Contribution
My Lords, in moving my Amendment 272BA, I will speak also to Amendments 272D to 272L and to oppose Clause 114 standing part of the Bill. With Amendments 272J to 272L, I will consider parts of Clause 115.
I have looked at the Labour Party’s manifesto plan, Make Work Pay. In a previous debate, we talked about enforcement, but no reference was made to this being done without the consent of the worker involved. The manifesto is silent on providing funds, so I thought it was worth debating why we are having this, who it will go to and what amount of money we are considering. Consequently, I have proposed a number of amendments. They were actually tabled before we had the debate on Monday in which covered elements of this. At that time, I noted the response of the Minister, who said that the word “person” used in this legislation—I am not a litigator but a legislator, and I continue to learn about some of these matters—could also include an employer, which I also somewhat address in aspects of some of these amendments.
One of my questions is: who will this benefit? My reason for putting forward Amendment 272BA is to try to make it explicit that we are not talking about money going off to a trade union, which might provide legal advice or legal assistance. When we discussed it the other day, we never got to the bottom of what “any other … assistance” may be. I appreciate that that might be a catch-all, but it would be helpful to get some examples of what Clause 114(2)(c) would cover.
When we get into this—I appreciate that the noble Lord, Lord Fox, has tabled an amendment about legal aid in a later group—it is important to ask: where is this really going? The EHRC has some similar powers to finance proceedings. When I asked the EHRC to set out the amount of money, it said that, as of last month, there were four live cases and that, since April 2020—five years ago—it had spent £1.2 million on this sort of provision. Recognising that the EHRC can already provide assistance on aspects of discrimination and the like, I wanted to try to explore, in this clause stand part debate, what the Government were signing themselves up to and, as I pointed out, to whom it would go.
Amendment 272D is intended to be a probing amendment to examine how much an individual could claim—whether for advice or for representation—and to consider how often people might be turning to the fund that the Government seek to put forward. Should we cap that? How many times can somebody go to get basically free advice? I do not know who would even provide it. We could well consider that it should be provided by only the government legal service, under the auspices of the Attorney-General. I cannot imagine that that is what the Government are thinking, but it would be useful to understand who they think will deliver this and how.
Part of the role of the single enforcement body was supposed to be a place for anyone to go to get advice for free. So I am trying to understand what further is in this. By the way, the Government’s intention— I think it is in their manifesto and other papers they have developed—is that employers can go to the new fair work agency to get advice on how this all works and what they should do as employers. So I am interested to understand where else this could be.
Turning to Amendment 272E, I am conscious that—as was rightly pointed out to me a few weeks ago by, I think, the noble Baroness, Lady O’Grady of Upper Holloway—Clause 114(2) says “may provide”, rather than “must”, so it will not become a right to get this money. But it would be fair for statutory guidance to be developed and published—ideally, as quickly as possible—on the result of this subsection coming into effect. Candidly, if people anticipate that extra funding will be available, it is important that they understand what expectation they should genuinely have.
In Amendment 272F, I am trying to address the situation that just came up in the debate on Clause 113. I find it hard to understand how we can be in a situation where, having taken over a case, it would go against the sense of natural justice that the worker themselves would then not be able to make representations to the tribunal, or indeed to other courts, to help consider why it has been taken over, when they did not want such action to do. I felt that it was important that, frankly, the Government should pay for that. For me, that felt like a sense of natural justice in that regard.
Amendment 272G concerns something I have raised before, but I wanted to specifically address it. I find it astonishing that the Government are opening up this fund for people to get advice—which, I assume, they cannot get from the fair work agency—but they will not be allowed to use it towards mediation. The answer given in previous debates was, “Well, people can just go to ACAS”. That is right, they can—and ACAS is free. However, while it is free for early conciliation, it is not free for more advanced mediation.