Employment Rights Bill

Lord Clement-Jones Excerpts

Committee stage
Monday 16th June 2025 Lords Chamber

Finally, as I said two years ago, there was not then, and there is not now, any clear channel between freelancers and government. The Creative Industries Council, which is concerned primarily with the health of the sector rather than the health of the industries’ workforce per se, contains no direct representation for individual artists or creators. The creator remuneration working group is concerned with the single important issue of streaming. A freelance commissioner would absolutely help to bridge a gap that so clearly exists.

[Lord Clement-Jones (LD)]

My Lords, I declare an interest as chair of Authors’ Licensing and Collecting Society. I rise to speak to Amendments 301 and 302, which aim to provide vital protections for freelance workers in the UK. It was a pleasure to hear the introductions from the noble Lord, Lord Freyberg, and the noble Earl, Lord Clancarty, who set the scene extremely effectively.

The common theme is that the Bill take steps to modernise employment law but risks leaving a significant segment of our workforce behind. As we have heard from both out initial speakers, the UK’s freelance workforce is a powerful engine of our economy and culture, particularly in the creative industries. As both illustrated, the number of self- employed is not only rising rapidly, reaching 1 million now in the creative industries; but the actual proportion of those engaged in the creative industries, representing 32% of jobs within the creative sector, is an extraordinary figure.

Despite their immense contribution, however, freelancers currently lack a single clear voice representing their interests to government. This absence has led to a decline in pay and conditions, with nearly two thirds of freelancers reporting low or unfair pay in their careers, and an overwhelming majority impacted by late payments. As the noble Earl, Lord Clancarty, mentioned, the Covid-19 pandemic starkly exposed their vulnerabilities, highlighting a lack of security, unequal access to opportunities and inadequate basic safety nets. These three amendments specifically address those critical issues.

A fundamental problem is the lack of a consistent legal definition for freelancers. Freelancing is not the same as self-employment, and freelancers often operate through a mixture of engagements, blurring the lines of employment status. This ambiguity creates uncertainty and can inadvertently exclude them from rights.

Amendment 301 proposes to insert a new section into the Employment Rights Act 1996, providing a clear definition: a freelancer is an

“individual who is engaged to work by a company directly on flexible contracts, through their own company or through other companies on a short-term basis, and who is typically responsible for their own tax and national insurance contributions and is not entitled to the same employment rights as employees”.

I take the point of the noble Earl, Lord Clancarty, about sole traders, but this clarity is essential for effective policy-making and for freelancers themselves to understand their status and rights.

The amendment also empowers the Secretary of State to issue further guidance and to create an online tool to assist in determining freelancer status, adapting it as time goes on. Once we have a clear definition, we need a dedicated champion, and the noble Earl’s Amendment 287 proposes the establishment of an office of the freelance commissioner, to be led by an independent freelance commissioner appointed by the Secretary of State. This role, as he mentioned, has been overwhelmingly called for by voices across the sector, including my own Authors’ Licensing and Collecting Society, Creative UK, the Federation of Small Businesses, Prospect and a host of other organisations to which he also referred.

The freelance commissioner would serve as a critical conduit between industry and government, providing expert knowledge and genuine oversight. The responsibilities are set out in the amendment, but, in effect, he or she would advocate for the needs of freelancers across all government departments; bridge the existing gap in representation, especially where councils such as the Creative Industries Council lack advocacy for individual artists or creatives; drive change in government and business, aiming to eradicate the red tape affecting freelancers; gather and analyse crucial data on the freelance workforce, with a focus on the creative industries; and improve government understanding of the employment issues facing freelancers.

Finally, to ensure that the commissioner’s role is embedded in government policy considerations, Amendment 302 introduces a duty on relevant government departments to consider the specific needs of the freelancer workforce when formulating new policies or regulations. Currently, freelancers are often left behind in government policy due to gaps in data and their irregular employment patterns. They are more susceptible to economic fluctuations and lack the fundamental protections that employees enjoy, such as sick pay, flexible working hours and parental rights.

