framing why that is the context. This does, in a way, speak to a lot of what the noble Lord, Lord Moynihan, mentioned. Far from supporting the economy, the strike legislation in the 2016 Act that we inherited from the then Opposition did not actually prevent strikes. In 2022, we lost more days to strikes than France. In 2023 and 2024, NHS strikes alone cost the taxpayer £1.7 billion.

[Lord Moynihan of Chelsea (Con)]

The noble Lord and others keep referring to the 2016 Act, but the amendments that we have been addressing in this section are all amendments to the Trade Union and Labour Relations (Consolidation) Act 1992.

[Lord Katz (Lab)]

With respect, there are definitely elements in the group of amendments we are talking about that relate to the 2016 Act. I was simply setting out the context for my remarks. Perhaps the noble Lord will let me make some progress, and, if he is still not satisfied towards the end of the speech, we can spend a bit more time on this.

As I was saying, 2.7 million working days were lost to strike action in 2023, up from 2.5 million in 2022, and these were the highest annual number of working days lost to strikes since 1989. Put frankly, the 2016 Act did not achieve its objective of reducing strikes—in fact, it made things worse.

Amendment 244, tabled by the noble Lord, Lord Goddard, and Amendment 245, tabled by the noble Lord, Lord Sharpe of Epsom, both seek, in different ways, to remove the repeal of the 50% industrial action ballot turnout threshold. The Bill as drafted repeals this threshold in its entirety, returning us to the situation pre 2016, where only a simple majority of members voting in favour of strike action was required for industrial action to be deemed lawful.

We want to create a positive and modern framework for trade union legislation that delivers productive, constructive engagement, respects the democratic mandate of unions and reduces bureaucratic hurdles. The date for repeal of the 50% threshold will be set out in regulations at a future date, with the intention that it is aligned with the establishment of e-balloting as an option for trade unions. In combination with the delivery of modern, secure workplace balloting, we hope that this will ensure that industrial action mandates will have demonstrably broad support.

I turn to the opposition to Clause 66 standing part. In answer to the concerns expressed by the noble Lord, Lord Moynihan, this clause does indeed seek to amend Section 226 of the Trade Union and Labour Relations (Consolidation) Act to reverse the change made by Section 3 of the Trade Union Act 2016. Section 226 is amended to omit subsections (2A) to (2F), thereby removing the requirement for industrial action ballots in six defined public services—health; fire services; education for those aged under 17; transport; decommissioning of nuclear installations, management of radioactive waste and spent fuel; and border security—to have the support of at least 40% of those entitled to vote for the industrial action in order to be valid.

Alongside Clause 65, which removes the turnout threshold, a trade union will need only a simple majority of those voting in the ballot to vote in favour of industrial action for the industrial action to be deemed lawful. This was the case prior to the Trade Union Act 2016. This clause is a key part of the Government’s agenda. Again, I want to be clear that this is part of our commitment to repeal the Trade Union Act 2016.

I turn to Amendment 246, tabled by the noble Lord, Lord Goddard of Stockport, and will speak to the opposition to Clause 69 standing part of the Bill. The noble Lord’s amendment seeks to retain the current six-month mandate period for industrial action following a successful ballot. The Government want to strike the right balance between ensuring that industrial action is based on a recent vote and reducing the need for re-ballots. Strike action is always a last resort; it is costly to workers as well as employers. For this reason, we consulted on the appropriate length of time before a trade union should re-ballot its members.

In that consultation, trade unions were very keen to have no need to re-ballot for a mandate at all. However, following the consultation, the Government have set the mandate period at 12 months, because the majority of industrial action concludes within that time. This will ensure the appropriate balance between reducing the costs of re-balloting and allowing mandates to continue for longer where they are likely to have continued members’ support, without prolonging disputes or permitting action to be called based on a more than year-old mandate. Retaining the six-month mandate period would prevent the Government delivering on their commitment substantively to repeal the Trade Union Act 2016.

I turn to the opposition to Clause 68 standing part from the noble Lord, Lord Sharpe of Epsom. The purpose of this clause is to reduce the information that unions are required to include on a voting paper for industrial action, through repealing Section 5 of the Trade Union Act 2016, which introduced additional requirements into Section 229 of the Trade Union and Labour Relations (Consolidation) Act 1992. Section 5 of the 2016 Act required trade unions to include on the ballot paper a summary of the issues that are in dispute between the employer and the trade union; the type of industrial action that amounts to action short of a strike; and an indication of the time period during which it is expected that those specific types of action are to take place.

