Enterprise and Regulatory Reform Bill

Lord Low of Dalston Excerpts

Wednesday 14th November 2012 Lords Chamber

[Lord Low of Dalston]

My Lords, this is not a Bill to set the pulse racing. I find it difficult to summon up much enthusiasm for it. Like most Bills of this sort, it consists of a random miscellany—I hesitate to say “hotchpotch”—of provisions. Like Winston Churchill’s pudding, it lacks a theme, but the Government have sought to give it one by describing its purpose in the 2012 Queen’s Speech as being to,

“create the right conditions for economic recovery by strengthening the business environment, reducing regulatory burdens and improving business and consumer confidence”.

In a recent series of exchanges on the economy at Question Time, I was heartened when the noble Lord, Lord Forsyth, warned against a purely one-club approach. He stressed the need for supply-side measures, which I took to mean monetary policy. When I shared this with an economist friend, however, he replied, “I’m afraid not. He means cutting red tape and labour market flexibility—by which I understand slashing employment and equalities rights and cutting wages”. This Bill would seem to be the proof that he was smack on the button.

I do not intend to speak at any great length and keep people from their autumn break any longer than necessary, but I simply want to put down a few markers for Committee. First, I should like to ask the Minister for an assurance. Clause 66 would give the Government power to change copyright exemptions. As he will know, the Copyright (Visually Impaired Persons) Act 2002 exercises a power of containment in the copyright directive to introduce an exemption to copyright law which permits the making of accessible copies for the benefit of visually impaired people. The scope of these exemptions has been hotly contested within the World Intellectual Property Organization, where visually impaired people’s organisations have been arguing for a treaty which would permit the exchange of accessible copies for the benefit of print-disabled people across national boundaries. The UK Government have been very helpful. I just want to be sure that there is no intention to use the powers in Clause 66 to restrict the exemption in favour of copies for the benefit of visually impaired people in this country. I should be most grateful if the Minister could give me that assurance.

Next, I turn to the provisions relating to whistleblowing in Clause 15, which—unless I am much mistaken—have not featured very much in the debate so far. The effect of these would be to limit the definition of a protected disclosure in whistleblowing cases and create an additional hurdle for those speaking out against wrong-doing to clear. We will want to debate the legal niceties of the provisions in Committee, but in the light of recent scandals—the Jimmy Savile affair, the system of care homes in North Wales, the rigging of LIBOR, price-fixing in the energy industry, Hillsborough, the Mid-Staffordshire NHS Foundation Trust, phone-hacking at the News of the World; the list goes on—one has to ask whether it is really wise to be narrowing the protection given to whistleblowers.

I will touch only on the changes proposed in Part 5 to equality law, the remit of the EHRC and the procedures available in equality cases, as these have already been dealt with very fully by the noble Lord, Lord Lester, and my noble friend Lady Campbell. As someone who was heavily involved in debates on the Equality Bill, which led to an Act commanding widespread support in your Lordships’ House less than three years ago, it pains me to see such an assault on a piece of legislation—which embodies so many of the values of a liberal society with broad, cross-party support—so soon after its enactment.

As the noble Lord, Lord Lester, has reminded us, Clause 56 repeals Section 3 of the Equality Act 2006, which sets out the commission’s general duty. It repeals Section 10, which imposes a duty on the commission to promote good relations between members of different groups. It repeals Section 27, which enables the commission to arrange to provide conciliation in non-employment disputes and it amends Section 12 by reducing the frequency with which the commission has to publish a report from every three years to every five years. The EHRC’s general council has described this as the abolition of the EHRC by stealth. As the noble Lord, Lord Lester, has indicated, there are different views about just how much impact this will have; but removing the general duty of the commission to promote human rights and a society free from discrimination and prejudice, and abolishing the commission’s duty to promote good relations between different groups in society, feels to me like a pretty fundamental alteration to the remit of the EHRC.

Whatever differences there may be about the remit of the commission, the noble Lord, Lord Lester, was particularly critical of the proposals to abolish liability for third-party harassment and the questionnaire procedure, which enables potential claimants to ascertain the facts by means of a simple statutory procedure and helps them to decide whether to pursue the claim and to present it most effectively if they decide to go ahead. Given the noble Lord’s unrivalled expertise and authority in this area, the Government would do well to heed his warning.

A number of measures which put the clock back and chip away at workers’ rights, which have been hard-won over the last hundred years, will inevitably be the subject of close scrutiny. In many cases, the evidence base for change is open to question. The proposal to end strict liability in health and safety cases will fundamentally change the balance of power between employer and employee and will place the burden of proof on vulnerable employees. Indeed, one is tempted to feel some sympathy with Iain Wright, the shadow Minister in another place, when he said that if reasonable practicability became the sole test, it,

“risks taking us back to a 19th century mill owner’s view of health and safety”.—[Official Report, Commons, 16/10/12; col. 198.]

I have only touched on a few clauses of this wide-ranging measure; I hope they will be the subject of lively debate. There is a lot more in this Bill, however, which probably means that we will be slugging it out for some considerable time during the protracted Committee stage.