This amendment would mandate that departments such as the Department for Business and Trade, the Department for Work and Pensions and the Department for Culture, Media and Sport have due regard to freelancer circumstances. Crucially, it would also require those departments to consult with the freelance commissioner during the development of any such policies. This duty is vital to ensure that upcoming employment reforms are fit not only for more traditional forms of employment but for the self-employed and freelance workforce, thereby safeguarding the long-term success of industries such as the creative sector.

These three amendments, which seek a clear definition of a freelancer, the establishment of a dedicated freelance commissioner and a statutory duty on government to consider freelancers in policy-making, are interconnected and essential. They represent a fundamental recognition of the modern workforce and a commitment to creating a fairer, more secure environment for those who drive innovation, creativity and economic growth.

[Viscount Colville of Culross (CB)]

My Lords, I apologise for being unable to here at the beginning of this debate despite having added my name to Amendment 287. I was stuck on the motorway for the last three hours. I absolutely support the amendment; it is an incredibly good measure. I hope that the Minister will listen kindly to my noble friend’s amendment and speech.

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[Lord Katz (Lab)]

My Lords, I am grateful to the noble Lords, Lord Freyberg and Lord Clement-Jones, and the noble Viscount, Lord Colville of Culross, for tabling their amendments, all concerning the creative and cultural sectors. I am pleased to be having this debate on how this important sector is being supported by the Government and how workers within the sector will benefit from the Bill. I pay tribute particularly to the noble Lord, Lord Freyberg, for his excellent and long-standing work in this area. I think it is fair to say that he is a creative inspiration to us all in his endeavours to support this very important sector.

The Government share this passion and certainly understand the importance of this sector. I draw attention to the significant work that we are already doing to support it. These sectors—creative and cultural—are a vital source of growth. Creative industries are estimated to have contributed £124 billion in 2023, accounting for 5.2% of UK gross value added, and the cultural sector is estimated to have contributed some further £35 billion in the same year, accounting for 1.5% of UK GVA.

The creative industries and cultural sectors are a distinct part of the wider UK workforce, as the noble Lord, Lord Freyberg, explained. They have a significantly higher proportion of self-employed individuals, reflecting the sector’s entrepreneurial and freelance nature. In the latest published data, as of 2023 there were 2.4 million filled jobs in the creative industries and 666,000 filled jobs in the cultural sector. Of these jobs, nearly half, 49.6% in the cultural sector, were self-employed, and 27.9% in the creative industries, compared with 14.5% of UK jobs overall. This flexibility not only drives innovation but supports the more project-driven nature of the creative industries. However, we also know that freelancers’ creative careers, despite offering a more flexible and autonomous way of working, are often precarious and come with lower job security; many speakers in this debate spoke to that fact. I highlight the contribution made by the noble Baroness, Lady Bennett of Manor Castle, setting out the precarious nature of working in this sector.

I turn specifically to Amendment 259 in the name of the noble Lord, Lord Freyberg. Through the Bill we are introducing the school support staff negotiating body and introducing a framework for negotiating bodies in the social care sector to help tackle recruitment and retention issues there. The Government recognise that other sectors, such as the arts and culture sector, may well benefit from more formal frameworks for collective bargaining, and we intend to consider other sectors in due course. In the meantime, we want to encourage collective bargaining at the local level in these sectors. It is the Government’s intention that we should learn the lessons from this process in the social care sector first, before considering where it may be appropriate to introduce similar frameworks in other sectors.

I am struck at this point by the contribution from the noble Lord, Lord Londesborough. As he said, while the focus of these amendments is to discuss the nature of freelancing in the creative and cultural sectors, freelancers are self-employed but of course there are self-employed workers in many other sectors beyond. It is not a simple thing to analyse, that is for sure.

Regarding Amendments 284 and 288, also in the name of the noble Lord, Lord Freyberg, regarding impact assessments, as your Lordships’ Committee will be aware, we have already published a comprehensive set of impact assessments. This analysis is based on the best available evidence on the sectors likely to be affected by these measures, including the arts, entertainment and recreation industries. We recognise the importance of ensuring that the impacts of these policies on workers, businesses and the economy are considered, and that analysis is published outlining this. That is in section 17 of the summary impact assessment, which assesses the impact on all different sectors, including the creative industries. We already intend to publish further analysis, in the form of both an enactment impact assessment when the Bill secures Royal Assent and further assessments when we consult on proposed regulations to meet our better regulation requirements. We are also committed to consulting with businesses and workers ahead of setting out secondary legislation, including the sector mentioned in the amendment.