Repealing Section 5 will not remove all the information requirements. Under Section 229, the ballot paper will still require unions to ask their members on the ballot paper whether they support industrial action and which type of action they want to take part in, expressed in terms of whether it is strike action or action short of a strike. The noble Lord, Lord Sharpe of Epsom, made an analogy with ballot papers not containing details such as the names of candidates or the nature of the election. I respectfully point out that there is a danger in that analogy; I do not think it is fair. After all, noble Lords opposite would not expect democratic elections for elected office to carry the kind of mandate threshold that they are insisting trade union ballots should have. Whether they want to make the analogy that democratic elections are like union ballots or not, there is a bit of a pick and mix going on—

Employment Rights Bill

Lord Moynihan of Chelsea Excerpts

Committee stage
Tuesday 3rd June 2025 Lords Chamber

I conclude by saying that the net benefit to employees, I would argue, is minimal, but the cost to certainty and proportionality is high. The protective award is an important tool, but it must remain proportionate, targeted and fair. A 90-day cap already represents a significant financial consequence for non-compliance. Doubling it will not double the benefit; it will only double the risk.

[Lord Moynihan of Chelsea (Con)]

My Lords, good evening. I rise in support of Amendments 141BA, 141C and 142B, and it is a pleasure to support the noble Lord, Lord Hunt, on these amendments. I declare an interest as a businessman and as one who wishes to see the wheels of commerce and thus the economy moving smoothly and not unnecessarily clogged up.

As far as insolvency goes, this Bill presented an opportunity—one that I still urge the Government to grasp—to make insolvencies more efficient and less destructive of the economy. The law currently says that, in most cases where workers are to be made redundant, a 90-day consultation is required, regardless of insolvency or not. But, if a company is insolvent, consultation is necessarily spurious. The employees have lost their jobs, period, and the receivers have to move instantly, not wait 90 days to realise the assets. So, they do not wait 90 days and, because of this rule, they then break the law, because they are required to give 90 days. Two laws are in conflict with each other and one of them has to be broken. The more swiftly the assets of a failing organisation can be reorganised, the more likely it is that productive economic activity can be continued from these assets.

In the US, where these things are done much better, a study some time ago found that only 4% of assets were lost in a bankruptcy: 96% went on to be productive assets under a new organisation. Anyway, because the law has been broken, necessarily, in these cases, because the receivers are doing their duty to achieve a speedy liquidation, the lawyers move in.

The noble Lord, Lord Pitkeathley, who I am delighted to see is in his place, referred earlier to ambulance chasers. There are many lawyers in this House and every single one of them is, of course, honourable and valuable; but we are talking about no-win no-fee lawyers, who can be deeply pernicious in both practice and effect. These lawyers advise all affected employees that they have a case they can take to the employment tribunal because they have not been consulted, and that they will certainly win that case. These no-win no-fee lawyers refer to this case as “free money”: “Dear employee, you’ve got free money because you haven’t been consulted on a 90-day period”. These employees already get their redundancy money, their statutory sick pay, their holiday money and so forth. They get it all ahead of any other creditors. They are not disadvantaged.

This 90-day money that they get by going to the employment tribunal is three months’ bunce on top of everything else. I do not think that can have been intended, but it is certainly what the outcome has been. Who pays for this—because, as we know, there is no such thing as a free lunch? If the company was truly insolvent, there will not be enough money for everybody, so there will be losers when this money is paid to the employees: losers such as suppliers and HMRC, also known as the taxpayer, of course. And they will lose more as those workers get their 90 days’ pay.

I refer to one of many examples, Go-centric, a Glasgow-based call centre that suddenly went bankrupt on 19 December 2022, laying off around 600 employees just before Christmas. There is a whole story behind that that all of us can derogate. The receiver was faced with 600 employees who had to be laid off immediately. That is what receivers do, and they are honourable people running a very important economic activity for this economy. Enter the lawyers into this Go-centric situation, writing to redundant workers and advertising “free money”. That is what they actually wrote in the letters to employees, which the employees replied to. They went to the employment tribunal and the money was obtained for 200 workers who had already received all their statutorily due redundancy payments. I really do not think this can have been intended when the legislation was written, but so it was.

Now we have a wonderful opportunity in the Bill to rectify this, most likely unintended, clash of legislation by removing the 90-day consultation requirement in an insolvency, since, as we know, consultation is irrelevant, indeed impossible, in a liquidation. Have the Government wisely seized this opportunity? Have they rushed to validate their claims of fiscal prudence? They have not—far from it. Indeed, they have, bizarrely, proposed in the Bill to increase the 90 days to 180 days. A full six months of free money on top of statutory redundancy money, taking precedence over HMRC, suppliers and others. This all makes it more likely that their claims cannot be met, potentially precipitating further bankruptcies among suppliers. Noble Lords will have heard many pitiful stories of suppliers stiffed out of payments by a larger company going bankrupt and themselves then having to go bankrupt. This provision makes that more likely. There is no free 180-day lunch here.

