Worker Protection (Amendment of Equality Act 2010) Bill

Justin Madders Excerpts

Consideration of Lords amendments
Friday 20th October 2023 Commons Chamber

[Danny Kruger]

This is an important discussion. The hon. Lady is saying that the law is a teacher—indeed, it is—and influences the culture. It is also true that the law needs to reflect the culture, so we modernise our legislative framework in response to public opinion and how things are. We now legalise things that were illegal in the past in response to the way culture evolves.

However, the law is a teacher in a bad way too. It can introduce negative effects into our culture and chill free speech. It can inhibit the sorts of conversation that are necessary for the development and progress of our society, which is a topic that will come up later in other legislation. There were significant attempts during the pandemic to effectively criminalise or inhibit free speech around the pandemic response, on exactly the same grounds that we might use in this debate, namely that it is important for public protection and the protection of the vulnerable that misinformation, disinformation and, in this context, harassment should be criminalised. That was wrong, and I really worry about the possible chilling effect of this legislation.

A narrow gap is left in this law to criminalise free speech. Many Members will raise the outrageous and unacceptable behaviour that many employees have to put up with in the workplace—I recognise that too. We absolutely need to insist that that does not happen, but that is a job for the culture and for employers. In a sense, it is a job for all of us to instil the right sort of moral conduct in our communities, but frankly it is impossible to write legislation in black and white that achieves the outcomes the hon. Lady wishes without also inhibiting free speech.

I will end with an observation about another piece of legislation that I understand is being contemplated for the King’s Speech: a conversion therapy ban. I am afraid that that is another instance where, under the noble and honourable impulse to stop outrageous and unacceptable practices going on, we are proposing a piece of performative legislation in response to a vocal and activist lobby group that will put into law an imprecise and fuzzy set of moral aspirations. Once Opposition Members get hold of it in Committee, on Third Reading and in the House of Lords, the scope will be expanded and then courts will be required to criminalise conversations between adults and their therapists, parents and children, which is exactly what happens in other countries where this well-intentioned legislation has been passed into law. The law is a teacher, but it is not an opportunity for moral grandstanding and virtue signalling. We have an obligation to put into black and white words that the courts clearly understand and that do not end up curtailing free speech.

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a relief that we have this Bill back here today, given that it was reported earlier in the year that it was likely to be shelved, possibly because of the backlash we have just heard. The Bill has come back from the other place, albeit heavily amended, and it still represents a step in the right direction, albeit a very small one. The hon. Member for Bath (Wera Hobhouse) has done a sterling job in getting this Bill through the Parliamentary maze. She has been extremely gracious and generous in her comments today, given what is left in the Bill. I think it is a fine description to say that it has been narrowed in scope. Alternatively, it could be described, as the hon. Member for Devizes (Danny Kruger) has just done, as having had the guts ripped out of it. I know which description suits what has happened better.

--- Later in debate ---

[Justin Madders]

Yes, that is absolutely right. The Equality Act is framed in such a way that it protects everyone from harassment on the basis of their sex. I think that we now have a Bill that, after the amendments, to our regret will not protect workers from third-party harassment. The duty to take all reasonable steps has now been reduced or watered down to taking reasonable steps. We are disappointed that the Bill returns in a form that looks very different from what was originally passed by this House. It seems that the original good intentions of the Bill have—to use the terms of the hon. Member for Devizes—been “gutted”, and I am sorry to say that seems to have been with the support of the Government. Let us not forget that, when the Bill passed through the Commons originally, it did have support from the Government and it also had cross-party support, which is a rarity these days. Therefore, it is extremely disappointing that the democratically elected House seems to have given in to the unelected Lords, seemingly with the endorsement of the Government.

I have to say that the Government’s decision to support the Lords amendments that have taken the guts out of the Bill is frustrating, given that the Bill was enacting pledges that the Government had made.

[The Minister for Women (Maria Caulfield)]

Does the hon. Gentleman not recognise that this is the Bill of the hon. Member for Bath (Wera Hobhouse) and it is up to her to decide which amendments she does or does not accept? The Government have fully supported the hon. Lady. This is not a Government decision; it is part of the parliamentary process.

