Employment Rights Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Wednesday 23rd July 2025 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I hope that the devastating interventions that we have heard so far will make the Government rethink. They deserve the ridicule being poured on them. I just want to make two additional points.

Clause 113 completely undermines the Government’s idea that the Bill is all about enhancing workers’ rights by empowering them to have more control over their employment protections. When we scratch further, the real power is being accumulated by agencies and quangos; in this instance, it is the Secretary of State disguised as the fair work agency. It is an indication that workers are almost a stage army to the accumulation of power by the centre. I worry that the Government are using workers’ rights to colonise more aspects of people’s lives on the basis that the Government think that they can act on behalf of workers because they know better—that is outrageous. I want them to consider what this would mean for an individual woman at work. A female worker says no, but the Secretary of State comes up and says, “I don’t care; we don’t need your consent. You don’t want to go to a tribunal? We are not interested in what you as a woman think as a worker. We are going to act on your behalf because we know better than you”. It is an absolutely flagrant and outrageous attack on worker autonomy.

My other question relates to what the noble Lord, Lord Katz, said in Committee in response to a discussion about the overburdening of employment tribunals. He said that we will find that the fair work agency will pick up a lot of the work of the employment tribunals. The noble Lord implied that a lot of the work of the employment rights tribunals, which were clogged up, could be picked up by the agency and that fast-track routes would be used. I therefore cannot understand why, in this instance, the Government are piling more work on to the employment tribunals. They seem to be wallowing in this lawfare. If they do not want the Bill to be exposed as not in the interests of workers but more in the interests of quangos, this clause should be dropped before we come back.

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

My Lords, I have not spoken on the Bill before and I apologise for entering these debates at this late stage. Indeed, I start by saying that I have considerable sympathy with the amendment moved by the noble Lord, Lord Carter of Haslemere, to leave out Clause 113. As he and others have said, it would enable the Secretary of State to take proceedings without the consent of the worker concerned, even against that worker’s will, which I agree is a very odd position.

I have considerable hesitation in doubting the analysis of all those who have spoken before me, eminent lawyers and colleagues among them, but I am bound to say that I take issue with the categorisation of this clause as “bonkers”. The reason I take that view is because, on reflection, I can see circumstances where the Secretary of State might legitimately wish to take proceedings before an employment tribunal where the worker concerned did not want to do so. That might be because the worker was concerned about the risk of losing, or did not have the time, resources or simply the inclination to become involved in contested proceedings.

[Lord Murray of Blidworth (Con)]

Perhaps the noble Lord could explain how it is envisaged that the Secretary of State will know that such a worker has a claim and should win.

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

I do not understand why the Secretary of State should not have that information as a matter of public record, or why he should not have become aware of it. Plainly, if the Secretary of State and his department do not have the faintest idea about the case, they are unlikely to invoke Clause 113 and bring proceedings on that basis. However, given the knowledge, it is for the Secretary of State to make a decision. In very many cases, I suppose that the Secretary of State will make a decision against intervening. But another possibility is that a worker might not be proud of their own conduct and might not want it publicly ventilated. These were all reasons that the noble Lord, Lord Pannick, effectively covered in considering why litigation might not be an attractive option for the worker concerned. The Secretary of State has to make, or would have to make, a decision about whether the private right of the worker not to sue is outweighed by the public interest in having a point determined.

[Lord Pannick (CB)]

Is it really appropriate for a Secretary of State to insist that the circumstances relating to an individual are publicly exposed—subject to cross-examination, subject to a public judgment—when the individual whose private rights are the subject of those proceedings wishes, no doubt for good reason, that they not be so exposed? Is it really appropriate?

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

I venture to suggest that in some circumstances it might be, but I add an important point, which is that my party has been involved in discussions with the Government about the protection of such a worker.

[Noble Lords]

Ah!

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

There is nothing secret about any such discussions. They relate to anonymity for such a worker and the restrictions on publicity that might protect such a worker from exactly the dangers and difficulties that the noble Lord, Lord Pannick, suggests and envisages. But the Secretary of State might, in a given case, take the view that an issue of law or principle was involved, with wider ramifications going beyond that particular case, and that the public interest required the issue to be determined. With respect to all the arguments that have been put by those who have spoken before me, I am not sure that any of those arguments met that possibility, certainly not in the way in which the noble Lord, Lord Murray, expressed it. Even the moderate tones of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Garnier, a colleague of mine, failed to deal comprehensively with that suggestion.

[Lord Pannick (CB)]

This is a very important matter. Surely the answer to his concern that the individual case may raise wider, broader issues is that it is absolutely inevitable in those circumstances that there will be other affected workers, one of whom no doubt will bring proceedings. We do not need the Secretary of State to bring proceedings in those circumstances. It is inconceivable.