We have a further problem, which may not have been considered by the Government in putting forward the Bill, which is that, if these payments fall short, which necessarily they will in many cases, the redundancy fund is called upon to pay moneys to workers. That is the redundancy fund that reports to HMRC, which reports to the Treasury. Have the Secretary of State and the Minister informed the Chancellor that they are legislating to increase the Treasury’s outgoings by a significant amount in future years, not to mention increasing the nation’s welfare bill, which the Government actually have a commitment to reduce? I suggest that the Government should speak to themselves and have a discussion about that.

The same concerns apply to the extension of the limit to 20 employees across an organisation to which the noble Lord, Lord Hunt, referred, and to encompass distressed businesses—businesses that are in distress, which are calling for financial advice, but have not yet gone into immediate insolvency. An opportunity is being missed to sort all that out.

Employment Rights Bill

Lord Moynihan of Chelsea Excerpts

Committee stage
Thursday 8th May 2025 Lords Chamber

Amendment 21 makes an important clarification to ensure that employers retain the ability to make genuine redundancies where there is a legitimate business need to do so. I hope the Minister will carefully consider the amendment, because it would ensure that the introduction of a new right to be offered guaranteed hours does not inadvertently create a chilling effect where employers fear that normal restructuring processes would expose them to allegations of unfairness simply because guaranteed hours had been agreed. Let me make absolutely clear that this amendment does not in any way undermine the provisions being introduced; we just need that clarification. In conclusion, the amendment strengthens the Bill by giving businesses greater confidence to participate fully and openly in the new framework without hesitation or defensive practices. I beg to move.

[Lord Moynihan of Chelsea (Con)]

My Lords, I welcome back the Minister and the noble Lords, Lord Sharpe and Lord Hunt, for another day on this important Bill.

To some extent, we are thrown back to the previous day’s debate, when we talked so much about flexibility. These amendments are designed to try to give more flexibility to the poor business owner who sits up late at night after the working day is done, trying to figure out, “How am I going to win? How am I going to succeed? How am I going to keep going?” It is of particular poignancy when one looks at what is happening to the high street all over this country, with shop after shop, particularly small businesses, closing down.

In last week’s debate, there was an interesting comment about the minimum wage. I am afraid that my memory is not good enough, but a noble Lord said, “Well, they all said that the minimum wage would be a disaster, but here it is: a triumphant success”. I think we are united, as a House, in looking for economic growth—that is the big objective. Economic growth comes only from jobs and businesses growing, so a triumphant success would be that there was more employment and that employment did not drop down.

Both sides of this House went for this higher and higher minimum wage, so I am not making a partisan attack here, but the impact is unknowable because we do not know whether employment would have been higher or lower if we had had no minimum wage or a lower one. We cannot actually tell; it is one of those mathematical enigmas. In America, the states that have no minimum wage, or a lower one, have higher employment, and people move from one state to another to find employment in the states with higher growth—but here we literally cannot tell whether employment went up or down.

What we can tell—this is a very interesting point—is that the introduction of the minimum wage and the higher minimum wage led precisely to what we are debating today: zero-hours contracts. A businessperson may be thinking, “Shall I hire somebody?”, and they have three choices. One is, “Yes, I can afford this on the minimum wage”—and great: a new job is created. The second is that they say, “No, I can’t afford that”. Particularly with a gormless youth—I remember back to my own gormless youth, when I was almost unhireable by anybody—they will say, “No, I’m not going to do it. My business will be less profitable if I hire this person and have to pay the minimum wage”. The third is: “Well, can I hire them but in some other, more flexible way?”—and here comes this whole zero-hours thing. Everybody denigrates it, but we find that a lot of people who are hired on these contracts say it is what they wanted—but, God bless, we can have different ideological views on that. The point was that zero-hours contracts created flexibility, and that must by definition have led to higher employment and economic growth, the thing that we are all trying to accomplish.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was not intending to speak in this group and I am torn between both sides. I have some cynicism about the Opposition’s attempt at recognising non-trade unions and staff associations. I entirely understand the point that the noble Baroness, Lady O’Grady, has just made about employer-led staff clubs, which I have been, over the years, invited to join. While they have been very pleasurably good social forums, they are very different from trade unions.

However, I am afraid that there is a danger that we can romanticise what contemporary trade unionism is, based on the very fine history of 150 years of struggle. I do not actually think that trade unions at the moment should take for granted that workers will be loyal to them, because there have been far too many instances of trade unions not being fit for purpose. Indeed, there is often a huge gap between trade union leaders and trade union members. Many members are leaving unions or not joining them, and that is not always because of evil bosses in a kind of caricatured way.