[Justin Madders]

I thank the Minister for her comments. The Government have a majority, so if they wanted to keep the Bill in its original form they could have ensured that it passed. Let me quote what she said at Committee stage. She said that

“the Government committed to a package of new measures aimed at reducing incidences of workplace harassment. That includes the two legislative measures being brought forward in the Bill: explicit protections for employees from workplace harassment by third parties, such as customers and clients; and a duty on employers to take all reasonable steps to prevent their employees from experiencing sexual harassment.”––[Official Report, Worker Protection (Amendment of Equality Act 2010) Public Bill Committee, 23 November 2022; c. 10.]

[Wera Hobhouse]

It is true that I have accepted the Lords amendment. Indeed, it was ultimately me who proposed that we should go all the way in order to preserve one thing that I find incredibly important, which is the preventive duty on employers. Does the hon. Member not agree that this is an important step and for that reason it is right that I accept the Lords amendment?

[Justin Madders]

I accept what the hon. Member says. We will certainly not oppose the Bill, but we do have to challenge the Minister on why she has changed her mind, given that, last year, she said that the measures in the Bill

“continue to form a key part of the Government’s national strategy for tackling violence against women and girls.”––[Official Report, Worker Protection (Amendment of Equality Act 2010) Public Bill Committee, 23 November 2022; c. 10.]

Why have the Government decided to change their mind on it? It seems to me that they have folded to pressure from their Back Benchers. Let us not forget that the Bill came about as a result of an extensive Government consultation, which received more than 4,000 responses.

[Philip Davies]

It is not necessarily for me to come to the Government’s defence here, but I think the hon. Gentleman is tying himself up in knots with his argument. The amendment was passed in the House of Lords. He will have noticed, I am sure, that the Government do not have a majority in that House, so they cannot be held responsible for an amendment passed in it. If the Government had done as he asked by overturning the Lords amendment, the Bill would have fallen altogether, so I am not entirely sure what he is arguing for.

[Justin Madders]

I am sure that the hon. Member is aware that we vote regularly on Lords amendments in this place, and that the Government use their majority to overturn them. The point that I am trying to make is this: where does this leave Government policy on the issue? The Fawcett Society found that 56% of women working in the hospitality sector, and 47% of those working in the services industry, have faced sexual harassment in the workplace. What will the Government do about that?

[Philip Davies]

If the hon. Gentleman wished to press the matter to a vote as a point of principle, he could vote down the Lords amendment. I am sure that my hon. Friend the Member for Devizes (Danny Kruger) would be delighted if he did, because in doing so he would guarantee that the whole Bill fell. Is that really what he wants?

[Justin Madders]

No, that is not what I want, which is why I have said that we will not oppose the amendment, but we are still entitled to express our disappointment about the capitulation. The Equality and Human Rights Commission’s 2018 report found

“a quarter of those reporting harassment saying the perpetrators were third parties”

and that third-party sexual harassment was dealt with poorly and considered

“a ‘normal’ part of the job”

by some employers. I do not think that is a situation that we should defend. Let us be clear: we would not have objected to the Bill if that had been in place—we certainly would have supported it—but we will support it as it stands because, as the hon. Member for Bath said, it is an important step in the right direction, albeit a much smaller step than originally intended.

The question remains: what is the Government’s plan to deal with third-party harassment? If they will not bring forward a legislative solution, what do they intend to do? If there were a repeat of the scenes at the Presidents Club tomorrow, what would be the consequences for the perpetrators? We need answers to those questions.

Despite the removal of the word “all” from the Bill, the duty to prevent sexual harassment is, as the hon. Member for Bath said, a new duty that represents a positive step forward. Establishing that preventive duty will shift the emphasis away from a reliance on individuals reporting harassment to employers and will encourage employers to take preventive steps. We are optimistic—we can be—and hope that the Bill will drive structural change by fundamentally shifting the responsibility from the individual to the institution, but what that will mean in reality and how much capacity the EHRC will have to investigate complaints remains to be seen. Its responsibility to create a statutory code of practice should mean that the focus will be more on working with employers. Does the Minister have any information on when she expects that statutory code of practice to be published, should the Bill be passed, and will it draw mainly from the non-statutory code of practice that has already been produced?

