Worker Protection (Amendment of Equality Act 2010) Bill

Lord Strathcarron Excerpts

2nd reading
Friday 24th March 2023 Lords Chamber

[Lord Strathcarron (Con)]

My Lords, I declare two levels of interest, as a publisher and trustee of a national designated museum.

My objections to the Bill concern only the effect of Clause 1 on freedom of speech and the inadequacies of the government amendments. Everyone knows about the law of unintended consequences, but more relevant here would be another famous law: the law of dangerous assumptions. The assumptions here are threefold and concern the three categories involved: employers, employees and third parties. The Bill assumes that employers are overwhelmingly uncaring and unsympathetic towards their employees. It assumes that employees need to be treated like a protected species, unable to deal with the comings and goings of life in the workplace, and it assumes that third parties—the general public—are disproportionately likely to be foul-mouthed, insensitive and unwittingly offensive.

These unrealistic assumptions amount to a classic case of a solution looking for a problem. In this case, the solution is so draconian, and the size of the problem so minuscule, that the free-speech aspect of the Bill fails the first and most elementary parliamentary test: is it really necessary? The cumulative effect of these unrealistic assumptions can be seen in the Bill as it stands: to turn our fundamental right to freedom of speech into a management-style risk. These may or may not have been the intentions, but they will certainly be the consequences. I prefer the charitable interpretation that they are not intentional, and they just have not been thought through. Thankfully, that is the task of your Lordships’ House as we scrutinise what comes our way.

To take real-world examples of why this part of the Bill will not work in practice, I refer to my declared interests. I publish about 50 books a year and the marketing of each book requires that my team come into contact with the general public—third parties—either at a book launch or a literary festival, or sometimes both. To take the example of a book launch, this would be a private event with invitations sent out to between 50 and 100 guests and I would typically have three or four employees there. In order to be said to have taken “all reasonable steps”, I should on the invitation request that guests do not talk to staff about any subjects relating to sex, gender, race, religion, origins or any other sensitive matter—even if what one says is perfectly legal. I ask your Lordships, after seeing such an invitation—one that discourages any form of legal sociability—would you go to such a cold-water event? Would Waterstones, for example, risk an in-store book signing by JK Rowling or Helen Joyce on the offchance that one of the author’s fans might be wearing a T-shirt that says, “Woman Equals Adult Human Female”, knowing that an employee could sue for hurt feelings—real or vexatious? These are real issues facing real businesses. I suggest we are wading into very dangerous waters.

Less parochially than my own media world, do we really want to live in a society where intelligent people cannot talk to each other openly and legally, for fear of saying something unintentionally offensive in the ebb and flow of normal conversation? Do we really want these conversations to have any rules at all, beyond being legal, let alone to be governed by the ever-evolving vagaries of compliance culture, guarding against the tiny percent who might offend, probably accidentally.

The rules change all the time. If I said the words “woman” or “headquarters” at an Oxfam event and one of its employees took offence and complained, how much trouble would it be in? I note that it invented the offence only a few days ago. I hope we can agree that this is a nonsense that turns one of our most basic freedoms—freedom of speech—from a right to a risk.

The museum I mentioned is a charity, and we receive about 400,000 visitors a year—all totally random members of the public, with totally random views on any particular subject. We have a staff of about 100, many of whom will come into contact with the visitors—the so-called “third parties” mentioned in the Bill. It is quite possible that a few of our staff might be among those who are recreationally offended. If we are very unlucky, there might be one who is professionally offended, and there may be a few who are just easily offended. We just do not know, because we have never had to pry into the private prejudices of our staff before, as we will now have to do to protect ourselves, if these provisions stand.

On the other side of the gate, by no means can we expect all of the 400,000 visitors to be up to date with the current thing, to be courteous or even to be sober. Any encounters between our visitors and staff are totally outside our control. What one is saying to the other is almost certainly legal, and yet, under the terms of the Bill, we will be responsible for the outcomes. This is not only obviously unfair; it is unworkable and inevitably adds totally unnecessary costs for the charity.

On Report in the other place, the Government added last-minute free-speech protection amendments but, on close reading, all these conditions would have to apply in each occurrence, which, taken together, amounts to an extremely narrow and highly unlikely set of circumstances. As I said, this was all done in a last-minute rush and has not been properly thought through. This is easily remedied by adding the word “or” to them, which would at least mitigate some of these encroachments, although, at this stage, we are dealing with least-worst options, regrettably.