At Second Reading, I made the point—and I am only repeating it here now—that, for example, the Darlington Nursing Union has been set up because the nursing unions have abandoned female members of staff who were nurses and who have been attacked by their HR departments and their employers for their political views in relation to gender and sex. As it happens, we now can appreciate that they were simply reiterating their right to privacy as biological women—something that the Supreme Court has now at least acknowledged is the law—but they have been harassed and bullied and so on, and the trade unions abandoned them.

I made a point about the Free Speech Union. I appreciate that it is not a trade union, and nobody, least of all me, is suggesting that the noble Lord, Lord Young, who is in his place, will become the noble Baroness, Lady O’Grady, of future negotiations. Despite the fact that that is an unlikely role for the noble Lord, Lord Young, the Free Speech Union has been forced into existence and has represented workers who have been done over by their employers when their trade unions have abandoned them. That is the point I am making.

The UCU is one example of a university union. I was a NATFHE rep for many years in the further education sector and I have watched in horror the way that that union has degenerated and sold out its members. So, for the record, I would prefer that we did not caricature each other in a way that does not represent the contemporary time. The trade unions today are not the trade unions of old. They could do with upping their game. Similarly, I do not think the trade unions are the evil enemy of employers, as is sometimes implied by people sitting closer to me on this side of the House.

[Lord Moynihan of Chelsea (Con)]

My Lords, I would like to add to what the noble Baroness, Lady Fox, said. We are having a good debate and I very much hope to keep it friendly. What the noble Lord, Lord Davies, and the noble Baroness, Lady O’Grady, said, was really rather flying pigs.

I, obviously not like most of the Committee, am old enough to remember the 1970s. I remember the destruction of the British automobile industry by the trade unions. London docks was destroyed by the trade unions. This led, through the 1970s, to the “winter of discontent”, which led to the necessary emergence of a Government under Margret Thatcher who sought to control the trade unions and do something about the destruction they were wreaking on the British economy. We all remember that; I am not fantasising about this. This 150-year story of the great things wrought by the trade unions is really difficult to let go by without saying something.

Right now, only 22% of workers in the UK belong to unions. Why is that? It is because of the destructive nature of those unions. Let us remember that, of that 22%, most are in the public sector. Public sector workers have a monopoly in the areas they occupy and in return are being rewarded by a Labour Government. We saw the sorts of rises, which were completely unjustifiable compared with what people in the private sector were earning, that the Labour Government awarded many public sector trade union workers when they came to power.

We saw how there is—I am not saying anything we do not all know—a wonderful relationship between the unions and the Labour Party. I saw a number—I do not stand here asserting it is true, but I saw it and it seems reasonable—that, since 2011 the trade unions have given £31 million to the Labour Party. Whether that is true or not, we know the figure is of that order. This is wonderful, but it increases the size of government, because of the deals the Labour Government have to make with these trade unions. It increases the cost and complexity of government, and it increases in general the cost of regulation to all employers.

All those things destroy the economic growth which, as the noble Lord, Lord Goddard, said earlier, we are all trying to achieve. I ask the Government please not to give us guff—I hope it is not unparliamentary to say that—about the positive effects of the trade unions. They are destructive.

[Lord Deben (Con)]

My Lords, I wonder whether we are having a discussion for 2025, or one that is deeply mired in history. I find myself in some difficulty listening to either side of this discussion. I say very strongly that trade unions have been, and are, very important, but I also hope that people who watched the annual conference of the National Education Union, all of whose officers have the support of the Socialist Workers Party, may ask why a union like that should have spent more time talking about Gaza than it did about school attendance. We cannot be entirely happy about the circumstances of all trade unions, and this Government are going to have to face those trade unions pressed from that way.

On the other hand, I deeply disagree with the attitude we have just heard about trade unions being destructive. Trade unions have been very constructive in many circumstances, and this is something we should recognise. My problem with the Bill, and my reason for coming to this debate to support my noble friend’s amendments, is related to what the noble Lord, Lord Davies of Brixton—who opened the Back-Bench remarks—said about trade unions: that they were not forced on anyone. They were created by people coming together to work for better attitudes, better conditions and better pay for working in those circumstances.

If people want to do that but want to be independent and not subject to their employers—as the noble Baroness, Lady O’Grady, fears—and if they do not want to be called a trade union, then we ought, in 2025, to give them the powers to make the same kinds of arrangements with employers as a trade union. If we do not do that, this is going to be the one area where this Government will say there shall be no competition or opportunity for people to make a different decision about their future.

We ought to give people that opportunity, and we ought to protect those people by making sure that it is given to them only if they are independent, pay for it themselves and have chosen that particular mechanism. I say to the Labour party Front Bench that none of us who work—as I still do, happily—right across the board with all kinds of companies can think of today’s industry and commerce as if it were like yesterday’s. There are new circumstances and new ways of doing things, and the Bill ought to recognise that. If all it does is solidify the past, we will have missed a great opportunity.