Employment Rights Bill

Lord Carter of Haslemere Excerpts

Committee stage
Monday 16th June 2025 Lords Chamber

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

[Lord Carter of Haslemere (CB)]

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

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

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

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

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

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

[Lord Carter of Haslemere (CB)]

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

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


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

[Baroness Jones of Whitchurch (Lab)]

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

Employment Rights Bill

Lord Carter of Haslemere Excerpts

Committee stage
Wednesday 18th June 2025 Lords Chamber

[Lord Katz (Lab)]

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

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

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

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

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

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

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

[Lord Carter of Haslemere (CB)]

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

[Lord Katz (Lab)]

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

--- Later in debate ---

[Baroness Lawlor (Con)]

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

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

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

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

[Lord Carter of Haslemere (CB)]

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

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

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

[Lord Jackson of Peterborough (Con)]

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

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

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

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

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

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

Employment Rights Bill

Lord Carter of Haslemere Excerpts

Committee stage
Tuesday 24th June 2025 Lords Chamber

[Lord Palmer of Childs Hill (LD)]

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

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

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

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

[Lord Carter of Haslemere (CB)]

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

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


from that date.

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

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

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

issues that

“raise real questions about how we are governed”.

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

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


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

“inappropriate use of the … affirmative process”.

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

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

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

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

This can mean only that

“substantive policy decisions have not yet been taken”

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

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

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

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

or

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

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

“any person’s offices, liberties, goods”

or “chattels”.

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

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

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

[Lord Hunt of Wirral (Con)]

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

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

Employment Rights Bill

Lord Carter of Haslemere Excerpts

Report stage
Wednesday 23rd July 2025 Lords Chamber

Moved by

[Lord Carter of Haslemere]

154: Leave out Clause 113

[Lord Carter of Haslemere (CB)]

Amendment 154 in my name seeks to remove Clause 113 from the Bill. Clause 113 was tabled at the 11th hour at Commons Report and gives the Secretary of State the power to bring legal proceedings in the employment tribunal, and to do so not because the Secretary of State is directly affected by what the employer is doing, but rather in place of a worker as if the proceedings had been brought by the worker. This is whether or not the worker consents and even if they strongly object. This is legally bizarre, unworkable and totally unnecessary. It could well destroy the relationship between employer and worker—indeed, any future employment relationship since, remarkably, the clause also applies to individuals who are seeking work.

I will focus on three things: the legal implications, the clause’s workability and its policy flaws. I will start with the legal ramifications. It is unprecedented, as far as I can see, for a Secretary of State to be able to institute employment tribunal proceedings or any legal proceedings in place of someone who does not want those proceedings to take place. The Secretary of State says that the provision is modelled on the Equality and Human Rights Commission but, apart from the very different public law context of judicial review, the commission has never instituted a private law action in place of another individual as Clause 113 now envisages for the Secretary of State.

The case of Wilson, to which the Secretary of State referred in her letter of 7 July to noble Lords, was not such a case, since the commission did not act in place of another person. It is inconceivable that the Equality and Human Rights Commission would initiate proceedings in place of a worker in the employment tribunal, let alone where that person did not consent. For the Secretary of State to be able to do so goes against the long-standing principle that, in order to instigate litigation, a claimant should have a sufficient interest—that is to say, be directly affected by whatever issue is being litigated. Exceptions to this general principle have occasionally been made for pressure groups acting in the public interest but, as the High Court reaffirmed in 2022, not where there is a more appropriate potential applicant who has chosen not to bring proceedings, which is the type of case we envisage.

Moving on to the workability of Clause 113, the debate in Committee showed that one reason why there is no precedent for what is proposed is precisely because any litigation lawyer will tell you it cannot work. If the worker does not consent then how will the Secretary of State acquire the evidence to bring a claim? In Committee, the Minister rejected an eminently sensible amendment tabled by the noble Lords, Lord Sharpe and Lord Hunt, which would have required the consent of the worker before proceedings could be brought. This would have made a major difference, but the Government rejected it, which shows that they envisage the power being used even without the consent of the worker. Without that consent, one can see the possibility of a worker, disgruntled with the claim, trying to invoke Rule 25 of the Employment Tribunal Rules to withdraw the claim and the Secretary of State resisting that attempt—hardly a great use of taxpayers’ money.

Even if the proceedings continue, should the worker, who did not consent to the claim, really be liable for the costs if the claim fails, which could amount to thousands of pounds? Extraordinary as it is, this is the effect of Clause 113(6). It provides that:

“The Secretary of State is not liable to any worker for anything done (or omitted to be done) in, or in connection with, the discharge … of the Secretary of State’s functions”


under the clause. This immunity from liability for the Secretary of State applies irrespective of how incompetently the claim may have been handled.