On Amendments 285 and 331 in the name of the noble Lord, Lord Freyberg, we recognise the importance of preserving and supporting the financial sustainability of cultural organisations, including small and independent cultural organisations. However, we want to avoid uncertainty or even unintended negative consequences for cultural workers. We welcome views on the ways that cultural organisations experiencing financial hardship can be supported, including the types of advice that they may require on employment practices. More generally, the Government will continue to work with the creative and cultural sector to understand how this legislation can work with it in its context, while strengthening legal protections for employers. But again, this must not lead to uncertainty or negative consequences for the workforce, which we believe staged implementation, for example, would create. I think the noble Lord, Lord Freyberg, will know that both DBT and DCMS have been engaging with sector organisations, including UK Theatre, to have productive conversations to support this sector in understanding and adapting to the new legislation, while considering what additional support we could give to this sector in particular.

Finally, I address Amendments 286 and 287 tabled by the noble Lord, Lord Freyberg, and Amendments 301 and 302 in the name of the noble Lord, Lord Clement-Jones, regarding freelancers. Freelancers may benefit from the reforms to trade union legislation and improvements in the enforcement system, including the regulation of umbrella companies. We have also committed to additional measures to strengthen protections for the self-employed. The noble Earl, Lord Clancarty, rightly raised issues facing those who are self-employed, such as action to tackle late payments. We have already announced a package of measures to tackle late payments to small businesses and the self-employed, including a new fair payment code, upcoming legislation requiring large companies to include payment performance in their annual reports and an upcoming consultation on potential measures to go further. Other measures to strengthen protections for the self-employed include the right to a written contract, an extension of health and safety, and blacklisting protections.

On health and safety, my noble friend Lady Caine of Kentish Town raised the honourable campaigning work of the Mark Milsome Foundation, in a speech that showed both passion and insight in this area. It is essential that employers in the creative industries do not use—or rather, abuse—the multifarious employment statuses of those working in the sector to evade their responsibilities, particularly when it comes to health and safety. As the noble Baroness, Lady Bennett, said, it can indeed be a matter of life and death.

I am pleased that my noble friend Lady Caine acknowledges that this Bill may not be the most appropriate vehicle for the changes that she wishes to secure and that secondary legislation or amendments to the Health and Safety at Work etc. Act would perhaps be more appropriate. However, I am happy to take this back to colleagues in DBT and DCMS.

As has been noted, the creative industries have a high proportion of freelance workers, who are crucial to the sector’s success. To respond to the noble Lord, Lord Clement-Jones, and others, the sector is working to address the recommendations of the Good Work Review, a deep dive into the working practices in the creative industries, which highlighted freelancers’ job quality as a particular concern. My colleagues in the Department for Digital, Culture, Media & Sport are working with industry to understand government’s role in any solutions that are developed. I and my DCMS colleagues will be happy to continue discussing how best to support freelancers, and the creative industries more widely. It is with this in mind, and the Government’s unwavering support for the creative industries, performing arts and entertainment sectors, that I ask the noble Lord, Lord Freyberg, to withdraw Amendment 259.

[Lord Clement-Jones (LD)]

My Lords, the Minister has noticed the strength of feeling across the House in terms of support for some of the freelance amendments. I very much appreciate what the noble Lord, Lord Sharpe of Epsom, said earlier. However, across the Benches there is very strong support for further protection for freelancers. Will one of the options in the Good Work Review, which the Minister referred to, be the appointment of a freelance commissioner—with all the other aspects that I have mentioned in terms of definition and duties?

[Lord Katz (Lab)]

I was certainly happy to reflect that there was cross-party agreement on this. I am unable to recall the exact terms of the Good Work Review here, so I undertake to write to the noble Lord with some more detail if that is acceptable.

[Lord Clement-Jones (LD)]

Perhaps the Minister could add another bell or whistle to what he has just said. Will he undertake to meet those with a strong interest in the protection of freelancers on a cross-party basis, to have discussions, before Report?

[Lord Katz (Lab)]

I am always happy to meet with noble Lords on these important matters.