Employment Rights Bill

Lord Garnier Excerpts

Report stage
Wednesday 23rd July 2025 Lords Chamber

It is quite simply a disgrace that, instead of meeting some of these urgent financial needs of the legal system, money is to be spent on this ill-conceived, unprecedented and inefficient scheme for the Secretary of State to become a professional litigant on behalf of workers. I very much hope that the noble Lord, Lord Carter, will divide the House. He will certainly have my support.

[Lord Garnier (Con)]

My Lords, there are several styles of advocacy and we have had a good experience of some of them this evening, but in every way those who have spoken before me have been devastating in their unpicking of the ludicrous nature of the clause that the noble Lord, Lord Carter of Haslemere, is seeking to have removed from the Bill. I cannot improve on the gentle forensic approach that he took to the ludicrous nature of this clause. The legal ramifications, its workability and its policy defects are plain on the face of the Bill and I am amazed that any sentient Minister—or any sentient member of any legislature—could come forward with a proposal in the form of Clause 113. It is manifestly absurd. As the noble Lord, Lord Pannick, thoroughly pointed out, the implications of this clause are so obvious for us all to see that it is even surprising that the Government have the nerve to come forward with it and maintain their support for it.

This clause brought me in mind of something—and now I am going to get into my anecdotage. I, too, remember the Bar, but I confess that I have never once, at least not knowingly, been in an employment tribunal. But what I do remember is that about 40 years ago I was asked by some visiting Chinese judges to this country to explain the English law of defamation, which I did. After I had given what I thought was a pretty uncontroversial explanation of the law of defamation in this country, one of the Chinese judges said to me, “Hang on a minute, do you mean to say that an individual has a reputation that can be injured and, if injured, he can receive compensation for that injury in the courts of England and Wales?” I said, “Yes, they can. It’s funny, isn’t it?” He said, “But surely no individual citizen, if there is such a thing, has a private reputation—it is subsumed in the interests of the state, subsumed in the Communist Party of China”. The possibility of bringing a libel action as an individual was just foreign to him and quite puzzling.

If your entire personality is a creature of the state, I suppose that you would support Clause 113, because it is the state that takes over your personal autonomy and makes all the decisions about whether to sue or not to sue, whether to bring proceedings or not to bring proceedings, and whether to give evidence, as my noble friend Lord Murray so graphically explained a moment ago. Why should we, on behalf of the people of this country, tolerate what is little more than an Orwellian intervention in the private lives of the citizen? I cannot believe that the Government have any decent excuse or explanation for this—to use the technical term that my good friend the noble Lord, Lord Pannick, introduced into the debate a moment ago—“bonkers” piece of legislation. The Bill has plenty wrong with it as it is. If we are not to laugh at the Government, not to ridicule the Government and not to lose such little respect as many of us still have for the Government, I suggest that they remove this ludicrous clause.

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[Lord Marks of Henley-on-Thames (LD)]

There might be others. Then again, there might not. I quite accept that a Secretary of State would have to weigh up very carefully the competing considerations in favour of the public interest in having a point determined against the private interest of the worker concerned in not being involved in any way in litigation. Of course, the worker concerned does not have to be involved; proceedings are brought—this is a point I will come on to in a moment—as if he were involved, but the point may need determination in any case.

I think I have covered the point about the public interest, which I suspect is the argument that we will hear from the Government. Nevertheless, and on a point that the noble Lord, Lord Carter, made, in a case where Section 113 is invoked, I suggest that it would be utterly wrong for such a worker to be exposed to risk by the Secretary of State proceeding with such a case. I have dealt with the point about anonymity and circumscribing publicity, and I suggest that this must be addressed before this clause becomes law.

[Lord Garnier (Con)]

I am sorry for interrupting the noble Lord’s developing argument. He talks about anonymity; that is presumably so that the individual can have his case subsumed by the Government without his name being known. Is the noble Lord then going on to suggest that he will have to give evidence behind a screen, or using the other witness protection measures that we use in, for example, cases of rape, so that the complainant is not seen? Has he thought through to the end the practical consequences of this anonymity argument?