Furthermore, as the noble Lord, Lord Murray, so graphically articulated in Committee, since it is a power for the Secretary of State to bring proceedings, the unions could judicially review the Secretary of State for not exercising the power. This means there could be, in the noble Lord’s words, litigation to require the Secretary of State to litigate

“on behalf of somebody who does not want to litigate”.—[Official Report, 18/6/25; col. 2048.]

As he suggested, we are in Alice in Wonderland here, but it is where Clause 113 takes us—and all at taxpayers’ expense of course.

Finally, on the policy flaws, Clause 113 is completely unnecessary. The Committee stage of this Bill in the Lords brought out the extraordinarily wide scope of the powers the Secretary of State will acquire via the so-called fair work agency. This is, of course, just the Secretary of State under a different name. These include the powers to summon people to give information, to enter any premises to inspect and seize documents and examine computers, and even police powers to search, arrest and interview suspects in relation to labour market offences. Most people would assume that these sweeping enforcement powers will be more than enough to crack down on labour market abuse without a power to bring legal proceedings in the name of a worker who may not want those proceedings to be brought.

This is especially so given that Clause 114 provides that the Secretary of State can give legal assistance to a worker who wants to bring legal proceedings against their employer. This is surely the way this should be handled, rather than the Secretary of State unilaterally launching such proceedings in the belief that this is in the best interests of the worker. Perhaps it is in the best interests of the Secretary of State.

What happened to personal autonomy, especially the basic right to decide whether or not to bring legal proceedings in one’s own name? It could come as a bit of a shock for a worker, who might know nothing about the proceedings, to receive in the morning post a summons to court, especially when they realise they are treated as having brought the proceedings themselves and against their own employer to boot. Talk about choking on cornflakes.

It takes some mental agility to imagine how all this will also apply to a person who is not yet a worker but is seeking to be employed. It is hardly likely to endear them to their prospective employer, is it? If and when the worker does not get the job, they will have no remedy against the Secretary of State for ruining their chances.

This is a bad clause which fails on grounds of legal incoherence, practical unworkability and policy flaws. It needs to come out. I beg to move.

[Baroness Neville-Rolfe (Con)]

My Lords, I will speak to the amendment in the name of the noble Lord, Lord Carter of Haslemere. He has spoken with great eloquence and killer arguments. I agree with him, so none of us needs to speak for very long.

As he has said, this clause was added late in the day in the other place and there is one aspect which particularly appals me. The clause provides that the Secretary of State, or rather, in practice, their Civil Service agents in the new enforcement body, or any other enforcement officer as in Clause 113(7)(b), will be able to take a case to an employment tribunal where an employee is unwilling to pursue their own complaint—that is, without consent. Consent is such an important principle. Subsection (6) makes it clear that the Secretary of State or enforcement officer

“is not liable to any worker for anything done (or omitted to be done)”,

such as an error or reputational or personal damage. The clause also risks putting further pressure on the hard-pressed tribunal system.

The Government’s recent implementation plan seeks expert help in getting the detail of the provisions right. I have worked for small companies, I have worked for a company with 500,000 people, I have worked with USDAW, I have been a member of two Civil Service unions and I have been head of HR in a government department. I believe that this lack of consent will cause untold trouble. The clause must be dropped, and I hope colleagues across the House will vote for the amendment of the noble Lord, Lord Carter.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

My Lords, when we debated this in Committee, we made it clear that there would not be any cost to workers. The noble Lord, Lord Carter, suggested that the worker would be liable to costs where they had not consented to the Secretary of State taking a case on their behalf. Let me be clear that the worker will not be liable for the costs in these circumstances.

[Lord Carter of Haslemere (CB)]

My Lords, I am grateful for all the powerful interventions we have heard this evening from very eminent speakers indeed, including the noble and learned Lord, Lord Garnier, the noble Lords, Lord Murray and Lord Pannick, and the noble Baronesses, Lady Fox, Lady Neville-Rolfe and Lady Falkner. Some really powerful points have been made around the importance of personal autonomy, the unworkability of the clause in relation to witness summonses and adverse witness results, and a duty to consult, which was a powerful point made by the noble Lord, Lord Pannick.

The noble Lord, Lord Marks, referred to the fact that the worker might not want to bring proceedings and therefore would be happy for the Secretary of State to do so in his or her place. That misses the point, which is that the worker might object to legal proceedings being brought in their name and might not give their consent. That is, for me, fundamental in this whole clause.

I believe that this is legally unprecedented—we can have further discussions about that. I think it is unworkable. I think it is completely unnecessary, given that the Secretary of State can support a worker to defend proceedings themselves. I read the manifesto and all I saw was “make work pay”. Those three words cover a multitude of sins. There was no mention of a power to bring proceedings on behalf of a worker—I read it very carefully. I feel that there has been enough power and passion in this debate to warrant seeking the opinion of the House, which I now do.