Worker Protection (Amendment of Equality Act 2010) Bill

Lord Hannan of Kingsclere Excerpts

2nd reading
Friday 24th March 2023 Lords Chamber

[Lord Hannan of Kingsclere (Con)]

My Lords, what was the freedom that we really felt the loss of during the pandemic and the associated lockdowns? I suggest that it was above all the freedom of association and assembly. We did not lose the right to speak out, to vote or to worship as we pleased, but we lost the right to congregate in whatever combinations pleased us. It seems to me that freedom of assembly rests fundamentally on freedom of contract. People should be allowed to come to freestanding agreements, one with another, without the state interpolating itself and declaring those agreements to be void.

This is a principle that, far from having been strengthened by our recent experience, appears to be abandoned the world over, in this country not least. We are subject, as so often, to trends from across the Atlantic. This is happening on both sides of the aisle, as they say on the other side.

There has always been a chunk of, let us say, the identitarian left that has subordinated the concept of free contract to the imperatives of identity politics, so all questions of freedom of association tend to be seen through the prism of whether some imaginary club would be allowed to exclude somebody on the grounds of ethnicity. I suppose it is conceivable that such a thing could happen today, but it seems an odd way to determine a general principle. Hard cases make bad law, and hard imaginary cases make particularly bad law.

However, I am more interested in the way the concept of free association and free contract is under attack from the right. I was very struck, for example, by the Governor of Florida, who is being talked up as a potential presidential candidate. He bases a lot of his campaign on having kept Florida open and having avoided the worst of the lockdowns, and yet, such is the nature of the culture war, he was passing laws in Florida outlawing vaccine mandates even on private property—and that seems to me a fundamentally illiberal thing to be doing.

For what it is worth, I thought vaccine mandates were difficult to justify. We now know that vaccines were very good at protecting you but actually very bad at preventing transmission and therefore the case for state intervention was weak. But be that as it may, surely an individual shopkeeper, cafe owner or whatever is allowed to require whatever terms he or she wants from his or her customers. If they say “You can’t come in here without wearing a mask” or indeed, “We won’t serve you without a tie” or “You can’t stay in this hotel with children or pets” or whatever, surely that should be fundamentally a question of freedom and property. Yet, like so many of these trends, it is crossing the Atlantic, and we now in this Bill are starting from the assumption that it is up to the Government to determine things.

I am going to leave the free-speech stuff as I see my noble friends Lord Strathcarron, Lord Leicester and Lord Moylan are speaking after me. I will leave it all to them. I have listened to my right honourable friend the Secretary of State in another place and she says that all these things have been anticipated, and I am sure she would agree with what the noble Baroness, Lady Burt of Solihull, said about the amendments to prevent conversations becoming a source of harassment. But I think there is a wider issue here. Should we not be starting from the proposition that, without a very good reason, it ought to be up to the employer and the employee to seek terms? I find it extraordinary, for example, that we are seriously discussing in this country at the moment whether there should be a statutory right to demand working from home or flexible work. You can do that now. What is to stop anyone saying to their employer, “These are the conditions I would like” and then negotiating them? The idea that we have to go to the Government and get a sort of licence to talk about these things strikes me as fundamentally incompatible with being an open society.

So I ask the Minister: are we certain that we have exhausted every other avenue before we reach for further legislation? It seems to me a fundamental principle of a free society that if I want to work for, let us say, my noble friend Lord Roberts of Belgravia, and he offers me a job, and I am happy with the terms of the contract and so is he, the Government should not come between us and declare our arrangement to be illegal. If, for example, I say, “D’you know, I don’t care about paid holiday, I’d rather have a lump sum”, that should be between us. Is that not fundamentally a question of what we mean by freedom and property?

So please will the Minister reassure us that we have exhausted our arsenal? We have perfectly good, old common-law provisions defending the individual against harassment. We have perfectly good laws against incitement. They do not cease to apply in the workplace. Are we certain that we need this additional legislation and that it is not the worst kind of declamatory legislation—virtue signalling by law—because those statutes invariably end up being the ones with the most unintended consequences?