[Lord Marks of Henley-on-Thames (LD)]

Such protections as would be afforded would depend on the individual case and on such measures as the tribunal thought appropriate; they might indeed include anonymity or witness protection in an extreme case. I do not believe that that is likely, but I do believe that the right of the worker to some sort of privacy, in a case in which he positively did not want to be identified, would have to be protected.

Going on to my point about the risk in costs, I suggest that it would be simply unconscionable if the decision of the Secretary of the State to take proceedings could expose the worker to a risk in costs. There is no protection in the Bill for a worker on this point; indeed, in subsections (3) and (6) in particular, there is the clear suggestion that there would be a risk in costs for an unwilling worker claimant. Specifically, subsection (3) would provide that, if the Secretary of State brings such proceedings, they are

“to be proceeded with as if they had been brought by the worker”,

and that needs to be addressed. As the noble Lord, Lord Carter, pointed out, subsection (6) will provide 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 or purported discharge of the Secretary of State’s functions by virtue of this section”.


That, in my submission, renders the worker vulnerable to an order in costs and there ought to be an indemnity against any such order. I accept that there is not one; the question is therefore whether that can be addressed by the Government. It is not a question that leads to a stand part decision that the clause should be left out of the Bill altogether.

We would of course hope that no employment tribunal would make a costs order against a worker in such circumstances, but this House should not proceed on the basis of hope alone; the possibility remains, particularly if the tribunal were to take a dim view of the worker’s conduct. That, we should remember, may be exactly the conduct that sensibly dissuaded the worker from launching proceedings in the first place.

I invite the Government to bring forward an amendment, hopefully by agreement at Third Reading, whereby protection from this risk in costs could be given to a worker, either by way of indemnity by the Secretary of State or by a prohibition on a costs order. I also urge the Government to look at the other protections that the worker might have. Alternatively, the Government might consider giving solid assurances to meet this point. I give way to the noble Lord.

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[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

The words that the noble Lord just said come from the Opposition Benches and do not reflect what we are intending by the Bill, or indeed these particular clauses.

I will first speak to government Amendments 156 to 158 in my name, which are minor but important technical amendments to Schedule 10. Amendment 156 makes a small correction to paragraph 36(6), replacing the phrase “that subsection” with a reference instead to “subsection (3)” of Section 15 of the Gangmasters (Licensing) Act 2004. Amendment 157 ensures that Schedule 1 to the Immigration Act 2016 is repealed following the abolition of the Director of Labour Market Enforcement, and Amendment 158 removes specific reference to paragraphs 9 and 11 of Schedule 3 to the Immigration Act 2016. The purpose of these changes is to ensure that the provision functions as intended and provides legal clarity. They do not alter the policy or substance of the Bill in any way but ensure that the schedule functions as intended.

On Amendment 154 tabled by the noble Lord, Lord Carter, the Government were elected on a manifesto pledge to deliver the plan to make work pay in full. This sets out that the new employment rights enforcement agency would have the power to bring civil proceedings to uphold compliance with employment law. This clause delivers that pledge.

The noble Lord, Lord Carter, referred to the precedent, and yes, the precedent that we are citing is the example of the Equality Act 2006, Sections 28 to 30 of which are the precedent for Clauses 113 to 115. Section 28 of the Equality Act enables the Equality and Human Rights Commission to assist an individual who is or may become party to legal proceedings. Section 30 of the Equality Act, which is the precedent for Clause 113, affords the EHRC the capacity to institute and intervene in legal proceedings, including for breach of EHRC rights, even though it is not a victim.

The noble Lord, Lord Carter, said there was not an example of where the EHRC had taken over a case. However, in the case of MS (Pakistan) v Secretary of State for the Home Department, the EHRC in fact substituted itself once the original appellant withdrew from the proceedings. This was a substitution, with the consent of the Supreme Court, by the EHRC in the same way that the fair work agency could substitute itself in place of a worker without their consent.