We believe that everyone should be able to go to work safe from sexual harassment, knowing that their employer has taken steps to create a safe working environment. That is why a Labour Government would go much further than the House has today.

[Maria Caulfield]

I congratulate the hon. Member for Bath (Wera Hobhouse) on progressing this Bill, which tackles the important issue of sexual harassment in the workplace. I thank her for the pragmatism she has shown to ensure that the Bill can progress with agreement from across the House. It is slightly disappointing to see the shadow Minister, the hon. Member for Ellesmere Port and Neston (Justin Madders), take such a partisan approach, because the Bill has had cross-party support throughout all its stages.

It is often very difficult for private Members’ Bills to pass through this place, but the Government have fully supported the Bill, because it is such an important issue to tackle. We have especially made time for an additional sitting Friday, to ensure that the Bill passes. We remain committed to tackling sexual harassment in the workplace by introducing the employer duty, to strengthen protections in the Equality Act 2010.

While I note the concerns from my hon. Friends the Members for Southend West (Anna Firth) and for Devizes (Danny Kruger), I am very pleased that consensus has been reached here and in the other place, and I hope Members will agree that this important Bill should now be on the statute book. I would like to particularly thank my hon. Friend the Member for Devizes, who has some genuine concerns about the Bill that he has expressed today and at previous stages.

This is a difficult subject. While there may be differences in views and opinions, I am really pleased that the hon. Member for Bath has been able to progress the Bill through both Houses, because we need to make our workplaces better and safer. That is particularly true for women. We have heard recently about some of the experiences of female surgeons in the healthcare system. With my other hat on as a Health Minister, I am particularly pleased that this legislation will hopefully prevent some of those experiences in future.

I turn to the Lords amendments. Lords amendment 1 leaves out clause 1, to remove the proposed liability of employers for third-party harassment in the workplace. I am glad to hear that the amendment to remove this third-party harassment liability eases concerns that it could have had a chilling effect on free speech in the workplace. I am pleased that that has been addressed. There are some—I know the hon. Member for Bath is one of them—who are disappointed that the amendment has removed the third-party harassment liability, for very valid reasons, but this is about getting a compromise, so that we get the majority of the measures in the Bill through this place.

The Government believe it is important that workers are protected against this form of harassment, and good employers are already taking steps to ensure that their employees are protected from harassment by third parties, regardless of the legal position. However, to progress the Bill, we have had to be pragmatic, acknowledge the complexities at play and find a suitable balance. While we want to strengthen protections, we also do not wish to infringe on individuals’ rights to freedom of speech. Everyone has the right to their views and to debate them just as we are doing today, respecting others’ views in the process. The aim of the Bill is to tackle workplace harassment and not limit people’s freedoms. It is important to remember that, despite the removal of the third-party harassment provision, the Bill will still introduce a new duty on employers to take reasonable steps to prevent sexual harassment.

The Government’s priority is to ensure that the legislation works effectively. We have consistently consulted with a wide range of stakeholders and have listened to all their views. As my hon. Friend the Member for Southend West has consulted with her chamber of commerce, the Government have done so more widely. When concerns regarding the potential chilling effect on free speech were first raised as the Bill progressed through the Commons, the Government took on board those issues. It was feared that employers may take unreasonable or drastic measures to avoid liability for harassment of their staff, particularly by third parties, to the extent that they would feel obliged to shut down conversations in the workplace. While employers will be expected to take action against workplace harassment, we recognise that those actions should fall short of prohibiting conversations. Free speech is crucial to our way of life, and it is important that we found a way forward.

With over 40 amendments tabled to the Bill in the other place following its Second Reading on 24 March, even after the Government tabled their amendment, it was clear that there remained concerns that the Bill would still have a chilling effect on free speech. The Government took those amendments very seriously, as they were fatal to the Bill. In our engagement with stakeholders and peers, we heard the strong concern, particularly about the third-party harassment issues, so we were eager to find a balance and a way forward for the Bill to reach the statute book with cross-party support. Therefore, the Government have been pragmatic and alive to the issues raised, and consensus was reached with peers by removing all but two of their amendments. The shadow Minister, the hon. Member for Ellesmere Port and Neston, did not comment on the other amendments—over 38 of them—that we managed to get removed.