[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.

[Lord Pannick (CB)]

Can I ask for the noble Lord’s assistance? He mentioned that, according to subsection (3),

“the proceedings are to be proceeded with as if they had been brought by the worker”.

Does he think that that means that if the worker decides to withdraw the proceedings, they are to be treated as withdrawn?

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

The noble Lord has plainly given the Government solid pause for thought on that point, because of course any proceedings before a tribunal of first instance can be withdrawn by the litigants. The litigants in this case would be the Secretary of State and the other party—presumably the employer. If subsection (3) is given the interpretation that the noble Lord, Lord Pannick, suggests might be given to it, the worker would be treated as the litigant. That is a difficult point for the courts to resolve. It is a point that at Third Reading the Government really must resolve, and that I entirely accept.

[Lord Goddard of Stockport (LD)]

Follow that. I failed my Bar exam at 11 and I never retook it, so I am at a disadvantage to the House in trying to sum up the debate on this amendment. My noble friend Lord Marks made the case that this is not just an open-and-shut, bonkers piece of legislation; there is more to it.

Last week, I went for my health check, and I had my blood pressure and cholesterol checked. I recommend that the noble Lord, Lord Murray, keeps away from his doctor until probably next Wednesday, because his blood pressure will probably come down by then. That is meant in good spirit, because the noble Lord believed what he said and expanded on it.

For me, there is a different question here. This got a real going over in Committee too, where it all got a bit contentious with the lawyers. The noble Lord, Lord Pannick, always rises carefully and slowly and makes a forensic examination. Unfortunately, my noble friend Lord Marks tries to challenge that, and the noble Lord, Lord Pannick, has to have three or four more goes. However, we are not in the High Court, we are in the House of Lords, so we listen to the exchange.

The point that I am trying to make is that we have spoken to the Government. When somebody said, “We’ve spoken to the Government”, others went, “Ooh, no!” That is the point. There is the Bill and we should talk to the Government. We should raise our concerns with them and see what they have to say. But you do not do that because, “This is a good open goal. This is one we can really embarrass the Government with”. Well, you cannot—because the Secretary of State will have the power to look after somebody who needs looking after.

All those hundreds of years ago, when we had slaves, it was not the slaves who were petitioning to be freed; it was liberal-minded people who thought it was wrong that they should have no say and no place. That is what happens. Workers get jobs. They may be illegal or migrants, but whatever they are, they are human beings and they deserve support. Yes, the state is ultimately the last resort. When everything else fails—health, sickness, drug addiction or whatever it is—the state is the ultimate provider of care from the cradle. In my opinion, there is nothing wrong with the state saying—

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

The point that we were making is that this is about test cases, which, as we know, is a frequent way of clarifying legislation, rather than primary legislation.

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 to protect their anonymity and to protect them from any reporting in the media, where it is necessary to do so in the interest of justice or to protect their convention rights. When deciding whether to give an order, the tribunal must give weight to the principles of open justice and the convention’s right to freedom of expression. The tribunal can do this on its own initiative, or the fair work agency can apply for such an order. The fair work agency must also comply with convention rights and data protection legislation, ensuring appropriate protections for individuals and fairness of proceedings.

I understand noble Lords’ interest in how this power will operate and confirm to the House that the Government will publish guidance on how the fair work agency will exercise this power in practice. We will develop detailed guidance, following deep and extensive engagement with social partners and the fair work agency’s advisory board. It will then be for the fair work agency, acting within this guidance, to determine which cases it brings to the tribunal. That will ensure that this power supports those who play by the rules. This approach enables the fair work agency to protect workers’ rights and to tackle injustice and abuse against legitimate workers.

This clause presents an opportunity to make a genuine difference in tackling the scourge of labour exploitation in the UK. Unchecked labour exploitation is unfair on the individuals who are being exploited. It is unfair on the majority of employers, who want to do right by their staff, and it is unfair on workers who are denied jobs by employers exploiting loopholes. The new power will complement the existing powers of the fair work agency, such as the powers to issue notices of underpayment, while enabling the fair work agency to act where these powers cannot be accessed. The fair work agency will exist to end labour exploitation and create a fair and level playing field for employers and for workers. A fair work agency with any less power to act for these most vulnerable would be an unacceptable failure for workers’ rights.

To the noble Lord, Lord Carter, I remain open to discussing how best to deliver this power and to ensure that it is appropriately safeguarded. However, I reiterate that this power is neither novel nor unprecedented and that it delivers a manifesto commitment. I therefore ask the noble Lord to withdraw Amendment 154.

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

My Lords, I am sorry to get up again, but would the Minister like to say something about adverse costs orders against workers?

[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.