The EHRC uses Section 30 strategically to clarify the law and act where there are egregious breaches. We envisage that the fair work agency, rather than the Secretary of State as such, will use this power in Clause 113 similarly. Noble Lords have misrepresented what is intended by this clause. It is intended to address some of the worst employment practices that current regulations do not adequately cover. I agree with the noble Lord, Lord Marks, that there are of course cases where individuals or groups of workers are unable or reluctant to take a case, but that does not necessarily mean that the case should not be taken, because there are wider issues at stake. For example, the fair work agency could use the power to clarify entitlement to holiday pay where enforcement officers do not have enough information to confidently issue a notice of underpayment, or the fair work agency could exercise the power to clarify the employment status of a group of individuals. Currently, employers may misclassify workers as self-employed to get out of giving them the rights that they are entitled to. Without this power, the fair work agency has no ability to challenge such claims.

To give a specific example on the possible application of Clause 113, the Director of Labour Market Enforcement has flagged endemic bad practice in the hand car wash sector. A particular challenge in this sector is misclassification of workers, which stymies HMRC’s efforts to enforce the minimum wage. Currently, if a hand car wash claims that its workers are self-employed, HMRC has no means to test this in the courts. It must go through the full notice of underpayment process and wait for the employer to appeal against the notice of underpayment. This can lead to nugatory work if the appeal is upheld and otherwise delay workers getting their due rights. This is a gap in the existing system of state enforcement, which this power will go some way to remedy.

Just as the current system works, the fair work agency will take a whole-employer approach to enforcement. This has the advantages of a resolution for more workers than individual cases against the employer. But in such circumstances, where the fair work agency may be taking action for hundreds or thousands of workers, it is simply not practical to get consent from every individual concerned. As a strategic approach, this power will be used when acting in workers’ best interests to clarify the law. As with the EHRC’s powers under the Equality Act, the fair work agency will not need the consent of each individual concerned to take on cases. The fair work agency will therefore be able to decide when to seek clear, neutral and authoritative guidance from a tribunal on the application of employment legislation.

As we know, in the worst cases of serious exploitation, workers may be reluctant to give their consent due to fear of retribution from the employer. The noble Lord, Lord Goddard, was quite right to say that there are circumstances in which we have the responsibility to look after the individuals who are suffering at the hands of rogue employers and feel powerless in those circumstances. We know that many migrant workers with legal rights to work in the UK, particularly low- paid workers, are reluctant or unable to enforce their employment rights. These workers have understandable concerns, including fear of retaliation, lack of awareness or language barriers. For legal migrants, employment is their prerogative and, for those workers, there are wider implications in challenging an employer that could bring about repercussions for their employment or potentially impact on their visa. We believe that requiring consent from workers would make it easier for employers to attribute blame to individual employees, and they would suffer as a result.

[Lord Garnier (Con)]

My Lords—

[Baroness Jones of Whitchurch (Lab)]

I am going to carry on. When exercising this power—

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[Lord Garnier (Con)]

My Lords—

[Noble Lords]

Order.

[Baroness Jones of Whitchurch (Lab)]

My Lords, we have had advice already about what the Companion says on this. The noble Lord has spoken once.

[Lord Garnier (Con)]

That is what the Government say, not the Companion.

[Baroness Jones of Whitchurch (Lab)]

I think that the Companion overrides anything that I have to say.

When exercising this power, the fair work agency will of course act in accordance with the rights under the European Convention on Human Rights, including Article 8, and comply with data protection legislation. In doing so, it must act in accordance with the law and for a legitimate purpose.

The noble Lord, Lord Marks, raised the issue of anonymity. In appropriate cases, the fair work agency will consider applying under Rule 49 of the Employment Tribunal Procedure Rules 2024. Rule 49 allows the tribunal to restrict public disclosure of aspects of the proceedings. That means that workers’ names can be kept from the public domain—

[Lord Garnier (Con)]

My Lords—

[Noble Lords]

Order.

[Lord Garnier (Con)]

My Lords, I can see that the Minister is in a conflict between the advice that she is getting from her Whip and the need to answer questions from the House. Would she not agree that rather than the Government bringing proceedings through their agency in the name of the worker, the simple thing would be to pass a law allowing the Government to bring proceedings in their own name, bearing the risks and burdens of bringing litigation in their own name and bearing the costs if it fails?